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My Cue Claim At The Varo


Guest Jim S.

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I just thought I would post this for discussion. I have already filed this CUE claim with the VARO and I am sure it will take them some time in digesting all that I have presented, It is a bit lengthy, but I made it a poiint to repeat the full diagnostic finding from the Naval Medical Board and cirtain other findings that support my claim for Service Connection and how the VARO Examiner failed to support his.

HAVE FUN!

THE PERTENENT FACTS OF THE CASE ARE AS FOLLOW:

In November of 1973, the veteran submitted an original claim for compensation or pension for disability resulting from a psychotic episode, with a revised diagnosis of, “acute schizophrenic episode, in remission, A disease not evident prior to enlistment (DNEPTE)[(DC) 2954 (VA) 9205] demonstrating moderate impairment for future social and industrial adaptability” and associated depression, anxiety, and residual of a cerebral concussion and fractured nasal bone.

In March of 1974, the Veterans Benefits Administration Regional Office (VARO) denied service connection, claiming disease or injury was not incurred in or aggravated by service, 38 U.S.C. 310, 331, (1973) concluding that "the condition, alternatively diagnosed as ‘personality disorder, inadequate type’, associated with inadequate educational experience, existed prior to service, was a congenital or developmental defect and as such, not a disease or injury within the meaning of applicable legislation, 38 C.F.R. §3.303." (1973) Further claiming a reasonable doubt arose regarding service origin, the degree of disability, or any other point. 38 C.F.R. § 3.102 (1973) Reasonable Doubt. Also denying Service connection to residuals of the cerebral concussion, as it was not found on last exam, and awarded Service connection, listed a 0% disabling for fracture on the nasal bone.

In April of 1974, the veteran submitted Notice of Disagreement (NOD) in connection with the psychotic episode, making note of the inadequacy of the VA exam, requesting a new and separate exam be conducted. Then submitted a second NOD, in follow-up, in November of that same year, again requesting a new exam, to answer the discrepancies in the first exam. The VARO subsequently denied service connection on the basis that the condition was properly alternatively diagnosed and as such, was not compensable under present regulations and laws in effect. No mention or determinations on the request for a new exam were ever given and/or shown to be acted upon. The veteran then attempted in Jan of 1979 to re-open claim with new and material evidence, demonstrating a manifestation and/or exacerbation of symptoms, yet VARO again denied, stating in a letter dated, May 15, 1979, “the evidence does not warrant any change in our previous denial for service connection for your nervous condition”. The VARO using this term to describe Veterans acute schizophrenic episode, Further: failing to give Veteran adequate reasons or basis for the current decision and what his rights and/or procedures are, for appeal of this current denial.

DISCUSSION:

Service connection may be established for a current disability in several ways, including (1) on a "direct" basis, (2) on the basis of "aggravation," and (3) on a "secondary" basis. Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote are service connected.

38 C.F.R. §3.303 (a), (:).

It is Veteran’s contention that the March, 1974, and subsequent VARO decisions clearly evidenced “Clear and Unmistakable Error” 38 C.F.R. §3.105, failing to properly adjudicate the issues of service connection of a disease subject to service connection under 38 C.F.R. §3.303, §3.307, §3.309, and any subsequent manifestation by not establishing service connection and entitlement to the in-service diagnosis of a psychotic episode, revised to, acute schizophrenic episode, DNEPTE (DC) 2954 (VA) 9205. Listed as a psychosis, a disorder subject to service connection and matters of fact in evidence, by the in service medical board report and for which Veteran was subsequently discharged from the service for.

It is conclusively stated in the 1973 Navy Medical Board, attested to and by a conference of staff psychiatrists, after an adequate period of observation, testing, and treatment, having reviewed the available records and current findings, agreed that the veteran did show evidence of an acute psychotic episode, The diagnosis being revised to “Acute Schizophrenic Episode”, in remission DNEPTE (DC) 2954 (VA) 9205. Further stating that he demonstrates moderate impairment for future social and industrial adaptability, made mention in the report that the veteran was significantly depressed, demonstrated considerable attention and concentration difficulties associated with inner tension and anxiety. Listing his condition as probably permanent.

