Charles L. Robinson, Ph.D.
Post Office Box 299 Manchester, Maine 04351
The Maine Psychological Association
and The Maine State Bar Association
In cooperation with:
The Maine Society of Forensic Psychologist
An historic overview of the conception and development of Post Traumatic Stress Disorder (PTSD) is provided. Relevant legal concepts applicable to the Forensic Evaluation of PTSD are discussed and suggestions for conducting the clinical evaluation to assess the presence or absence of PTSD are provided. The unique role of psychologists in this process is described.
Charles L. Robinson, Ph.D.
Post Office Box 299 Manchester, Maine 04351
PSYCHOLOGICAL TRAUMA: IMPLICATIONS FOR LITIGATION
Charles L. Robinson, Ph.D.
I. HISTORIC OVERVIEW OF PSYCHOLOGICAL TRAUMA
Post Traumatic Stress Disorder is a scientific term for human experiences as ancient as humankind. Shamens and healers of various pre-technological cultures have long employed rituals and ceremonies to "uncross" and otherwise heal victims of fright, hex, injury, captivity, torture and other "hoodoo." Postliterate explorations of conditions described as "soldiers heart," "railway spine," and "effect syndrome" were undertaken throughout the Western world in the 19th century. The 20th century's two global conflicts prompted increasingly sophisticated statistical, theoretical and scientific investigations into the cause'and treatment of "shell shock" and "war neurosis." The catastrophic psychological effects of concentration camp internment, prolonged/atomic bombardment, and POW captivity led to the critical observation that neither physical injury nor exposure to combat were necessary to produce "traumatic neurosis." At the same time that clinicians were observing the traumatic aftereffects of war related crisis, Eric Lindeman examined the victims of a civilian tragedy, the Coconut Grove Nightclub fire in Boston (Lindeman, 1944). Despite the absence of serious or enduring ~hysical injury, many of the victims of the Coconut Grove fire exhibited serious psychological symptoms similar to the symptom complex exhibited by battlefield trauma casualties. This complex of symptoms is now termed Post Traumatic Stress Disorder (PTSD).
The confluence of numerous investigations gave scientific credence to the theory that the development of a traumatic neurosis was not dependent upon an already weakened psychophysiology/ego ("an egg shell victim") but rather was dependent on the magnitude, duration, and conditions of a catastrophic stressor. Critical inquiry into the nature of the traumatic neurosis (PTSD) continued throughout the 1940s and in the first edition of the Diagnostic and Statistical Manual published in 1950, the complex of symptoms now known as PTSD was included in the category of Gross Stress Reaction. The DSM was revised in 1968, and the traumatic disorders did not appear as discrete categorical syndromes. The increasing frequency of severe stress reactions among Vietnam veterans led to the inclusion of PTSD in the third edition of the DSM (1980). DSM-III's inclusion of PTSD (with its operationally described categories of symptoms) led to more refined research on trauma induced disorders. Attention was focused in particular on survivors of sexual assault/abuse. When the revision of DSM-III appeared in 1987, multiple field and treatment studies had been undertaken with the survivors of natural and manmade disasters: kidnapping, terrorism, motor vehicle accidents, children and adults who had been witness to
violence, and other victims of traumatic experiences. These investigations were conceptually organized by the symptom descriptions in the DSM-III-R and consistently revealed a common set of both acute and enduring psychological symptoms which appeared following exposure to calamitous events and circumstances.
II. PTSD SYMPTOM DESCRIPTION
Integral to the definition of PTSD is the identification of the stress producing event (the stressor). The stressor must be outside the range of usual human experience. The severity or unusualness of the stressor is of great importance in the legal and forensic understanding of PTSD. The diagnostic demand that the stressor be outside the range of usual human experience poses complex problems for the treating clinician in a forensic setting. This obtains from the fact that the level of stress and disability suffered ~y a patient may be as dependent on the patient's past history, current coping skills and their stage of development as it is on the severity of the stressor. An evaluation of stressor severity often involves opinions regarding social consensus, cultural conditioning, and even personal judgments. Indeed, a trier of fact may consider the question of the inevitability of psychic insult as a function of severity of the stressor as far more difficult to answer than the presence or absence of PTSD symptoms (stress).
