The newest version of the mental illness bible, the Diagnostic and Statistical Manual on Mental Illnesses will probably be released in 2013. This is a critical document both for the VA and Social Security Administration since they both rely on this manual that outlines the diagnostic criteria used to classify and award benefits for the most common mental illnesses. It should be expected that any amendments or changes used to classify the most common illnesses would cause amendment to various regulations controlling listings or ratings for mood or affective disorders that are most frequently seen for disability. The document is drafted by the American Psychiatric Association and for the first time includes gambling and eating disorders, but not sex and gambling addiction disorders. The last time the manual was revised was 1994. The manual is actually out for public comment until April. Also its expected that the manual will consolidate various disorders such as for autism that will be combined with Asberger’s Syndrome–typically considered to be a more mild form of Autism. A category of autism spectrum will be combine these impairments into one category. This is likely to be a source of contention. Given the nature of mental illness its likely that any revisions will always be met with resistance since its very difficult to objectively identify the existence or the severity of any given mental illness.
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Rarely are there objective and medically acceptable testing methods that can scientifically verify the presence of a mental illness. That may have changed based on new research out of the University of Minnesota and the Minnesota VA Medical Center. Hundreds of thousands of new cases of PTSD are being diagnosed as a result of current military conflicts in the middle east, but now, magnetoencephalography (MEG), a brain imaging method, could be used to verify PTSD. They scanned the brains of 74 U.S. veterans with PTSD, and 250 civilians without the disorder, and say that by spotting specific brain biomarkers, they managed to accurately diagnose PTSD sufferers with 90 percent accuracy. The MEG can accurately measure electrical activity in the brain and at least preliminarily there seems to be reason to believe that it could be relied upon to accurately diagnose PTSD. MEGs can record brain signals very quickly compared to a CT scan or MRI. The VA has been desperate to get a handle on the number of new PTSD cases since the disease has quickly inundated the disability system with appeals, and in certain cases significant compensation to Veterans. Post script: Based on further review it would seem that these recent studies may not be the best tool for PTSD diagnosis, but rather could be useful for finding differences between people with PTSD and those that don’t. A blog post describes the difference and chalks up the media reports to inaccuracies in reporting on mental illnesses which is quite common. Check it out on mindhacks. As explained below Gov. Herbert has been at the cusp of signing the deeply flawed agreement with Nevada but for whichever reason has been hesitant. He needs to be convinced through letters that this agreement should never be signed. Below are talking points from Brian Moench MD, from UPHE, and Terry Marasco. Also comments from this office were formally submitted below during the public comment period they are still relevant in terms of comments of protest to the governor. Herbert’s e-mail is: gherbert@utah.gov The DAQ stonewalled a later and more convenient public hearing. So far the only public hearing is scheduled for Tuesday, Jan. 12, 2010. At the Magna Chamber of Commerce, 9145 W 2700 South, Magna, Ut. 7:00 pm. Water Grab Opinion Piece Poised to hold the coat of the Southern Nevada Water Authority (SNWA) while they pushed Utah off a cliff, Gov. Herbert has now taken one step back from the brink. To suggest that Utah continue tinkering with the fine print of the Snake Valley Water Agreement is like arguing over what tunes should the band play while the Titanic sinks. We offer ten reality checks. 1. The purpose of any agreement is to drain enormous volumes of water from Snake Valley to support real estate speculators and casino operators in Sin City. Over 70 years the water Utah would surrender to Nevada would fill a skyscraper 1 acre square, 471 miles high. 2. “Possession is 90% of the law.” Once Nevada has spent billions to make hundreds of thousands of people dependent on that water, no judge or court will turn off the tap regardless of the fine print in the Agreement, regardless of whether Snake Valley has become a ghost town or how much dust covers Temple Square. The saga of the notorious William Mulholland stealing Owens Valley water for Los Angeles is exactly what Utah can expect to be repeated. 3. Why does Herbert want an agreement and why have our entire Congressional delegation deserted us? Investigative journalists from the Las Vegas Sun, Los Angeles Times and Bloomberg News reveal that Sen. Harry Reid, financial benefactor of the project, has mixed a stew of blackmail, quid pro quo and, old fashioned influence peddling, by threatening to prevent the equally ill-advised Lake Powell pipeline if Utah doesn’t surrender the water in Snake Valley. Why settle for just one disaster when you can have two? 4. The Utah team has promoted the Agreement stating it “prohibits groundwater mining.” Yet Snake Valley ranchers, expert geologists, former SNWA hydrologists and biologists know there is no excess renewable water in the West Desert. This project is the very definition of groundwater mining. 