A later VA Examiner opinioned, after one preliminary physical and neurological exam, making reference to having reviewed Veterans history, that in summery, my major opinions at this time are that the person does represent an inadequate personality with modest intellectual capabilities (despite the fact that he was tested during his hospitalization as having a high average intellectual quotient). No evidence of psychosis is present and on the basis of the history it would be difficult to substantiate a solid diagnosis of schizophrenia.

In the case at hand, the VARO failed in its March 22, 1974, and May 15, 1979 decisions to articulate "reasons or bases" for the apparent dismissal of evidence of record favorable to the veteran, including the statement by a conference of Navy psychiatrists, findings from tests and observations and results from treatment, which supports the veteran's claim and evidence showing manifestation and/or exacerbation of symptoms by records, supplied by Butte County Mental Health. Moreover, the VARO failed to provide "reasons or bases" for its conclusion that the veteran is not entitled to the "benefit of the doubt" under 38 C.F.R. §3.102. Further: The VARO fails to show reason or basis for its conclusion that the VA examiner showed clear and unmistakable evidence rebutting presumption of sound condition 38 C.F.R. §3.304 (:lol:.

It appears the VARO reached its conclusion that the veteran's acute psychotic episode was misdiagnosed in service, based upon findings which were the only dissenting opinion of record (the VA examiners statement, Mar 5, 1974) to support VARO claim. Not only is the veteran denied the benefit of the VARO rationale, but the review responsibilities are hampered by the failure of the VARO to provide adequate "reasons or bases" for its findings, Also the letter of denial dated May 15, 1979 for veterans reopened claim, fails to meet even its own guidelines as being sufficient in M21-1 for statements showing reason or basis for a decision, M21-1 Part VI, Preparation of the Rating Decision, Chapter 3, Subchapter II Rating Decisions, 3.13 Reason for Decision, for veteran to base his appeal on.

It is further in contention, that the decision made by the VARO, that the VA examiner, clearly and unmistakably found, that the personality disorder was in fact, an alternative diagnosis for the acute schizophrenic episode and that the original diagnosis was in error, fails to show reason or basis for such a change or error . 38 C.F.R. §3.105 (a)(d) Their being no rational reasons or basis, as shown by the record or by medical treatises, showing how a diagnosis of a personality disorder, inadequate type, associated with an inadequate educational experience, having any Medical basis and/or correlation with an acute psychotic reaction, manifested by aggressive, assaultive and hostile behavior to the extent in which Veteran took a hand gun and began shooting at people, with no prior history of any such action or behavior, before or during active service. More over, the type of personality disorder described, would be more suited if the Veteran was shown to have a learning disorder.

Contrary to the erroneous and prejudicial wording in the summery of evidence and letter of decision, in the Statement of the Case, dated 7-25-73;

“Confirms abnormal behavior beginning June 1973, alternatively diagnosable as a psychosis or personality disorder”.

The actual diagnosis at the time being, that Veteran had an acute psychotic episode, revised to “Acute Schizophrenic episode”, in remission DNEPTE (DC) 2954 (VA) 9205, Which is a psychosis by definition, 38 C.F.R. §4.132, (1973) currently 38 C.F.R. §3.309 There is no mention of a personality disorder as being part of the definition, nor was it stated in the in-service medical board findings.

All the evidentiary information available at the time of the original claim, shows no record that Veteran had or manifested a personality disorder, inadequate type; prior to service, or during Service, in which Veteran had a enlistment physical, a Reenlistment physical, and a physical and neurological exam dated Aug. 22, 1973 at the VAMC, Martenez, CA. The only thing of note, being a history of acute schizophrenic episode, and that his store of knowledge was average, prior to Veteran’s discharge from the U.S. Navy. Nor subsequent to the VARO ruling. nor in the summery report, given by Butte County Mental Health Services. Noting the possibility that the patient had developed an endogenous depression, following his being discharged from the service, as well as the possibility of a circular affective disorder, with the possibility of, that he in fact had an acute psychotic episode, and finding the psychiatric evaluation provided by the VA as questionable.

