ptsd Private Psychologist Wins Over Va Ime Psychiatrist

[Josephine]

Citation Nr: 0614650

Decision Date: 05/18/06 Archive Date: 05/31/06

DOCKET NO. 96-02 947 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Houston,

Texas

THE ISSUE

Entitlement to service connection for a psychiatric disorder.

WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Nancy Rippel, Counsel

INTRODUCTION

The veteran had active service from October 5, 1970 to

November 25, 1970.

This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision rendered by the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA), in August 1995, which found that new and material evidence had not been submitted to reopen a

claim of service connection for a nervous disorder. In July 1998, the Board found new and material evidence had been submitted to reopen the claim, and remanded the issue of service connection for a nervous disorder for additional development. That development has been accomplished, and the

case has been returned to the Board.

FINDING OF FACT

The competent evidence is at least in equipoise regarding whether a current psychiatric disorder, variously diagnosed, to include schizophrenia/schizoaffective disorder, is the result of a disease or injury incurred in service.

CONCLUSION OF LAW

The veteran is entitled to service connection for the psychiatric disorder variously diagnosed, to include

schizophrenia/schizoaffective disorder. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2005).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to notify and assist

VA has a duty to notify claimants for VA benefits of information necessary to submit to complete and support a claim and to assist claimants in the development of evidence. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)

(2005). As this claim is being decided favorably in full to the veteran, the Board need not discuss whether VA has satisfied its duties under the VCAA. Any defect in this regard would constitute harmless error. See 38 U.S.C.A. § 7261((2) (West 2002).

II. Service connection

The veteran urges that his current psychiatric disorder is related to service. He alleges that, during his short period of time in the marines, he was subjected to stress and abuse that triggered schizophrenia, first diagnosed in 1971, and his present psychiatric illness, including schizoaffective disorder. He has explained that he was the object of ridicule by his superiors and peers in the platoon because he

suffered from enuresis and nervousness. Those conditions are documented in the record. His treating psychiatric health care provider has opined, following a review of the record, that a current psychiatric condition is related to the short time in service. The Board notes that the veteran's first

hospitalization for schizophrenic type problems, in April 1971, reflects that his parents brought him in for treatment following a three to four month period of time in which he demonstrated depression and suicidal gestures.

The Board finds in the record sufficient evidence to put the claim into equipoise as to whether the current psychiatric disorder, schizoaffective disorder or schizophrenia, is related to service and thus, as set forth below, grants the claim.

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110 (West 2002);

38 C.F.R. §§ 3.303(a), 3.304 (2005).

In order to prevail on the issue of service connection for any particular disability, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253

(1999); see also Pond v. West, 12 Vet App. 341, 346 (1999).

While service connection for certain chronic diseases, including psychoses, may be established in certain situations, based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service, the veteran is not eligible for this presumption because he did not meet the 90 day minimum service requirement built into 38

U.S.C.A. § 1112 and 38 C.F.R. § 3.307. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which

case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); VCAA. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin...such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2005).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v.Derwinski, 2 Vet. App. 614, 618 (1992; Hatlestad v.

Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service medical records show that the veteran was treated for bedwetting and nervousness on October 28, 1970. A urinalysis was within normal limits. He was begun in an 'Enuresis Program.' On November 20, 1970, the veteran was found physically qualified for separation. He reported no change

since an earlier examination. He was separated for "Unsuitability." There were no comments from the medical officer.

Following service, the veteran was admitted to the Santa Rosa Medical Center with an admitting diagnosis of depressive reaction in April 1971. The discharge summary reflects that he had presented by his parents because he was feeling nervous and depressed, with some suicidal gestures,

particularly for the last three to four months. The veteran reported that he had felt that way since the seventh or eighth grade. The veteran reported no initiative, wanting to stay home and listen to music. He was irritable and withdrawn. He reported smoking pot on and off since the

ninth grade. The veteran was placed on multiple medications, including Librium, Quaalude, Thorazine, and Haldol, and also treated with electroshock therapy. The diagnosis was

schizophrenia, chronic undifferentiated type.

Thereafter, the record is replete with reference to ongoing mental health problems, including substance abuse (reported as in remission for many years), major depression, bipolar,

schizoaffective disorder, schizophrenia, post-traumatic stress disorder (PTSD), and others. He has been declared disabled due to the Social Security Administration since 1988 for recurrent major depression.

