ptsd Destroyed Records

[jsdwd]

I have received my rating decision letter and am still digesting it. One of the things I've noticed is that no account seems to have been taken of psychological treatment I received for nearly four years by a private psychologist. The C & P examiner noted this Treatment, but it was not mentioned in the Rating Decision Report. I paid him cash so there is not insurance record (I didn't want psychological treatment in my files which would be available to prospective employers). The psychologist died and the custodian of his records (also a psychologist I know) destroyed records once they were seven years old. That included mine.

Am I wasting my time in trying to get the reviewer to take note of this treatment. PTSD, alcoholism and the symptoms arising from those was a primary topic of many of those sessions, but the only source for that is me.

What's the best way to go about this? I'd ask my VSO but don't have a lot of faith in him at this point.

Thx. This board is a Godsend.

Edited July 21, 2009 by jsdwd

[WHOLESALE]

OK, I understand now. I didn't know they rounded that part up. Sorry....

Hey you just might have a CUE if they were supposed to rate it at 50. I would show this to your VSO and see what he/she says about it.

Frank

30+20+10+10 = 50% (54.64) according to VA math.

"We have assigned a 50 percent evaluation based on the overall disability picture shown at

the VA Mental Health exam."

Probably mean all your disabilities COMBINED (overall disability) = 50%

Frank

[Pete53]

Carlie:

Thank you so much for the term "spoilation" it was driving me batty trying to remember it.

[jsdwd]

jsdwd,

Since the doctor (not a VA doc) that was the legal custodian of your medical records

waited the amount of time required by law to destroy your medical records

spoliation would not be applicable.

carlie

In using spoliation, I thought you were referring to the 'toning down' (to use my words) of the ptsd C & P exam by the rater. The other records were gone before I opened the claim. So now they have no evidentiary value. There is only my word as to what they contained.

I need to get the 30% up to 50% at least to file for TDIU.

I'm not sure Cirrhosis is the way to go. I think the Cirrhosis and alcoholism are often viewed as willful misconduct and I don't want to open up that can of worms. It is possible to end up with a lower rating as a result of appeal. They are acknowledging that alcohol dependence is secondary to ptsd, and the Cirrhosis resulted from the alcoholism, but that is a causal path they probably aren't going to walk down.

Any thoughts?

[WHOLESALE]

js, if they already granted secondary for Alcoholism then you have nothing to worry about as far as willful misconduct.

Frank

In using spoliation, I thought you were referring to the 'toning down' (to use my words) of the ptsd C & P exam by the rater. The other records were gone before I opened the claim. So now they have no evidentiary value. There is only my word as to what they contained.

I need to get the 30% up to 50% at least to file for TDIU.

I'm not sure Cirrhosis is the way to go. I think the Cirrhosis and alcoholism are often viewed as willful misconduct and I don't want to open up that can of worms. It is possible to end up with a lower rating as a result of appeal. They are acknowledging that alcohol dependence is secondary to ptsd, and the Cirrhosis resulted from the alcoholism, but that is a causal path they probably aren't going to walk down.

Any thoughts?

[jsdwd]

js, if they already granted secondary for Alcoholism then you have nothing to worry about as far as willful misconduct.

Frank

That's what I'm hoping. It makes sense, but I've given up thinking anything involving the VA will make sense. This process makes SSD look like a day at the beach.

[tssnave]

While I can’t speak to anything other than the mental health part of your claim, a couple things jump out at me after reading your posts:

a. What does Section N of your PTSD C&P exam state?

b. You have an Inferred Claim for TDIU based on the C&P exam.

c. NOD vs Reconsideration of your claim.

d. Request Permanent and Total (P&T) disability.

I assume since you know that the VA “toned down” what was on your C&P exam that you have a copy of it. If so, look at the last Section - N. Effects of PTSD on Occupational and Social Functioning - and let us know what the examiner stated. This section lines up with the rating schedule and the VA, by regulation, is not allowed to use their own opinion over a doctor’s opinion, but they do.

According to M21-1MR, Part III, Subpart iv, Chapter 5, “the RSVR may not rely upon his/her own unsubstantiated medical conclusions to reject expert medical evidence”.

