Cue For All To See

[SCAATY]

Carlie, it wouldn't let me do an attachment. Sorry if this to long for a forum post.

The following is the VA’s “Reasons and Basis” section from my 1994 claim denial regarding my claim for depression:

1. SMR”S show that in October 1985, the veteran was seen for a possible with alcohol abuse. He was hospitalized from 2/21/86 to 2/25/86. The veteran provided a history of using alcohol and various drugs prior to entering service, and having been in a juvenile home because of not attending school prior to service. The veteran expressed a desire to attend alcohol rehab. When discharged on 2/25/86, the diagnoses were adjustment disorder with mixed emotion and mixed personality. Medical evidence after discharge from service begins in 5/93. Private outpatient treatment records between May and Sept. ‘93, refer to major depression. A request for outpatient treatment records ‘87 to the present (1993), resulted in a response from the Dept. of VA Medical Center that there were no treatment records from 1987 to Nov. 1993. The veteran was hospitalized from 9/2/93 to 9/10/93, with a diagnosis of major depression. Rehospitalized from 9/10/93 to 9/22, with a diagnosis major depression and probable personality disorder. Hospitalized at hospitalized at the VAMC Sepulveda from 9/22/93 to 10/7/93, with diagnosis of depression and mixed personality disorder. Admission report from 10/12/93, shows an admitting diagnosis of overdose of medication with chief complaint of suicide attempt. The veteran was rehospitalized at VAMC Sepulveda from 10/14/93 to 10/20/93, with a diagnosis of major depression.

Service connection for major depression is denied. The veteran was not treated for depression in service with the only psychiatric diagnosis being adjustment disorder with mixed emotions. The diagnosis was being made while the veteran was being evaluated for alcohol rehab. There is no evidence of a chronic neurosis or psychosis in service and there is no evidence of treatment for a psychiatric condition after discharge from service until 1993, approximately six years after discharge from service. With no evidence of a chronic psychiatric condition in service, there is no legal basis to establish service connection for major depression.

2. As noted above, a diagnosis of mixed personality disorder was made in service 2/86. The condition of personality disorder was also made in 1993. Service connection for personality disorder is denied since it is considered a constitutional or developmental abnormality and not a disability under the law for which compensation is payable.

On the cover page of that decision it list the following claims: alcohol rehab; depression; and a nervous condition. I assume that the nervous condition they are referring to is the personality disorder.

Here are the faults in this decision as I see it:

1. On my entrance exam I checked the box that said that I used drugs. This box contains every drug possible, but the only illegal drug I used was pot, prior to service. This was an occasional thing and I never turned up a positive drug test prior to or during service. They are also correct in stating that I used alcohol prior to service, but, again, it was only occasional. I understand what they are trying to prove a preexisting personality disorder.

2. I never spent any time in a juvenile home as a child. On my enlistment papers I stated that I was picked up for a curfew violation. At the time I was not attending high school and working the graveyard shift at a full time job. I was driving my girlfriend home and was stopped by a cop and taken to the juvenile detention center, where my mom picked me up a couple of hours later. There was arrest only a ticket for curfew violation.

3. As I stated in the post you reviewed, the discharge summary from alcohol rehab, a month post psychiatric admission, has a final DX of: Alcohol abuse, episodic, with psychological dependence (alcoholism, early, episodic). Adjustment reaction with depressed features, resolved. A month later I had a flight physical and I checked the box on SF-93 for depression and excessive worry. The flight surgeon also checked the abnormal psychiatric box on SF-88 for the same physical. This was the same on the following 2 physicals to include my discharge physical.

4. I reviewed my SMR’s and also found the following entries that were never mentioned in the 1994 decision: 10/24/85 to 10/27/85, I was hospitalized for what was originally diagnosed as a heart attack because of an elevated CPK of 890. (I also claimed a heart condition in my 1994 claim and was denied.) The discharge diagnosis was muscle breakdown, elevated CPK, resolved and chronic alcohol abuse. They attributed it to stress from the 3rd DUI I had a week before. There was also 3-4 times (I have dates just to lazy to look them up right now) that I was seen for unexplained rashes that were question to be a result of nerves or stress.

Here is one that just blows my mind, the discharge summary from 10/7/93 VAMC Sepulveda under the Personnel History section is a exact copy, word for word, from my discharge summary of 2/25/86. My ex-wife must have provided my shrink with a copy of the 1985 discharge summary. Almost all of the hospital notes during the 9/22 - 10/7/93 only show depression and bipolar as possible diagnosis, yet the discharge summary shows Axis I: depression and adjustment disorder with mixed features; Axis II: borderline personality disorder.

The 10/20/93 discharge summary list Axis I: major depression; Axis II: will need to rule out as an outpatient the possibility of an organic personality disorder. This was not the same shrink then I had before. This shrink later dropped any mention of personality disorder and stuck with major depression.

From there I went to the VA outpatient clinic in Santa Barbara. Here they diagnosed me with Axis I: major depression and bipolar disorder, and no Axis II diagnoses. These records are nowhere to be found and from what I can tell the VA never requested, as well as about 6 other private physician that I provided the VA with authorization for release of information.

There is no mention, in the over 500 pages of records I have, of a personality disorder again until 2004. This shrink I saw one time and we discussed a possible personality disorder. They used this shrinks opinion as the basis to deny the 2005 claim. In his one appointment with me he stated that bipolar disorder may not be the best diagnosis for me and that there may be a possible Axis II diagnosis of a personality disorder instead.

Here is what I believe are the basis for CUE. There is no mention in the 1994 claim that the claim was not well grounded, so I don’t think that is an issue. Well grounded is the first thing that must be met, and was the first thing I looked into. There is significant evidence in my SMR’s that doesn’t seem to have every been considered. That evidence, in my opinion, is so significant that it would have, at the very least, triggered the duty to assist, and the VA should have requested a C&P exam to reconcile the different diagnoses. Instead, they used the discharge summary from 10/7/93 as the exam for ratings purposes. I consider this to be an inadequate exam as the examiner did not review all of my SMR’s. I didn’t file a claim for benefits until after this exam; therefore, the doctor would have had no reason to review my SMR’s. They should have attempted to obtain relevant records but didn’t. Especially my VA Santa Barbara records, the whole heightened duty to assist in obtaining records in the custody of the VA. The VA was neglectful in it’s duties.

The 2005 decision was just as bad, if not worse, because of the VCAA rules. Had the VA reviewed all of the evidence they had it would be appropriate to provide a C&P exam to reconcile the various diagnoses. I had no reason to provide the VA with authorizations for medical records in this claim because I had no idea that the VA made no attempt to obtain the evidence in 1994.

I could go on but I would think this would be sufficient for you to see where I am headed with my CUE claim. Reasonable person, preponderance of evidence, clear and convincing, duty to assist, probative evidence, equal to or outweighs, due process, broadest interpretation, and benefit of the doubt, and I realize that cannot be the basis for CUE, but it is a part of the equation. It really does me no good to site specific regulation or laws because most of them have changed over the years.

Carlie I get where you are coming from with 3.156© as that is one of the first regulations I looked at. I am not sure where you are going with 3.157 though, maybe you could elaborate a little. Still, my whole CUE claim is for the 1994 decision, and I just cannot seem to locate the laws and regulations for 1993-1994. I have read 38 CFR forwards, backwards, and upside-down because I do my best thinking in this position. HA HA!

I get one shot at CUE so I want to be as thorough as is possible. Personally, I think the VA proved my CUE claim when they requested the mental health C&P exam. The requestor asked the examiner to specifically address the same evidence that I believe was overlooked in the previous claims. Anyway, I am sure you get the whole picture now.