Having emphasized the forensic necessity of identifying the stressor as "outside the range of usual human experience and one that would be markedly distressing to almost anyone" (DSM-III-R, p. 250), we turn'now to a description of the stress symptoms which comprise the diagnostic criteria for PTSD. The descriptions follow the order given in DSM-III-R (see Appendix I).
One way of viewing the symptom clusters of PTSD is to conceptualize them as symptoms that "move towards" and symptoms txhat "move away" from .the calamitous event. It is important to note that symptoms may begin anytime after the occurrence of the stressor, and most typically the full syndrome does not develop immediately. Section B of the DSM-III-R criteria concerns itself with the persistent reexperiencing of the event (moving towards the trauma). These symptoms focus on recurrent and intrusive memories of the event. The experience may take the form of vivid visual images. Distressing dreams of the event occur. Oftentimes these dreams result in fear of seeking sleep. The prototypical experience of "moving towards" the trauma is the flashback event that is experienced as though the traumatic incident were actively occurring in the present. Flashback experiences can be facilitated by intoxicants and mind-altering substances. The victim can remain imbedded in these states for hours and even days. During this time, the acting out of important elements of the trauma may occur in an effort to "undo
and redo" the victims' conduct or experience in the original situation. Intense dread of reexperiencing the event can also take place in response to associations that symbolize or resemble all or a portion of the traumatic event. Anniversary reactions can occur. Ongoing rumination and obsession concerning the trauma is common and these ruminations are often accompanied by the emotions of guilt, sadness, and anger. The counter-phobic "assault" on the event evidenced by the above enumerated symptoms is not under voluntary control (see below).
Category C of the diagnostic criteria for PTSD characterize the "moving away from" experiential stance toward trauma. Although either moving away or moving towards may be a predominant mode of coping, both sets of symptoms are usually seen. In the avoidance stance, the victim embarks on strenuous cognitive and behavioral efforts to repress or avoid thoughts, feelings, or stimuli associated with the original trauma. This may include avoidance of places, people, smells, sounds, and other situations that arouse any recollection of the trauma. In some instances, significant denial occurs, and important aspects of the trauma are unavailable to conscious recall. The prototype in this instance is dissociation of aspects of consciousness from awareness. An inability to take pleasure and an inability to focus attention are global deficits frequently seen as a result of the "numbing" process. This disassociation and retreat was exquisitely described by Janet at the turn of the century
(van der Kolk, 1989). Falling short of full fledged dissociation is a feeling of detachment or unreality including an estrangement from others. The victim's range of emotion is restricted and feelings previously accessible are now deadened, particularly feelings of tenderness and love. A general feeling of hopelessness and malaise often pervades consciouness.
The foregoing symptoms are experiential or phenomenallogical in nature. It is important to underscore the fact that these psychological phenomenon represent a departure from a previous level of functioning. Unlike major mental illnesses, these symptoms are learned as a result of interaction with the environment. This learning ultimately translates into neurobiological processes. The utility of theoretical models useful in the understanding and diagnosis of psychiatric illness (schizophrenia and cyclic affective disorders), as applied to PTSD is questionable. Although there may be some somatic complicity (French and Alexander, 1941) research clearly demonstrates that humans (and other organisms) can be physiologically disrupted as a result of environmental stressors that do not directly impact or insult the nervous system. This is not typically the case with major mental illnesses that have a biochemical and genetic predisposition.
People who have suffered significant trauma no longer "think" in the manner they once did. Nor do they "think" in the way that non-traumatized persons do. Independent of (and often in the absence of) physical trauma, perceptual and cognitive
processes are altered by psychic trauma and the inevitable sequelae of the trauma. The new traumatic learning establishes preferred neuro pathways for perceptions, experiences, and responses as a function of the traumatic stimulus. This occurs ultimately on a molecular level. This process involves cognitive mediation and was first scientifically demonstrated by Pavlov in his famous conditioned stimulus studies (Pavlov, 1928). In these studies, a bell was rung in anticipation of a shock or food being delivered to an animal. After a series of trials in which the tone or bell was pared with the unconditioned stimulus, the mere sound of the bell or tone was sufficient to cause a psychological response nearly indistinguishable from that prompted by the unconditioned stimulus of food or shock. Ultimately, this conditioning would fade or extinguish. This would, occur only with repeated trials where the conditioned stimulus was not followed by actual food or shock. After the passage of time, however, the conditioned response would reemerge (spontaneous recovery). Since Pavlov's studies, far more sophisticated and detailed neurochemical and neurophysiological studies of the effects of trauma have been undertaken and have confirmed the presence of persistent patterns of maladaptive functioning in victims of trauma.
