Does Your Wounded Warrior Show Symptoms of Post-Traumatic Stress Disorder or PTSD, but has Nevertheless been Diagnosed with Another Mental Health Disorder?

 Diane England, Ph.D.

If so, the following article is for you. As you read it, though, don’t view it as legal advice since I am not a lawyer but instead, a clinical social worker. Furthermore, because the Department of Defense (DOD) and Department of Veterans Affairs (VA) are striving to improve how they manage the cases of war veterans with mental disorders, not all information here may be up-to-date. I’ve posted this article at www.PTSDRelationship.com nevertheless since it could still prove helpful to those struggling to help their wounded warriors get medical records changed, for example, so that the war veteran—and the family, too— can receive all the benefits that being correctly diagnosed with the mental disorder of PTSD would ensure. Also, if your partner is trying to obtain a higher disability rating from the VA because Post-Traumatic Stress Disorder was not considered, and you want that to happen now, information in this article could prove helpful there as well. However, use what you read here as a starting point when you deal with the DOD or VA regarding the PTSD issue—to help you formulate questions to ask those truly at the DOD, VA, or when consulting with an attorney with expertise in the military matter you are now being forced to pursue because your wounded warrior with PTSD was not diagnosed with this disorder but instead, for example, was diagnosed with an adjustment disorder or personality disorder—or something else that leaves him or her ineligible for military benefits despite experiencing trauma in a war zone that likely resulted in Post-Traumatic Stress Disorder.

Has your partner recently returned from the war in Iraq or Afghanistan a changed person? Are you suspecting that these changes might be due to the mental disorder called Post-Traumatic Stress Disorder or PTSD? But despite your concern that this might be the case, is your partner denying this is the case? Perhaps he or she has told you that the military screened for PTSD before his or her feet ever touched United States soil, and the military didn’t diagnose PTSD.

 O course, there could be various reasons for this. If your partner is active duty military and wants to remain so, your loved one might have intentionally answered the questions so it would appear he or she didn’t suffer from this disorder. Then again, the military might have made a misdiagnosis. We know that some individuals have been diagnosed as having am adjustment disorder or a personality disorder—other mental health issues—when the true culprit for the person’s new problems were likely PTSD. Then again, if your partner has been home for a few months now, things could have changed since the military screened him or her for Post-Traumatic Stress Disorder. PTSD symptoms often start making their appearance several months after the military member returns from a war zone. And in some cases, they can show up much later than that.

 Right now, let’s assume that your beloved warrior is being bothered by PTSD symptoms—whether your partner is still in the war zone or now here in the States. You might be encouraging him or her to seek help since you’ve heard about the importance of early intervention for PTSD symptoms. Your pleas might be falling on deaf ears, however.

 Are you wondering why your wounded warrior is so hesitant to seek help?

 Why Warriors Wounded by PTSD Avoid Treatment

If your partner is still active duty, he might feel he has little choice but to just suck it up and manage the best he can with those PTSD symptoms. After all, he realizes this is the attitude in the military. Then again, there might be more to it than that. He undoubtedly feels a fierce sense of loyalty towards those in his unit. He doesn’t want to let them down. He might suspect if he seeks help, and the command learns the extent of his PTSD symptoms, he might be sent for treatment. Things will become tougher for his buddies while he’s away since they’ll have to carry on their duties with one less person. Also, he won’t be there to fulfill what he sees as his primary duty—to cover his buddies’ backs and help them survive war.

 Your beloved warrior might not seek treatment because she’s afraid people will label her as being weak. However, while marching off to see a mental health professional has traditionally been seen as a sign of weakness versus strength in the military, it seems more and more high-ranking officers are seeing the benefits in doing this. For example, at the base in Italy where I worked from 1999 until 2004 as a contractor clinical social worker, I interviewed several Generals who commanded the base during this timeframe. They all wanted to relay the message that seeking help was a sign of strength versus weakness.

 One of these Generals even talked of earlier days when he commanded pilots. He said his best pilot once faced personal issues that got in the way of flying successful sorties. After this pilot’s performance began to diminish, however, he was willing to get some help. Afterwards, this pilot resumed being the best of the bunch. It did not hurt his career as many would have suspected it might. Of course, this General knew that without getting help early on for his problems, this pilot might easily have gotten stuck on a downward spiral of unfortunate behavior. Indeed, that would have likely ruined his career.

 While the military might now be encouraging help-seeking behavior, doing so might not fit with your partner’s self-imagine as a warrior. He might tell himself he should be able to endure anything. However, while he might see the development of PTSD as a sign of personal weakness, you might want to remind him he shouldn’t take it so personally. Remind him a number of factors play into the development of PTSD. You might want to point some of these out, or help him realize his brain has essentially rebelled. It’s now saying: Enough of all this horrific traumatic stuff. If you won’t get me out of its midst, I’m going to shut down so you can’t function in the war zone any longer. That way, the military will ship you out of here. But if they don’t because you try to hide your PTSD symptoms, instead of helping protect your buddies, you’ll be putting them at risk.

Did you ever see the movie, Patton? He was an American General during World Wart II who helped create a favorable outcome for the Allies. But he was also an individual who had little tolerance for warriors who were likely suffering from PTSD at the time. Of course, back then, we didn’t know what Post-Traumatic Stress Disorder was. That meant we didn’t recognize the role the brain plays in mental disorders. So, apparently General Patton and others perceived PTSD sufferers as exhibiting personal weakness or a character flaw. He had unkind things to say to them as a result.