Two medical opinions have been added to the record in 2005. These address the likelihood of whether any of the current psychiatric diagnoses are related to service. One is an

independent medical opinion (IME) obtained by the Board, the other is an opinion in response to the IME, obtained by the veteran. The IME, dated in August 2005, was authored by psychiatrist Stanley P. Oakley, Jr., M.D., who reviewed the claims folder. Dr. Oakley opined that the veteran's current

psychiatric diagnoses include in pertinent part Axis I diagnoses of schizoaffective disorder, and mixed substance abuse, in remission, Axis IV diagnosis was chronic mental illness. Dr. Oakley opined that the mixed substance abuse may have pre-existed service but did not worsen or increase

in severity in service, and that the schizoaffective disorder did not arise until the hospitalization in April 1971. He opined that a psychiatric disorder is not related to the veteran's brief period of service.

In response to this opinion, the veteran submitted an updated statement from Sonja B. Montgomery, Ph.D., Mental Health Counselor and Intern Supervisor of the Heart Source Center for Counseling and Therapy, dated in December 2005. Ms. Montgomery provided a detailed statement of the veteran's

mental health condition in October 2005. She noted that she had been treating the veteran since August 2005. She explained that she had reviewed the veteran's private treatment records as well as his service medical records for this update. She noted his current diagnoses which in her

opinion included schizoaffective disorder, PTSD, generalized anxiety disorder, panic disorder with agoraphobia. Ms. Montgomery noted the veteran's service experience as reported by him, as well as the hospitalization in 1971. She noted the enuresis and nervousness were included in service medical

records. She explained that she agreed with the veteran's strongly held belief that his mental health was compromised in service. She felt that the experiences in boot camp triggered the current mental health problems and potentially triggered his schizophrenic symptoms and depression in 1971.

Thus, based upon her review of the service medical records, mental health records post service, clinical interviews and individual psychotherapy sessions, she opined it was at least

as likely as not that the current psychiatric disorder was related to service.

The veteran has had an ongoing diagnosis of schizoaffective disorder/schizophrenia since April 1971. He also had diagnoses of substance abuse, in remission, and other mental problems, in addition to his current and longstanding diagnosis of schizoaffective disorder at different times in

his health record.

It is significant to note that, in February 1998, the veteran offered testimony at a hearing held before the undersigned. The veteran testified that he was picked on and mistreated in

service. He started having problems such as inappropriate behavior and problems as a result of the abuse. He had trouble after service and although he had had some previous

problems, he felt these were mischaracterized and overblown in terms of significance. His real problems began in service.

In essence, Ms. Montgomery has opined that the veteran's manifestations of what was termed nervousness in 1970 were really the preliminary signs of the schizoaffective disorder

he has today and for which he was treated in April 1971. She offered detailed support for her theory, based on events in the veteran's record. She observed that the veteran had trouble with functioning since service. She noted that serious medications were administered in April 1971. The

Board finds it significant that the veteran was reportedly having problems for three to four months prior to that admission. This would put the veteran's symptoms at almost the same time as his discharge from service.

Thus, medical records both support and contradict the veteran's theory that his current psychiatric condition, variously but most repeatedly diagnosed as schizophrenia and schizoaffective disorder, are related to in service disease or injury. There is competent medical evidence of a current

disability. There is competent medical evidence relating the disability to service. This evidence is Ms. Montgomery's opinion. There is contradictory evidence in the form of the

2005 IME opinion.

The Board must assess the value of these two opinions. In doing so, the Board notes that an opinion by a medical professional is not conclusive, and is not entitled to absolute deference. The United States Court of Appeals for Veterans Claims (Court) has provided extensive guidance for

weighing medical evidence. A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet.

App. 345, 348 (1998). A mere transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the

transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187

(1999); see also Black v. Brown, 5 Vet. App. 177, 180 (1995).

The Board has considered the veteran's statements made in written comments and personal sworn testimony to VA regarding the origin of his mental disorder, as well as those told to medical examiners by way of relating his own history. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R § 3.159(a)(1) (2005). See also Espiritu v. Derwinski, 2 Vet.

App. 492, 494-95 (1992). In Washington v. Nicholson, 19 Vet. App. 362 (2005), the Court emphasized the difference between a veteran offering testimony about factual matters of first-

hand knowledge of in-service symptomatology and treatment, as opposed to testimony about a medical diagnosis or etiology. The Court instructed that the credibility of the veteran

affects the weight to be given to his testimony, in relation to other evidence of record. Id. at 7.

