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Diagnosis,

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Guest Jim S.

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I’m going to try and make this as short as possible, but I think this may apply to a lot of veterans and doesn’t seem to be argued in their claims much.

Case in point, A Veteran is diagnosed with a psychiatric disorder while nearing the end of his enlistment. During his enlistment, he had an enlistment physical and re-enlistment physical, two psychiatric evaluations, one found nothing towards which a diagnosis could be evaluated, the second time was during hospitalization for the psychiatric disorder, for which he was eventually, medically discharged from the service for.

Upon discharge he was transferred to a VA medical facility to await his final discharge papers. After an intake physical was administered, he was given a pass to return home, nothing untoward was noted except a history of the psychiatric disorder, still nothing of the Veteran as having a personality disorder. The Veteran was given his final discharge papers, while on pass at home.

Having applied for VA benefits, a C&P exam was conducted, were upon for the first time a personality disorder was diagnosed. Further the examiner noted that he could not fully support the findings of the Dr’s of the medical board, who had approved the findings of a psychiatric disorder and recommended his medical discharge. The VARO subsequately ruled that a alterative diagnosis had been made of a personality disorder and without stating so, found the diagnosis of a psychiatric problem as in error.

I’ve come up with several errors that may have been commited by the VARO in allowing this change in a diagnosis stand and to further use it as the basis to deny subsequate claim to reopen with new and material evidence.

1. Failure to give reason and basis for a change in diagnosis

I can name more reasons, but this one jumps out every time I read a BVA or COVA decision of this type. Nothing is mentioned about the evidence that showed clearly and undebatably that the original or subsequate diagnosis is the correct diagnosis. Why do I not see more cases of the question being made in BVA or COVA decisions. Wouldn’t you think that if an error was made in how the diagnosis was changed, would manifestly change the outcome of a claim, in light of their being the good chance of, if not evidence on record showing a diagnosis of a service connectable disability already.

This is not a question of a wrong diagnosis, this is a procedural error in how a change was made and how the change is supported by evidence.that shows it to be a proper change.

Discussion is appreciated.

Jim S. B)

Edited by Jim S.
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I’m going to try and make this as short as possible, but I think this may apply to a lot of veterans and doesn’t seem to be argued in their claims much.

Case in point, A Veteran is diagnosed with a psychiatric disorder while nearing the end of his enlistment. During his enlistment, he had an enlistment physical and re-enlistment physical, two psychiatric evaluations, one found nothing towards which a diagnosis could be evaluated, the second time was during hospitalization for the psychiatric disorder, for which he was eventually, medically discharged from the service for.

Upon discharge he was transferred to a VA medical facility to await his final discharge papers. After an intake physical was administered, he was given a pass to return home, nothing untoward was noted except a history of the psychiatric disorder, still nothing of the Veteran as having a personality disorder.  The Veteran was given his final discharge papers, while on pass at home.

Having applied for VA benefits, a C&P exam was conducted, were upon for the first time a personality disorder was diagnosed.  Further the examiner noted that he could not fully support the findings of the Dr’s of the medical board, who had approved the findings of a psychiatric disorder and recommended his medical discharge. The VARO  subsequately ruled that a alterative diagnosis had been made of a personality disorder and without stating so, found the diagnosis of a psychiatric problem as in error.

I’ve come up with several errors that may have been commited by the VARO in allowing this change in a diagnosis stand and to further use it as the basis to deny subsequate claim to reopen with new and material evidence.

1. Failure to give reason and basis for a change in diagnosis

I can name more reasons, but this one jumps out every time I read a BVA or COVA decision of this type.  Nothing is mentioned about the evidence that showed clearly and undebatably that the original or subsequate diagnosis is the correct diagnosis. Why do I not see more cases of the question being made in BVA or COVA decisions.  Wouldn’t you think that if an error was made in how the diagnosis was changed, would manifestly change the outcome of a claim, in light of their being the good chance of, if not evidence on record showing a diagnosis of a service connectable disability already.

This is not a question of a wrong diagnosis, this is a procedural error in how a change was made and how the change is supported by evidence.that shows it to be a proper change.

Discussion is appreciated.

