Jump to content
  • Latest Donations

  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

Sponsored Ads

  • Searches Community Forums, Blog and more

  • Donation Box

    Please donate to support the community.
    We appreciate all donations!
  • Available Subscriptions

  • 0
carlie

Example Of Va Using Childhood Evidence Against Mh Claims

Question

I am only posting this information to show a clear cut example

of the how's and why's VBA can and will use information

concerning your childhood experiences, against a claim for

service connection of mental health disabilities.

I - in no way,am stating I agree or disagree with this process and/or the

outcome of this individual claim.

I post it only for example to help veterans understand another part

of what evidence,decision makers weigh during the claims process.

carlie

http://www.va.gov/vetapp09/files2/0916076.txt

Service Connection

Service connection means that the facts 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; 38 C.F.R. § 3.303(a). This may

be shown by affirmative evidence showing inception or

aggravation during service or through statutory presumptions.

Id. When a disease is first diagnosed after service, service

connection can still be granted for that condition if the

evidence shows it was incurred in service. 38 C.F.R.

§ 3.303(d).

Service connection for PTSD requires medical evidence

diagnosing the condition in accordance with 38 C.F.R. §

4.125(a); a link, established by medical evidence, between

current symptoms and an in-service stressor; and credible

supporting evidence that the claimed in-service stressor

occurred. 38 C.F.R. § 3.304(f) and 38 C.F.R. § 4.125 (2006)

(requiring PTSD diagnoses to conform to the criteria in the

DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th

ed. 1994) (DSM-IV)).

The Veteran alleges he was raped by a male nurse while in the

military seeking treatment for an injured ankle. The Veteran

admits that he never formally reported the MST and, in fact,

had no memory of the incident until his memory was triggered

by a VA medical questionnaire he filled out sometime in 2004,

nearly three decades after service. Accordingly, there is no

objective verification of the assault.

The Board finds noteworthy that the Veteran testified before

the Board in July 2007 that the male nurse, Specialist P., is

currently a convicted sexual predator. No such documentation

is currently of record.

If a PTSD claim is based on Military Sexual Trauma (MST) or

personal assault in service, evidence from sources other than

the Veteran's records may corroborate the Veteran's account

of the stressor incident. Examples of such evidence include,

but are not limited to: records from law enforcement

authorities, rape crisis centers, mental health counseling

centers, hospitals or physicians; pregnancy tests or tests

for sexually transmitted diseases; and statements from family

members, roommates, fellow service members, or clergy. 38

C.F.R. § 3.304(f)(3).

Additionally, evidence of behavior changes following the

claimed assault is relevant evidence that may be found in the

mentioned sources. Examples of behavior changes that may

constitute credible evidence of a stressor include, but are

not limited to: a request for a transfer to another military

duty assignment; deterioration in work performance; substance

abuse; episodes of depression, panic attacks, or anxiety

without an identifiable cause; or unexplained economic or

social behavior changes. Id.

In this case, the Veteran alleges he was an exemplary soldier

prior to the incident, allegedly occurring in February 1978.

After the incident, the Veteran alleges his attitude turned

"sour" and he was ultimately dishonorably discharged a few

short months later.

The Veteran's personnel records confirm the Veteran was

discharged "under honorable conditions" for "failure to

maintain acceptable standards for retention." The Veteran

was originally enlisted to serve through 1980, but received

disciplinary action for going AWOL in May 1978 and was

discharged shortly thereafter for, among other reasons, a

poor attitude.

The notion that the Veteran's problems were limited in time

to after the February 1978 incident, however, is simply not

credible. That is, prior to entering the military, the

Veteran's personnel records note the Veteran had a troubled

childhood. He was charged with "purse snatching" at the

age of 15 and admitted to experimenting with marijuana and

alcohol. The Veteran, at the time of enlistment, was in a

foster home because of familial alcohol problems as well as

child abuse.

As will be explained more thoroughly below, the claim is

further complicated because for decades the Veteran alleged a

close family member sexually abused him as a child. He later

alleged he was mistaken and now has full memory of the 1978

military sexual abuse by the male nurse.

The first pertinent inquiry is whether psychiatric problems

were shown in service. The Board concludes they were not.

The Veteran's service treatment records indicate the Veteran

had psychiatric consultations in February 1977 and again in

April 1978, which were normal but noted a history of

psychiatric care predating the military.

The service treatment records also confirm on February 19, 1978,

Specialist P. called for an ambulance on behalf of the

Veteran for a possible fractured ankle. The records indicate

that prior to that time, Specialist P. had treated the

Veteran for other, unrelated conditions. The Veteran's May

1978 separation examination indicated no abnormalities. The

alleged MST is not confirmed by the service treatment

records. In short, the service treatment records are devoid

of any findings consistent with the alleged rape or any

psychiatric problems.