The veteran is competent to describe situations of perceived in-service ridicule and subsequent nervousness and bedwetting. Hearing transcript, (T.) pages 3-5. The Board recognizes that such reports are not contradicted by official records. Indeed, service medical records corroborate that he

was treated for bedwetting and placed in a special program for this problem. To this extent, the veteran is credible. Id.

The veteran testified that he did not have any psychiatric problems or treatment prior to service. T. 5. From approximately 1971, he has continued to require such treatment. Pivotally, of record are numerous affirmative conclusions, reached by medical and lay experts, that his current symptoms are due to and entirely consistent with the reasonably substantiated in-service incidents. These are

consistent with Ms. Montgomery's assessment.

Here, Ms. Montgomery cited to specific points in the veteran's history to support her conclusion that a current psychiatric disorder is causally related to service. The IME opinion, though probative, is not as thoroughly supported, in the Board's estimation. For instance, there was no explanation as to whether the nervous condition noted in service was an initial presentation of schizophrenia. That

is the crux of the veteran's argument. Also, there was no comment on the report in April 1971 that the veteran had been manifesting symptoms for three to four months. Ms. Montgomery's opinion is more probative than the IME because it is better supported as to these critical issues. See

Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness

and detail of the opinion.).

Additionally, although the IME concluded that the veteran's psychiatric disorder first manifested in April 1971, he went on to state that it was at least as likely as not that the condition was not related to in service disease or injury. This statement is unclear and may actually be construed as an

opinion in favor of the claim when one considers that the April 1971 manifestations were reported to have been occurring for about four months.

The Board may adopt a particular medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record that appears to support a

claimant's position. See Wray v. Brown, 7 Vet. App. 488, 493 (1995). Thus, Ms. Montgomery's December 2005 opinion is accorded greater probative value. The Board notes that the

December 2005 opinion contains various psychiatric diagnoses under Axis I. However classified, this specialist has related the events in service, including enuresis and nervousness to the post-service psychiatric disabilities.

However, the Axis II diagnosis of borderline intellectual functioning and prior diagnoses of personality disorder are not disabilities for which service connection may be granted.

See 38 C.F.R. § 3.303© (2005) (Congenital or developmental defects, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable

legislation).

The Board must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55

(1990). In this case, the actual probative medical evidence is both for and against the claim. Accordingly, service connection is thus warranted for a psychiatric disorder,

variously diagnosed. ORDER

Service connection for a psychiatric disorder, including

schizophrenia/schizoaffective disorder, is granted.

____________________________________________

M. SABULSKY

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

[Josephine]

Yep. That is a pretty supportive opinion. I like how he points out that the records show you were in treatment LONG before the VA indicated you were.


So did they ever give you a reason as to WHY -with several medical opinions already in your favor - they sent you to another doctor.


It would seem like they would have to give a reason as to why they considered the medical opinions you had inadequate before they sent you for ANOTHER one.


In fact, THIS one says that your DIAGNOSIS wasn't in question. So - again - you have been treated for YEARS for anxiety and depression. The VA C&P examiner even states your disgnosis is NOT in question - the only question is did you aquire it in service, or as the result of service.


Then you get sent to another exam with a WITNESS in the room that suddenly decides that you have a DIFFERENT diagnosis - one that magically would make you ineligible for benefits.


Geez.......


Anyway -- didn't the second C&P kind of suggest that you already had personality disorder in the service? That you displayed symptoms in the service -- but that they were from a personality disorder?

Free,

No one has ever told me why 5 months after this examination that I was sent for the other one.

The second C&P never makes mention of this examination or even his name or opinion. I thought that there were VA rules and regulations they were susposed to follow and that you only received another one if your conditon had changed.

The first one was never adjudicated and was never dis-qualified. Dr. M was just left hanging.

To be honest with you, as many times as I have read that second C&P, there is no truth to it.

My mind still does not know what went on in that room. I just know that I said to those two" You may think that I don't know who you are , but you are doctors for the veterans administration."

I can see that going on in my mind all the time. " What in the heck were they telling me"?

I received in the mail a letter from the VAMC that said " Reminder of your Clinic Appointment" and like a fool, I went down there.

I called the Regional Office and was told by one of the counselors that they were trying to get me some help.

When I got there the receptionist did not even have me down for an appointment.

She paged this Dr. L. this was the female Psychiatrist and she insisted that she had to have a financial statement. Dr. L sat right beside of me while she did it. " What for I do not know".

I was told to go back to the waiting room to sit with my husband. Dr. L came and said my name and my husband ask to go back and she said, " No."