 Such thinking as General Patton exhibited has apparently lived on in the military. Perhaps, then, it isn’t surprising your wounded warrior might perceive PTSD similarly. She needs to realize, however, she is not to blame for her PTSD. Her brain reacted to traumatic circumstances in a way outside her mental control. But actually, her brain reacted in a normal manner for the abnormal circumstances under which it was forced to operate.

 If you want to help your partner move beyond his thinking that he is weak and somehow to blame, remind him how the metal body of an airplane can’t withstand flight forever. The metal ultimately displays fatigue. Similarly, the brain bombarded by trauma time and again comes to demonstrate fatigue—as PTSD.

 In truth, we all need to do a better job of accepting mental illness or mental disorders. We all need to stop blaming the victims. Furthermore, victims must stop blaming themselves. Still, we must continue to expect them to seek help to correct or manage the problem, just as they would seek help with physical health issues.

An interesting thing to consider is this: A person can smoke, eat a high fat diet with little else redeeming about it, and fail to exercise—all increasing risk factors for heart disease. Yet, if that person develops heart disease, most people won’t condemn the individual for behaviors that led to this outcome.  They also won’t condemn the person for seeking medical treatment when heart disease develops. They would likely think the individual foolish if he or she did otherwise. Therefore, why should anyone condemn the warrior wounded by PTSD? Remember, he or she has likely been called to action time and again under circumstances unfit for any brain.

Most of all, though, how do we ensure the wounded warrior doesn’t condemn himself or herself?

 Right now, let’s talk more about the PTSD-suffering warrior’s concern that he or she might be seen as unfit for duty and, as a result, be forced to leave the military.

 Deemed Unfit for Duty?

 Your wounded warrior might silently fear he’ll be discharged from the military for medical reasons when he intended to make it his career. Nonetheless, there’s an even worse scenario that could play out—or perhaps already has in your family. I’m talking about your wounded warrior being separated not for PTSD, but for something listed in his medical records as an adjustment disorder, or, worse yet, as a personality disorder.

 Your partner could find himself with an “other than honorable discharge” for misconduct, for instance. This might happen because he engaged in behaviors problematic to the military—such as drinking excessively or using drugs—in an attempt to self-medicate PTSD symptoms. But if this or the previous scenario unfolds, he might find himself facing life without the benefits he will likely need—to get treatment for the PTSD, for instance.

 If this has already happened to your partner, later I will address how to get discharge records changed. For now, though, let’s talk about the process your partner is going to need to get through successfully to be eligible for medical, financial, and other benefits—including the educational benefits that come with the new GI Bill signed into law in June, 2008. And please, make a decision now that you’re going to support your loved one in doing what he or she needs to do. After all, if your partner can attain a medical discharge and the associated benefits, this could make a significant difference in your future quality of life, too.

Compiling and completing the necessary paperwork will be time consuming and frustrating. Too bad the VA doesn’t serve its benefits on a silver platter, but that instead, your wounded warrior must pursue them.

 Because of some of the PTSD symptoms your loved one suffers, it might be impossible for her to take this task on alone. So again, realize you might face the challenge of spearheading the process and righting wrongs encountered along the way—to harvest bountiful benefits that could help all of you.

 Keep Your Cool

 As you both begin this progress and wade through it, your anger might start to boil. You might question why the two of you have to go through all of this. You might also wonder why it takes so long. Also, if your partner was separated in a way that the military could deny benefits, you might want to scream out and question how the military could place a wounded warrior in this difficult and painful predicament after he or she did what that person believed to be right and honorable. You might also feel inclined to remind them that what happened was not your partner’s choice, but that the brain rebelled and essentially said, through its reaction with those PTSD symptoms, that enough is enough; it wants no more of the horrors of war.

If you’re ready to scream out it’s so unfair, remind yourself about irrational beliefs and changing your self-talk. (If you don’t know what I’m talking about, these are discussed in some detail in my self-help book, The Post-Traumatic Stress Disorder Relationship). Remind yourself that being a little annoyed might be good. It can be motivating, in fact. But expressing full-fledged anger fuels different results. People probably won’t want to help you if you’re raging at them, for instance. Sure, sometimes you get results initially because people want you out of the way—you’re so painful to be around. But then, if those people suspect they might have to have ongoing interactions with you, they might well find some way to sabotage you instead. Don’t set yourself up for that!

 Remind yourself that what you do now could impact your life together forever. At the same time, remind yourself your partner’s numbness and indifference to most everything might make him desirous of fading quietly into the dark night of transition into the civilian world. As a result, be prepared to step forth and make things happen.

 The Health Insurance Portability & Accountability Act (HIPAA) sought to improve efficiency in healthcare delivery by standardizing electronic data interchange. It also sought to protect confidentiality and security of health data by setting and enforcing standards. As a result of this act, your partner might have to sign paperwork granting various health professionals the right to speak with you. Ensure she does this so you can help make things happen that she needs done.

 It’s Not Legal Advice

 Before we delve anymore into what you need to help achieve, please remember I’m a clinical social worker. Thus, I’m not an expert on military law or veterans benefits. That also means I’m not an attorney who can offer legal advice. Furthermore, I’m writing this at a time Congress is making new rulings on how some of these things should be handled in the future. So please, use what I say here merely as a guide—to give you the big picture. This way, you’ll be in a better position to ask those who can offer legal advice what you should do. Of course, you might recite what I have set forth, and then you can ask the person you’ve consulted if you should proceed in this way or another instead.

 By the way, you’ll find helpful government and other organizations interspersed throughout the article as well as on the www.PTSDRelationship.com  website on the page called “PTSD Links.”

