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!

[Berta]

"In response to that, he received a VCAA letter this month asking for more evidence re. PTSD"

OK that clarifies this-

Did he have current treatment records for PTSD as evidence to send in as response to the VCAA letter?

"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."

I dont know if that would be considered New and Material evidence -

did the VCAA letter ask for current treatment records , meds, etc for PTSD?

'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."

Something seems to be missing here-----

Did they deny a compensable rating? (meaning did they give him SC at "0" %?)

Or did they question that he had PTSD?

Do you have that entire decision available?

[vaf]

did the VCAA letter ask for current treatment records , meds, etc for PTSD?

Yes, but there is no formal "treatment" -- Apparently, and there has been no documentation of this, the VA is interpreting these symptoms as related to organic mental syndrome and not PTSD, but the examiner specifically discussed how the veteran fared in the psychological testing according to PTSD symptoms. There is no treatment for organic mental syndrome. At least, that's what the VA has told the veteran. No treatment for OMS means no treatment for the symptoms, I guess.

'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."

Something seems to be missing here-----

Did they deny a compensable rating? (meaning did they give him SC at "0" %?)

Yes, they denied him a compensable rating --

Or did they question that he had PTSD? Not severely enough to be service connected, I guess. Again, it appears they attributed the symptoms back then to the organic mental syndrome, and not PTSD.

Do you have that entire decision available? I'll look for it, and if I can locate it, I'll scan and attach it after I remove all personal information.

I should add that the veteran has had a close relationship with Bill Wilson for many years, and apparently that has helped him cope with PTSD.

[Hoppy]

VAF,

When you say that the C&P discussed PTSD related issues I would agree that there is a very strong possibility an inferred claim could arise.

Your comment that the C&P contained PTSD related issues is not very detailed. The details make and break cases. I have seen clinicians take histories from veterans and make a specific reference to the fact that the veteran’s statements regarding events meet criteria “A” for the diagnosis of PTSD. When a clinician specifically relates to criteria “A” this is a very strong statement that a rater could not ignore as an inferred claim. If the clinician merely states the events without relating them to criteria “A” I could only guess that a rater could connect the dots. Thus, I am not sure if the details would be strong enough to infer a claim. From what you said I would definitely continue an appeal for the inferred claim.

In the hospital setting outside the adjudication process clinicians make the assessment that criteria “A” is met without making the specific diagnosis of PTSD. The patient is then referred to a PTSD program to see if a diagnosis of PTSD can be made. It is basically a two-step process. They do not schedule PTSD testing unless criteria “A” has been met. When I first read your post about the literature being given to the veteran you did not make any reference to what was written in the C&P exam. I really didn't feel that unless something was written on the C&P exam that you had a chance of advancing an inferred claim based on what the clinician gave to the veteran.

The VA will not schedule a PTSD exam until after the stressor is confirmed. I can show you many BVA cases where this is the protocol. I also found a directive to the regional offices telling them not to schedule PTSD exams until after the stressor is confirmed. I looked around my computer today and could not find where I put the directive. I have actually read reports for mental health exams that excluded PTSD where the clinician specifically stated that the veteran discussed and displayed symptoms which meet criteria “A” for PTSD. So even though the C&P was not for PTSD the clinician is not limited from making a diagnosis. The mental health exam worksheet actually asks for a detailed description of the symptoms. It is under this investigation that the PTSD is discussed. This is why the veteran in your case showed the history of PTSD during a regular mental health exam.

The error that you can advance is that the C&P exam in 2008 specifically identified events and symptoms that should have resulted in an immediate assessment as to whether or not there was a verifiable stressor. This would be based upon the fact that the evidence contained in the C&P exam sufficiently raised the possibility that criteria “A” of a PTSD diagnosis could have been substantiated. I do not feel that making the actual diagnosis would be a requirement for an inferred claim because the VA will not schedule a PTSD exam until after the stressor is identified. The VA by failing to verify the stressor aborted the process that would have made the proper diagnosis. Thus, you only need to raise a reasonable possibility that PTSD is an issue. This is based on the requirement that the VA make a liberal interpretation of the veteran’s filings, statements and issues raised in the doctor's reports.

Criterion A

A person must have experienced a traumatic event where both of the following occurred:

· The person experienced, witnessed, or was confronted with an event where there was the threat of or actual death or serious injury. The event may also have involved a threat to the person's physical well-being or the physical well-being of another person.

· The person responded to the event with strong feelings of fear, helplessness, or horror

Edited March 30, 2010 by Hoppy