ptsd To Berta: Bva Second Remand In Two Years.

[lu12]

Any comment on how should I start this new action is truly appreciated due to the fact that I'm exhausted.

Filed my claim for service connection back in 1998 for depression. In April 1996 on a C&P orthopedic exam it was reported that I was experiencing anxiety problems, in August 1996 was medically treated again by the VHA for the same problem, anxiety. Late in 1998 my claim was denied.

1998 VA examiner and claim decisions makers label the psy. disorder as Dysthymia. Dysthymia is a "less severe form of depression // is a disorder characterized by symptoms of mild depression.

My case went before the Board in 2006, the Board remanded my case and came back early 2008 with a 30 percent rating for a Dysthymic disorder. Filed a NOD, the Board remanded my case one more time. I base my NOD on the following facts:

1998 Examiner did not consider evidence of record from VHA system and private sector including numerous IME-IMO's. 1998 VARO claim examiners and decisions makers also failed to consider supportive and objective evidence available at that time.

2008 Examiner and (AMC) base their opinions and diagnosis on 1998 VARO changed diagnosis classified as "DYSTHYMIA" and it is my believe that been classified with a different diagnoses affected the out come of the new service connection and recent rating of 30% and a 2008 GAF: 55-60

2009 VARO-SOC denied my claim for entitlement for a higher evaluation in excess of 30 percent.

I've been diagnosed Since early 1996 with recurrent mayor depression, Chronic long lasting anxiety, PTSD secondary to multiples surgical procedure and pain disorder.

2007-2008 VHA attending PSY. Current Dx's: MDD, anxiety and pain disorders GAF: 50

2006-2007 most recent IMO's refer to the following Dx's: MDD, anxiety, GAF:50 this evidence were rejected by VA Examiner during the psychiatric evaluation. evidence not mentioned by the Board second remand nor by 2009 VARO denial decision and new VA-SOC

I know that you can only be rated for one condition, but my contention is that I filed my first claim under a different diagnosis "DEPRESSION" because that was the diagnosis that I was given them by independent private physicians. In addition to the facts that the PTSD and pain disorders are residual effects of my MDD and Chronic Anxiety. Facts that serve to prove aggravation of the Psychiatric conditions for the past 19 years.

BVA in 2006 recognized and consider the evidence since my presumptive period to present, 19 years of cumulative evidence, yet the Board remanded my case for a second time in early 2008.

Along with the 2009 denial decision, the new VARO gave me 60 days to submit more arguments, a VA form 9, and to point out the facts in their SOC in which I disagree with and the error I believe they made in applying the law, matter of fact that it all started with a Wrong Diagnosis.

In regards to entitlement to sc for a cervical spine disorder this issue was also remanded by the Board due to the facts That the Examiner did not reconcile his opinion with other opinions of the record per remand by the Board, in addition to the fact the the examiner estated that there was no evidence of any cervical Dx's or other evidence of record when the BVA identified almost every piece of evidence and multiples Dx's related to the cervical condition .

I'm still waiting to hear about this issue, due to the fact that it was sent to a different VARO-VAMC for further development.

cordially,

lu12

Edited February 23, 2009 by lu12

[Berta]

Myler V Derwinski is here at hadit somewhere-there is stuff under the Clear and Unmistakable error forum down below us here.

superb case of retro back to 1953 due to wrong Diagnostic code-

Also we have had members whose mental disabilities were given the wrong diagnosis-

Do you know anyone who has the VBM by NVLSP? Lots of info and cases there-I will see what I can find-

when the SOC reveals the wrong type of disability- it only becomes a legal and CUE able error when the VA gives it the wrong diagnostic code.

A PTSD vet, who-lets say was discharged with schizophrenia or VA says he/she got schizophrenia long after service-

once they get a PTSD diagnosis- might have never been symptomatic for schizophrenia at all.

Yet that vet could have had a decision with the wrong diagnosis (as NSC)with the wrong DC given

and attain years later-

the accurate PTSD diagnosis, the right DC, and then mucho retro- if they pursued this decision or cued it.

