Diagnosis,

[Guest Jim S.]

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 September 20, 2005 by Jim S.

[Hoppy]

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.

Jim,

Correct me if I am wrong. I am of the understanding that the change of diagnosis occurred in the early ‘70’s. Sorry for the delay. I have been traveling a little. Also, I wanted to give this some thought. I am convinced that what happened during the adjudication of your claim was pure unadulterated B.S. on the part of the VA.

The adjudicator appears to have had two different diagnoses in front of him when he made his decision. The fact that an adjudicator is allowed to give weight to one diagnosis over the other is the problem. I would argue that a resolution of the different diagnosis should have been resolved by medical authority prior to the adjudicator making a decision. The failure to have resolution of the diagnosis by medical authority constitutes a CUE. This is due to the fact that the actions of the adjudicator can be equated to the adjudicator making a medical decision. Additionally, the diagnosis made by the military board was in fact used for the reason and basis of your discharge and thus meets the evidentiary standards of a final decision as to the nature of the condition you had while serving in the armed forces. Any change in this diagnosis cannot be made without clear and convincing evidence to the contrary. A notation by a C&P examiner that he disagrees is not sufficient. The adjudicator misapplied the level of evidentiary confidence necessary to give weight to the C&P examiners decision. In so doing the adjudicator misapplied the law. There are some existing case laws to back up this type of logic (be sure and cite case law with any appeal). Take it to COVA and the Federal Courts. We all know the VA is jamming B.S. decisions at veterans. Tell them that you did not realize the claim was adjudicated on faulty procedures until you recently started investigating the VA adjudication process.

The Idea that they did not notify you prior to the change of diagnosis and failure to allow you to submit evidence does not appear to me to have a chance of going very far. They will probably say that you filed the claim and had a chance to submit evidence at any time. Your case is based on the fact that the law was misapplied.

If an individual were to have a diagnosis of a psychotic episode followed by a diagnosis of a personality disorder in the year 2000, the investigation of the causal relationship would be prudent. Either the doctor the adjudicator or both should investigate the possibility that the personality disorder was the result of the psychotic event. However, in the early seventies this might not have been standard operating procedure. There was a time when personality disorders were thought to be the result of childhood developmental events only. This obviously changed over time as shown by the many BVA decisions I have read that address this issue. It is a question of when the psychiatrists started advancing this type of diagnosis as to the seriousness of the error in not doing it in the ‘70’s. A good SO with a lot of resources should be able to research this by checking case law. A psychiatrist who has been around since the seventies could also have expertise on this issue.

Look for other errors to shoot down the C&P exam. If the examiner did not specifically write in his report that he had obtained and read the military board decision, then file an argument that he based his decision on your subjective recollection of the events in the military and you subjective recollections of the actions of the military board. There is a requirement that a veterans subjective assessment cannot be used unless it relates to events that occurred in combat. I am sure this law has been in effect for a very long time.

This is the best I can do. Also, I personally feel that the failure of the VA to properly develop a claim should cause the claim to remain open. The fact that a veteran has the right to appeal does not adequately offset the VA’s failure to comply with their own evidentiary statutes. Win a case on this and everybody who advances the rights of the victims of war will be saluting you

[Guest Jim S.]

Hoppy: sorry, my mind hasn't been to sharp lately to answer your ideas and sudjestions. Yes my claim dooes go back to the early 70's and many of the ideas you have covered are used in my CUE claim.

I do feel that the fact they decide on the claim and that then was the first time being made aware that an alternative diagnosis was being use to deny the claim is a viloation of the due process in a claim. By not telling one before the decided the claim, they had no idea that a different diagnosis was to be used, so that they may have had time to provide evidence to rebutte this.

That is similiar to the VARO requesting endless C&P's until they get the one they want, to decline a Vet's claim, they fail to note all the C&P exams that they did that supported the Vet's Claim. These supportive C&P exams only coming to light, ususally by smart SO's or by the time they get to COVA.

This is why I need a differential diagnosis based on my whole records, someone who is not associated with the VA, only I haven't found anyone I could afford or who was interested in this sort of thing. When I say I can't afford them, they want their money up front, just in case the report they give isn't what I was expecting I guess. They may be Dr's, but they have bills to pay too.

Well, my foot is in the door now and they haven't tried to shut it yet, so I will hope and pray that someone finally takes the time to read everything and made the correct decisions that finally allows this claim to be approved.

Jim S.

[Hoppy]

Hoppy: sorry, my mind hasn't been to sharp lately to answer your ideas and sudjestions. Yes my claim dooes go back to the early 70's and many of the ideas you have covered are used in my CUE claim.