5. The Agreement’s environmental safeguards are anything but. For an area the size of Vermont, the aquifers now provide the only lifeline for plants like the greasewood, the primary reason why the West Desert is not another Sahara Desert. Air quality monitoring will reveal nothing about the impending death of the greasewood plants, until it is irreversible. The routine dust storms in Owens Valley, Australia, Uzbekistan and the Middle East are evidence that in a desert, compensatory vegetation cannot be counted on to fill the void. 6. There are urban and rural economic threats. Ask any urban Utahn whether air pollution already impairs our quality of life. Quality of life issues become economic issues affecting real estate values, hurting existing businesses and suppressing new ones. Rural agricultural, tourism, and hunting and fishing economies will be depreciated and possibly destroyed. Additionally, development of alternative energy projects such as solar thermal will be prohibited. 7. Dust storms threaten not just our quality of life but life itself. The science is unequivocal. The particles inhaled cause the same kind of disease as those from tail pipes, smoke stacks and cigarettes. Within minutes blood pressure rises, vascular inflammation and clot formation begins, followed by increased numbers of heart attacks, strokes and deep vein thrombosis. Even if dust storms are short lived, their impact can last long after they are gone. Community mortality rates increase from even short term elevations in particle pollution and stay elevated for up to 30 days after the air has cleared. New dust storms will harm all of us a little bit, thousands of us much more, and will certainly cause premature deaths. The additional threat that this dust is contaminated with mercury, radioactivity, fungi, and asbestos-like minerals continues to be ignored. 8. Utah’s negotiating team misrepresented Utah’s legal options. Our deputy attorney general stated publicly that if Utah brought a dispute to the Supreme Court we would have to prove current damages, not potential future damages. Not true, according to at least two U.S. Supreme Court cases and our legal counsel. Enough science already exists, and more is being done, that would solidify Utah’s case. The best chance to prevent this disaster is to stop it before it starts. 9. The only winners in any agreement are a handful of real estate speculators in Nevada and Southern Utah. Everyone else loses. Utah gets no money for the water surrendered. When Snake Valley runs dry even Nevada home owners will be at risk as SNWA searches for more rural communities to exploit. 10. Utahns must stop this. Call and write the governor to tell Harry Reid and the SNWA that Utah intends to win the “War on Water Terrorists.” Brian Moench Terry Marasco Although things looked real bad last fall when Governor Herbert and DNR Director Styler gave the public the impression that the agreement would be signed very quickly after public comment this didn’t end up happening. Then at the end of 2009 it looked like the Governor would sign it and now there is some indication that there could be another delay, albeit a short one. One gets the impression that the Governor wants to sign it but is attempting to appease some County officials. The SL Tribune is reporting that based on letters from Salt Lake County Mayor Peter Corroon and the Millard County County Commission that there could be a short delay. The most interesting part of the report is that Las Vegas officials don’t even believe that Snake Valley water would be pumped until 2050. Concerns coming from the Counties include the same general concerns about Wasatch Front Air Quality and some proof that there wouldn’t be irreversible aquifer mining as a result of the diversion. Currently the BLM is finalizing its draft EIS on the project and reportedly will include estimations about what the aquifer would look like 200 years after the diversion occurs. The models used to predict such estimations of drawdown don’t seem to have much promise in terms of accuracy. The sentiment from scientists is quite direct: “Any forecast 200 years into the future is bulls—,” said Tim Barnett, a physicist and researcher at the Scripps Institution of Oceanography at the University of California, San Diego. “You just can’t do that.” The bottom line is that there is simply no point in being in such a hurry to sign an agreement that is not based on any facts, and that even once the EIS is released it still won’t be much more clear how the aquifer will react to the proposed project. There certainly shouldn’t be a hurry in lieu of the fact that there wouldn’t be any diversion for another 40 years. Agent Orange generally refers to any herbicide that was used during the Vietnam War, but the main ingredient within these herbicides that causes most medical problems is dioxin. Generally to receive presumptive service connection for agent orange exposure you need to have one of the diseases linked with exposure. See 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Periodically this list is revised since the VA partners with the Institute of Medicine (IOM) who occasionally finds new diseases that are positively linked with agent orange exposure. Generally the IOM will issue new reports every two years and has found new diseases that are closely associated with exposure including hypertension and AL amyloidosis. Although the Veteran need not show actual exposure to AO they do need to show that they served in Vietnam or to use VA vernacular that they had “boots on the ground”. Unfortunately this requirement leaves out many Veterans who were exposed outside of Vietnam during the same time period and House Bill 2254 (see below) may correct this problem if passed. This includes military service in Vietnam between January 9, 1962, and ending on May 7, 1975. The boots on the ground requirement applies to those Veterans who served just off shore, but you’ll still need to have spent some time (even a minute) in Vietnam itself. Since the requirement includes service “in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.” 