 Recommendation for Discharge

 PTSD can make a warrior unfit for duty. Your partner might realize this and seek help. Then again, the Command might demand your loved one be seen and evaluated. Either way, he will enter his branch of the service’s mental health system. And while he might be seen, treated, and then ultimately returned to duty, he could end up being released from military service against his will.

 If your loved one is separated because of PTSD, he’ll be entitled to full medical and other benefits. But, as I’ve already alluded to, he might face involuntary separation for other reasons placed in his discharge record that would effectively remove his right to these same benefits. Since neither of you wants this to happen, take this process seriously.

 The military will notify your partner there’s a recommendation for discharge via involuntary separation. She will likely be told how to acknowledge receipt of this notification, as well as how it is acceptable to include a personal statement in her response. She also might be informed she has the right to present her side of the issue at a Separation Board Hearing. If she had a good record prior to developing what you’re quite certain is PTSD—although the military might be claiming differently—she should probably take advantage of this opportunity to appear before the Board.

 By the way, have you noticed I’m assuming your partner truly has PTSD and the military is suggesting otherwise? I’m trying to alert you to a potential wrong that you might need to right. However, it’s illegal for the two of you to use anything you learn here to intentionally lie to others in the hopes that you might convince people your partner has PTSD when the two of you know otherwise. But you wouldn’t do that, would you? No, I didn’t think so. I needed to cover my own ass, however.

 That said, let’s move forth and discuss something pertinent to preparing for the Separation Board Hearing. Let’s talk about your wounded warrior getting legal advice or counsel before he proceeds too far in the separation process.

 Legal Counsel for the Involuntary Separation Process

 Your military partner needs to know he’s entitled to legal counsel as he goes through this process. In other words, he should be offered the services of a military attorney who can guide him. However, while it might even be stipulated he’s to be given an attorney who has expertise in handling a hearing before a Separation Board, he could nevertheless end up with an attorney who has never handled one of these cases. So, while it’s probably important that your loved one meet with this attorney and see what this individual has to say, your partner probably should also seek counsel from outside the military system.

 You might not feel you have the money to hire an attorney. The thing is, this might not be necessary. Your partner might want to contact Lawyers Serving Warriors at www.lawyersservingwarriors.com  and see if they can help. If they can’t, then she might want to hire an attorney—though then again, she might not. I will have more to say about attorneys after I tell you more about Lawyers Serving Warriors and a couple more important topics as well.

 Lawyers Serving Warriors Project

 Lawyers Serving Warriors is a project of the National Veterans Legal Services Program (NVLSP), an independent, nonprofit veterans service organization (VSO) dedicated to making certain our government provides active duty personnel and veterans the federal benefits they have earned though service to their country. Lawyers Serving Warriors can offer your warrior assistance with discharge issues as well as attainment of benefits.

 This project is operated in cooperation with the Pro Bono Institute, the American Legion, and the Military Order of the Purple Heart. You’ll find the National Veterans Legal Service’s website at: www.nvlsp.org. On their home page, you’ll see a link to Lawyers Serving Warriors.

 Your wounded warrior probably should contact this group or a private attorney as soon as he knows he’s facing involuntary separation. There’s no time to waste because they’d prefer to be proactive versus reactive—and your partner should, too.

 Before talking about the Administrative Separation Board hearing itself, let’s discuss something very important.

 Document, Document, Document

 Do you despise paperwork? Frankly, I have no love for it. I have to force myself to do it. But that’s the point I want to make. Sometimes you just have to do it—and you have to do it really well.  And while I rather hate to tell you this, because there are various processes involved to accomplish what your wounded warrior needs done, all of this might take years. I hope with the changes being pushed for by Congress currently, this won’t be the case. Still, you need to be prepared just in case it is.

 To get started, you will likely have to help your partner gather up and safely store all sorts of records. These will include his personnel file, medical records, copies of awards, copies of letters that support points he might need to make about himself, and other types of documents that might not be obvious now but will become so as his case is built.

 Your partner and you have likely have grown up in the computer age. You might not be used to handling paper files. But before you try and scan everything into your computer and store it there, please realize something. You might be dealing with attorneys who are older and like me, began their careers dealing with paper copies of everything. And frankly, some still prefer to work this way. Because of this, you might have to mail paper copies of things. You might be asked to fax things (your local library probably has a fax if you don’t) when you’d prefer to scan documents and email them. Therefore, before you make use of some of the latest technology, make certain the attorney is okay with any of it. Please realize that some won’t open attached documents, for instance.

Keep copies of all paperwork your partner is given as well as those things you gather up—even if the attorney should have a copy. Don’t be surprised if paperwork gets lost, and thus, you’re asked to send another copy.

 Also, your partner should plan to document practically every move she makes as well as practically every move any other party she deals with makes as well. Keep track of all phone conversations—names and job titles of anyone on the call, when it occurred, what was discussed, and what action steps each party was to take and by when. Again, when she’s assigned a military attorney, even if she’s going to hire her own attorney, see what this person has to say if your partner is still afforded this opportunity. Take notes in which you cite specifically as possible what the military attorney recommended, and then slip these into the case file along with all the other paperwork.

Inquire as to the military attorney’s credentials and experience handling the type of case your partner now faces. In the situation we are talking about right now, it will be an Administrative Separation Board Hearing. Why is this important? If your loved one ends up with bad results and needs to take further action on down the road, some of this information might come in handy. Often in these cases, the one who ultimately wins is the one who had the better documentation.