The raters commit legal errors in dioagnostic codes -mainly based on inaccurate medical information.

or their inability to read.

[Berta]

LU 12 - My time just got too limited to do much extensive search- there is plenty of info and even cases here as to CUE- this might help you- I dont have the BVA link- just this that I copied into a word doc. long ago:

"ORDER

An effective date of November 7, 1973, for a 100 percent

rating for schizophrenia is granted.

From:

ognizeCitation Nr: 0500624

Decision Date: 01/10/05 Archive Date: 01/19/05

DOCKET NO. 97-13 493A ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office

in San Juan, the Commonwealth of Puerto Rico

THE ISSUE

Entitlement to an effective date earlier than April 4, 1994,

for the assignment of a 100 percent rating for service-

connected schizophrenia, including based on clear and

unmistakable error (CUE).

(the decision prior to this EED had also contained CUE)

100% retro from 1973 to 1994

The criteria for an effective date of November 7, 1973, for a

100 percent rating for service-connected schizophrenia are

met. 38 C.F.R. § 3.105 (2004); 38 C.F.R. § 4.132, Diagnostic

Code 9204 (1970).

http://www.va.gov/vetapp05/files1/0503568.txt

rating decision failed to consider evidence of a PTSD stressor found in the veteran's service medical records, and even noted on a deferred rating decision prior to the VA examination in November 1997. 4. The unappealed April 1990 RO decision, which denied service connection for PTSD, was undebatably erroneous in failing to consider a confirmed diagnosis of PTSD based on stressful combat" etc -

one of the cases where the vet's mental disability was

characterized erroneously by the VA.Or he had 2 overlapping SC mental disorders-

One medical error was that they had a confirmed diagnosis of PTSD but surely gave this vet wrong Diagnostic code (the Legal error) when they first denied his claim.

Thus the Legal error in the DC is what should have been cued -as the medical evidence of the proper disability diagnoses were in the veteran's clinical records.

It should be easy to find this at BVA under their 2005 decisions.

CUE- legal error-often due to erroneous medical assessments and /or ratings in the clinical (and estabished) medical record.

Edited March 6, 2009 by Berta

[Berta]

The BVA link is there- didnt see that at first - I copied it from a word doc. so you might have to copy and paste into your browser for the link to work.

[lu12]

Berta, thank you so much,

The Problem started when the first C&P examiner after a 30-35 minutes evaluation gave a mental diagnosis classified as (Dysthymia). When in-contrast I summited a nexus opinion to begin with, which included a diagnosis of recurrent MD and Chronic Anxiety a medical opinion from a private physician whom treated me for at least for 4 years prior to the first VA Examination, here is where the damage started then like you said "raters commit legal errors in diagnostic codes -mainly based on inaccurate medical information."

30-35 minutes VA evaluation V. 4 years of (private) medical treatment

It gets more complicated when a second C&P examiner then agrees that there is evidence of a mental disability (cause the Board) but continues minimizing the real conditions, now you have AMC (2x)(new)claim examiners and adjudicators that along with the last two Examiner continue to evade previous evidence 1988-1996, contemporaneous evidence 1997-2006 and a new evidence from 2007.

How do I challenge - VA Examiner & Wrong Dx's. Is there any place in the CFR where I can get inf in regards to regulation and law relating to this specific matter.

lu12

[john999]

If the VA is low balling you the best thing to do is to get yet another IMO to refute the VA decision and to explain why your mental condition is more disabling than the VA states. Just bury them with evidence. Any service connected mental disorder can get you 100% rating. The diagnosis really is not that important.

[Berta]

"How do I challenge - VA Examiner & Wrong Dx's. Is there any place in the CFR where I can get inf in regards to regulation and law relating to this specific matter."

As long as you have a correct documented diagnosis (and John gave great advise too)

and the correct diagonpsis is what it should have been in a past final decision- then the diagnostic code in that decision was most likely wrong and the rating -if wrong due to that error-and by established medical evidence in the clinical record-is where the CUE lies.

That is their legal error.

Seems to me they are still actively working on your pending claim- a separate issue from any potential CUE claim.