Even if a chronic condition was not shown during service,

service connection may be established under 38 C.F.R. §

3.303(b) by evidence of continuity of symptomatology or under

38 C.F.R. § 3.303(d) if the evidence shows a disease first

diagnosed after service was incurred in service. The

pertinent inquiry then is whether the Veteran has a current

diagnosis of PTSD attributed to a verified in-service

incident. The Board concludes, based on the evidence, he

does not.

After service, the medical records indicate extensive

treatment for various psychiatric conditions as early as the

1990s, over twenty years after service. At that time, the

Veteran was diagnosed with bipolar disorder, depression and

poly-substance abuse. The Veteran was also hospitalized

multiple times for various suicide attempts. In 2002, the

Veteran was diagnosed with PTSD.

At that time, the Veteran's PTSD was attributed by both private and VA physicians to his

other health conditions and a serious work-related injury.

Due to the injury, the Veteran filed for worker's

compensation, which according to medical professionals at the

time, deepened his depression.

As indicated above, this claim is further complicated because

prior to 2004, psychiatric treatment records indicate the

Veteran was sexually abused by a family member (his father).

Although there is no formal confirmation of the sexual abuse,

there is paperwork and medical records confirming the Veteran

was placed in foster care as a child due to familial alcohol

addiction and child abuse.

The Veteran also clearly had a troubled youth, evidenced by his petty theft charges, alcohol

and poly-drug abuse at a very early age. All of these events

are evidenced in the record and predate his military service.

In October 2004, the Veteran alleges his memory was refreshed

by a VA health questionnaire asking if he had ever been

sexually assaulted. The Veteran alleges at that moment he

first recalled the events in the military. He believes the

military nurse drugged him for the ankle pain prior to the

rape, which is why he had no memory of the event for years.

The Veteran now claims he was mistaken about accusing a close

family member of sexual abuse and believes the military event

is really the source of his current PTSD.

VA outpatient treatment records from October 2004 confirm the

Veteran for the first time "recalled" in-service sexual

assault. As indicated above, however, the diagnosis PTSD is

noted in his medical records since 2002, two years prior to

the Veteran's "revelation." The diagnosis, moreover, was

attributed to the Veteran's other health conditions and his

serious work-related injury. It is also evident from the

decades' worth of medical records that the Veteran has a

lengthy psychiatric treatment history of bipolar disorder and

poly-drug abuse. Within those decades worth of psychiatric

treatment, medical professionals consistently note the

Veteran's history of child abuse and poly-drug abuse, but are

silent as to any military-related incident responsible for

any psychiatric diagnoses.

The Veteran was afforded a VA examination in July 2005 where

the examiner diagnosed the Veteran with PTSD, bipolar

disorder, poly-substance abuse and personality disorder. The

examiner attributed the Veteran's PTSD to his self-reported

in-service sexual assault, but did not comment on the

Veteran's prior allegation that a close family member

sexually assaulted him. Other than noting the Veteran's

childhood alcohol abuse, it is unclear if the examiner was

aware of the Veteran's relevant childhood social and

psychiatric history. Based on the likelihood the examiner's

opinion was based on incomplete facts, the Board finds the

opinion not probative. See Reonal v. Brown, 5 Vet. App. 458,

460-61 (1993) (A medical opinion based on incorrect factual

premise is not probative).

Even if probative, however, the Veteran's diagnosis must be

attributed to a verified stressor, which is not the case

here. That is, the July 2005 examination as well as other VA

outpatient treatment records provides medical evidence of a

current, competent medical diagnosis of PTSD. The diagnosis,

however, must be attributed to a verified in-service

stressor. Regrettably, the Board concludes the preponderance

of the evidence simply does not verify the alleged MST

occurred.

That is, the Veteran's first diagnosis of PTSD predates the

Veteran's recollection of the alleged MST by two years. The

Veteran alleges he was an exemplary soldier prior to February

1978, but his personnel records and pre-service records cut

against such a theory. Indeed, it is indisputably evident

the Veteran had disciplinary and legal problems prior to

entering the service. Also compelling, the Veteran alleged a

close family member sexually abused him for decades prior to

alleging MST. The Veteran was placed in foster care, again

prior to entering the military, due to alcohol and child

abuse. It is also well-documented the Veteran's poly-

substance abuse began while he was a child. Also noteworthy,

the Veteran is currently receiving Social Security

Administration (SSA) disability benefits based, in part, to

psychiatric treatment records indicative of his troubled

childhood.

The Board does not doubt that the Veteran believes he was a

victim of MST. As indicated above, the Veteran is not,

however, competent to diagnose any medical disorder or render

an opinion as to the cause or etiology of any current

disorder because he does not have the requisite medical

knowledge or training. See Rucker, 10 Vet. App. at 74.

Regrettably, the most probative and competent evidence simply

does not support a finding the Veteran's current PTSD is

related to the alleged MST. The most probative and competent

evidence, moreover, simply does not verify the MST.

