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** Possible Triggers**symptoms In Service, But Not Diagnosed, Or Treated

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Ethan'sGrandma

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Hello To All,

I have been reviewing all of the denial SOC's that I've received from the VA to date since I am still waiting on this appeal, but I am hoping someone can help me out here with an argument in their statements that VA has made over and over which is confusing me further with the information I've been able to find on here from past posters. I went to what was the military clinic of the day with complaints of depression and anxiety, but I was not diagnosed, not sent for an evaluation, nor treated, even as the notation was made about my complaints of the symptoms. I was not sent to see the PA, but only the triage medic saw me. She only diagnosed the headache I was also complaining about. I did not know what I was doing, only what I was feeling, getting desperate enough to go on and go on sick call for it. Additionally, I felt beaten down and had learned not to insist, nor did I speak up about what had happened and continued to happen to me which is what I surmised was causing the symptoms that finally got me to go for medical. After being ignored and, soon thereafter leaving the service, I never went back to sick call for it, but the symptoms persisted. The information is checked on my exit exam. The VA has repeatedly said that none of it counts because I was not diagnosed, or treated while on active duty. Since close to that time, once I had medical care available, I have continuous mental health treatment, including inpatient hospitalizations, with different diagnoses' being assigned over the years. On past posts and in the guide section on here, I've noticed where it's also been stated that the condition had to have been treated in service and considered chronic. Yet, VA regs speak of "direct connection" when "incurred" in service. Even though incurred seems to mean "began," does that not apply for VA purposes, unless it was actually diagnosed and treated in service? I am trying to learn and understand better. I would appreciate any comments on this. Thank you very much!

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The letter diagnoses PTSD but does not establish a nexus.

Claims of this type require a VCAA letter that is specific to the evidence the VA needs to have.

Have you been able to comply with the VCAA evidence request?

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Berta is right on target here.

The "Clinical Psychologist gave a solid diagnosis for PTSD and provided

the information needed to adjudicate a percentage evaluation level,

BUT

there is no medical rationale to support their opinion that the MST actually happened,

or anything showing some type of confirmation that the MST occurred on AD.

BVA decisions do not set precedence, but here is a BVA decision that explains what's needed.

http://www.va.gov/vetapp11/Files4/1139244.txt

" The Board is also cognizant that an investigative report of the Veteran's alleged stressor incident has been received from the U.S. Army Criminal Investigation Command. This report, however, was generated in September 2004, many years after the alleged incident, and is merely a reflection of the Veteran's own account of the claimed sexual assault. Therefore, it cannot be accepted as corroborating evidence by the Board.

The Veteran's psychiatric disability claim was twice presented to VA psychiatric examiners in October 2008 and again in March 2010, as detailed above, and neither examiner found sufficient behavioral changes during service or other evidence within the record to support the Veteran's assertion that the alleged assault had taken place. Both examiners stated that it would be necessary to resort to mere speculation to opine whether any in-service contemporaneous behavior changes or related evidence, indicate that a personal/sexual assault had been committed. According to the March 2010 examiner, the Veteran's negative behavior during service, including his Article 15 punishments, did not provide objective evidence of a personal or sexual assault.

In the event that an examiner finds that he/she cannot provide such an opinion without resorting to speculation, then "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). In this case, it is clear that the March 2010 examiner carefully reviewed and assessed all of the relevant information. Additionally, the examiner provided reasons and rationale, as indicated. As such, the Board may proceed with the issue on appeal. Jones, at 390-91.

Significantly, as to PTSD, the March 2010 examiner was well aware of the Veteran's past treatment for PTSD at the VA. Even when considering that the stressor criterion may be met on the basis of the reported in-service rape, the examiner then responded "no" to the question of "Does the Veteran meet the DSM-IV criteria for a diagnosis of PTSD?" Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (2011) (conforming to the Diagnostic and Statistical Manual for Mental Disorders) (DSM-IV). This report is of highest probative value in that it was based on the most comprehensive record, and the examiner adequately discussed the relevant facts of the case and specified whether the criteria required by regulation for a diagnosis of PTSD were met.

While he was diagnosed with an anxiety disorder, no examiner suggested the onset of such a disorder during military service nor is there evidence that tends to link the anxiety disorder to service. The March 2010 examiner noted that the Veteran had also experienced traumatic events subsequent to service, including a failed business, prior failed marriages, and substance abuse. Insomuch as the Veteran has reported onset of such psychiatric symptoms as anxiety, depression, and panic attacks during service shortly following his stressor incident, the Board again observes that the Veteran was not diagnosed with a psychiatric disability during military service, and he denied any history of such psychiatric symptoms as depression, excessive worry, or any other nervous trouble on service separation examination in July 1978. No psychiatric abnormality was found at that time. Additionally, a 1982 VA general medical examination was negative for any complaints or symptoms of a psychiatric disability. While the Veteran did file a VA compensation claim in 1981, he did not report or seek compensation for a psychiatric disorder at that time. The Veteran did not begin seeking psychiatric treatment until the late 1990's, approximately 20 years after service separation. See Mense, 1 Vet. App. at 356 (affirming Board's denial of service connection where claimant failed to account for lengthy time period between service and initial symptoms of disability). These facts suggest against any finding of a continuity of symptomatology of an anxiety disorder or any other psychiatric disability since service, or for many years thereafter. Finally, as already outlined in this decision, the Veteran's credibility has proven to be suspect, such that the Board does not accept his allegations of continuity of psychiatric symptomatology in light of the evidence discussed above.

