Why Wait For A C&p.

[Hoppy]

A couple weeks ago there was a thread in which folks commented on the importance of the C&P. The focus was on the wording the C&P examiner used in his report. I have always been of the opinion that relying on the C&P process was plan “B”. Plan “A” is to get an IMO or a statement from a treating clinician and submit it prior to the C&P exam.

I have seen many bogus C&P’s and there are members of hadit who have been victimized by bogus C&P’s. I have often questioned the process by which C&P examiners are chosen and monitored for the quality of their exams.

I was doing some research on “panic disorder” and found this case that shows just how far off track a C&P examiner can get. The case was won by the statement that the veteran obtained from his treating doctor. What also was alarming is that I reviewed about 15 cases out of 60,000. In the 15 cases I reviewed 4 were awarded by the BVA after a denial. If the math were to hold up that would translate to about 15,000 veterans out of the 60,000 who were delayed an award because the RO blew the claim.

Citation Nr: 0728956

Decision Date: 09/14/07 Archive Date: 09/25/07

DOCKET NO. 05-23 595 ) DATE

)

)

On appeal from the

Department of Veterans Affairs (VA) Regional Office (RO) in

Muskogee, Oklahoma

THE ISSUE

Entitlement to service connection for an anxiety disorder.

REPRESENTATION

Veteran represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

J. Watson, Law Clerk

INTRODUCTION

The veteran had active service from February 1969 to March

1997.

This case comes before the Board of Veterans' Appeals (Board)

on appeal from a March 2004 RO decision that denied service

connection for an anxiety disorder.

FINDING OF FACT

The competent medical evidence links the veteran's current

anxiety disorder to his active service.

CONCLUSION OF LAW

An anxiety disorder was incurred in active service.

38 U.S.C.A. §§ 1110, 1131 (West 2002 & West Supp. 2006);

38 C.F.R. §§ 3.303, 3.304 (2006).

REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The veteran's claim of service connection for an anxiety

disorder has been granted, as discussed below. As such, the

Board finds that any error related to the VCAA on this claim

is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & West

Supp. 2006); 38 C.F.R. § 3.159 (2006); Mayfield v. Nicholson,

19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v.

Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

SERVICE CONNECTION

Service connection may be established for disability

resulting from disease or injury incurred in or aggravated in

line of active military duty. 38 U.S.C.A. §§ 1110, 1131; 38

C.F.R. § 3.303. In addition, service connection may be

granted for any disease diagnosed after discharge, when all

the evidence, including that pertinent to service,

establishes that the disease was incurred in service. 38

C.F.R. § 3.303(d).

Further, VA regulation provides that, with chronic diseases

shown as such in service (or within an applicable presumptive

period under section 3.307) so as to permit a finding of

service connection, subsequent manifestations of the same

chronic disease at any later date, however remote, are

service connected unless clearly attributable to intercurrent

causes. For the showing of a chronic disease in service

there is required a combination of manifestations sufficient

to identify the disease entity and sufficient observation to

establish chronicity at the time, as distinguished from

merely isolated findings or a diagnosis including the word

"chronic." When the disease identity is established

(leprosy, tuberculosis, multiple sclerosis, etc.), there is

no requirement of an evidentiary showing of continuity.

Continuity of symptomatology is required only where the

condition noted during service (or in the presumptive period)

is not, in fact, shown to be chronic or where the diagnosis

of chronicity may be legitimately questioned. When the fact

of chronicity in service is not adequately supported, then a

showing of continuity after discharge is required to support

the claim. 38 C.F.R. 38 C.F.R. § 3.303(.

A claim for service connection generally requires: (1)

competent evidence of a current disability; (2) proof as to

incurrence or aggravation of a disease or injury in service,

as provided by either lay or medical evidence, as the

situation dictates; and (3) competent evidence as to a nexus

between the in-service injury or disease and the current

disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997);

Layno v. Brown, 6 Vet. App. 465 (1994).

ANXIETY DISORDER

Private medical reports from the veteran's personal

physician, dated in September and December 2003, show

complaints of anxiety, fatigue, and insomnia and a diagnosis

of anxiety disorder. In August 2005, the veteran was

afforded a VA contract examination. The examiner diagnosed

the veteran with anxiety disorder, not otherwise specified.

The veteran thus has a current diagnosis of anxiety disorder.