I do feel that the fact they decide on the claim and that then was the first time being made aware that an alternative diagnosis was being use to deny the claim is a viloation of the due process in a claim. By not telling one before the decided the claim, they had no idea that a different diagnosis was to be used, so that they may have had time to provide evidence to rebutte this.

That is similiar to the VARO requesting endless C&P's until they get the one they want, to decline a Vet's claim, they fail to note all the C&P exams that they did that supported the Vet's Claim. These supportive C&P exams only coming to light, ususally by smart SO's or by the time they get to COVA.

This is why I need a differential diagnosis based on my whole records, someone who is not associated with the VA, only I haven't found anyone I could afford or who was interested in this sort of thing. When I say I can't afford them, they want their money up front, just in case the report they give isn't what I was expecting I guess. They may be Dr's, but they have bills to pay too.

Well, my foot is in the door now and they haven't tried to shut it yet, so I will hope and pray that someone finally takes the time to read everything and made the correct decisions that finally allows this claim to be approved.

Jim S.

Jim,

I know of a veteran who was very successful in getting a diagnosis of personality disorder while serving in the armed force changed to a rateble anxiety disorder. His VA psychologist wrote all of the assessments. There was a C&P exam by a psychiatrist the VA chose to investigate the accuracy of the VA psychologist. The veterans psychologists reports were instrumental in getting the VA to even schedule the C&P exam by the psychiatrist. The psychiatrist condured with the psychologist and the condition was service connected.

When you write arguments of a legal nature and submit them with your claim they must be very specific. The more genearl terms you use about there errors the greater possibility they will not apply the law properly. On the form 9 they ask you to specifically cite the laws they failed to apply.

I had this problem on my claim. They said there was evidence in the file that my disease was the result of post service employment. No such evidence existed. I appealed a stated that no such evidence existed. I heard nothing for years. Eventually I was able to figure out how they made the error. They had confused a doctors report that was written in 1984 as being the basis of a workers comp decision that was written for a different and unrelated condition that became final in 1982. Once I pointed out to them that the only medical report that listed post service symptoms was written two years after the comp decision and could not have been used by the workers comp. court, things changed real quick.

[Guest Jim S.]

Terry: Are you saying that if the VARO Examiner uses the same records that the Service Medical board used to help him come to his diagnosis, then they should have taken the two reports and looked for a posible nexus between the two?

One of my arguments was their failure to consider that the personality disorder was superimposed on a mental disorder or as a seperate diagnosis as a new and seperate one or was a result of the mental disorder.

When all is said and done, the VARO Examiner does not expressly state, that the personality disorder he was diagnosing at the present time, was a replacement diagnosis or that the mental disorder was in error.

I just hope the VARO doesn't get things mixed up, yet once again, because the DAV SO recommended that they request my records from Social Security. They really don't seem to be of any use, at least not until I am able to prove SC, then they might help me in showing when it was that I became disabled to the point of TDIU. As it is, my mental disorder disability is only a part of my 100% disability claim for SSDI.

Jim S.

[Guest Jim S.]

If an alternative diagnosis was opinioned by the VA Examiner, which was used to deny SC and it was based on the same information found in the Veterans records, then how so can this be?

If the opinion of the VA Examiner was based on evidence that was the same as that for which the Veteran was medicaly discharged from the service for. Then wouldn't their be a so called balance of evidence at that time and shouldn't the benefit of the doubt rule have been the deciding factor, or if not, shouldn't the VA examiner's opinion been returned, at least for further devoptment for clarification.

And if he had made an opinion that was ambiguous at best, such a statement as, " I can not fully support the diagnosis of XXXXX at this time." Should this not also been returned for further developtment and clarification as to what he could support??

I've been fighting 30 plus years on principle and each time I have been told denied due to nothing new or material to open claim with.

That is why I have submitted a claim for CUE and even then they are screwing with me by first treating a claim for a DeNovo Review as a claim to reopen and when I withdrew that claim and submitted my CUE claim, they treated it like the same claim, nothing new or material and that Attachecd VA Forms 21-4138 do not constitute evidence germane to your claim, but rather attempt to indict the Dept of Veteran Affairs for alleged mishandling of your claim in the past.

If a Cue Claim isn't an attempt to indict the VA for alleged mishandling of a claim, I sure would like to know what they do constitute as an alleged attempt to show how errors were made, that caused your claim to be wrongfully denied.

They took the new submition of Cue, after I had withdrawn my new claim for a De Novo Review, as only an additional statement in support of my supposeded claim to reopen. Which I must add once again, was a claim for a DeNovo review of the previous claim they denied.

Now I must wait and see how and if things are finally being done as they should.

GRRRRR!!!

Edited October 3, 2005 by Jim S.