ptsd Need Advice To Appeal Recent Iu

[agcgonz]

Please forgive me for the long post. I hope I included the info needed for advice on how to proceed,

I have two issues with the latest findings dtd Dec 2013.

1 Challenging g the recent rating of 70% to 100% PT.

2. Challenging the initial evaluation assigned following the granting of service connection for this disability effected date from 2013 to the original claim in 2010 denied in 2011.

So here we go.

I went through the claim system years ago 2010 and originally was rated 10% fracture pelvis (jump related), 20% back, 30% migraines, 50% PTSD /Bipolar Disorder overall 80%. At the same time I applied for IU but was denied. The RD indicates ‘Entitlement to individual unemployability is denied because the claimant has not been found unable to secure or follow a substantially gainful occupation as a result of service connected disabilities.”

Realizing that it the RD was over a year to reopen or appeal I submitted a request for increase following VA Doc advice) in 2013.

"I believe that my condition Post-Traumatic Stress Disorder (PTSD) and Bipolar Disorder w psychotic features, has steadily become worse since this rating was awarded. My most recent episode occurred on 1/25/13 while deployed to NJ in support of the FEMA response and recovery efforts of Super Storm Sandy. My VA Physician, examinations coupled with the just completed PTSD questionnaire he concludes I'm unable to return to work due to my disability and has placed me on indefinite Medical Leave. Furthermore, He concludes that I will not be able to return at all. Based on his findings along with my last episode. I see that it would be more appropriate that I would now be rated at 100%. "

Although I haven’t seen the RD, ebenefits shows completed with overall 90% with IU. I was able to find out the RO granted a 70% PTSD. After an apt w my VA Dr, he indicates based on my medical records and the C&P, the rating of 70 is in error, you should be rated 100% PTSD. Then told me to appeal. The C&P results are as follows

Review Post Traumatic Stress Disorder (PTSD)

Disability Benefits Questionnaire

SECTION I:

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1. Diagnostic Summary

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Does the Veteran now have or has he/she ever been diagnosed with PTSD?

[X] Yes[ ] No

2. Current Diagnoses

--------------------

a. Diagnosis #1: PTSD, chronic

Indicate the Axis category:

[X] Axis I [ ] Axis II

Diagnosis #2: Bipolar Disorder I, Most Recent Episode Depressed

Indicate the Axis category:

[X] Axis I [ ] Axis II

b. Axis III - medical diagnoses (to include TBI): See Medical Records

c. Axis IV - Psychosocial and Environmental Problems (describe, if any):

Limited social contact; limited family support/contact; unemployment; health concerns

d. Axis V - Current global assessment of functioning (GAF) score: 52

3. Differentiation of symptoms

------------------------------

a. Does the Veteran have more than one mental disorder diagnosed?

[X] Yes[ ] No

b. Is it possible to differentiate what symptom(s) is/are attributable to each diagnosis?

[X] Yes[ ] No[ ] Not applicable (N/A)

If yes, list which symptoms are attributable to each diagnosis:

Symptoms of PTSD: anxiety/avoidance behaviors; reoccurring nightmares and sleep issues; detachment from others; decreased interest in activities; agitation/irritability; hypervigilance; startled easily Symptoms of Bipolar Disorder: sleep issues/disturbances; agitation/irritability; disinterest in activities; social withdrawal; hallucinations at times

PTSD and Bipolar Disorder coexist with some overlap in symptoms.

Symptoms of both disorders can be exacerbated by one another also.

c. Does the Veteran have a diagnosed traumatic brain injury (TBI)?

[ ] Yes[X] No[ ] Not shown in records reviewed

4. Occupational and social impairment

a. Which of the following best summarizes the Veteran's level of occupational, and social impairment with regards to all mental diagnoses? (Check only one)

[X] Occupational and social impairment with reduced reliability and

Productivity b. For the indicated level of occupational and social impairment, is it possible to differentiate what portion of the occupational and social impairment indicated above is caused by each mental disorder?

[ ] Yes[X] No[ ] No other mental disorder has been diagnosed

If no, provide reason that it is not possible to differentiate what portion of the indicated level of occupational and social impairment is attributable to each diagnosis:

The global assessment of functioning indicates the veteran's overall level of functioning, which is affected by his symptoms of each disorder. The level of impairment the veteran is experiencing from his symptoms of PTSD cannot be separated from the level of impairment the veteran is experiencing from his symptoms of

Bipolar Disorder.

c. If a diagnosis of TBI exists, is it possible to differentiate what portion of the occupational and social impairment indicated above is caused by the TBI?