The only evidence of the personality disorder, as having manifested itself to the degree, that only the VA Examiner could make an opinion of, was nine months after Veteran suffered from his psychotic episode and a minor concussion for which a Neurological consult determined, caused a slow wave form of the frontal lobe, as shown by a Electroencephalogram test result. Approximately Six months, from Veteran’s discharge from service. Leading one to consider; that the personality disorder may have manifested itself, as a result of the psychotic episode and/or minor concussion or was a separate diagnosis, independent of the service connected psychotic episode, C.F.R. §4.128,(1973) or as a superimposed condition on a mental disorder, C.F.R. §4.127, (1973). Or whether the finding in the report from Butte County Mental Health Services, better reflects a diagnosis of an endogenous depression disorder or that of a circular affective disorder, than that of a personality disorder, inadequate type, a diagnosis found questionable by this same report. Neither of these findings sufficiently investigated on their own, to rule on their relationship to one another or the original diagnosis of acute schizophrenic episode. In part, showing evidence once again, of the inadequacy of the VA Examination and questions arising from.

QUESTION PRESENTED

Due to the inadequacy of, ambiguity of, and/or the clarification of the VA examiner’s findings, evidence submitted, finding the psychiatric evaluation by the VA questionable, the prejudicial and erroneous statement in the summery of evidence and letter of same, and the VARO failure to articulate "reasons or bases" for the apparent dismissal of evidence of record favorable to the veteran, failure to provide "reasons or bases" for its conclusion that the veteran is not entitled to the "benefit of the doubt", failure to show reason or basis by clear and unmistakable evidence, rebutting presumption of sound condition, and failure of the VARO to provide adequate "reasons or bases" showing a medical basis and/or correlation between VA diagnosis of a personality disorder, inadequate type and the original in-service diagnosis of a psychotic episode, revised to, acute schizophrenic episode, in remission, for its findings, denying Veterans claim, dated Nov 19, 1973 and Jan 09, 1979.

The question still remains as to the finality of the original claim. 38 C.F.R. §3.104 Finality of decisions. (1973) (a) The decision of a duly constituted rating agency or other agency of original jurisdiction on which an action was predicated will be final and binding upon all field offices of the Veterans Adminis¬tration as to conclusions based on evidence on file at that time and will not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in §3.105.

For all rights and purposes, both the examiner and the VARO rating board failed to properly clarify, apply and adjudicate on the issue of service connection for a psychotic episode, revised to, acute schizophrenic episode, in remission DNEPTE (DC) 2954 (VA) 9205, with moderate impairment for social and industrial adaptability with associated depression, anxiety, and other issues, presented in the in-service Medical Board findings. Instead, they subjugated the well documented in-service diagnosis of an acute psychotic episode, in remission, for an erroneously applied alternative diagnosis of a personality disorder, inadequate type. Manifestly changing the outcome of veteran’s claim by denying service connection for compensation or pension and further prejudicing the outcome of veterans attempt at reopening claim with new and material evidence, evidencing a manifestation and/or exacerbation of symptoms and impairment to social and industrial adaptability, dated Jan. 1979.

For a VA decision to become final, written notification to the appellant is required (38 U.S.C. §5104 (a)) and (38 C.F.R. §3.104 (a)). The following statement is found in the written notification to appellant, which reads in part; The disabilities listed below were not incurred in, nor aggravated by service: Residuals cerebral concussion as it was not found on your last examination, nor for acute schizophrenic episode as the evidence shows it to be correctly diagnosed as inadequate personality which is a constitutional or developmental abnormality and not a disability under the law. There is no evidence of a psychosis at the present time.