Jim S.  B)

<{POST_SNAPBACK}>

This is par for the course. If the tables were turned (IE - the military discharged him for a personality disorder and the VA doc said it was PTSD), you can bet that the RO would go with the military opinion. This is another case of SO's failing miserably at protecting veterans, because this is a common issue across the country of a rules violation. The regs clearly state that you have to prove a case by the preponderance of the evidence and that doubt should be in the veteran's favor...this clearly isn't the case these days and the RO's are going with the lower evaluation EVERY time even if there are several higher evaluations and the higher evaluations are done by doctor's who have more time in the field or are better qualified.

Until we snap these SO's into line you can expect the same thing over and over and over and over again.

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I’m going to try and make this as short as possible, but I think this may apply to a lot of veterans and doesn’t seem to be argued in their claims much.

Case in point, A Veteran is diagnosed with a psychiatric disorder while nearing the end of his enlistment. During his enlistment, he had an enlistment physical and re-enlistment physical, two psychiatric evaluations, one found nothing towards which a diagnosis could be evaluated, the second time was during hospitalization for the psychiatric disorder, for which he was eventually, medically discharged from the service for.

Upon discharge he was transferred to a VA medical facility to await his final discharge papers. After an intake physical was administered, he was given a pass to return home, nothing untoward was noted except a history of the psychiatric disorder, still nothing of the Veteran as having a personality disorder.  The Veteran was given his final discharge papers, while on pass at home.

Having applied for VA benefits, a C&P exam was conducted, were upon for the first time a personality disorder was diagnosed.  Further the examiner noted that he could not fully support the findings of the Dr’s of the medical board, who had approved the findings of a psychiatric disorder and recommended his medical discharge. The VARO  subsequately ruled that a alterative diagnosis had been made of a personality disorder and without stating so, found the diagnosis of a psychiatric problem as in error.

I’ve come up with several errors that may have been commited by the VARO in allowing this change in a diagnosis stand and to further use it as the basis to deny subsequate claim to reopen with new and material evidence.

1. Failure to give reason and basis for a change in diagnosis

I can name more reasons, but this one jumps out every time I read a BVA or COVA decision of this type.  Nothing is mentioned about the evidence that showed clearly and undebatably that the original or subsequate diagnosis is the correct diagnosis. Why do I not see more cases of the question being made in BVA or COVA decisions.  Wouldn’t you think that if an error was made in how the diagnosis was changed, would manifestly change the outcome of a claim, in light of their being the good chance of, if not evidence on record showing a diagnosis of a service connectable disability already.

This is not a question of a wrong diagnosis, this is a procedural error in how a change was made and how the change is supported by evidence.that shows it to be a proper change.

Discussion is appreciated.

Jim S.  B)

<{POST_SNAPBACK}>

Jim,

Discussion being advanced,

This is the clearest statement of the events that I have seen. I appears that the VA went through the basic requirements by scheduling the C&P exam. They denied me without a C&P exam.

What they did is they chose to listen to the C&P examiner rather than the medical board. The adjudicator does not really have to explain why the diagnosis was changed by the doctor. In my opinion the adjudicator would be required to explain in his reasons and basis for the decision that he did in fact give weight to the C&P examiner. Additionally, the BVA decisions I have read include the logic as to why the board gave weight to one report rather than another. Why did the RO adjudicator not explain this in the SOC probably makes the SOC sufficiently vague as to not meet VA standards.

I do not think this adds up to a CUE. Others on the board know more about CUE's than me. However, it should open the door for either a new C&P exam or an SSOC that explains the logic as to why the C&P doctor was given weight over the military board. The BVA should view this as insufficient development of the medical evidence and remand it for further development or do resolve the claim themselves. If insufficient development is a CUE then you could have a CUE.

My guess the way to deal with this is to seek a medical opinion that rebuts the C&P examiner. If I remember correctly this occurred in the early '70's. That is when the DSM III was in effect. The M21 says that psychiatric conditions need to be evaluated under provisions of the DSM IV. Ask for or get on your own, a re-evaluation based on the ongoing progress of the condition and within the scope of the DSM IV.