In summary, the Board finds that the preponderance of the

evidence of record does not show that the Veteran has PTSD

related to alleged MST and, therefore, service-connection is

not warranted. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.

2000); see also, Hickson, supra. In light of the foregoing,

the Board finds that the preponderance of the evidence is

against the claim, and the benefit of the doubt doctrine is

not for application. See generally Gilbert v. Derwinski, 1

Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed

Cir. 2001).

ORDER

Entitlement to service connection for PTSD, claimed as

secondary to MST, is denied

Share this post


Link to post
Share on other sites

Recommended Posts

x

x

x

HEAD'S UP!!!

Thanks Carlie. ~Wings

Share this post


Link to post
Share on other sites

Ad

As I have mentioned in the past, identify one stressor and stick to it. Don't muddy the water. Don't tell the doctors at the VA anything that can be held against you at a later date.

Share this post


Link to post
Share on other sites

We all have a right to privacy. That means we don't have to give information that is hurtful to our claim.

Share this post


Link to post
Share on other sites

When the VA C&P doctor goes on a fishing trip into your childhood prick up your ears. You should just maintain that you had a normal childhood and your problems becan in the service. If you tell them things about your childhood or teenage years that indicate any sort of trouble you are handing them the ax they will use on your neck. When they ask you leading questions to try and indicate you had or have a troubled past before the military you can dodge that by just not taking the bait. I know this from experience.

Share this post


Link to post
Share on other sites

I have the same problem with a TBI claim.  Apparently I was diagnosed with a learning disability when I was 13.  I say apparently because I thought it was provisional and after high school and into college I did not have any special accommodation.  But in all the VA wisdom they found this reference in my primary care doctor's records.  

I have overwhelming evidence that points toward severe memory impairment on a neuropsychological exam given after the in service injury.

I have evidence of a traumatic brain injury on 2 different occasions in service.  But go figure VA is going to try to use this as an out.

I am really not sure what they did.  I got rated at 40%, so the gave me the service connection at a reduced rating is the best I can figure.  I am in the process of getting an IMO to correct all of this.  So I would recommend to everyone to be careful of this sort of problem.  I have about 200-250 pages(hold your thumb and pointer finger far apart) of medical records in my claim and they found a single page that referenced this learning disability from 17 years ago.

I will be able to overcome this, just more of a fight and involvement of lawyers and doctors then I anticipated.

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

  • Ads

  • Ad

  • Latest News
  • Our picks

    • SHOW YOUR SUPPORT: Ad Free Subscriptions to the Forum available
      Ad free subscriptions are available for the forum. Subscriptions give you the forums ad free and help support the forum and site. Monthly $5 Annually $50 https://community.hadit.com/subscriptions/

      Every bit helps - Thank you.

       
      • 0 replies
    • Choosing a VA Disability Attorney Means Learning What Questions to Ask
      Choosing a VA Disability Attorney Means Learning What Questions to Ask. Chris Attig - Veterans Law Blog 

      <br style="color:#000000; text-align:start">How to Hire an Attorney For Your VA Claim or Appeal Free Guidebook available on the Veterans Law Blog

      I got an email the other day from a Veteran.  It had 2 or 3 sentences about his claim, and then closed at the end: “Please call me. So-and-so told me you were the best and I want your help.”

      While I appreciate the compliments, I shudder a little at emails like this.  For 2 reasons.

      First, I get a lot of emails like this.  And while I diligently represent my clients – I often tell them we will pursue their claim until we have no more appeals or until we win – I am most assuredly not the best.

      There are a LOT of damn good VA Disability attorneys out there.  (Most, if not all, of the best are members of the National Organization of Veterans Advocates…read about one of them, here)

      Second, I don’t want Veterans to choose their attorney based on who their friend thought was the best.  I want Veterans to choose the VA Disability attorney who is BEST for their case.

      In some situations, that may be the Attig Law Firm.

      But it may also be be Hill and Ponton, or Chisholm-Kilpatrick, or Bergman Moore.  Or any one of the dozens of other attorneys who have made the representation of Veterans their professional life’s work.

      There are hundreds of attorneys that are out there representing Veterans, and I’m here to tell you that who is best for your friend’s case may not be the best for your case.

      How do you Find the Best VA Disability Attorney for your Claim?

      First, you have to answer the question: do you NEED an attorney?

      Some of you don’t...
      • 1 reply
    • VA Emergency Medical Care
      VA Emergency Medical Care
      • 3 replies
    • Veterans Appeals Improvement and Modernization Act
      Veterans Appeals Improvement and Modernization Act
      • 0 replies
    • Thanks Berta for your help. I did receive my 100% today for my IU claim on 6/20/2018. It only took 64 days to complete and it is p&t. Thanks for your words of wisdom. 
×

Important Information

{terms] and Guidelines