In reading the clinical notes made by the VA examiner. The record shows no such statement or assertion, that the diagnosis of the personality disorder was, for a fact, an alternative diagnosis for the acute schizophrenic episode also there is no evidence showing the medical basis and/or correlation associating the personality disorder with that of the acute psychotic episode. Again, the only statement provided to the VA, to the diagnosis of a personality disorder and the acute psychotic episode were by the VA examiner, stating in summery, my major opinions at this time are that the person does represent an inadequate personality with very modest intellectual capabilities and that on the basis of the history it would be difficult to substantiate in his opinion a solid diagnosis of schizophrenia. Failing both, to find the diagnosis of the acute schizophrenic episode as clearly unmistakably erroneous, 38 C.F.R. §3.105 (a) (d) or showing any medical basis, treatises and or correlation, finding the two disorders as one and the same and thus not supporting the reason or basis for the VARO ruling that an alternative diagnosis had been made. The courts having found that a decision cannot be based on unsubstantiated medical conclusions.

It is further stated, that no residuals of a cerebral concussion were noted on last exam. Noting that nothing in the VA examiners report or clinical notes substantiates this conclusion, also no follow up electroencephalogram test is shown, to rule out the continuance of the slow wave form of the frontal lobe. Failing to support the conclusion that no residual effects were noted for the cerebral concussion, as evidenced in the in service medical board findings. "When complete examinations are not conducted covering all systems of the body affected by disease or injury, it is impossible to visualize the nature and extent of the service-connected disability." The VARO may consider only medical evidence independent of its own medical opinions in order to support its findings. Thus again, evidencing the inadequacy of the VA examine, and unsupported medical conclusions made by the VARO, dated 03-05-74.

SUMMERY:

In reading this statement, it is clear that none of the issues presented were considered and/or having been cited or applied for adjudication. Further: that the issue of impairment for future social and industrial adaptability and associated depression, anxiety and other issues presented by the in-service medical board, appear to have been subjugated along with the diagnosis of the acute psychotic episode. 38 C.F.R. §4.129 Social adaptability (1973) and 38 C.F.R §4.132 Schedule of Ratings-Mental Disorders. (1973)

It is evident that the in-service diagnosis of acute schizophrenic episode and all other issues related, as defined in the in-service medical board, have yet to be finally and properly decided, based on the evidence of record at the time and accordance with procedural law and regulations.

Veteran reiterates that service connection for the original claim of compensation or pension, for a psychotic episode, revised to, Acute schizophrenic episode, in remission DNEPTE (DC) 2954 (VA) 9205, demonstrating moderate impairment for future social and industrial adaptability, associated depression, anxiety and other issues presented by the in-service medical board, claim dated Nov 19, 1973, has yet to be properly and finally adjudicated for Service connection, in accordance with the Laws and regulations in force at the time and must be evaluated and adjudicated de-novo for Clear and Unmistakable Error as supported and evidenced in the preceding statement in support.

It being within the realm of authority for the VARO to revisit an earlier decision if warranted by the evidence at the time of the ruling, to revise its decision in light of Clear and Unmistakable Error (CUE) 38 CFR §3.105

Respectfully Submitted by Veteran,

___________________________ DATE: _June 14, 2004 :P

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After reading my CUE claim for the umpteenth time, I had a thought that I would like your apinion on. In the statement of the case (SOC) one item keeps me coming back to it.

“Confirms abnormal behavior beginning June 1973, alternatively diagnosable as a psychosis or personality disorder”.

The wording doesn't seem right, the abnormal behavior should be either diagnosable as a psychosis or a personality disorder. The way it is worded, you can take your pick as to the diagnosis. It is either a psychosis or a personality disorder, and comferming niether one over the other.

Below are two CFR's that relate to this statement in the SOC.