If this did in fact occur prior to the publication of the DSM IV, the diagnostic requirements of "personality disorders" changed. The changes included dropping several of the previous types of personality disorders. Additionally, prior to the DSM IV many features of a personality disorder were changed to "traits" rather than a disorder.

I know a veteran who took his SMR to a VA shrink and told them he wanted them to look at all the symptoms and re-evaluate the in-service diagnosis in view of the DSM IV. The VA shrink did this and made a new diagnosis of a service connectable condition. Obviously changes in diagnosis are allowed because they changed yours from a psychotic disorder to a personality disorder. Fight them to get this done again under the provisions of the DSM IV. A Diagnosis made in 1972 is obsolete. This is because the way psychiatric conditions are perceived by shrinks has changed dramatically.

Above, I also mentioned that the new evaluation should include the current state of any condition. There are psychotic conditions that resolve. There are other conditions that have features that include at least one psychotic episode and episodes of depression. Although, I did study psychology extensively at UCLA a diagnosis from me is not in order. I am not trying to make a diagnosis. This is a argument to justify getting a new diagnosis.

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Hoppy: your falling into the same mind trap that others have fallen into for the course of this claim.

Their is nothing in the examiners report, that states his diagnosis is in any way a rebuttle of the original diagnosis. Without which, any diagnosis made by the examiner, is a new and seperate diagnosis and should have been evaluated as possibly as a personality disorder superimposed on a psychiatric disorder, and as such, should have been service connected.

Or since the VA examiner could not fully support a psychiatric disorder, further developtment was in order or a temperary ruling for service connection, given the intermitant nature of the type of psychiatric disorder they were dealing with, was in order and a re-evaluation during a period when the symptoms of the psychiatric disorder were present.

The mind set at the VARO is that the original diagnosis for which disability was claimed, was some how wrong or in error. my arguement is that the original diagnosis was never clearly and undeniably shown to be wrong or in error and because of several precedural errors of their own rules, laws, and guidelines, the claim was denied.

Back to the VARO: In its' reason and basis within the SOC, VARO must give sufficiant information of it's reason and basis for their belief that a diagnosis change was being made, also prior to their decision, notice must be given to the Vet that a diagnosis change was being considered and why, so that he may submit any new material or evidence to rebutte why a change in the diagnosis was not in order.

Jim S.

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No need to call me "Sir" I'm the youngest of three other brothers and one sister. My Father has since passed on and now my oldest brother is the "Sir" in my family.

Unless of course, your under twenty-one yrs. of age, then you can address me as 'Sir". LoL

Where is it written, that they can't use their own Dr. to rebutte a diagnosis? I could use this in my arsenal of weapons to use against their next call.

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I suggest- go to a Real doctor, fully qualified in the psychiatric profession (no psychologists) and ask them for as Terry said the MMPI and the battery of tests (Hand Test, Weschler, and the one where you put blocks in holes- they can do it- they gave my husband seven separate tests at the VA) the whole shibang and ask this doctor to diagnosis you.

Based on the diagnosis (I regret this will cost you money)

if it is not a personality disorder and you have documented nexus to your service , this is what you need for your claim.

Then in the past denial decision, CUE it on basis of the rating diagnostic code they used to arrive at the decision.

A diagnostic code is within the regs in 38 and it is the improper code that supports the elements of CUE here.

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Another IMO can't hurt, but you should CUE this now rather then later. It is clearly a violation of the regulations given that the RO took one VA doctor's opinion (I'm betting it wasn't a psychiatrist either) over several other medical opinions that were done under 24hr surveilance as oppsed to a 30min C&P. The military also found SC and found for a diagnosis of PTSD. This is another clear example of a regulation violation....if only there were some organization that could help you...to bad they're aren't any /sigh.

P.S. - This case is huge...the VA's job is not to challenge the military against the vet..their job is to prove SC for the vet against the military. If the VA is allowed to question the military's word you will find that NO veteran suffering from sexual trauma will EVER get a SC and vets who were disabled on classified missions will have NO WAY of proving their SC. A SO should be all over this one, but that would involve caring for veterans to which SO's do not.

Edited by Jay Johnson
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