Okay, do you get the idea that keeping great records is important? If so, let’s move on to talk about the Administrative Separation Board Hearing itself.

Administrative Separation Board Hearing

 Just like companies can get rid of employees they no longer need, so it is with the military.  But while your wounded warrior’s commander might like to see him gone because the commander deems your partner unfit for duty, the Board is most concerned with whether separation or retention is in the best interest of the branch of the military for which your loved one serves. Thus, the several officers who comprise this Board will look at documents that relay information about your partner’s background, conduct, competency, character and attitudes. In other words, they want documents and information that help them properly determine whether your beloved warrior should be retained or separated, what the reason for the separation should be, and the proper characterization of his or her service that will be reflected in any separation documents.

 Of course, what your warrior doesn’t want, for example, is to have them dismiss him for having a personality disorder when he has been suffering from PTSD. But of course, they could do this—thus denying him of needed benefits. Indeed, he will ne denied them because someone made an incorrect diagnosis that’s sitting there in his medical records.

 You should realize something regarding personality disorders, especially if your partner is barely out of his or her teens. Indeed, it’s true that a very young military member might have developed a personality disorder after joining the military. Nevertheless, it states the following in a manual that is used by most mental health professionals to make any type of diagnosis of a mental disorder. Furthermore, I have read that the military is supposed to use this same manual. Anyway, it says:

 The clinician must be cautious in diagnosing Personality Disorders during an episode of Mood Disorder or an Anxiety Disorder because these conditions may have cross-sectional features that mimic personality traits and may make it more difficult to evaluate retrospectively the individual’s long-term patterns of functioning. When personality changes emerge and persist after an individual has been exposed to extreme stress, a diagnosis of Post-Traumatic Stress Disorder should be considered.

Diagnostic and Statistical Manual of Mental Disorders, DSM-IV, p 632

 What rights will your loved one have if she appears before the Administrative Separation Board? Please verify what I say here. Ensure it holds true for your wounded warrior’s branch of the service. That said, as you already know, he should have the right to be represented by counsel. In the case of the Coast Guard, for example, he’s to be assigned a military attorney especially qualified for this type of hearing. If an attorney with such expertise is not available, this is to be noted in the records of the proceedings along with an explanation as to why such qualified counsel was not available. You might want to see if your partner’s branch of the service has this same requirement. Then, make certain your partner knows the qualification level of the military attorney he has been assigned. Record this information in the file you’re keeping—as I suggested earlier.

 Your partner should have the right be present during the proceedings, but not while the Board is in closed sessions. She should be able to examine and object to the consideration of physical and documentary evidence and written statements; object to the testimony of witnesses; cross-examine witnesses; introduce material and witnesses provided at her own expense; and testify as a witness.

Any military member who decides to testify as a witness probably will be interrogated by the Board members and Recorder on all matters bearing on his or her suitability for retention as well as on any other issues before the Board. If the military member declines to answer any question, it’s possible that not only will parts of his testimony be discarded, but all of it could be tossed out.

Your partner should know he’ll likely have the right to make an argument at the conclusion of the presentation of evidence. In addition, he should have the right to challenge members of the Board for cause, and they should consider his challenge.

 Before this hearing, your wounded warrior should be advised as to all rights she has. In addition to those I have already stated, she will likely be told she has the right against self-incrimination. Essentially, then, she has the right to refuse to make a statement regarding a charged or suspected offense. On the other hand, she also has the right to waive these rights.

Your partner needs to realize while he might not mean to waive his rights, he could indeed forfeit a right by not doing something requested in the timeframe required either prior to or during the hearing process. For example, your wounded warrior  notified of the recommendation for discharge, and he may be told he must indicate receipt of the document of notification by completion of an endorsement. He may also be told that he can include a personal statement in this response. If your loved one refuses to sign such an acknowledgement, though, the command could note his refusal, and then they may well proceed as if he had acknowledged the notification. As a result, he would have lost the opportunity to forward a statement that included arguments that could have caused the Board to recommend against this involuntary separation.

If Your Partner Decides to Hire an Attorney

By now, you probably appreciate the seriousness of this matter. That’s why your wounded warrior might decide to hire a civilian attorney to handle this matter. But who should your loved one hire? How should he or she negotiate the fee? What should the two of you expect this to cost? What type of fee is reasonable, in other words?

 Well, your partner will want to hire an attorney with expertise in military law and especially, in Separation Board Hearings. Your loved one might be best served by someone who has expertise in these matters because the attorney was once a military attorney who handled these types of cases. There are these types of attorneys out there. You can find them through the internet, in fact.

When either of you interviews an attorney, you should ask if this person has a successful track record in accomplishing exactly what it is your partner needs done. Thus, if your loved one is being recommended for separation for a personality disorder versus PTSD when the two of you are quite certain he actually has PTSD, inquire if this attorney has handled a case where the person was being recommended for separation for a personality disorder. And of course, make certain that the attorney was able to get the military to correct this and put it in the medical records that the member had PTSD instead. Also, ask how many such cases this attorney has won.

Of course, this isn’t to say that an attorney who hasn’t handled and won any such cases couldn’t do a good job. But the thing is, your wounded warrior will be taking more of a chance with someone new to this arena versus using an experienced attorney. Does he want to take this risk when it involves something that’s going to be so significant for his entire future? In addition, he might be charged hefty fees while this attorney essentially learns on the job. Hence, he might actually do as well with one of the free attorneys from Lawyers Serving Warriors. I say this because if one of these attorneys doesn’t have the particular type of expertise needed under his or her belt, the organization is supposed to hook him or her up with an experienced attorney mentor. This experienced attorney offers guidance on the case, in other words.