In cognitive terms, the mind often offers no existing categories or schemata for the traumatic event. This is why we often speak of terror as being "speechless." Because of the absence of existing categories or schema, these memories are not integrated into awareness and persist on a continuum from dissociation (near total lack of awareness), to obsession (the inability to remove from consciousness elements of the traumatic event). This linguistic failure can leave the memory encoded and organized on a sensory and iconic level that is seen in the flashbacks, nightmares and repetitive reenactments described above.
The symptoms listed in Category D of the DSM-III-R are the aftermath of psychological conditioning and include insomnia, irritability, inability to concentrate, hypervigilance and exaggerated startle response. Many of these symptoms were first clearly documented among Vietnam veterans. Subsequent research has shown that they also occur as a result of a variety of other stressors. Studies of the long term psychological consequences of the Holocaust experience document impaired sleep and frequent nightmares among patients some 45 years post-liberation (Rosen et al, 1991). As has been the case in other areas of investigation, quality of sleep and frequency of nightmares would correlate with the amount of time spent in the camps. The longer the period of time in the camps, the more frequent the nightmares and the poorer the quality of sleep. An important control group was present in this experiment and the sleep patterns of Holocaust survivors differed from those of both healthy and depressed elderly subjects.
Sutler and her colleagues described the long term
psychological effects of prolonged captivity among Korean War POW's. Predominant symptoms seen among this group of survivors included a wealth of psychosomatic disorders that are believed to be cognitively mediated. Comparisons between the POW survivors and 22 combat veterans matched for age, residence, education and income revealed that 86% of the POW's versus 32% of the combat veterans complained of gastrointestinal symptoms. Severe headaches were reported by 68% of POW's versus 14% of combat vets. Respiratory disorders yielded a difference of 68% versus 23% and fatiguability saw 73% of the POW's reporting such symptoms versus 41% of the combat veterans (Sutker, et al, 1991).
Post Traumatic Stress Disorder among children may involve different norms and symptom clusters. The most inclusive theoretical treatment of childhood trauma has been undertaken by Terr (1991). She made a systematic psychological investigation and follow-up of children who were kidnapped on a school bus and buried underground. Among the 25 kidnapped children, few suffered from flashbacks or psychogenic amnesia. On the other hand, children tended to reexperience the trauma through play, reenactments, and repetitive dreams. They were frequently disrupted by intrusive recall of the experience. It is also of some interest to note that one child persisted in reporting the presence of a female abductor when in truth no females were involved. Terr's long term follow-up of these 25 children resulted in her creation of a typology of trauma. Type I trauma "includes full, detailed memories 'omens' and misperceptions. Type II trauma includes denial and numbing, self-hypnosis and dissociation and rage." Terr goes on to document certain crossover conditions which blend characteristics of both types of trauma (Terr, 1991, p. 10).
Many of the symptoms outlined above represent the persistence of originally adaptive responses to an event or series of events where there is sudden and overwhelming danger to oneself or to significant others. The persistent physiological accompaniments of the event (the so-called fight or flight reactions) persist as a result of memory. Janet observed 100 years ago that "memory is an action. Essentially it is the action of telling a story." (van der Kolk, p. 1536). In keeping with recent advances in forensic psychology, we know that what memory processes best is not exact sequential details, but the nature and quality of an experience with an attendant fullness of affect. This cognitive foundation maintains the persistent psychological responses based on a current inaccurate perception of reality originally generated by the traumatic events. The structures of psychological memory apparatus depends primrarily on heredity, but the inner connections between the neurons which store and grant access to learned material depend almost exclusively on experience that is neurobiologically based but cognitively mediated. In essence, the victim of PTSD is "choiceless" in regard to the ruminations that keep alive the psychological responses that in turn prejudice the accurate interpretation of reality. This adaptational breakdown both
narrows and numbs consciousness thereby reducing reality contact, information processing, and reality based problem solving. This results in progressively more severe symptoms of a psychosocial nature that are secondary to maladaptive coping strategies.
