Wounded Soldiers Returning Home Face a New Battle

Some wounded soldiers leaving the war-zones in Iraq and Afghanistan have arrived home only to find themselves caught in the crossfire of a new battle – a legal one. For some of the 300,000 or more members of the armed forces who suffer from post-traumatic stress disorder (PTSD), the legal battle ensuing from the Veterans Administration’s denial of long-term disability benefits is extremely important.  Without these government benefits, vulnerable veterans who are not prepared to return to the workplace may be forced to out of financial necessity.

In December 2008, seven veterans with PTSD brought a class action suit in federal court alleging that the VA had incorrectly evaluated their claims for long-term disability benefits.  The alleged mis-evaluation resulted in some claims receiving low disability ratings (leading to lower payments) and others being denied entirely. The court has since ordered that notice of the class certification and pending action be mailed to approximately 4,300 service members who were discharged from service because of their PTSD and then denied long-term disability benefits. This litigation comes just a year after an internal VA email surfaced wherein an employee suggested to the agency that the it should “avoid giving a diagnosis of post-traumatic stress disorder for veterans and instead consider giving a diagnosis that might result in a lower disability payment.” This controversy aside, this litigation illuminates a vulnerability which makes the disability claims of these veterans particularly susceptible to attack – psychological disorders that lack an identifiable basis in hard science are difficult to objectively verify and evaluate.

New Developments in Diagnostic Technology May Prove to be the Weapons that Veterans Need to Fortify Their Position

According to the National Institute of Mental Health, PTSD is a recognized psychological disorder that may arise in an individual after he or she witnesses or experiences a dangerous event.  Such events include combat, physical/sexual assault or abuse, an accident or a disaster. As a result of witnessing or experiencing the trauma, the individual with PSTD may relive it through flashbacks or nightmares. In addition, individuals with PTSD will present with a range of avoidance tendencies (e.g. feeling emotionally numb or avoiding reminders of the event) and hyper-arousal (e.g. being easily startled or feeling “on edge”). Until now, PTSD has been traditionally diagnosed by identifying these categorical symptoms in a given individual for a certain period of time after the occurrence of the traumatic event. Though the diagnosis is guided by the DSM-IV, it has been regarded by some as essentially a “crap shoot”. In particular, because the presentation of symptoms, the timeline for the onset of the disorder, and the degrees of impairment can vary widely patient to patient, diagnosing PTSD with a sniper-like precision can be a difficult task for clinical practitioners. The imprecision of diagnosis is compounded by the fact that no biological markers (or biomarkers) exist for PTSD, meaning that they cannot be verified and evaluated objectively like other diseases, such as cancer.

Recently, however, Dr. Apostolos Georgopoulos (a researcher at the Minneapolis VA Medical Center and professor at the University of Minnesota) discovered, using magnetoencephalography (MEG) technology, a functional neural “biomarker” in veterans with PTSD. MEG is a brain imaging technology that measures the magnetic field generated by neurons when they fire.  Because individuals with PTSD showed distinct synchronous neural firing patterns in the brains, Dr. Georgopoulous was able to use the technology to identify the functional neural pathway, and thereby distinguish between the brains of individuals with PTSD and the brains of healthy individuals. Remarkably, using MEG technology – which is non-invasive and harmless – Dr. Georgopoulous was able to identify the brains of PTSD subjects with an accuracy rate of 90% (also see this Journal of Neural Engineering paper, available for 30 days after publication). The innovative use of MEG technology coupled with synchronous neural interactions testing shows promise as a diagnostic method for PTSD.

Despite Upgraded Arsenal, Veteran Litigation May Come Down to a Battle of the Experts

Despite this new development, the veteran class action suit will likely come down to a battle of the experts. The strict standards for admitting novel scientific evidence set out by Daubert and its progeny are likely to be significant obstacles to plaintiff’s counsel. Under Daubert, in order to admit novel scientific evidence, a party must show that the evidence is not only relevant, but reliable. In determining whether scientific evidence is reliable, a party must prove that it was derived from valid scientific methodology. Proving the validity of scientific methodology requires a showing that the scientific theory or technique at issue be refutable or falsifiable, respectively, and subjected to peer review. Where empirical testing is at issue, Daubert requires that the party disclose the known or potential error rate of the technique as well as the existence and maintenance of standards and controls concerning its operation. Lastly, the party must prove that the theory or technique is generally accepted within the relevant scientific community.

In this case, the scientific research at issue is not only novel, but infant. This research is the very first of its kind, and as such, the scientific conclusions we can drawn there from are limited and likely conservative. Because Dr. Georgopoulous’ research focused on individuals who were already diagnosed as having PTSD, we cannot conclude that MEG imaging would be a scientifically valid way to diagnose the disorder. Further, while the research indicates that it is possible to identify PTSD-brains from non-PTSD brains, we cannot conclude that this possibility translates into an ability to distinguish PTSD-brains from brains impacted by other psychological or neuropsychological disorders. Lastly, this research does not indicate whether the brain scan would be effective as a diagnostic tool for recovered individuals who are no longer symptomatic. Thus, because this field of neuroscience is still in its infancy, it is inherently unreliable and it will not likely be able to withstand a Daubert challenge.

But, even if the scientific findings were admitted, their utility in evidence would be limited. Thus far, the use of MEG technology to detect PTSD has only been shown to confirm a diagnosis of PTSD; it does not indicate the severity of the individual’s condition. Therefore, in order to prove that a given veteran’s PTSD is qualitatively severe enough to warrant the high disability rating (which would in turn trigger a veteran’s entitlement to long-term benefits), the plaintiffs would need to supplement these findings with psychological expert testimony to meet their burden of proof.

About the Author

Andrea Contreras

Andrea is a 2L at Columbia Law School.
  • http://solutionsbtsci.com Mike Baker

    I had a 50% service connected disability which was recently raised to 70% when I applied for unempolyability.The additional 20% was awarded but they are going to deny the unemployment part according to the vet rep at Purple Heart Ass who is representing me. He said I should get any letters, docs, etc that would support my claim. I asked the therapist I had been seeing for over a year agreed to give me a letter stating that I was unemployable due to the psychological issues from which I suffer. However, 2 days after agreeing to provide this letter she called me at home to explain that she had met with the 2 other”team” members and they had contacted the Vet Adm and after that conversation they can not give me a letter as requested due to a conflict of interest? As this is the only person I have seen for this problem more than 1 time I told her I think her opinion is important although the board make a determination would not be using her letter as the final determining factor. Still, she now refuses to write it.Any suggestions?.

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