She took me down this long corridor and I went into this room and there was Dr. B the male Psychiatrist. He said to pick a seat. They were all green leather and arranged so strangely. I picked the one to the far left corner and Dr. L Picked the one straight across from and Dr. B sat at a desk to my far left, so I had to turn around in the chair anytime that I wanted to see him.

Dr. B explained to me that I was there for a C&P examination, then I should have run, but didn't.

Just out of the blue he said, " Tell me about the Pool"? The next thing that I remember, I am standing in the middle of the floor screaming and crying, for I think that I am back in that swimming pool. I have no ideal of how I got out of that chair, how I made it to the middle of the floor and how I got back into my chair.

I have an inner ear problem so badly, that I can't stand in the middle of any floor.

I can hear his dumb questions like, " What about Doris"? " What about your dad"?

I don't remember a Dax thing about any of it. I remember leaving their office, but couldn't remember their names for the rest of the day. As soon as we started to leave in the car, I suddenly realized that I couldn't remember. I went running back into the hospital and told that same receptionist. She told the nurse on duty who saw me and did write a statement, that I couldn't remember much of my office visit.

and that she called the next day to check on me.

My husband spoke to Dr. B twiced that day to see what in the heck was wrong with me? He told me husband that he told me to take a nap and that I would remember what he looked like in about 3 days.

No, I refused to take a nap that day. My daughter said that I repeated this all day long, " I will never have another C&P exam for the money is not worth it.

Always,

Josephine

Edited August 14, 2007 by Josephine

[free_spirit_etc]

Tha sounds like an absolute nightmare - for the doctors to traumatize you while supposedly examining your anxiety. It almost sounds like they drugged you or something.

Hopefully you got statements from your husband, family, friends, that help deny some of the accusations. And actually, those who live with you day in and day out - and have those who have treated you for years - should be MORE credible to testify as to your temperment, etc. than someone who talked to you an hour (psychiatrist or not.)

I know psychiatrists don't believe that though --ACK! I have fought so many times over the fact that despite living with my son, and despite diagnosis - a new person will come in and DISREGARD every bit of it - and think they know MORE after talking to my son for 5 minutes.

When he was 14 - he was hospitalized for about 6 months. At first - I went through all the "how can you learn to pay attention to your son so he doesn't have to act out to get your attention" games.

But after THEY had to be around him 24/7 they quickly saw what I had been talking about. My visits with the social worker turned around - where SHE spent the entire session complaining to ME about his behaviors - and I was supporting HER...lol

Then I read about Autism -- and OMG! It clicked! It made verything make sense for my son's ENTIRE Life! They didn't know much about high functioning autism at that time -- so most doctors didn't pick up on it. But when I read about it - it all fell into place.

So I told the social worker - who thought I was "reading into" things. But the next visit she told me that the doctor had agreed with my observation.

They did EXTENSIVE testing. Neuro-psychology testing, EEG testing, etc. before the doctor gave his offical diagnosis. Pervasive Development Disorder / Atypical Autism, and Left Temporal Lobe Brain Damage. (The doctor said his brain wave patterns were consistent with someone with a severe closed head injury.

At that time they had suggested Residential School for my son. But the Department of Mental Health and the School System played pass the Bueracratic Buck of who was going to PAY for it. (Your son NEEDS this - but no one will pay).

The GAME for them is DCFS. You are SUPPOSED to get THEM to pay by:

1. The hospital releases your child.

2. You refuse to pick them up.

3. BINGO! They are now a NEGLECTED child - DCFS HAS to pay for their care.

Well - I wouldn't play that game. In essence, he would be "removed" from my "neglectful" care and become a ward of the State (to get his needs met).

By the way - that is not legal -- but that is what parents had to do to get their kids help because no one else would pay for it because they knew dang good and well DCFS would if you did what was called the "DCFS lockout" (i.e. not pick them up on their release from the hospital.

I was told "In order to be the good mother that you are, you have to let them declare you a 'bad' mother so your son can get help.

What a CROCK of STUFF!!

If my son couldn't get the help he needed with me in there kickin' butt all the way - how in the world would he get what he needed without me there to protect him.

I called and called and called EVERYONE -- I went to the State Capital and cornered Senators at copy machines. I wanted so desperately to know - why can't anyone HELP my son while I am his MOTHER?????

It is all a matter of whose pot the State $$$ come out of.

The school told me that they couldn't pay UNLESS the Department of Mental Health denied a Grant to pay. So I applied for a grant with the Department of Mental Health. I went to a hearing. And was - of course, denied the grant.