A frequent diagnostic finding among patients suffering from PTSD are comorbid disorders including dissociative phenomenon, substance abuse, depression, generalized anxiety, and (among males especially) anti-social personality disorder. A careful and critical history taking and, when appropriate, psychological testing is necessary to establish the primacy among various presenting symptom complexes. It frequently occurs that an inaccurate primary diagnosis has been given by an earlier clinician. This often occurs as a result of an incomplete history by the previous clinician or an inability on the part of the patient to accurately report the presence of the stressor which initiated the PTSD. In forensic contexts it is especially useful to have access to prior treatment records of a patient so as to clarify the primary or secondary nature of the PTSD diagnosis and, most importantly, to avoid misdiagnosis. The identification of the traumatogenic stressor may be difficult given the episodes of numbing which are part of the biphasic nature of PTSD.
III. IMPLICATIONS FOR LITIGATION
Having considered the history and symptomatotogy of what is now known as Post Traumatic Stress Disorder, a review of implications for litigation can be undertaken. I wish to express my appreciation to R. Terrance Duddy, Esq. of Portland, Maine for his assistance in clarifying various legal issues related to PTSD. Any errors in this section, are, of course, my own.
Two important cases clarifying the compensability of PTSD in Maine will be discussed in the current article. These cases are Gammon v. Osteopathic Hospital of Maine, et al and Culbert v. Sampson's Supermarkets, Inc./Culbert v. Beech-nut Corp. In the course of providing a forensic assessment, it is essential that the clinician gain the retaining attorney's understanding of these and other relevant cases. Without such an understanding, the particular clinical characteristics of the case at issue cannot be related to the law in a meaningful way. It is essential that this forensic understanding be gathered prior to the inception of the evaluation or consultative process.
One of the key conclusions contained in the aforementioned article is found in Gammon v. Osteopathic Hospital. The Law Court again confirmed that the psychological well being of a person is entitled to as much legal protection as their physical well being. This is an important principle in instances wherein no discernable physical damage is present or demonstrable. In such instances, however, the Law Court has decided that the "severe emotional stress" that is experienced as the result of a
trauma must be "such that no reasonable man could be expected to endure it." The interpretation and application of this principle to the instant case will be an important task of the forensic expert. Specific suggestions for approaching this task are discussed below.
In amplifying its findings in regard to the "reasonable man," the Law Court has made it clear that the "reasonable man" does not include the "supersensitive plaintiff" and that simple hurt feelings are insufficient cause for compensation. As is apparent, the Courtis here striving to define the same issues contained in the DSM-III-R. In common with the DSM-III-R, the Law Court has sought to interrelate the severity of the stressor with the victims capacity to withstand stress. It must be emphasized that the differentiation of these two factors are not typically of paramount importance in the clinical treatment of victims but are, however, essential aspects of the'forensic task.
Additional legal ideas are addressed in the Law Court decisions and they involve legal concepts that are valuable for the forensic practitioner to understand. These concepts include the "zone of danger," "foreseeability," and "negligence." A discussion of these concepts is beyond the scope of this article or the expertise of the author and the forensic practitioner is advised to consult closely with the retaining attorney to gain an adequate understanding of these concepts. Having discussed prevailing legal standards as they relate to PTSD, we move next to the type of cases wherein forensic opinions regarding PTSD are often of significant importance.
A random review of my case files over the past seven years revealed a variety of (predominantly civil) instances where PTSD was a central or significant issue in litigation. Examples are given only of cases that have been settled or decided. Four cases involved psychological trauma secondary to automobile accidents. In only one case was there significant, lasting, and demonstrable physical injury. In all cases fear of or inability to operate a motor vehicle was a central symptom. Indeed, motor vehicle accidents appear to be one of the most frequent traumatic events suffered'by a significant portion of the American population. Sexual assault matters comprised five cases. These cases included two rapes where there was an absence of enduring physical trauma or disability, but full blown PTSD. The literature suggests that rape may be one of the most traumatic experiences a man or woman can undergo. An additional case involved a child who was witness to the rape of a parent. Two cases involved the long term sexual exploitation of a child. In the above instances the Defendant's were institutions, landlords, and/or perpetrators. A final instance of a sexually related trauma involved an unwarranted, intrusive and humiliating body search of a female victim by a government entity. In the Worker's Compensation arena, two cases concerned harassment, one sexual (a female employee) and.one a more subtle form of harassment (a male employee). A complex case including elements
of trauma involved the misdiagnosis of a fatal condition and the subsequent impact on survivors as a result of a foreshortened period of time in which to grieve and bring closure to the death. Last was a major case in which psychological trauma was accompanied by the possibility of potentially lethal neurological consequences of an assault.