38 C.F.R. §4.127 Mental Deficiency and Personality Disorders (1973)

Mental deficiency and personality dis¬orders will not be considered as disabilities under the terms of the schedule. Attention is directed to the outline of personality disorders In the APA manual, Page 34, et seq. Formal psychometric tests are essential in the diagnosis of mental deficiency. Brief emotional out-bursts or periods of confusion are not unusual in mental deficiency or personality disorders and are not acceptable as the basis for a diagnosis of psychotic reaction. However, properly diagnosed superimposed psychotic reactions developing after enlistment, i.e., mental deficiency with psychotic reaction or personality disorder with psychotic reaction. are to be considered as disabilities analogous to. and ratable as, schizophrenic reaction, unless otherwise diagnosed.

38 CFR §3.309 Disease Subject To Presumptive Service Connection: In Part (1973)

(a) Chronic diseases. The following diseases may be considered for service connection although not otherwise established as incurred in service if manifested to a compensable degree within the applicable time limits under §3.307 following service in a period of war or following Peacetime service on or after February 1. 1955.

Anemia, primary.

Arteriosclerosis.

Arthritis.

Atrophy, progressive muscular.

Brain hemorrhage.

Brain thrombosis.

Bronchiectasis.

Calculi of the kidney, bladder, or gall-bladder.

Cardiovascular-renal disease, including hypertension. (This term applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease. and since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the 1 year period will be given the same benefit of service connection as any of the chronic disease listed.)

Cirrhosis of the liver.

Coccidioidomycosis.

Diabetes mellitus.

Encephalitis lethargica residuals, Endocarditis. (This term covers all forms of valvular heart disease.)

Endocrinopathies.

Epilepsies.

Hodgkin's disease.

Leprosy.

Leukemia.

Myasthenia gravis.

Myelitis.

Myocarditis.

Nephritis.

Other organic disease of the nervous system.

Osteitis deformans (Pagat's disease).

Osyteomalacia

Palsy, bulbar.

Peralysis agitans.

Psychoses

Purpura idiopathic, hemorrhagic.

Raynaud's disease.

Sarcoidosis.

Scleroderma.

Sclerosis, amyotrophic lateral.

Sclerosis, multiple.

Syringomyelia.

Thromboangiitis obliterans (Buerger's disease).

Tuberculosis, active.

Tumors, malignant, or of the brain or spinal cord or peripheral nerves.

Ulcers, peptic (gastric or duodenal). (A proper diagnosis of gastric or duodenal ulcer, peptic ulcer is to he considered established if it represents a medically sound interpretation of sufficient clinical findings warranting such diagnosis and provides an adequate basis for a differential diagnosis from other conditions with like symptomatology: in short, where the preponderance of evidence indicates gastric or duodenal ulcer (peptic ulcer). Whenever possible, of course, laboratory findings should be used in corroboration of the clinical data.)

Is this a blatant mistake in how the VARO applied the regulation?

Jim S. :)

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Jim- what stands out to me is:

“acute schizophrenic episode, in remission"

in 1974 I think it was-

The VA would need to see evidence of chronicity and factors that show this is not in remission for a ratable condition that is still current.

Do they have all treatment records since then so you can prove this is a chronic and current disability?

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  • HadIt.com Elder

The VA uses personality disorder to deny claims. They tend to label any type of psychiatric disorder as a personality disorder. The key to overcome is to review the symptoms very carefully. and compare the diagnosis to each other.

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  • HadIt.com Elder

Jim

I was able to overcome a personality disorder diagnosis by the use of a great IMO pyschiatrist. She went back to my records in Vietnam and corrected the misdiagnosis of some dimwit army shrink who was scared to death of anyone with a rifle.

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Jim- what stands out to me is:

“acute schizophrenic episode, in remission"

in 1974 I think it was-

The VA would need to see evidence of chronicity and factors that show this is not in remission for a ratable condition that is still current.

Do they have all treatment records since then so you can prove this is a chronic and current disability?