They DECIDED my son DID NOT have any of the diagnosis that he had recieved after intensive testing in the hospital. They just brushed all the doctors reports aside to decide he was not qualified for a Mental Health Grant.

I called the head of THAT Board. He told me my son needed residential placement - and that I needed to do a DCFS lockout.

I told him that I had read that since DCFS would pay for care based on "parent neglect" that my son would have to be put in the least restrictive environment. He would have to actually FAIL in several foster homes before they would consider placing him in a residential school.

The guy (the head of the board that denied the grant) said "Based on his record that sholdn't take him long.

???????????

So they wanted to subject my son to FAILING in foster homes so that his residential school would come out of the tax dollars that DCFS spends instead of the Tax Dollars that the Department of Mental Health spends???

Now lets TALK about NEGLECT! THAT is NEGLECT!!!

I discovered at that time that human beings are the only animal that have taken away the mother's natural instinct to protect her young. I wanted to BITE somebody!!

Then - get this -- I called the school and told them I was denied the Department of Mental Health grant (so I could apply for the school one).

She told me - we can't help you if you were denied the Department of Mental Health grant.

I said - You mean he Can NOT qualify for a school grant UNLESS he is DENIED the Dept of Mental Health Grant - But IF he is denied the Department of Mental Health grant - he can't Qualify for a school grant?

She said - "Yes"

I said - "Then it is just a farce"

She said "Yes"

It was all a game to them to protect their budgets while I was running around jumping through their hoops not realizing that none of the hoops would lead anywhere -- they were jsut supposed to wear me out so I would do the DCFS lockout.

Anyway - the school ended up messing up and writing on his IEP that he needed residential schooling. They tried to backpaddle on that one - but they were kind of stuck with it -- They had declared it as a need - which meant they had to pay for it if it wasn't provided by another agency.

But then -- I couldn't find a residential school in the area that would take my son. (No wonder I was bonkers - I had been raising a child alone that even the residential schools didn't want to take.)

My son had to be transfered to the State Hospital -- because the private hospital has to cure you in three weeks and he had already been there a couple of months -- but if he came home - he wouldn't "need" residential schooling. ACK! He even had to ride all the way there in an ambulance - because if he could ride with me in a car then he wouldn't NEED residential schooling. Games. Games, Games.

But anyway -- we finally found a school in Wisconsin that dealt with kids like my son - with PDD - and high functioning autism.

he Social Worker came down and evaluated him for 10 or 15 minutes - and didn't think he HAD PDD. He (the Social Worker) thought he was DEPRESSED instead.

GEEZ! The kid had been in psychiatric units for SIX MONTHS! He had significant psychological testing! He had been under the care of psychiatric nurses and doctors ALL THAT TIME! NOT ONCE did ANYONE thnk he was depressed, test him for depression, or give him such a diagnosis!!

But this guy just breezed right in - disregarded six months of psychiatric testing and notes - and made a determination that my son was NOT whatever all the doctors said - he was DEPRESSED!!! That was his only problem..

ARGH!!!!

Anyway -- I lost all idea of where I was originally going with this post -- but I ended up taking my son home. I wasn't sure I would be able to help him, but I had to try. I just knew he wouldn't get what he needed from them.

Free

[Josephine]

Free,

It was a nightmare and I know exactly what they did. The nurse told me to be there at the hospital to pick up the statement before those two docs got there.

She wrote the best statement that the law would allow her to.

Pt. Diabetic blood sugar 131, blood pressure fine, Patient cannot remember most of her office visit today. Follow- up with telephone call following morning patient still unable to remember advised to see private doctor.

Those two have told me to drop this claim and I am a nervous wreck every time I try to fight the thing.

I was susposed to take that nap and forget just as the nurse stated. She said she see's it time and time again and the patient has no ideal of what happen to them and they don't remember anything at all about the visit.

I was so scared that I couldn't go to sleep. When my blood sugar was first detected my A1C was at 14. The Rescue Squad took to the hospital for I couldn't remember anything. I still do not remember going to the hospital the CAT SCAN. I do not remember a thing about that day and I guess that I never will.

The staff thought that I had a stroke.

After that C&P, I was sure that I had had another stroke.

I have a letter from my husband, my two daughters. Dr. P and the Nurse at the VAMC that treated me.

Always,

Josephine

Edited August 14, 2007 by Josephine

[free_spirit_etc]

Let me see if I can say what I intended to say before I get off on a tangent again.lol

First - crossing my fingers that the AMC will do right by you.

Second -- the reason I asked if the second C&P talked about in-service behvaiors is that that could be important if you go before the BVA.