[ ] Yes[ ] No[X] No diagnosis of TBI

SECTION II:

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Clinical Findings:

------------------

1. Evidence review

------------------

If any records (evidence) were reviewed, please list here:

C-file reviewed; records in CPRS and VistaWeb reviewed

2. Recent History (since prior exam)

------------------------------------

a. Relevant Social/Marital/Family history:

Veteran stated that he has been married over 30 years, and resides

With his wife in a house. Veteran continues to report marital issues, and stated that he has been experiencing "stress." Veteran reported that the process for the claims at the VA has been aggravating. Veteran stated that his father passed away in 2012. Veteran stated that he spends most of his time "at home, sleeping." Veteran stated that his psychiatric medication increases his sleep. Veteran reported that he does not have any close friends. Veteran stated that he used to have close friends, but stated that "it started diminishing in 2010/2009." Veteran reported that he is "constantly agitated." Veteran stated that he has decreased his contact with

His family

b. Relevant Occupational and Educational history:

Veteran did not report any additional education and/or training since his last mental health C&P exam.

Veteran stated that he used to be employed with FEMA, in the IT department, from 2008 until January 2013. Veteran stated that in 2009, he was unable to continue employment due to mental health issues, including increased agitation, difficulty with concentration, and conflict with coworkers. Veteran stated that in 2009, he started part-time work at FEMA instead, and continued in this position until 2012. Veteran stated that the FEMA system changed, and he was placed on an on-call basis, and contacted as needed. Veteran stated that he traveled to two different States with FEMA. Veteran stated that he was stressed from the work, reporting that he was working 12 hours a day/7 days, for several months.

Veteran stated that in January 2013, he was sent to New Jersey with FEMA. Veteran stated that he had contacted his wife and his psychiatrist because of issues with sleep. Please see

Treatment note, dated 01-25-2013, by Dr.. Veteran stated that he became more agitated and started to hallucinating at this time. Veteran stated that Dr. wrote a letter to FEMA, requesting that veteran be placed on "an indefinite medical leave." Treatment records indicate that a letter, dated 01-25-2013, was written by Dr. Veteran stated that he completed FMLA, to continue to on his medical leave. Veteran stated that when the FMLA ended in August 2013, he was informed by Dr. that it was not recommended for veteran to return to work. Veteran stated that Dr. recommended that veteran file for an increase for unemployablity. claim.

Veteran stated that he is currently unable to maintain employment due to difficulty in managing stress, agitation, conflicts with others,= and increased anxiety.

c. Relevant Mental Health history, to include prescribed medications and family mental health:

Treatment Records indicate the following mental health services:

10-26-2010: Treated by A Dr.; diagnosed with PTSD, with

GAF=55; last seen on 08-01-2011 and diagnosed with PTSD, with GAF=60

01-06-2011: Treated by VA Dr for PTSD

08-15-2011: Treated by VA Dr.; diagnosed with PTSD and

Depressive Disorder NOS, with GAF=60; last seen on 11-04-2013 and diagnosed with PTSD and Major Depressive Disorder, Recurrent, Severe with Psychotic Features, with GAF=53

02-19-2013: Treated by VA Dr.; diagnosed with PTSD and Major

Depressive Disorder with GAF=55; last seen on 11-18-2013 and diagnosed with PTSD and Major Depressive Disorder, with GAF=52

Veteran is currently prescribed the following psychiatric medication:

Mirtazapine; Risperdone; Setraline; and Bendryl. Veteran stated that he finds the medication to be helpful at times, and stated that the medication assists with veteran's sleep issues.

Currently, veteran reported that he experiences issues with sleep.

Veteran stated that he will sleep about 2-3 hours a night, without medication. Veteran stated that he has issues with initiating and maintaining sleep. Veteran indicated that he is hypervigilant, checking doors and locks, and reported that he has "cameras all over the house." Veteran stated that he experiences nightmares, and content is about "battle, blood, devil, people coming at me."

Veteran stated that he experiences the nightmares about 1-2 times a week.

Veteran stated that he if does not sleep, he will hallucinate, reporting that he will "see shadows." Veteran recalled the exposure during service time and became visibly distraught tearful. Veteran stated that he does not talk to others about his military experiences and avoids military-related material. Veteran stated that he also startles easily. Veteran stated that he avoids crowds and tends to socially isolate.

Veteran stated that the frequency of the nightmares has increased and have become more intense. Veteran reported that the auditory hallucinations, which started around 2012, during his work with FEMA in Mississippi, have increased in frequency. Veteran stated that he

Hears a male voice, wispering in his ear, and making "negative statements."

Veteram stated that his level of agitation increased, especially when in New Jersey for FEMA.

d. Relevant Legal and Behavioral history:

Veteran denied any arrests, bankruptcy, and/or foreclosure issues since his last mental health C&P exam.

e. Relevant Substance abuse history:

Alcohol: Veteran stated that he used alcohol to sleep but since the change in his psychiatric medication in 11-04-2013, he has discontinued his alcohol consumption.