In denying the Veteran's claim, the Board is cognizant of the June 2009 letter from a VA physician suggesting that the Veteran had a current diagnosis of PTSD as a result of an in-service sexual assault. As already noted, however, that opinion is based solely on the Veteran's unsubstantiated account of an in-service incident which has not been verified within the record, and contains other factual assertions which are contradicted within the claims file. The Board is not bound to accept medical opinions that are based on an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).

The Board has also considered the various lay statements submitted by the Veteran's family, friends, and pastor. While these parties are obviously competent to testify regarding observable psychiatric symptoms currently exhibited by the Veteran, such statements, in and of themselves, do not serve to corroborate the Veteran's claimed stressor event. None of the statements submitted independently verify the Veteran's reported stressor, as none of the parties, except for the Veteran's father, knew him at that time. The Veteran's father's statement indicates only that the Veteran threatened suicide during military service, allegedly over troubles with a girl. Reviewing VA examiners have not found this statement sufficient to corroborate the Veteran's claimed sexual assault. Likewise, the Veteran's own lay assertions, in and of themselves, and in light of the credibility findings herein, are not sufficient to verify his reported stressor in the absence of corroborating evidence. Even in cases of service connection for PTSD based on personal assault or similar trauma, credible supporting evidence of the claimed stressor must still be provided. Patton, 12 Vet. App. at 277 (citing 38 C.F.R. § 3.304(f)). In the absence of such evidence in the present case, service connection for a psychiatric disability, to include PTSD, must be denied.

In conclusion, service connection for a psychiatric disability, to include PTSD, must be denied, including as the Veteran's alleged in-service stressor has not been verified within the record, and onset of a psychiatric disability during active military service has not been established. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991)."

IF you do not have any type of hard core proof that it did in fact happen - then the VBA

is supposed to be able to adjudicate a claim for PTSD due to Personal Trauma with what

they call "Alternative Evidence".

Here is some additional information on Alternative Evidence if you don't already have it.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=f207d9ca31f5a44dd0f3a03bd2c5a7e4&rgn=div8&view=text&node=38:1.0.1.1.4.1.66.112&idno=38

§ 3.304 Direct service connection; wartime and peacetime.

(f) Posttraumatic stress disorder. Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with §4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. The following provisions apply to claims for service connection of posttraumatic stress disorder diagnosed during service or based on the specified type of claimed stressor:

(5) If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a posttraumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.

(Authority: 38 U.S.C. 501(a), 1154)

[26 FR 1580, Feb. 24, 1961, as amended at 31 FR 4680, Mar. 19, 1966; 39 FR 34530, Sept. 26, 1974; 58 FR 29110, May 19, 1993; 64 FR 32808, June 18, 1999; 67 FR 10332, Mar. 7, 2002; 70 FR 23029, May 4, 2005; 73 FR 64210, Oct. 29, 2008; 75 FR 39852, July 13, 2010]

IF you haven't filled one of these forms out, signed and submitted it, you might want to.

http://www.vba.va.gov/pubs/forms/VBA-21-0781a-ARE.pdf

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Thank you Berta and Carlie for taking a look and responding. Frankly, I don't know if VARO has conceded the stressors since I've not had any further contact from them, but I do have several of the "alternative" evidence in the file, some of which VARO missed, but I'd sent them my copy of what they already had, but missed. I know they missed it because one of the things they came back at me with was that I didn't have any requests for re-assignments, which was clearly in my military record that they, themselves, sent to me with my C-file copy request. In fact, after having gone to the Army clinic, with the complaints of depression and anxiety, not receiving any medical assistance for that, I was so desperate that a mere four days later I submitted the request for re-assignment as far as I could get from my then current abuser (fellow soldier), but the request was denied due to a shortage in our unit. There simply seems to be no logic to any of this claim procedure. The request for re-assignment was submitted less than two months after I'd entered a very abusive marriage which would not be logical to have done, just as the only way I could think of to get away from what was happening to me, if the facts did not correlate. Additionally, there would be a report if VARO requests unit logs because there was an incident that was reported by me, immediately, when I was living in the barracks (prior to the marriage) and an unknown soldier was able to gain access to the women's side of the barracks and into my room while I had been asleep. I reported it to the CQ of the day and to the First Sgt on the next work day. I don't have access to those records, but I gave VA the information for that specific event, which is also MST related which, I'm surmising, would have gone into the unit log. In the VCAA letter as far as I can recollect, VARO noted the "alternative" info for my type of claim. They had some all along (missed in the file) and I submitted more to them. That's at the point where I was sent for a C&P exam, but they never said whether the stressors were conceded, or not. One of the other arguments that they held to (another missed item in the file) was that I could not prove mh treatment prior to 2002 (treated from 1982-1994 as a military dependent and all outpatient records can't be found), but even from civilian care from 1994+ the mh records were available to VARO, but the SOC still stated nothing prior to 2002? At a hearing in 2009, I had recently tracked down inpatient records from military mh health care going back to 1983 which I submitted on the day of the hearing, but the claim was still denied at that time. I simply do not know what more they want from me to give to them? As my claim still sits at VARO, not having been processed for BVA as of yet, I am still trying to learn what it is that I have to do to get this claim going. I did also submit a summary from the MST Vet Center counselor, but I don't know if that one is any better than the one from the VA psychologist. Can anybody suggest what I should be looking for in what has already been submitted, or what more I can get that would help my claim for documentation? What is the "nexus" that they may be looking for? Thank you much for your assistance!

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