Riddle Me This For An Original Claim

[Rockhound]

I have been trying to understand the process by which a diagnosis, on which SC is predicated, is able to be changed to a diagnosis, that SC can not be attached.

(01) What pertinent Laws and regulations, must the SOC sight, to give proper reason and basis for a change in a diagnosis on which SC was predicated upon and an alternate diagnosis be used as the correction the prior diagnosis?

(02) What language must the medical report, on which the Claims Rater/Adjudicator relied upon, be used, to convey that a change in the diagnosis, on which SC was predicated upon, was warrented? Further, convey that a current diagnosis was to be used to correct the prior diagnosis?

(03) What procedure must the Rater/Adjudicator follow, in order to make such a change in diagnosis? Does the Rater/adjudicator have the authority by himself to determine that a change in a diagnosis should be done or must he receive approval from Adjudicators highter up in the chain of adjudication?

(04) Must the Claiment be given notice of the adverse decision/change of diagnosis, prior to a final determination on the claim? If so, how long and/or what type of a notice is required, before a final decision can be made?

Your understanding of this change of diagnosis process and/or sighting of pertinent Laws and Regualtions and the procedural steps necessary for such a change in diagnosis will be of great help I'm sure.

I have found many instances (court cases), Laws and Regualtion that pretain to a change of diagnosis of a previously SC disease and or injury, but nothing pretaining to an original claim for SC of a disease or injury that is documented in-service but before SC could be attached, the diagnosis was changed to one for which SC could not be attached.

As thoughs who have read my prior posts on this issue, they know that I believe that the process, laws, regulations, that should have been used in my original claim where not used and the ones that were sighted in the statement of the case, were insufficient to give reason and basis for a change of diagnosis to be proper and/or warrented and thusly used to deny SC for the original in-service diagnosis.

Each time I think I have my claim figured out, something I have read and re-read here, from your replys clicks in my head and I have to rethink everything, well almost everything, so that I am able to provide the correct information and reasoning, so that my claim can prevail or at least have a strong enough claim to prevail.

It's after 4:00 a.m. it's one of those sleepless nights, dispited having taken all my medications, so I can not be sure that all this makes any sinse, but I hope it does. enough time has passed, so I can now take another pill to help me sleep, maybe now I can lay down and not just toss and turn, with my thoughts still rasing away. Good night or good morning, which ever is your poison.

Rockhound Rider a.k.a. Jim

[Hoppy]

Rockhound,

My memory of how you got top this point is a little foggy. Thus, I will shoot from the hips and correct me if I am wrong.

You were diagnosed with schizophrenic episode while on active duty. Many years later you filed a mental health claim with the VA. They sent you to a C&P exam and the examiner said you had a PD.

The question is what type of evaluation was performed by the C&P examiner. A longitudinal study would have taken into account the entire history of your condition. A cross sectional study would have produced a current diagnosis. So the C&P examiner can’t find any specific DSM category to put you into based on the schizophrenic episode because you are not schizophrenic during the C&P. Thus, the C&P examiner pulls a diagnosis out of a place where the sun don’t shine and says you have a PD.

The entire problem in my opinion is the medical opinion not how the VA is adjudicating your claim. You need to get the medical evidence to support your claim. Arguing that the VA has made a procedural error does not give you a diagnosis. If you could get a medical opinion that you current condition meets the DSM IV and that it is related to the in-service event is the way to go. It sound like your argument is that there is no evidence the in-service condition has resolved. The problem is that if the C&P examiner has blown off this argument, then the only way to rebut it is with another medical opinion. Also, if the diagnosis of schizophrenic episode was made prior to the publication of the DSM IV the adjudicators could throw it out and seek a current diagnosis based on the DSM IV. There is a requirement that diagnoses be based on the DSM IV. They might not view the situation as a change of diagnosis rather than a change in the way conditions are diagnosed.

What is a raters responsibility? As far as I know they listen to the doctors reports of record. The first words out of the DRO’s mouth when I saw him was that he was not a doctor and the only way he could resolve the issue in my claim of multiple diagnoses was to seek a medical opinion for this purpose. I had five different post service diagnoses. They are required to schedule C&P’s to resolve problems caused by multiple diagnoses. However, it appears that the C&P gave you a single diagnosis of PD.

They are not required to fish for alternative explanations not developed by the doctors. They are not required to fish even if you contest the doctor’s reports. Type the words “fishing expedition” into the BVA search engine use the Boolean option and select all years. I bet you will get of about 1246 cases explaining this. If you want them to change their minds, my suggestion is that you get more medical evidence rather than try and figure out how to win this claim by telling the raters the doctors “changed a diagnosis”. You might get lucky and get another C&P. However, I would not recommend depending on the C&P process. The best way to deal with them is to get an opinion from a VA doc or private doctor.

