ptsd Question On Inferred Claims

[vaf]

Does the statute on inferred claims (5.8.2) apply just to claims for increase of ratings for disabilities? Or, does it also apply to claims that were previously denied, but then new and material evidence became available through a VA C & P exam for another psych condition (organic mental syndrome, a physical disability) that also indicated PTSD?

The GAF was 55, and the examiner gave the veteran copies of literature dealing with coping with PTSD. Yet, the examiner did not formally diagnose PTSD because the exam was not ordered to evaluate PTSD?

thanks!

[Hoppy]

I think I will have plenty to say on this. First a couple questions.

What is the inferred claim you are trying to advance? Is it PTSD or organic mental syndrome. Was organic mental syndrome denied? Was PTSD denied? Was the claim closed? If, yes. When was it denied?

[vaf]

Hi Hoppy,

The inferred claim I'm trying to advance is for PTSD.

The claimant is a Vietnam veteran (boots on ground).

Organic mental syndrome is already service connected at 30%. The C & P was ordered as a result of a claim for increase. It was a Psych C & P (with the exception of PTSD and Eating Disorders), but the report discussed nothing but PTSD-related issues, the GAF was 55, and the examiner gave the veteran copies of articles regarding how to deal with PTSD (the examiner wrote his own name on them, in his own handwriting).

PTSD was applied for and denied in 1996. It went unappealed and the decision is final. I'm assuming any grant of this would be effective the date of the C & P exam discussed above, which took place in 2008. We have no grounds that I can see for claiming CUE all the way back to 1996.

The C & P exam was new and material evidence, to my mind, and as this evidence implied that the veteran suffered from PTSD, the VA should have inferred that a viable claim existed once it received the report, which was approximately a year and a half ago. The veteran has not been contacted about treatment, nor has he received a C & P exam specifically designated for PTSD.

[Berta]

Bronco- you are GOOD too!

Everyone here contributes a lot-the smartest people I know live in my PC -inside the hadit link!

"PTSD was applied for and denied in 1996. It went unappealed and the decision is final. I'm assuming any grant of this would be effective the date of the C & P exam discussed above, which took place in 2008. We have no grounds that I can see for claiming CUE all the way back to 1996." A CUE could be possuble with a successful award on the current claim-but that is a "could be" -

Does this vet have a formal PTSD diagnosis?

And as Hoppy asked too-why was the original PTSD claim denied?

The VA cant lump organic brain syndrome into PTSD.They have special tests to separate and rate each condition.My husband had all those tests-the results supported 100% SC P & T for PTSD and 100% P & T for separate organc brain syndrome.(was 1151 but now AO SC due to DMII)

[Berta]

glad I re-read this again:

"as this evidence implied that the veteran suffered from PTSD, the VA should have inferred that a viable claim existed once it received the report, which was approximately a year and a half ago. The veteran has not been contacted about treatment, nor has he received a C & P exam specifically designated for PTSD."

Has the vet formally applied for PTSD?

This sounds like just the Organic brain C & P due to the claim for higher rating on that.

Has he had anything from the VA since taking this exam?

I don't think VA will "infer" anything here that could lead to another potential SC rating. They might but I never expect them to infer anything.Even something obvious.He should infer it .

His claim doesn't sound like it is near the rating board yet - maybe he should file another claim specifically for the PTSD.

[vaf]

Berta, you asked:

"Has the vet formally applied for PTSD?"

The vet mailed a letter in November 2008 after the C & P exam that was originally to evaluate whether an increase for organic mental syndrome was warranted. He asked if the Psych report meant he had an inferred claim for PTSD. In response to that, he received a VCAA letter this month asking for more evidence re. PTSD, which has to be new and material, since he was denied the claim in 1996 and didn't appeal.

"This sounds like just the Organic brain C & P due to the claim for higher rating on that."

The Report results discusses PTSD almost exclusively, yet the examiner never rendered a formal diagnosis of PTSD, since that's not what the exam was supposed to be focused on, yet that's exactly what took place.

"Has he had anything from the VA since taking this exam?"

Just a VCAA notice asking for more evidence.

"I don't think VA will "infer" anything here that could lead to another potential SC rating. They might but I never expect them to infer anything.Even something obvious.He should infer it .

His claim doesn't sound like it is near the rating board yet - maybe he should file another claim specifically for the PTSD."

No, it's not there -- we replied to the VCAA notice today and basically sent in everything we sent in the letter from November 2008, that replied to the Rating Decision that was meant to determine whether to increase the organic mental syndrome, but really just discussed PTSD without formally diagnosing it.

My concern is that this is basically a "new" claim (since it was never appealed, and then became final), and not a claim for increase. The way I read the statute in the VBM, inferred claims only apply to claims for increase?

[vaf]

Does this vet have a formal PTSD diagnosis?

No, that was part of the problem. The examiner discussed stressor events, behaviour, content and mood of speech, GAF of 55, etc., but then inexplicably never diagnosed it.

And as Hoppy asked too-why was the original PTSD claim denied?

GAF in 1996 was 65, and the veteran held minimal employment, it appears.