38 C.F.R. § 3.307(a)(6)(iii). Boots on the ground includes service within inland water bodies within Vietnam, but does not include overflights over Vietnam. There have been problems with the so called “blue water” Veterans that were just off shore of Vietnam and has been appealed up to the Federal Circuit where it was held that these Veterans did not meet the requirement since you need to prove that you at least set foot on shore. Secondly, you need to show that you have one of the diseases located at the cites above that typically includes various types of cancer, hodgkin’s, soft tissue sarcomas, diabetes, and medical problems in the children of exposed Veterans. See the list in the code provisions cited above. Lastly, certain types of diseases must have had an onset within a certain amount of time after the Vet left Vietnam. Its also possible that a Veteran could be compensated for a disease not on the list, but it can be assumed that this will be a tougher task, and would require excellent medical support.
The Associated Press did a great story on the problems women veterans face in lieu of their increasing numbers and society’s failure to acknowledge their sacrifices. The numbers are quite high since over 230,000 women have fought in recent military conflicts in Iraq and Afghanistan. The problems they face are the same as their male veteran colleagues although they seem to face added sexual discrimination. Like their male cohorts they struggle with PTSD but such an illness may be discounted in their disability rating if they are pregnant. Although military law prohibits women from being in artillery front lines the likelihood they will be in a combat situation is high due to the nature of recent conflicts. Even as a police officer there is a strong possibility of being situated in the middle of a violent conflict. One hundred and twenty women have been killed in action and 650 have been wounded. One area that women veterans seem to be struggling with at higher rates then men are sexual assault, but often the most common complaint is the stigma they receive when they get back home. Women veterans do not seem to receive the same level of respect as males when they return such as the free beers that many veterans receive. That disrespect is compounded by the military establishment and VA since the woman’s role in service is frequently viewed as a subservient or lesser role then the male veteran’s. The NY Times in their ongoing coverage of water quality problems nationally have developed another powerful tool for searching the local drinking water quality where you live. Its a part of their “Toxic Waters” series. You can search even the smallest of municipalities, interestingly enough is the fact that often local water will meet legal standards– but not health standards. Obviously this makes it clear that there’s a problem with our laws. Anybody who has applied for VA benefits alleging medical problems due to Agent Orange exposure knows about the “boots on the ground” requirement that requires that Veterans have had physical presence in Vietnam. The problem with this requirement is that many Vietnam era veterans were exposed to Agent Orange in areas outside of Vietnam including off shore, in the air, or in other countries such as Thailand. HR 2254 currently has the support of 200 house members of Congress and could expand benefits to all victims of Agent Orange exposure regardless of whether they had “boots on the ground” in Vietnam. Obviously, time is of the essence here since these Veterans health is ailing either due to Cancer that was caused by this exposure or some other health problem. Its unfortunate that this law was originally drafted so poorly and inequitably so as to exclude so many Veterans that were exposed to dangerous herbicides during the greater SE Asia conflict in the ’60s and ’70s. Congratulations to the Sierra Club and Joro Walker and John Pace for their hard work on this case. Ban Law Office was happy to assist amicus, Utah Physicians for a Healthy Environment, in this case. Some analysis of the decision below. Also a favorable decision in the companion case Kennon v. Air Quality Board. James Kennon should receive massive credit as well since he handled a very complicated case pro se!! This was not an easy case for a lawyer and he presented his argument admirably in front of the justices. Critical to the maintenance of National Air Quality Standards or NAAQS is the prevention of significant deterioration (PSD). In order to prevent PSD new sources are required to go through new source review. An application for a new source permit must show that the owner will construct the facility that utilizes the best available control technology (BACT). The applicant must undergo best available control technology review, and must utilize BACT unless its