At his February 1969 entrance examination, the veteran

reported that he had no nervous trouble of any sort, no

depression or excessive worry, no frequent trouble sleeping,

no dizziness or fainting spells, and no pain or pressure in

his chest. However, service medical records beginning in the

1980s and continuing throughout the 1990s variably describe

the veteran as stressed out, slightly anxious, anxious, or

tending towards having anxiety. Furthermore, various

treatment records during this span of time mention that the

veteran had insomnia, was dizzy, and may have been

experiencing stress-related chest pains. A treatment report

from January 1984 reflects complaints by the veteran of a

boring job and unpleasant work atmosphere and states that the

veteran had "nonspecific s[ymptoms] suggesting chronic

anxiety." Thus, the veteran has offered evidence as to in-

service incurrence of an anxiety disorder.

A July 2005 letter from the veteran's physician states that,

after a review of the veteran's claims file, it was her

opinion that the veteran was more likely than not

experiencing this same anxiety disorder while on active duty.

The letter notes that the veteran had not been evaluated by a

mental health professional during service but that a number

of other symptoms noted during service, such as chest pain

and tension, were attributable to the anxiety disorder. At

the August 2005 VA contract examination, the examiner was

asked to review the veteran's service medical records and the

opinion of the veteran's private physician and to offer an

opinion regarding diagnosis and etiology. The examiner noted

that the condition had its onset during service but stated

that "there is no evidence of a disabling anxiety disorder

that can be related to any activity or service in general and

botched sinus irrigation in particular." The RO

subsequently submitted to the examiner a request for a

clarifying addendum. In the addendum, the examiner stated

that the veteran had anxiety disorder during service, but was

not disabled by it, and thus opined that the condition should

not be service-connected.

The Board notes that whether a condition qualifies as a

disability for VA purposes is a legal determination to be

made by the Board and not a medical professional. The Board

must also weigh the credibility and probative value of

medical opinions and may favor one medical opinion over

another. See Evans v. West, 12 Vet. App. 22, 30 (1998)

(citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). In

this case, the private medical examiner's opinion and the VA

contract examiner's opinion are consistent insofar as they

both associate the onset of the veteran's anxiety disorder

with service. The VA contract examiner's additional finding

that the veteran's anxiety disorder does not rise to the

level of a disability is irrelevant for purposes of

establishing service connection.

In his December 2003 claim, the veteran stated that he first

experienced an anxiety disorder as the result of in-service

job stress. In his January 2005 notice of disagreement, and

elsewhere, the veteran stated that his anxiety disorder was

the result of a "botched" sinus irrigation procedure for

service-connected sinusitis in October 1981. The Board notes

that a determination of the actual precipitating event of the

veteran's anxiety disorder is not necessary for a decision on

the claim.

In sum, the competent evidence establishes that the veteran's

anxiety disorder began in service. Service medical records

are replete with findings of anxiety and nervousness.

Further, there is continuity of symptomatology following

service, including a current diagnosis of anxiety disorder.

The veteran's contentions that he had anxiety problems since

service are supported in the record and by the probative

medical opinion of his private examiner. There is no

evidence of record to the contrary.

Accordingly, service connection is warranted. See Cohen,

supra.

ORDER

Service connection for an anxiety disorder is granted.

____________________________________________

K. PARAKKAL

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

Edited February 22, 2009 by Hoppy

[Ricky]

VA contract examination, the examiner was

asked to review the veteran's service medical records and the

opinion of the veteran's private physician and to offer an

opinion regarding diagnosis and etiology. The examiner noted

that the condition had its onset during service but stated

that "there is no evidence of a disabling anxiety disorder

that can be related to any activity or service in general and

botched sinus irrigation in particular." The RO

subsequently submitted to the examiner a request for a

clarifying addendum. In the addendum, the examiner stated

that the veteran had anxiety disorder during service, but was

not disabled by it, and thus opined that the condition should

not be service-connected.

This is the most stupid thing I have ever heard of. He diagnosed him with anxiety which occured during service but was not disabling!!!!! What the hell does this mean?

I and thousands of others who deal with VA claims agree with you Hoppy. A veteran should aquire as much evidence as possible to support his claim prior to submission. Not that he needs 10 different doctor reports - just one or two good ones and those provided by a treating doc who specializes in the disability in question and covers reviewing the SMR's, a firm diagnosis, statement on service connection and a good rationale is undebatable!

If all veterans or their reps understood this we would see less claims that roll into the 5-7 year waiting period as many could be worked out at the DRO level if you happen to run into a complete idiot rater on the initial submission.