Please also note that if the attorney handles cases where he or she helps veterans fight for higher VA benefits as well as has expertise in Separation Board Hearings, your partner might be well served by such an attorney. I say this for a couple of reasons. The way the law is now, these attorneys must be accredited by the VA to practice before the VA. They are also expected to have reasonable fees. In fact, the VA can review the fee charged the client and, if the VA deems it unreasonable, tell the attorney to lower it. Of course, if he or she refuses, the VA can make it impossible for this attorney to represent VA cases in the future.

 That said, please realize that wounded warriors who must hire an attorney to deal with a Separation Board Hearing aren’t protected in this same way. Nonetheless, I would suspect that those attorneys used to dealing with the VA would probably do business in a similar manner with a Separation Board case. After all, the attorney has his or her good name to protect. But of course, just because an attorney can do a great job of helping a veteran fight for benefits, that doesn’t mean this attorney will even be willing to represent your partner before the Separation Board. You need to call and ask about this.

In case you’re unaware of this, many attorneys will talk to a potential client briefly about their case at no charge. In making such a call, your partner will want to briefly tell the attorney her story and what she faces. If there is bad news to be told, she should go ahead and tell it, and then ask the attorney point blank about the attorney’s track record with such cases—as I mentioned earlier. And of course, your partner will want to ask flat out what this type of representation is likely to cost.

In fact, your partner should ask how the attorney charges. Does the attorney get paid whether the client has success with the Separation Board or not? In other words, does he or she work more like a divorce attorney who demands a retainer or an upfront amount of money and then bills hourly for all work done on the case, or does the attorney work more like many of the personal injury lawyers who take a percentage of the dollar amount the client receives? The two of you will want to be very clear about fees.

Have it all spelled out in writing before you actually retain an attorney. Also, realize there might be fees above and beyond the hourly rate. You might be charged for copying and all sorts of things. And remember, you usually have to pay for a quarter of an hour of time minimum each time the attorney picks up the phone to call you—whether he or she reaches and talks to you or not. You will also get billed each time you call and speak to your attorney. Thus, you might want to set appointments to talk. But certainly, get these fees spelled out beforehand so there are no awful surprises.

Your wounded warrior should probably ask for references before hiring an attorney. Sure, the attorney is not going to provide the two of you with the names of people who were unhappy with how he or she handled their case. Still, by talking to clients, the two of you can get a sense of who this attorney is and how he or she works. Does it appear this individual will be a good fit, or would someone with a different style be a better fit yet? Just as we discuss the importance of certain traits in a therapist in one of the chapters in The Post-Traumatic Stress Disorder Relationship, so it is with attorneys.

Everything I have said thus far is about deciding if this attorney is right for your partner. The thing is, the attorney might decide that he or she does not want to take on your partner’s case. This attorney might feel, for example, that it would be impossible for him or her to get the type of result your wounded warrior is obviously looking for. If the two of you talk to a couple of attorneys who think this way, you might want to listen versus waste your money with someone who might agree to take the case on. In other words, you don’t want your beloved to end up with an attorney who doesn’t have the track record to know this will probably be a futile battle.

If your partner’s case looks like one that could prove difficult to win, rather than get stuck with attorney’s fees for this uphill battle, you might want to use a pro bono or free attorney. Or, you also may decide it is best to just go ahead and use the attorney that the military provides.

If things work out well at this hearing and your partner is recommended for a medical discharge, shortly thereafter your loved one should begin the process to get a disability rating. Still, there is the chance that things won’t go well, and your partner will have something on his or her medical record that you may want to fight to get changed—so your loved can receive those needed benefits. Or, perhaps your partner already faces the need to get discharge records changed? Therefore, let’s talk next about how to do this.

 Getting Military Discharge Records Changed

In order to get discharge records changed, your partner or his attorney will go through a specific process. Before we get into that, let me say your partner could handle this himself. Many of the veteran service organizations will help him to do so, in fact. However, it might be best to seek legal counsel since the outcome of this process will decide if he is entitled to receive those needed lifetime benefits or not. Again, he doesn’t have to hire an attorney. He could contact the Lawyers Serving Warriors for a pro bono attorney. If he decides he does wants to hire an attorney, however, he should make certain the attorney specializes in military discharge review processes.

When your partner contacts Lawyers serving Warriors, they will need to decide if it is a case they even stand a chance of winning. To help them feel confident they have the evidence needed to do so—to get the records changed—your wounded warrior might do well to do a couple of things before calling this organization. He or she should take a stab at writing out an argument, as well as gathering up documents that support these arguments. In other words, why risk losing out on the opportunity to nave a pro bono attorney because another wounded warrior did this while your partner did not? Believe it or not, this could happen.

Your loved one or his attorney will ultimately only be allowed to provide a limited number of pages of arguments—probably twenty-five pages maximum. However, your partner should be allowed to attach as many relevant documents as he or she desires. And in reality, probably the more such relevant documents your partner can provide, the better his or her chance of winning the desired change.

As your wounded warrior and the attorney try to gather up the paperwork for this case, your partner may want to reference the Discharge Upgrade Manual. Also, he or she might want to go into an electronic reading room at this website: http://boards.law.af.mil . It has examples of previous Discharge Review Board (DRB) and Board for Corrections of military Records (BCMR) decisions for the different branches of the service. Hopefully, reviewing these will prove helpful.