Berta: I didn't expect any answers until after Thanksgiving, but I appreciate the dedication you have for this forum.

Under the following, in 1973 the CFR regulation reads in part:

38 C.F.R.§3.307 Presumptive Service Connection for chronic, tropical, or prisoner of war related disease: wartime and service on or after February 1, 1955. (1973)

(a) General. A chronic, tropical, or prisoner of war related disease listed in §3.309 will be considered to have been incurred in service under the circumstance's outlined in this section even though there is no evidence of such disease during¬ the period of service. No rendition other than one listed in §3.309 (a) will be considered chronic.

At this stage, All I am trying to do is prove that the diagnosis of an acute schizophrenic episode was wrongfully alternatively diagnosed by the VARO as a personality disorder. That and the fact they ignored all the supporting evidence that pointed to an active process of the schizophrenia, that being the associated depression, anxiety, and moderate impairment ot social and industrial adaptability. Plu not stated in my claim but a part of the evidence, that I was treated with psychotopic drugs to bring me out of the catatonic state I was in after the episode and continued to take up and until my transfer from the Navy hospital to a VA hospital prior to my discharge from the Navy.

The answer is Yes I do believe I do have evidence that shows at the time of the CUE that I was suffering from shcizophrenia to at least a 10% or more, during the year proceding my discharge from the service.

That had they applied this evidence correctly and by the correct regulation and/or law, they would have found the acute schizophrenic episode in remission, as service connected and not alternatively diagnosed as a personality disorder, but rather as a personality disorder superimposed on a mental disorder.

Jim S. B)

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Berta: One point I must make, that none of the evidence,, that was subsequent to the claim, that is being CUE'd, is of use to support the chronicity of the pschotic episode, Since the evidence to be used must be of record before the VARO at the time of the alledged CUE.

I believe that their was and had the evidence been propery applied at the time and by the correct rules, regulations, and law at the time, they would have service connected the acute schizophrenic episode as chronic for rating purposes and any subsequate evidence would have been looked at as probitive to the claim and not to that of a personality disorder persay.

Jim S. B)

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  • HadIt.com Elder

Jim

Many times there will be a diagnosis of residual schizophrenia after an acute epidsode but you must still have some symptoms currently. What you want to show is that you may no longer be psychotic but you have a residual disability. I don't think your claim is going to fly without that third leg.

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John999: I have a history of depression and adjustment difficulties since leaving the service and I have a current diagnosis of chronic depression and anxiety disorders also a diagnosis of a chronic adjustment disorder, all of which only need to be evaluated for nexus to service, whch the Dr's and Psychiatrists refuse to do and for which I cannot afford to have a private IMO done.

My argument is that the VARO has yet to rule on the issue of the Acute Schizophrenic episode in remission. They must show that the diagnosis was in error before they can replace the diagnosis with an alternate one.

When the VARO rules that a diagnosis is in error, the burden of proof is on the VARO to prove it and support it by medical finding and/or treatise to back the VA Examiner's written report that perposes the change.

The VA and VA Examiner having not done this, the Examiners report is insuficient for rating purposes and should have been returned for clarification of the points in question. Only then does the burden of proof becomes the responsibility of the Veteran.

Also the examiners report must show why the presumption of sound condition doesn't apply in refuting the proposed alternative diagnosis of a personality disorder.

Jim S.

Edited by Jim S.
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  • HadIt.com Elder

Jim

I think you should try and link your depression and anxiety with residuals of acute schizophrenic episode. If you can get the VA to service connect the schizophrenia then the depression etc. could be viewed as a chronic residual. You know you got to have the disease and it must be service-connected and you must still be suffering from it when you file. You have to link all these things together. I know you know this already. If you can get that schizophrenia SC'ed it will open the door for all the rest. The thing is that schizophrenia is not the same thing as depression or anxiety but these can be symptoms of schizophrenia, especially chronic schizophrenia.

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