Have you been in any recent treatment or is your claim resting entirely on the C&P exam? If so I would argue that there is no way an accurate diagnosis can be developed by a C&P examiner based on one appointment. This is what the shrinks who treat mental health patients say when rebutting C&P examiners.

[Rockhound]

Hoppy: My Claim was not based on a C&P exam done years after the original in-service diagnsis. It was done only (9) nine months after the psychotic episode happened and after I had suffered a minor cerebral concussion. both having happened while in=service.

I won't argue your logic, even though I think it is flawed. The in-service diagnosis in and by itself has all the requirements necessary to be SC. It has the history of the episode, exams, tests, and othe findings that support the diagnosis. In other words, it has everything that the VA C&P exam does not. A fulling supported diagnosis. Which can not be changed or altered, with out finding it clearly and unmistakably in error. I am not saying that they must used this exact term, but the examiner must use language that defines how the prior diagnosis was wrong and that his is the correct one. Without this the rater cannot then say it so.

The rater must follow, not only his own procedures, when he beleives a change in a diagnosis is warrented, he must also follow the regulations and laws at the time, in order to do so.

I guess I am starting to argue my point again sorry, but thank you for your imput, but I did not want to use my claim as an example, I just wanted to know the process better, so that I can better understand where the rater made his errors.

Even though I might have a current diagnosis of schizophrenia, I must show that the PD diagnosis at the time of the C&P exam in 1974 is wrong, since they will just say that my schizophrenia diagnosed now has nothing to do with my PD back then. Not having the resources at my command, I must look to other avenues and a CUE claim is but one that is open at this time. With new findings, I may be able to use the minor TBI to reopen that part of my claim. If it prevails, I might then have the resources to get the IMO to support SCing my mental disorder. But I am not going to hold my breath or put all my eggs in one basket.

Sorry, I'm getting windy again. lets stick to the process

a.k.a. Jim

[john999]

Rock

As far as the CUE going back to 1974 I think you have a hard fight ahead of you. I don't believe the VA regs say the doctor must have a clear and unmistakable reason to change a military diagnosis. That type of language has a specific meaning for the VA, and similar language is not the same thing. These are two separate systems. I do think that if you have a schizophrenic diagnosis in service, and now have schizophrenia you have a chance of getting service connection, but not the CUE because it is a question of judgement between the military doctors and the VA doctor. Even if you had one VA doctor saying PD and your doctor saying Schizophrenia I don't think that in itself is a CUE. That is a matter of medical judgement. If the VA ignored completely your SMR's, or did not consider evidence from your shrink then I think that would be a CUE because that is evidence and they must consider all evidence in a claim.The CUE, as I understand it, can be separated from the evaluation of the evidence. Why not try and just get current SC for schizophrenia and let the CUE wait for a while? The CUE is technical, and not based on what we consider reasonable evaluation of facts. It is like that on purpose to narrow it down so that 99% of vets don't have a shot. I think what Hoppy is telling is practical as opposed to something that is a longshot and it going to bog down and waste your time if you only pursue it and not a current SC claim for schizophrenia.

[Rockhound]

If the VA ignored completely your SMR's, or did not consider evidence from your shrink then I think that would be a CUE because that is evidence and they must consider all evidence in a claim.

38 C.F.R. 4.127 Mental Deficiency and Personality Disorders (1974) In part: Formal psychometric tests are essential in the diagnosis of mental deficiency and personality disorders.

If this is so, then the VA C&P Examiner's own diagnosis is defficient on its own merit, with no psychometric tests sighted, where as the in-service diagnosis is backed by psychometric tests as well as other tests and exams in support of their diagnosis.

The VA C&P examiner only sighted his own opinion and that his opinion was based on the claimants history. This statement is to broad and vague for anyone to know what part of the claimants history he was refering to in order for one to understand and formulate an appeal against.

Plus, I do believe that such a history can not be used against a claimant unless their is documentation that supports the history other than the claimants own words. Such as if the claimant said that prior to inlisting he was suspended from school for fighting, this statement can not be used unless their are some form of written records from the school that the claimant did in fact get suspended from school for fighting. This is just an example, not something I actually did.

Still, my questions are not being addressed. I'm wanting to know about the procedural steps that the VA must take in order to use, support, justify, etc. a diagnosis change.

a.k.a. Jim B)

[carlie]

Rockhound,

Then just keep studying the rule's for Change in Diagnosis

AND Difference of Opinion.

You are not going to win a CUE claim for Change in Diagnosis

based on a CUE of the procedure followed in order to change the Diagnosis.