The foregoing has given examples of relationships of PTSD to accidents or hazards. The literature additionally reveals compensable long term damage due to man made disasters such as hotel fires, physical assault, robbery, and other intentional and feloniously inflicted acts of physical and emotional harm. I am aware of questions of PTSD in criminal cases as well, and although I have consulted in three criminal cases (two barricade situations and one attempted murder/rape case) all three of these cases were plea bargained and information regarding PTSD was provided only for sentencing. It is not difficult to imagine affirmative defenses surrounding dissociative disorders where the question of intention is of crucial importance. Having discussed the type and nature of cases where PTSD and other aspects of trauma and dissociation are crucial elements, we next turn to an overview of issues to be addressed and procedures to be considered in conducting the clinical examination.
IV. CLINICAL EXAMINATION
Epidemiologica~ studies give different estimates in regard to the incidence of PTSD. These studies must be cautiously compared and interpreted(Kulka, 1991). Studies vary in the selection of their populations, interview instruments/methods, level of symptom severity required for diagnosis, and whether current or lifetime incidence of PTSD is considered. A common theme occurs throughout studies, however, in that rates of PTSD do vary as a result of both the type and severity of stressor (Norris, 1992). Clinical experience demonstrates that the overall incidence of PTSD in the general population (probably in the range of 1 to 2 1/2%) is greater than generally expected whereas the incidence of PTSD among people who have survived significant trauma is less than commonly assumed (between 2 and 50% depending on the nature of the stressor and patient characteristics). These tentative figures have obvious implications for the rate of false positive and false negative diagnosis in both.the general and forensic population. Perhaps the single most important element in a proper assessment of the presence or absence of PTSD is a thorough and detailed history. Prior to the inception of the evaluation of a patient in a forensic setting, the requisite warnings must be provided the patient. In addition, I typically undertake a discussion with the patient about the wisdom of straightforward and honest responding given the adversarial nature of the forensic arena. Collateral interviews are oftentimes helpful. In some instances a clinical examination of the patient may not be requested. In these instances, an attorney may request that the forensic
psychologist may provide the fact finder(s) with information and theory regarding PTSD. This is often accomplished through the use of hypothetical questions.
The usual advantages and disadvantages of psychological testing in the forensic setting are of course encountered in providing evaluation of persons suspected of having PTSD. Patient characteristics, the nature of the trauma and clinician preference are involved in the decision to undertake psychological testing. My own preference in these instances is to use a computerized MMPI-2. Other tests or batteries are also on occasion useful, most particularly if pretrauma testing is available. Oftentimes the impairment in concentration and attention will depress IQ scores in comparison with pretrauma results. The use of neuropsychological testing in cases of PTSD can be useful in that PTSD can affect brain function (but not brain structure).
The traumatic aftereffects of rape and combat experience are the most intensively studied sequelae in the PTSD literature.
The clinician needs to exercise caution lest they inappropriately seek concordance with models based on these forms of trauma when evaluating for the presence or absence of PTSD in victims of automobile accidents, man made disasters, or criminal assaults. As indicated above, the clinician must bear in mind that the majority of persons undergoing traumatic experiences usually make adequate recoveries within three months post-trauma and do not develop PTSD. On the other end of the continuum, many patients (even those involved in litigation) may not be able to adequately perceive the relationship between their current psychologically impaired functioning and an earlier identified trauma. Cultural expectations, the protective mechanism of denial, and fear of reprisal may lead to diminished symptom reporting. This, indeed, may be as likely as the overstatement of symptoms as seen in the compensation neurosis. Multiple contacts with the patient are essential. The evaluating clinician must be consistently mindful of the distinction between the treatment and forensic contexts. Sufficient support to facilitate accurate and thorough reporting must be present without the creation of a clinical context that would encourage abreaction, flooding, desensitization, or other clinical techniques of proven value in the treatment of PTSD. It is frequently necessary for the forensic evaluator to facilitate an appropriate referral for treatment at some point in the evaluation process. The necessity for this distinction between treatment and evaluation should be explained to the patient at the inception of the evaluation at the same time that other ethically appropriate warnings are provided.
