ptsd Ptsd Stressor Denial-Possible Cue

[GuaymasJim]

I have read about all I can about Clear and Unmistakable Error (CUE) claims, but the PTSD claim I am assisting with has presented a situation where I cannot determine if it is a CUE or just a rating error requiring a NOD and appeal.

The veteran has repeatedly (12 years and counting) been denied service connected PTSD for lack of a verifiable stressor. In the Statement of the Case (SOC) and subsequent Supplemental (SSOC), the rater acknowledges that the incident occurred. A buddy letter confirms that veteran was present at the incident. However, according to the SOC, since neither the veteran nor the “buddy” was listed among those injured at the incident and since the buddy had not submitted a claim for service connected PTSD, the claimed stressor did not meet the DSM-IV criteria. The claim for service-connection for the veteran’s VA diagnosed PTSD was denied for not having met the DSM-IV requirements even though the rater’s own words show that it does.

As we all know DSM-IV requires:

Criterion A: stressor

The person has been exposed to a traumatic event in which both of the following have been present:

1. The person has experienced, witnessed, or been confronted with an event or events that involve actual or threatened death or serious injury, or a threat to the physical integrity of oneself or others.

2. The person's response involved intense fear, helplessness, or horror.

QUESTION: Is the failure of the rater to correctly address and apply the DSM-IV criteria to the rating a CUE, or is it just another example of sloppy adjudication?

QUESTION: How would the retroactive award of a USMC Combat Action Ribbon affect an old PTSD claim which was also denied based on lack of stressor and not appealed?

Thank you

[stillhere]

What stage is he at now after 12 years? Is he still appealing to the RO or is he at the BVA? It would seem with the new regs for PTSD that have recently been approved that he was one of those that this rule was written for.

As far as your question on CUE this is probably not a CUE but something is not right in the way this claim has progressed. Give us a time line of the 12 years and why the VA has denied. That would help.

[Philip Rogers]

I would say the misapplication of the DSM-IV or any other rules would be a CUE. As for the retroactive award of a CAR, it should help towards getting a retroactive award date. jmo

pr

[Commander Bob]

I would say the misapplication of the DSM-IV or any other rules would be a CUE. As for the retroactive award of a CAR, it should help towards getting a retroactive award date. jmo

pr

First, Thank you, PR, for all the help you have given to so many vets and members here at Hadit...

I am seeking an eed for PTSD back to 1968. I see on an old 21-6796b (rating decision sheet) from 1975, there is an ambiguous Code# 9400 (anxiety) NSC rating listed. Since PTSD did not enter the DSM-IV until 1980, could I still ask the VA to declare a CUE?

How is the VA handling old PTSD issues?

Thanks for any feedback or thoughts.

[john999]

Bob

You know if the symptoms of your "Anxiety" are similar to PTSD symptoms I think you have something. You were not anxious before service, but after Vietnam you were anxious. I would try and find a lawyer to take my case because the VA is going to beat around the bush, and you will end up at the BVA and beyond. You have the verifiable stressor.

Those old decisions are so poor and have so little descriptive narrative about symptoms. How long was this rating decision. Mine in 1973 was just two pages long. It included a DX and a rating and that was it. Were you getting treatment for anxiety at the VA or did the VA have any other medical records describing the anxiety you had? I think you have some kind of case. I don't think a misdiagnosis is basis for a CUE, but there may be some other factor that Phil is aware of.

[Commander Bob]

Bob

You know if the symptoms of your "Anxiety" are similar to PTSD symptoms I think you have something. You were not anxious before service, but after Vietnam you were anxious. I would try and find a lawyer to take my case because the VA is going to beat around the bush, and you will end up at the BVA and beyond. You have the verifiable stressor.

Those old decisions are so poor and have so little descriptive narrative about symptoms. How long was this rating decision. Mine in 1973 was just two pages long. It included a DX and a rating and that was it. Were you getting treatment for anxiety at the VA or did the VA have any other medical records describing the anxiety you had? I think you have some kind of case. I don't think a misdiagnosis is basis for a CUE, but there may be some other factor that Phil is aware of.

Thanks John. You know, I always thought that I did not have grounds for a CUE because PTSD was not listed in the DSM at the time in question. Like you said, it was a misdiagnosis. I appreciate your perspective and understanding of this issue. When I first made contact with the VA for a correction of the code# to reflect PTSD, I used the term "clear and unmistakable misdiagnosis". When I look at that old rating decision and the NSC rating, I remember all the unnecessary hardship it caused. Though we cannot turn back the clock. "hindsight is 20/20"... I will however, clean their clock when I have my case reviewed by competent eyes, at the DVA or a court room.

Back when a vet was not allowed to see their own records, I had a chance to look over the shoulder of my A.L. rep.and saw some of my military service records that would support a PTSD rating. At least I got the thing 10% SC after a protracted appeal in the late seventy's... Of course unwittingly, the VA has littered my VAMC records with, what could now be used to support a PTSD claim back to 1968.

Justice is just a wisp away. It is however, such an unnecessary distraction, at this point in my life.

Again, thanks for your support and feedback.

Edited July 22, 2010 by Commander Bob

[GuaymasJim]

This thread seems to have been hijacked, but no problem.

The original question is this:

The veteran has VA diagnosis:

Axis I: PTSD, chronic

The SOC denying service-connection states that since the veteran was not injured, the stressor is not valid for service-connection.

Since the DSM-IV makes no mention of "injured" as a criterion. The DSM-IV only requires that "(T)he person has been exposed to a traumatic event" and that "(T)he person has experienced, witnessed, or been confronted with an event or events..."

Again, THE RATER stated in the SOC that because the veteran was "not listed among the injured" the claimed stressor was insufficient.

The C&P examiner did not discount the stressor and neither did the Social Security Administration which awarded SSDI based on the VA's diagnosis including the claimed stressor.

It is obvious that THE RATER misapplied the DSM-IV criteria and stated the misapplication in the SOC and denied the claim based on this misapplication. VA regulations (laws) require an award of service-connected PTSD to any veteran who meets the DSM-IV criteria.

The veteran met (meets) the DSM-IV criteria, but the VA denied his claim.

Is this a CUE?