You are putting your energy into a fight that will gain you nothing

other than loosing more time and getting more aggravated.

You have been advised many,many times to work on trying to

1st - get a Diagnosis of a Current Disability Service Connected,

2nd - fight the other issues after you get granted a SC'd Disability.

Also, arguments for SC based on "Residuals Of" must show some

type of Disability that is Current.

jmho,

carlie

[Rockhound]

carlie, you stated:

"Then just keep studying the rule's for Change in Diagnosis

AND Difference of Opinion."

I don't know about Difference of Opinion, that I will have to do more research on, but as to Change in Diagnosis

38 C.F.R. 4.128 Change of Diagnosis (1974)

Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in a prior diagnosis, or possibly a disease entity independent of the service connected psychiatric disorder.

The VA Rater is claiming the change in the diagnosis was due to the prior diagnosis being made in error. The summery Report by the VA C&P Examiner reads like the PD was something independent from the psychiatric disorder that was being newly diagnosed at the time of the exam and prior records show that it was being diagnosed for the first time. Further the report only confirms that at the time of the exam, the schizophrenia was still in remission, since he could not fulling support the diagnosis at that time. He neither said the prior diagnosis was wrong or in error or that his was a correction of it. That is what the VA Rater is stating and without some type of wording in the report that the prior diagnosis is wrong and his is right one and a correction of the prior diagnosis, then the VA Rater does not have the legal justification that a change in the diagnosis is proper. He also does not have the authority by himself to make such a decision. It must be approved by a higher authority and notification then given to the claimant so that he may provide supporting evidence why such action should not be taken, prior to a final decision is made on a change of diagnosis.

I know my argument is going on death ears by now, but Its not a question of getting SC now, although that may well be how things end up, it is the prenciple of the matter that I can not let go of. I was denied SC for a psychiatric disorder in 1974 which has led to my present condition.

I have but one close friend and that is more than likely because I only see them about once a month, gone through three marriages, and worst of all, I have segragated myself from most people by living alone, just barely taking care of myself.

enough self pity. my refusal to give up is the only reason I haven't become one of the statistics for suicide victems. got to go, my day to go into town for food and such.

Rockhound Rider B)

[Hoppy]

Rockhound,

Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in a prior diagnosis, or possibly a disease entity independent of the service connected psychiatric disorder.

This, in my opinion, is an instruction for the raters to seek medical opinions addressing these issues. It is not an invitation for the raters to use there discretion to answer these questions. Additionally, "exercise caution" is rather non specific terminology and I am sure the RO will argue that caution was used.

I know of two cases whereby people were SC'd 30 years after discharge. These cases were similar to yours in that there were denials made within a couple years after discharge. These cases are very close to home (family members). Do not give up on seeking service connection. The cases I am familiar with caused total losses of all material and social affiliations for the individuals. They were hospitalized for extended period of time. They were misdiagnosed by VA docs in the 70's and thrown out of the VA system. They are now SC'd and doing much better.

I am in agreement that your claim was not properly developed. However, not for the reasons you are pointing out. Also, the rater was playing doctor and made up answers that were not supported by the medical evidence. "The VA Rater is claiming the change in the diagnosis was due to the prior diagnosis being made in error". The rater made a mistake. The question is whether or not it was a CUE. Not all mistakes are considered CUES. Even though the rater made a mistake the mistake caused a failure to properly develop the claim. Failure to develop a claim is an issue you take up on appeal. It is not necessairly a CUE.

A real issue I see now is that the raters mistake may not be an issue because you need to have medical evidence of record that you have a disability that both meets the rating schedules level of severity for a rating and the condition has to be sufficiently chronic to be considered disabling. If the doctor says one part of your condition is in remission and the other part (PD) is not service connectable how can the rater give you anything higher than a 0% rating? Medical evidence saying your inservice condition was in remission should have been rebutted in 1974. I do not think a rater can undo this significant of a statement on a C&P without going on a "fishing expedition". Additionally, the fact that it was called in remission and what I know of the way psych conditions are diagnosed leave the door wide open for any increase or change in symptoms from 1974 to your current claim. However, claims must be filed, appealed timely and medical evidence must be submitted or obtained as prescribed by VA law.

I can find and post the CUE cases showing the multiple steps needced to win CUE that includes both a "serious" adjudication error and the exixtence in the record at the time of the adjudication error of a ratable disability. However. I think you have already found this. If not, spend some time on CUES when researching.

There is no question that the denial was written in a manner to make it hard for you to understand the system and what it would take to advance your claim. This problem has gone on for decades. The VCAA was supposed to cause the RO's to make things clearer to veterans on how to advance their claims. However the cases I have ssen since the VCAA have not been much netter.