Even though your partner might plan to have an attorney who will write the arguments presented to the appropriate DRB and the BCMR for his or her branch of the service, your loved one still needs to initiate the process with the DRB and BCMR. Right quickly, too, either your loved one or the attorney will want to gather up all medical records, personnel records, and the case separation file if your partner doesn’t have these on hand already. Also, if a court martial was involved, it will be important to have the court martial transcript. Of course, the attorney might need other documents yet to help build the case for this record change.

 Preparing to Argue the Case before the DRB

 When your wounded warrior contacts the DRB and asks to have the circumstances under which he or she was discharged reviewed, it is important to request a personal appearance hearing so either the attorney or your loved one can present testimony in person. The various veteran service organizations report this is usually more successful than merely submitting the paperwork required—which should include the written arguments we talked about earlier.

 The good news is your partner can make this request even if he or she isn’t certain whether an attorney will be showing up on his or her behalf instead. See, latter, your loved one can request a continuation, postponement, or withdrawal as long as this action is taken in a timely fashion. If this isn’t done, however, and your partner just fails to show up, the Board will declare the military member has waived the right to a hearing. The DRB will then go ahead and review any paperwork your partner or his attorney submitted. They will make a decision to upgrade the discharge or not based solely upon the paperwork— unless the Board grants another hearing. They might be willing to do this if your partner can show he or she failed to appear or respond due to circumstances beyond personal control.

 These hearings are typically held in Washington, D.C., so your partner should be prepared to cover the costs of sending his attorney or getting himself to that location. Since having his records changed is necessary to getting those needed benefits, however, this could be worth the cost. Your partner should first talk with his attorney. Does the attorney believe your partner has a good case that will be helped by presenting to this Board in person? If so, remember that sometimes it takes money to make money. Of course, in this case, we’re talking about becoming eligible for lifetime benefits versus being left with nothing.

 When the Board hears the case—or even if they only review your partner’s paperwork—its members will be looking to see why the discharge reason or characterization was "inequitable" or "improper." See, their assumption is that everything was handled properly originally. Thus, your partner or his attorney must prove it was not.

 To demonstrate that it was inequitable, your partner or her attorney must show that the reason or characterization of the discharge was not consistent with the policies and traditions of that particular branch of the service. Also, the Board might look at the circumstances under which your partner was discharged, look at today’s rules and regulations, and see if the outcome would have been different if she was discharged today versus yesterday. If the Board believes under today’s rules and regulations she would indeed be entitled to the upgrade in her discharge records that your partner is requesting, the Board will use “the issue of equity” to change her discharge.

To demonstrate the discharge was improper, a case must be made that the reason or characterization of the discharge was in error—that it was false or violated a regulation or a law. If the Board feels there was an impropriety, and that the impropriety was so gross that if it had not occurred, the outcome would likely have been different, the Board will use “the issue of impropriety” to upgrade your partner’s discharge.

While I realize these definitions might be unclear, keep reading because I provide an example shortly. For now, though, realize that the Board is limited to these two issues, propriety and equity, to justify a change in your partner’s discharge records. They can not make a change based upon compassion. They also can not change discharge records because the former military member has changed for the better in recent years.

What types of documentation will your partner attach to paperwork and use to build a case for that hearing before the Board? It will depend upon what he or she is claiming. Let’s say, though, he’s claiming his discharge was improper because his discharge record lists a personality disorder when he was actually suffering from PTSD. Normally, the former military member would only use documents dealing with his conduct during the time he was in the military. However, in this instance, your partner might want to include paperwork that covers recent events as well. For instance, he might want to show copies of notes from recent visits to a psychotherapist that show a diagnosis of PTSD, not a personality disorder. Your partner might want to include the type of documentation of changes in personality that you have noted as the partner that are indicative of symptoms of PTSD. I discuss the type of data to collect and how to do so in the first chapter of The Post-Traumatic Stress Disorder Relationship.

It is important to realize that a personality disorder is described in the DSM-IV as “an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time, and leads to stress and impairment (p. 629).” Thus, if your partner indeed had a personality disorder during the time of military service, he or she should still have it. A psychotherapist could currently diagnose it, in other words. So, it would help your partner’s case to show a current diagnosis of PTSD only. It might also help to include a statement from a known expert on PTSD in which this professional states why he or she is quite certain the veteran suffers from PTSD.

By the way, if your partner thinks she might want to tackle this hearing on her own, she can get advice from most any veteran service organization on how to do this. She can also discuss her case beforehand with a Board staff member. If she writes to the Board, a staff member will respond to her questions.

It might reduce your partner’s anxiety level to know that the Board is not an adversarial proceeding; it isn’t like a trial. If his request is not granted, his discharge will remain the same. In other words, he can’t make matters worse because of some of the paperwork he chose to submit, or because he appeared before the Board and did a poor job of representing himself. However, if he does a great job, he might get the change that ultimately provides him those needed benefits.

Let’s look at how things might proceed whether your partner represents himself or has an attorney do this.

 The Hearing before the DRB

 Before the hearing, your partner or his attorney will receive an Examiner’s Brief. It is a summary of the military records available in his case. It contains the case’s essential facts. It will also be something entered into the record on the day of the hearing.

 The hearing itself will be recorded. So, when your partner and his attorney enter the hearing room, the Board member designated as the recorder will start the recording device. The President of the Board will call the Board to order. The Action Officer will then read into the record that the Board is meeting to consider your partner’s case, he is present, and he is or is not being represented by counsel. Also, this person will introduce exhibits into evidence such as your partner’s application, his letter of notification of when to appear, orders that appoint the Board, officers of the Board, your partner’s records, his issues, and the Examiner’s Brief. This helps to provide a complete hearing record.