Ricky

[Pete53]

I have panic disorder and I did not know it till it was diagnosed at a VA Hospital 21 years after I got out of service. Unless the Veteran has a diagnosis from their Service they had better get a Medical Opinion that backs them up. Just being anxious and nervous does not cut the mustard you probably have to show the symptoms and some sort of tratment while in Service.

Just my win as my first rating for panic disorder at 30% was in 1993 when I was unemployed and receiving Social Security. I did get Service Connected effective 1993 in 1996 for 100% and I am pretty well convinced I was one of the first to get it.

It took 3 C&P's and two IMO's to get it plus the stuff Social Security does one Doc Report and a Psychologist.

Bottom line is if you have been out of Military for over 1 year I think that you have to have a IMO to prevail.

[Hoppy]

Pete,

This is what I have found. Panic disorder was not in the DSM Prior to the DSM III which came out in 1980. Also, the DSM III was a major break from the DSM II the basis for most diagnoses were changed and the DSM II was considered a broken inferior system for diagnosing most mental conditions.

The vet I am helping was diagnosed under the DSM II as having an asthenic personality disorder. The SMR has a twenty one month history of attcks that include symptoms noted by the military doctors as; breathing difficulty, heart rate irregularities, upper abdominal discomfort, feeling faint, tingling sensation and fear of dying immediatly. He also stated that life had become torture. The SMR says he went awol because they were not treating him. He was dischatged with a comment from the military shrink that he would not benefit from treatment. This is all well documented in the SMR. The symptoms noted in service meet the DSM IV criteria for panic disorder. I pasted the DSM IV criteria for anybody who has a specific interest in this type of claim. You will see that the discription of symptoms noted in my vets SMR translate perfectly into the DSM IV criteria.

On thing of interest is that there is a ton of information on the internet on treatment plans for panic disorder. Things have changed drastically in the way this condition is dealt with since 1977. Without treatment fot 30 years my vet just kept avoiding things that caused the attacks. He rarely worked. His SSA earnings statement has many years under $5,000.00 and half the time he had no income. I found this guy living in a van by a local river. He told me he has a PTSD claim claim that had been denied. I found out that the only post service diagnosis he had was panic disorder and it was made by a VAMC three years before I met him. His stupid SO had filed three claims for things other than panic disorder. The VA had bever been notified of the only post service diagnosis nor where and when it was diagnosed. I about fell over when he showed me his SMR. He now has an SO who is on top of things.

The cases I have found on the BVA have less symptoms and a shorter period of inservvice symptoms. Additionally one of the cases was also diagnosed as a personality disorder. They won on appeal to the BVA.

According to DSM-IV-TR, a panic attack is characterized by four or more of the following symptoms:

palpitations, pounding heart, or accelerated heart rate

sweating

trembling or shaking

sensations of shortness of breath or smothering

feeling of choking

chest pain or discomfort

nausea or abdominal distress

feeling dizzy, unsteady, lightheaded, or faint

feelings of unreality (derealization) or being detached from oneself (depersonalization)

fear of losing control or going crazy

fear of dying

numbness or tingling sensations (paresthesias)

chills or hot flushes

The presence of fewer than four of the above symptoms may be considered a limited-symptom panic attack.

Panic Disorder

The diagnostic criteria for panic disorder is defined in the DSM-IV-TR as follows:

Recurrent unexpected panic attacks and at least one of the attacks have been followed by 1 month (or more) of one (or more) of the following:

The attacks are not due to the direct physiological effects of a substance (such as drug of abuse or a medication), or a general medical condition.

The attacks are not better accounted for by another mental disorder, such as social phobia (such as occurring on exposure to feared social situations), specific phobia, obsessive-compulsive disorder, post-traumatic stress disorder or separation anxiety disorder

If the above criteria are met, the diagnosis is further clarified by the presence or absence of agoraphobia (such as Panic Disorder with Agoraphobia or Panic Disorder without Agoraphobia).

Only a Professional Can Diagnose Panic Disorder

[MikeR]

Unfortunately, even if you have a good IMO if the C&P examiner even forgets to address one aspect of the inquiry you are at square one. My recent Sept 18, 2008 foot exam is an example of this. The Contractor who did my C&P did not answer the question of service connection, so it had to be sent back to them from the rater at the AMC. On the other hand I have a good PTSD C&P from the VA doc, but the stressors are only half verified. I mean I have multiple stressors, but they did not verify all of them. In fact the Joint Records Center is saying that they should come to me the vet for the information. I provided it, in every known form. Well, apparently that confused the rater. So, now I am waiting for them to send it back to me for more info.