I know they said you have a personality disorder (by the way - most people with personality disorders think that nothing is worng with THEM - they think something is wrong with everyone else - which is NOT one of your traits). (you can quote me :) )

If the second opinion tries to link in behaviors and in service conditions to your so called personality disroder -- that could be used FOR your case.

As the first C&P noted -- Whether you suffered from depression and anxiety was NOT in question. What WAS in question was when it STARTED. (and the doctor even pointed out that they did not correctly note the first time you started getting treatment).

So in this case -- if the second C&P came along and also ACKNOWLEDGES your problems in service -- but tries to link them to personality disorder - now the balance has shifted -- because everyone agrees that you had problems that showed manifested in service - the only disagreement is what LABEL to put on it.

So you don't have to focus as much on proving when it started -- besides getting the VA to notice that everyone agrees you had problems in service - you can focus on the battle of what to CALL it.

Hmm. they both agree that these problems showed up around the time I was in service. My service discharge pretty well indicates a problem. The doctor I saw in the service acknowledges he sent me to a psychiatrist.

And ____ doctors have labled and / or treated my for anxiety / depression - and ONE doctor labled it personality disorder.

Another thing that might be interesting would be that IF you have to appeal higher - to get a copy of the request that the VA sent the C&P examiners to see what they ASKED for in the report.

I read a court case where the COURT (above BVA) had ruled that the VA had prejudiced the Vet's case by the information they included in the Exam request. Basically, they told the doctor what to look for and what to not pay attention to. They tried to get the report that they WANTED by the type of information they asked for.

They are not allowed to prejudice your case by leading the examining physicians like that. They should ask for a report - but leave it up to the physicians to review the records and examine you and make their own interpretations.

The fact that the first C&P reported that the VA had noted your condition didn't start until (was it 1978?) would even cause me to wonder if they had not tried to lead that one. Yeah. Most doctors are busy. If the VA asked them to look at your records from 1978 -- many doctors aren't going to dig through earlier ones.

So if they requested that the doctor give his opinion on the anxiety you have been treated for since 1978 -- they have someone prejudiced his opinion (it did not work in this case though - as the doctor caught it and pointed it out.) But they tried to plant in the doctor's mind "this is when it first started."

They should just ask the doctor to view the records and issue an opinion on whether or not you have the disability or if it could be related to your service.

So it might be very interesting to see the request for the second exam. Because if they had prejudiced the doctor in how they worded the request - you could cite the court case and ask the BVA to throw out the second C&P.

Of course, the BVA might decide to remand it for the RO to send you to another C&P with prejudicing the doctor. But I would assume if you go to the BVA you will know exactly WHY the AMC denied your claim - and can address that with stronger medical opinions if needed.

Free

[Josephine]

Another thing that might be interesting would be that IF you have to appeal higher - to get a copy of the request that the VA sent the C&P examiners to see what they ASKED for in the report.

Strangely when I placed my complaint with the Patient Advocate. He stated to me that there was no written request for the examination and that there were no notes either.

I think that Dr. L placed into her C&P that I denied any Article 15's, according to her. The truth of the matter is that I did not have any.

When looking at my personnel records, one can clearly read that I was recommended for a higher rate and this was just before my discharge.

I also had a score of 3.8.

Thanks,

Josephine

Edited August 14, 2007 by Josephine

[free_spirit_etc]

Strange that in a medical exam - when the doctor reports "pt. denies any pain in shoulder" no one ever interprets that to mean "the pt is probably in pain - but won't admit that he is."

Most often people take it to mean - I the docotr specifically asked if he was in pain and he flat out told me NO and seemed very belivable"

Most often it actually means "I never bothered to ask - but I don't recall he mentioned it - and if he did - I didn't listen, but I am supposed to write something about it in this report - so I will say "denies"

However, in psych exams - "Pt denies...." is sometimes taken to mean -- It is a fact, but the patient is denying it.

Odd how that happens.

Free

Another thing that might be interesting would be that IF you have to appeal higher - to get a copy of the request that the VA sent the C&P examiners to see what they ASKED for in the report.

Strangely when I placed my complaint with the Patient Advocate. He stated to me that there was no written request for the examination and that there were no notes either.

I think that Dr. L placed into her C&P that I denied any Article 15's, according to her. The truth of the matter is that I did not have any.

When looking at my personnel records, one can clearly read that I was recommended for a higher rate and this was just before my discharge.

I also had a score of 3.8.

Thanks,

Josephine