not achievable due to energy, envtl. or fiscal impacts. Also the applicant must perform a BACT analysis that analyzes pollution from the proposed facility and other pollution sources in the area to ensure they won’t cumulatively violate air qulaity standards or NAAQS. There is a ceiling on the total concentration of certain pollutants in the atmosphere. PSD increments allow or set a limitation on the amount of deterioration over time depending on what class the area is in…..basically class I areas allow the smallest amount of deterioration and includes National Park or wilderness areas. Sierra Club challenged the Approval Order by DAQ through a Request for Agency Action alleging violation of the Federal Clean Air Act CAA, Utah Air Conservation Act, and portions of the Utah Administrative Code. Sierra Club’s issues were that the division failed to evaluate the emission of CO2 and other greenhouse gases in its Best Available Control Technology (BACT) analysis that the Division improperly excluded integrated gasification combined cycle technology as an available control technology, that the emission limits set as part of the BACT review were in error, that the Division wrongfully adopted significant impact levels policy for determining the cumulative impact of a new source on Class I areas, and the Division failed to adequately complete a Class I increment analysis for SO2. A series of Summary Judgment motions were filed with the Board and Sierra Club lost several of these motions, but an evidentiary hearing was held on whether the BACT analysis was flawed based on consideration of the Integrated Gas Combined Cycle technology. After this hearing Sierra Club lost on all the issues. The standard of review was relatively favorable to Sierra Club, the S. Ct. holding they were reviewing the Division’s decision for “correctness” and granted little to no deference to the agency’s determination. The first issue addressed was whether the PSD federal rule, located in the C.F.R., was incorporated into the State Rule. Here the Court held the rule had not been incorporated since the rule appears to only apply in Utah to tribal lands. They also failed to hold that the state rule was not as stringent as the federal rule as the CAA requires. There were 2 regulations that related to BACT including a 2005 and 2006 rule where the latter required analysis of all “air contaminants” and the former analysis was required for all “pollutants subject to regulation”. The Court held that the Division did not commit an error through application of the 2005 rule. The next issue carries great importance due to the U.S. Supreme Court’s ruling in Mass v. EPA since they held recently in 2007 that greenhouse gases such as CO2 could be regulated under the CAA. Raising the issue in this case whether the BACT analysis should include consideration of CO2. This Court pounced on the fact that although CO2 could be regulated currently there are no National Ambient Air Quality Standards (NAAQS) for it. Its unclear in other words what it means to be “regulated” under the CAA. The Court in this case adopted an interpretation of the Wyoming DEQ where a state agency would need to “regulate greenhouse gases…without the scientific and policy resources available to EPA and the US Congress”. In the end the Utah Supreme Court seemed concerned about the problems presented by CO2, but they did not want to “preempt ongoing Congressional and EPA efforts to formulate a CO2 emissions policy” by instituting an emission limitation as part of BACT review was reasonable. Longleaf Energy Assocs., LLC v. Friends of the Chattahoochee, Inc. 681 S.E. 2d 203, 207 (GA. Ct. App. 2009). Turning to the issue where Sierra Club succeeded was whether consideration of Integrated Gasification Combined Cycle (IGCC) was required the Court held that it was based on the plain language of the Utah Administrative Code. Power Plant proponents pointed out that IGCC is a power generation technology as opposed to a emission control technology, however this fact did not exclude consideration of this technology from BACT review, IGCC can still act as an emission control technology, and can reduce the emission of criteria pollutants. The Court was attempting to balance the goal of BACT, which is to encourage use of new technologies without overburdening applicants through a complete redesign of proposed power plants that rely on advanced technologies that were never considered. In this case, since IGCC is a coal technology as opposed to say a wind generation technology it was required to consider this technology. They also rejected the proponents claims that IGCC is not an “available” technology since even though its relatively rare there are still 2 IGCC plants in the U.S., 14 worldwide, and more IGCC plants are being proposed in the U.S. The next issue surrounding the nitrogen oxide pollutant where Sierra Club argued that the emission standard was not sufficiently stringent since other plants have achieved lower NO emission limitations. The Court agreed that there was insufficient evidence that the limitation in this case was the maximum reduction possible. In the end the Court upheld the Board’s decision in some parts but REVERSED AND REMANDED and ordered a new review so that the AO must encompass the most current control technology and must assign a reasonable deadline for the construction of the Company’s facility. The company must also conduct a new BACT analysis that considers IGCC.  |
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