Sound clinical practice as demanded by the forensic context is the most trustworthy guide to conducting evaluations for patients who are suspected of suffering from PTSD. The use of the DSM-III-R criteria will be useful in order to facilitate a thorough evaluation. Diagnostic criterion C for a disorder 30989 (PTSD) is oftentimes problematic. There exists ongoing
controversy about the adequacy of the theoretical underpinnings leading to the use of Category C in the DSM-III-R (Norris, 1992). These symptoms focus on the numbing aspects of the disorder. My clinical experience and anecdotal evidence from other clinicians point to a frequent prominence of Category B symptoms which are more florid and objective in nature. It is important to understand that in the forensic context, symptom severity of a degree necessary to meet legal standards may in fact fall short of those demanded by DSM-III-R. It is, however, possible that a patient could clearly meet the DSM-III-R criteria for PTSD and fail to meet the legal standards for compensation. The task of the forensic clinician is not to render legal opinions, but rather to provide well supported clinical data as to the psychological status of the patient. Psychologists are uniquely well qualified to fulfill this obligation by virtue of their training and experience in the specialized fields of memory, psychological testing, learning theory, social psychology, psychophysiology, and psychopathology. Indeed it is these elements that are m6st importantly involved in the acquisition of this "learned" disorder that is as debilitating and pathological as the more biologically based entities of schizophrenia and major affective disorder.
PSYCHOLOGICAL TRAUMA: IMPLICATIONS FOR LITIGATION
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French, T. and F. Alexander. (1941) PSYCHOGENIC FACTORS IN BRONCHIAL ASTHMA. Washington: Nat. Research Council.
Gammon v. Osteopathic Hospital of Maine, Inc., 534 A.2d 1282 (Me. 1987)
Kulka, R. et al. (1991) Assessment of PTSD in the Community: Prospects and Pitfalls from Recent Studies of Vietnam Veterans - PSYCHOLOGICAL ASSESSMENT, 3, 4, pp. 547 - 560.
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A. The person has experienced an event that is outside the range of usual human experience and that would be markedly distressing to almost anyone, e.g., serious threat to one's life or physical integrity; serious threat or harm to one's children, spouse, or other close relatives and friends; sudden destruction of one's home or community; or seeing another person who has recently been, or is being, seriously injured or killed as the result of an accident or physical violence.
B. The traumatic event is persistently reexperienced in at least one of the following ways:
(1) recurrent and intrusive distressing recollections of the event (in young children, repetitive play in which themes or aspects of the trauma are expressed) (2) recurrent distressing dreams of the event
(3) sudden acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative [flashback] episodes, even those that occur upon awakening or
(4) intense psychological distress at exposure to' events that symbolize or resemble an aspect of the traumatic event, including anniversaries of the trauma
C. Persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness (not present before the trauma), as indicated by at least three of the following:
(1) efforts to avoid thoughts or feelings associated with the trauma
(2) efforts to avoid activities or situations that arouse recollections of the
(3) inability to recall an important aspect of the trauma (psychogenic amne-
sia) (4) markedly diminished interest in significant activities (in young children,
loss of recently acquired developmental skills such as toilet training or language skills) (5) feeling of detachment or estrangement from others (6/restricted 'range of affect, e.g., unable to have loving feelings
(7) sense of a foreshortened future, e.g., does not expect to have a career,
marriage, or children, or a long life
D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by at least two of the following:
(1) difficulty falling or staying asleep (2) irritability or outbursts of anger (3) difficulty concentrating (4) hypervigilance
(5) exaggerated startle response
(6) physiologic reactivity upon exposure to events that symbolize or resemble an aspect of the traumatic event (e.g., a woman who was raped in an elevator breaks out in a sweat when entering any elevator)
E. Duration of the disturbance (symptoms in B, C, and D) of at least one month.
Specify delayed onset if the onset of symptoms was at least six months after the trauma.