Cigarettes: denied any current use

Marijuana: denied any current use

Other Illicit Drugs: denied any current use

f. Sentinel Event(s) (other than stressors):

Death of father in 2012

g. Other, if any:

No response provided.

3. PTSD Diagnostic Criteria

---------------------------

Criterion A: The Veteran has been exposed to a traumatic event where both of the following were present:

[X] The Veteran experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.

[X] The Veteran's response involved intense fear,

Helplessness or horror.

Criterion B: The traumatic event is persistently reexperienced in 1 or more of the following ways:

[X] Recurrent distressing dreams of the event

Criterion C: Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by 3 or more of the following:

[X] Efforts to avoid thoughts, feelings or conversations associated with the trauma

[X] Efforts to avoid activities, places or people that arouse recollections of the trauma

[X] Markedly diminished interest or participation in significant activities

[X] Feeling of detachment or estrangement from others

Criterion D: Persistent symptoms of increased arousal, not present before the trauma, as indicated by 2 or more of the following:

[X] Difficulty falling or staying asleep

[X] Irritability or outbursts of anger

[X] Difficulty concentrating

[X] Hypervigilance

[X] Exaggerated startle response

Criterion E:

[X] The duration of the symptoms described above in Criteria

B, C and D is more than 1 month.

Criterion F:

[X] The PTSD symptoms described above cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

4. Symptoms

-----------

For VA rating purposes, check all symptoms that apply to the Veterans diagnoses:

[X] Depressed mood

[X] Anxiety

[X] Suspiciousness

[X] Chronic sleep impairment

[X] Disturbances of motivation and mood

[X] Difficulty in establishing and maintaining effective work and social relationships

[X] Difficulty in adapting to stressful circumstances, including work or a

Work like setting

[X] Persistent delusions or hallucinations

5. Other symptoms

-----------------

Does the Veteran have any other symptoms attributable to PTSD (and other mental disorders) that are not listed above?

[ ] Yes[X] No

6. Competency

-------------

Is the Veteran capable of managing his or her financial affairs?

[ ] Yes[X] No

If no, explain:

Wife manages financial affairs

7. Remarks, if any:

-------------------

Veteran is aware of the reason for the evaluation.

Veteran became visibly upset during the exam, and started to cry and was agitated at times when discussing the VA Claims Process and his

Experience with FEMA. When veteran recalled the service experiences, veteran became tearful, crying loudly, and having shortness of breath at times.

Examiner had to assist veteran in reducing his tearfulness and agitation by having veteran breath slowly and distracting veteran with another topic.

Employability:

His ability to understand and follow instructions is considered mildly impaired. His ability to retain instructions as well as sustain concentration to perform simple tasks is considered mildly to moderately impaired.

His ability to sustain concentration to task persistence and pace is considered moderately impaired.

His ability to respond appropriately to coworkers, supervisors, or the general public is considered moderately to markedly impaired.

His ability to respond appropriately to changes in work setting is considered moderately, impaired.

His ability to engage in sedentary employment is considered moderately to markedly impaired.

Here my dilemma, while gathering information, researching and searching the boards, I can across a post from broncove

”.Since you have gone beyond the one year appeal period, you need one of two things to be able to appeal.

1. You would need to ask to reopen under 38 cfr 3.156 C, new and material service records. This means the VA did not have a key portion of your military service records when they made the decision.

2. You need to meet the clear unmistakable error standard of review. This means that your decision has an undebatable, outcome determinative error.

And I also found a BVA (http://www.va.gov/vetapp13/Files1/1308941.txt) case grants an appellant aneffective date back to the initial determination date even when he was working. Specifically it shows “…..While the Veteran has continued to work as a correctional officer, in fact, apparently even in a managerial capacity, the affect his PTSD has had on his work performance has been well documented in terms of not receiving even more promotions, the extent of his absenteeism for the several reasons mentioned, and perhaps most importantly his apparent need to transfer to a position with different responsibility in part because of the amount of stress that he could not deal or cope with in the other position.

I believe I had a similar case in my original claim in 2010 . the RD acknowledged when they “…The [FEMA] response shows that you are still employed with them and that your title is Disaster Assistance Employee. The response does show that your last payment date was May 7, 2009, which was $3,274.32, but that you have not been called up yet for any current or recent disasters.”

I am wondering during my NOD for the recent RD should I also add the 2010 decision because of the “clear unmistakable error standard of review. This means that your decision has an undebatable, outcome determinative error.” When they included that I had to leave fulltime FEMA to part time (temp) employee?