[gp747]

Pete,

This is what I have found. Panic disorder was not in the DSM Prior to the DSM III which came out in 1980. Also, the DSM III was a major break from the DSM II the basis for most diagnoses were changed and the DSM II was considered a broken inferior system for diagnosing most mental conditions.

The vet I am helping was diagnosed under the DSM II as having an asthenic personality disorder. The SMR has a twenty one month history of attcks that include symptoms noted by the military doctors as; breathing difficulty, heart rate irregularities, upper abdominal discomfort, feeling faint, tingling sensation and fear of dying immediatly. He also stated that life had become torture. The SMR says he went awol because they were not treating him. He was dischatged with a comment from the military shrink that he would not benefit from treatment. This is all well documented in the SMR. The symptoms noted in service meet the DSM IV criteria for panic disorder. I pasted the DSM IV criteria for anybody who has a specific interest in this type of claim. You will see that the discription of symptoms noted in my vets SMR translate perfectly into the DSM IV criteria.

On thing of interest is that there is a ton of information on the internet on treatment plans for panic disorder. Things have changed drastically in the way this condition is dealt with since 1977. Without treatment fot 30 years my vet just kept avoiding things that caused the attacks. He rarely worked. His SSA earnings statement has many years under $5,000.00 and half the time he had no income. I found this guy living in a van by a local river. He told me he has a PTSD claim claim that had been denied. I found out that the only post service diagnosis he had was panic disorder and it was made by a VAMC three years before I met him. His stupid SO had filed three claims for things other than panic disorder. The VA had bever been notified of the only post service diagnosis nor where and when it was diagnosed. I about fell over when he showed me his SMR. He now has an SO who is on top of things.

The cases I have found on the BVA have less symptoms and a shorter period of inservvice symptoms. Additionally one of the cases was also diagnosed as a personality disorder. They won on appeal to the BVA.

According to DSM-IV-TR, a panic attack is characterized by four or more of the following symptoms:

palpitations, pounding heart, or accelerated heart rate

sweating

trembling or shaking

sensations of shortness of breath or smothering

feeling of choking

chest pain or discomfort

nausea or abdominal distress

feeling dizzy, unsteady, lightheaded, or faint

feelings of unreality (derealization) or being detached from oneself (depersonalization)

fear of losing control or going crazy

fear of dying

numbness or tingling sensations (paresthesias)

chills or hot flushes

The presence of fewer than four of the above symptoms may be considered a limited-symptom panic attack.

Panic Disorder

The diagnostic criteria for panic disorder is defined in the DSM-IV-TR as follows:

Recurrent unexpected panic attacks and at least one of the attacks have been followed by 1 month (or more) of one (or more) of the following:

The attacks are not due to the direct physiological effects of a substance (such as drug of abuse or a medication), or a general medical condition.

The attacks are not better accounted for by another mental disorder, such as social phobia (such as occurring on exposure to feared social situations), specific phobia, obsessive-compulsive disorder, post-traumatic stress disorder or separation anxiety disorder

If the above criteria are met, the diagnosis is further clarified by the presence or absence of agoraphobia (such as Panic Disorder with Agoraphobia or Panic Disorder without Agoraphobia).

Only a Professional Can Diagnose Panic Disorder

His stupid SO had filed three claims for things other than panic disorder. The VA had bever been notified of the only post service diagnosis nor where and when it was diagnosed. I about fell over when he showed me his SMR. He now has an SO who is on top of things.

this is what i am talking about with these so's,most of them do not have a clue as to what they are doing and veterans are being denied benefits and or homeless because of the inferior representation by these orgs.

a lot of them are involved for the freebie trips to florida and what have you and really do not give a s--t if you win or lose.

not all of them are like that but how do you know until you have wasted 20 to 30 years of your life counting on them to learn they did not do squat!

[Pete53]

Hoppy:

Interesting as I had all the symptoms listed and fortunately for me were written up and placed in my Military Records by medics and even Doc's. So finally I went from a personality disorder diagnosed by a VARO desk jockey by the way when my VA shrink had me diagnosed for panic disorder in 1991.

Anytime you see personality disorder read carefully in the DSM and refute it. Item by item if you can. If did ok in school that refutes it, No trouble with law that refutes it. No fights and brawls that refutes it. You get the drift.

Pound them with the correct diagnosis numbers. Point out it is not a personality disorder.

Good Luck and thank you for helping a Vet. Until 1991 I just thought I was crazy.

As an aside I was able to work a decent job for a few years from time to time caue for me when I was not stressed out I had fewer attacks and of course I drank and advoided stuff that cause panic attacks for me.