Your partner will then be asked what form of testimony he wants to give—if he wants to give any. He can choose to have his attorney present his case and remain silent. However, it is going to be best if he agrees to give sworn testimony. While he could opt for unsworn testimony, this does not have much credibility with the Board—just as they aren’t going to be thrilled if he won’t agree to testify and answer questions. After all, through questioning, the truth of a case tends to come out. The Board members gain a sense of whether they can believe your partner or not—through his testimony. Thus, if he is being straight forward and has nothing to hide, he should opt for sworn testimony.

After the Board has asked all the questions they want answered, the attorney will probably make some type of closing statement. Once the attorney has completed this, your partner and her attorney will leave while the Board reviews the case. While a hearing usually takes less than an hour, the Board is free to take as long as it wants to fulfill its role.

It will take about six to eight weeks for your partner to receive the Board's decision. If the discharge is indeed changed, he or she will receive a new discharge certificate and a document from the Board that states this new decision. If the discharge is not changed, your partner will receive a document from the Board which includes specific reasons the discharge was not changed. Your loved one will also be alerted to any further appeal process applicable to his or her case.

 The BCMR Review

 Now, in addition to the DRB, your wounded warrior will probably be required to have his or her case reviewed by the BCMR as well. Since your partner won’t be allowed to appear before the BCMR, this isn’t going to be an issue for your loved one or her attorney. The same paperwork used for the DRB is forwarded to the BCMR.

Okay, so what if the military record still sits unchanged at the end of this process? I am not going to go into the appeals process here. Instead, let’s assume everything goes well. Now that your partner’s record is changed, he or she will begin dealings with the VA.

Dealing with the Department of Veterans Affairs

          After your wounded warrior applies to the VA—and he or she must apply because benefits are not automatic—the VA will rate your loved one for all injuries that are service related, not just the PTSD that made him or her unfit for military service. Also, realize that if your partner previously received a disability rating from the DOD, the professionals from the DOD and the VA might not see things the same way. Thus, even if your partner was to be given a disability rating by the VA that was based upon the PTSD alone, he or she might receive a different disability rating from the VA versus from the DOD. (This is being looked at, or the disability rating process is being changed—if it hasn’t been already by the time you read this).

 The two departments haven’t historically figured out financial benefits the same way, either. It seems that in most cases, the VA has always ended up offering the best benefits package. That is why it important to be familiar with the application process for VA benefits, their appeals process, and what to consider if your partner intends to use an agent or hire an attorney to handle this process.

 Applying for VA Benefits and Appeals

 In order for your wounded warrior to learn what benefits he or she is entitled to through the VA, your loved one must submit a request and paperwork through the appropriate VA Regional Office. Check out this webpage to locate the correct facility: www.va.gov/directory.

 He might seek assistance from Lawyers Serving Warriors or one of the other veteran service organizations to help him do this. But if he wants to hire an attorney, he may do so as long as a notice of disagreement (NOD) has been filed with the VA Regional Office (RO) for his case. 

The attorney or agent may charge your partner a fee. However, fee agreements must be in writing and signed by both your wounded warrior and the attorney or agent. Your partner could sign a fee agreement that states he wants the VA to pay his attorney fees directly out of past-due benefits and indeed, the VA would do so. Then again, he could sign a fee agreement that indicates he will be responsible for paying his attorney’s fees.

Fees may be based on a fixed fee, an hourly rate, a percentage of benefits recovered, or a combination of such bases.  Fees that do not exceed twenty percent of any past-due benefits are seen by the VA to be reasonable.  However, attorneys and agents may charge more than twenty percent for their services.

The VA can review fee agreements between attorneys or agents and claimants. If the VA Secretary finds the fee is excessive or unreasonable, the VA may order it reduced. Also, if the attorney or agent is being paid directly by the VA versus the client, the VA Secretary will charge the attorney or agent a fee. The agent or attorney may not seek reimbursement from the client for this charge, however.

What if your loved one was to hire an attorney and then felt the attorney’s fees were unreasonable? Would she have any recourse? Yes, she should contact the Office of General Counsel (OGC) at:  Office of General Counsel (022D), 810 Vermont Avenue, NW, Washington, DC 20420.  OGC will review the fee agreement and then determine if it is excessive. 

Forms Required Authorizing an Attorney or Agent to Represent Claimant

If your wounded warrior wants to appoint an agent or individual VSO Representative to represent her, she must provide the VA with a signed VA Form 21-22a. If she is hiring an attorney, however, the attorney may provide the VA with a declaration of representation in a letter on the firm’s letterhead or use a VA Form 21-22a. Your partner, as the claimant, would not need to provide a signature to appoint the attorney. However, she would need to provide the VA with a signed VA Form 21-22a to authorize that information about herself may be disclosed to the attorney.

Now, if your partner decides to hire an attorney or agent, he needs to know he can limit the scope of this person’s representation by spelling this out on the VA Form 21-22a. For example, he might limit representation to only his claim for Post-Traumatic Stress Disorder. Also, your partner can terminate an attorney at any time. However, he still might owe that person a fee for prior services.

While talking about attorneys and agents that charge fees, it is important to realize that your wounded warrior does not have to hire someone to represent him or her before the VA. The VA has a duty to notify the veteran of the type of information and evidence needed to substantiate the claim. It must also assist the veteran in obtaining such evidence. Furthermore, veteran service organization (VSO) representatives will help your partner through the claims process—and at no charge. These representatives are well-versed in veterans’ benefits law and thus, well-equipped to successfully assist your wounded warrior through the claims process.