In my case, the C&P examiner stated I was 100% but the VA rated me 50%. The examiner also stated clearly that I was unemployable due to my sc bp but the rater just ignored that entirely and I wasn’t evaluated for IU even though there was an inferred claim. I got properly rated 100% P&T on appeal after I quoted their regulations to them as well as their C&P examiner's comments. I also had an IMO done for good measure which cost a bundle for was well worth it.

The Decision comment about "occasional decrease in work efficiency" lines up with a 30% rating but like you, I am confused why they stated they rated you 50% based on the mental health exam. Are you working with a VSO inside the VARO who can check this out for you prior to submitting your NOD? They have (or did when I was working my claim) access to the VA system on a read only basis.

Based on the C&P examiner’s comment you clearly have an inferred claim for TDIU and the VA is supposed to develop your claim for IU when there is evidence that you are unemployable, even if you didn’t specifically request IU.

"...it is highly unlikely that (I) will be employed again. His lack of return to competitive work appears related to the combination of his medical and mental health problems, however, for the purposes of this examination his post traumatic stress disorder with secondary depression, anxiety, and alcohol dependence is considered sufficient grounds for his unemployability"

I have been off the board more than on lately but I thought we had a forum just for TDIU claims. If so, go there and read the regs on an inferred TDIU claim as well as nonschedular TDIU claims.

When you submit your NOD, I suggest you specifically cite the C&P exam, to include Section N if it indicates a higher rating, quote the inferred TDIU claim reg, and request consideration for TDIU based on your inferred claim even if they have to do so under the nonschedular provision and let them know you believe the evidence supports a 70% - 100% schedular rating.

In requesting TDIU, you can state that while you believe the evidence warrants a schedular 70% - 100% rating, either way you still want the VA to pursue a TDIU claim even if it is under the nonschedular regulation because of the inferred claim based on the C&P examiners remarks.

Sorry I don’t have the TDIU regs handy, I have been out of the game for a long time, but there should be information on hadit that will give you the regs to quote.

Be very careful about going the Reconsideration route. If you do so, make sure to submit an official NOD before your 1 year appeal time runs out. When you say you are in “end stage liver disease” I don’t know what, exactly, that means but if it is as dire as it sounds then I would ask you – if you were in the hospital would your spouse have the wherewithal to remember to submit a NOD within the 1 year appeal time? Would you want to place that additional burden on her?

Also, and this is out of my depth of knowledge – one of our legal beagles would know – but if you die and have only requested a Reconsideration and not an official NOD does this impact any benefits your spouse may have based on an open claim?

The only reason I raise these issues is I was advised to do a Reconsideration when I was working my claim and I was never able to find official VA regs on it (could have just been my inexperience looking stuff up – which I’m still not that good at) so I stuck to the regs I could find and submitted a NOD. If you go the Reconsideration route I would strongly suggest that you have in your hand a copy of the VA regs that cover Reconsideration and make sure they apply to your claim.

Either way you go, I agree that your GAF scores indicate a higher rating. However, when I was working my claim I found multiple court cases where the VA used the GAF to support a lower rating despite other evidence indicating a higher rating and several cases where they ignored the GAF in favor of other evidence that indicated a lower rating. The GAF is supposed to be one piece of the puzzle but from my research the bottom line was that the VA will use the GAF against you to assign a lower rating than the other evidence implies or they will ignore the GAF and cite other evidence to assign you a lower rating than the GAF implies. In other words, there is case law that the VA can do whatever they want with the GAF score so while you need to cite your GAF score in your NOD, don’t base your whole disagreement on the GAF.

I hope all this helps. I know what it’s like to have a decent C&P exam and then have the VA simply ignore it and assign a low rating. The good news is that I found hadit and got help in doing my NOD and prevailed and I was properly assigned 100% P&T – That brings up another thing, request P&T in your NOD. It is a separate issue and if you live 10 years from your EED rated 100% P&T you can die of anything and your spouse is eligible for DIC when you die even if you die of a non-service connected problem.

Take care and keep us posted,

TS Snave