FYI submitted to VA in 2010 claim 1^st incident in 87 while serving w Brief Reactive Psychosis

2^nd MEDVAC from AOR in 1999 same symptoms Brief Reactive Psychosis

SSDI granted in 2013 for PTSD and Bipolar- submitted to VA in 2013 claim

Again I apologize for the long explanation and rational.

Thank you.

[Navy04]

Keep fighting and let us know how things are going. God Bless and hope we all have an early Christmas.

[agcgonz]

Submitted my NoD and my VA form 9. The rating official made the decision on the GAF and dismissed any all evidence that was favorable for me.

In the NoD I wrote: …”.the evidence is clear the rating of 70 percent in the 2013 Rating Decision is in error. The rating official erred by only using the GAF 52 in making the final disability determination. There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score, like an examiner's assessment of the severity of a condition at the time of a particular evaluation, is not altogether dispositive or determinative of the evaluation to be assigned; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating to be assigned. 38 C.F.R. § 4.126(a); In evaluating mental disorders such as PTSD and Bipolar I Disorder, the rating official must consider all the evidence of record, determine the nature of the appellant's disability picture, and then look to the list of symptoms outlined in the diagnostic criteria as examples that can provide guidance in estimating the severity of the appellant's condition. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). More recently, the U.S. Court of Appeals for the Federal Circuit explained that evaluation under § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus (emphasis added) when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116, 117 (Fed. Cir. 2013). In the context of determining whether a 100 percent disability evaluation is warranted, § 4.130 requires "not only the presence of certain symptoms [,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas [;]" thus, it "requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 117, 118 (quoting 38 C.F.R. § 4.130, Diagnostic Code 9411). A rating official determination of the appropriate degree of disability under the rating code is a finding of fact subject to the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a) (4); see Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Therefore, the evaluation by Dr. Li (his primary provider for the last 2-3 years) was completed closest to the date of his “4^th” occurrence than the C&P’s examination 11 months later. Therefore, the Veteran claims the C&P does not provide any probative value of evidence in this case. After the review all the evidence of record dating to 1987, it must be clear to the Board of the Veteran's functional capacity, on January 2013 meets the criteria at the 100% permanent rating. The VA regulations state that "where there is a question as to which of two rating criteria shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating 38 C.F.R. § 4.7 (2012). The regulations also caution that "it is not expected . . . that all cases will show all the findings specified in the [applicable DC]." 38 C.F.R. § 4.21 (2012). Moreover, in Mauerhan v. Principi, the Court held that the symptoms listed in DC are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." 16 Vet. App. 436, 442 (2006). Instead, the rating official is required to "consider all symptoms of a claimant's condition that affect the level of occupational and social impairment," not just those listed in the regulation.”

on stanby to see the SoC from RO if Denied---next step to VBA via VTC.

[shakeyswife]

ag,

"Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2010). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2010)."

Waiting on my husbands deferred decision for PTSD, as he has persistent delusions and hallucinations checked, with a second dx of chronic depression, but he also has another claim for parkinson's which has been deferred as well, they only rated hearing and tinnitus thus far, these were all first claims. 10% for hearing, 10% for tinitus. RO Winston/Salem, glad we moved from FL and are not dealing with St. Pete

[agcgonz]

I wish I could move as well. Anyway this is my 4th occurance- 2 while in service and 2 since leaving the service, i continue to refuse to go to the VA inpatient locked ward.....so far been lucky with my VA Dr. he's is not pushing it either. --- He order an MRI to rule out TBI as a cause.

Either way they will need to explain why they decised not to include my Civ and the VA DRs evaluation in the determination. They dismissed any and all medical evidence that's favors my claim. Once I win--- then I'm sending all this "ssssH...." to my dear friend Gen Shinseki (RET) w cc to my congressman. my hope they can fix this systemic problem within St Pete. RO.

Happy Holidays and New Year. May we all get a fair and just decision.......

[john999]

At the CAVC the VA tried to say that a doctor's implication that I was ok socially was also a statement that I was ok occupationally. I do not think this will fly. The VA is supposed to rate you based on social and occupational adjustment. When you get to higher levels the VA lawyers will argue every point. You would be shocked at what they consider solid evidence equal to a psychiatrist's. In my case the VA is arguing that an unnamed worker on a VA mental ward has the same weight as a private clinical psychologist. The VA says that before 1990 they did not even have to acknowledge vet's evidence before they rated him even in cases where the BVA and RO admitted they did not review all the evidence of record. At CAVC it is a knife fight in a dark alley except the VA has a little flashlight and you don't. What AGCGONZ says is true, but CAVC lawyers will argue it all the way. The CUE rules even argue that "ALL" the evidence of record must militate in favor of the vet for his to win. Just be ready for outrageous claims by the VA. They scoff at their own rules.

John