 Appealing

 If your partner is not satisfied with the benefits the VA regional office, medical center, or other local VA office is offering, she might want to read How Do I Appeal? at this webpage: www.va.gov/vbs/bva/pamphlet.htm. It explains the steps involved in filing an appeal, and it can serve as a reference for the terms and abbreviations used in the appeal process. 

One thing your partner will definitely need to do is gather up evidence that could help his or her case. And what might that evidence be? Well, some people have family members or friends write letters and tell how the wounded warrior behaved prior to the days he or she had PTSD and then, compare that to how the wounded warrior behaves currently—providing the type of data we discussed earlier, and that I discussed gathering in The Post-Traumatic Stress Disorder Relationship. In doing so, these folks should cite some of the most extreme examples of changed behaviors they’ve observed as well as those that are indicative of PTSD that occur frequently—being sure to give the frequency with which they’ve observed such behaviors. And of course, you might want to write a letter and cite examples pulled from your own journal of changes you’ve spotted in your partner.

In addition, you might want to have reports from one or more mental health experts on PTSD. But since these professionals likely have had limited interaction with your loved one, the family and friend data is quite important. Also,  if your loved one returned to the civilian workforce but then had difficulty on the job—especially if he or she was a high performer before developing PTSD—consider asking that boss to write something as well.

When the VA is trying to determine a disability rating, they try to assess the impact of the disability on the individual’s future earning potential. You need to realize, though, as I write this the current rating system is outdated. It assumes these wounded warriors will be returning to jobs in agriculture or manufacturing, for instance. Therefore, it will be important for your partner to argue that, because of the PTSD, he or she has suffered changes or impairment in mental ability, coping skills, and social skills, for example. After all, a decline in these abilities decreases one’s opportunity to earn a decent wage in today’s service-oriented economy.

In your partner’s argument, he or she might want to point out that in yesterday’s economy where the PTSD sufferer might have been able to return to an agricultural or manufacturing job, that individual might not have been at such a great disadvantage as today’s returning wounded warrior. That’s because that type of work would have allowed the PTSD sufferer to remain isolated from others— something the warrior wounded by PTSD typically prefers. But alas, the type of jobs that would befit a man or woman changed by PTSD have disappeared from our country. We know that most manufacturing jobs have been shipped to places like China and India, and that most small farms have been forced out of business since the advent of agribusiness.

Something you must be aware of is the fact that your wounded warrior must enter into evidence anything that will help him or her win this case currently—not at an appeal. After all, while your wounded warrior might elect to appeal his or her case again if displeased with the ruling received at this level, he or she probably will not be allowed to add any new evidence at a later date. In other words, new eyes will be looking at whatever your partner provided initially. So again, he or she wants to have it all there initially.

Your partner can represent himself at this Board. However, it is probably better that he have someone do this for him who is familiar with the process and can draft a written argument, prepare him for the hearing, and monitor strict deadlines imposed by the Board. If he hires an attorney, he’ll want one that specializes in veterans’ administration benefits.

 Court of Appeals for Veterans Claims

Sometimes it is necessary to have a case go higher than what we just discussed. If that is so, your wounded warrior’s case will move on to the Court of Appeals for Veterans Claims, a federal court separate and apart from the VA. It deals with cases in which it is assumed there was a constitutional error in the way a claim was decided by the VA, or else the Board's finding was clearly erroneous. Thus, if your partner or her attorney can’t prove either one of these two things, your loved one isn’t going to win her appeal.

When a case is appealed to the Court, an attorney for the VA will argue on behalf of the VA and against the claimant. In this adversarial forum, it can be difficult for a wounded warrior to represent himself. Thus, if your partner intends to appeal, he probably should seek out an attorney pro bono from Lawyers Serving Warriors or hire an attorney.

United States Court of Appeals for the Federal Circuit

 Sometimes a claim will be appealed to a higher level yet. It will be heard by the Federal Circuit. However, this rarely occurs unless there is a truly compelling jurisdictional and legal argument for this taking place. If your partner’s case is appealed to this level, he or she should definitely plan to have an attorney.

 Did you find this article helpful? Please feel free to share it with others. However, please be certain to forward it intact with the following link to buy Dr. Diane England’s book, The Post- Traumatic Stress Disorder Relationship. Of course, you don’t have to buy it at Amazon. It is also available at Barnes and Noble online.

Some of the Topics this Self-help Book Covers Include:

What PTSD Is; Why Some People Develop PTSD and Others Do Not; PTSD Symptoms and How They Impact the Sufferer, You, and Your Relationship; Overview of PTSD Treatments Including Approaches such as Prolonged Exposure Therapy, Various Types of Cognitive Behavioral Therapy, and Medication for PTSD such as the SSRIs; Dealing with Complex PTSD that also Involves Substance Abuse; Military Sexual Trauma and its Treatment; How to Find Stress Relief as the Partner; Effective Relationship and Family Communication Skills; Confronting Painful Realities such as PTSD, Addictions, and Abuse—including Verbal Abuse, Emotional Abuse, and Physical Abuse—as well as the Possibility of a Sexless Marriage after PTSD and What to Do about That; Effects of PTSD on the Children and How to Minimize the Potential Damage; The Risk of Suicide with PTSD Plus Suicide Prevention Techniques; and Much More with all Examples Specific to the Relationship or Family Impacted by Post-Traumatic Stress Disorder.