ptsd Advice On My Nod For Bva

[Swarthy]

here is my letter so far:

I would like to file a Notice of Disagreement with the
Statement of Case denying my claim for an acquired psychiatric condition to
include PTSD.

The VA has from the outset recharacterized my claim of PTSD
as one of depression and as secondary, Alcohol Abuse. I have to believe this is
done in the best interest of my claim. I have never claimed that
depression/dysthymia was caused by service, though it had its onset in service.
And I am positive that my duty on the psych ward played a part. I also have
never claimed that my substance abuse was caused by service. I believe I did
that to myself. Current research into PTSD does shows that depression,
substance abuse and homelessness, specifically in veterans, can be linked to
PTSD. Research also indicates that presentations of Borderline Personality and
Antisocial Personality disorders are frequently seen in cases of PTSD.



The SOC states “While the veteran has
furnished statements dealing with possible stressors for a diagnosis of post-traumatic
stress disorder, the examiner did not furnish a diagnosis of post-traumatic
stress disorder.”

It is possible the examiner did not diagnose PTSD because the
exam/DBQ I was given was for Mental Disorders (other than PTSD and eating
disorders). I would like to bring to your attention that the assault is noted
in my STR by Master Chief Creel on 1/9/95

The SOC states “The
two reported personality disorders given by VA providers include borderline
personality disorder and sociopathic (now called antisocial) personality
disorder and a personality disorder by definition existed prior to service.”

Also according to the DSM-IV definition, “Personality
disorders represent a long-standing pattern of problematic behaviors, thoughts,
and feelings that often start in adolescence or early adulthood.”

I experienced none of these until my billet on the psych ward and certainly
after the attack. I have also enclosed a letter from my first wife describing her
knowledge of how I was. And you have a letter from my second wife of how I became.

The initial ‘impressions’ and ‘rule out’ diagnoses of personality
disorder from providers have to be considered that at the time (just coming off
the street, withdrawing, etc.) I was in bad shape and sometimes suicidal (I was
once put on a “hold”). I was typically using alcohol and drugs after the
military to distract/numb my thoughts away from my constant ruminations about
my experiences on the psych unit and at times a fear of being assaulted again.

Regarding the sociopath/antisocial diagnosis: This was given
as the result of one 30 minute visit with a doctor who, it is my understanding,
no longer works for the VA. During this visit I was upset about the hepatitis C
diagnosis he had just given me and I asked him to confirm it with the lab. He
chuckled at this and chuckled again with the person on the phone in the lab. Also
during the exam when I listed all the places I had lived (such as Berkeley, Ca,
Flagstaff, AZ) and he replied, “All you people end up in those places.” I got
the impression he meant ‘you people’ to mean homeless alcoholics. When I left
his office I asked the front desk not to schedule me with him again and the
secretary’s response was, “Don’t worry. He’s out of here in a month.”

In my experience when working and treating sociopathic/anti-social
personality disorders they did not respond well to structure as stated in the
SOC. Other personality disorders may but definitely not those particular
disorders.



I feel the current examiner erroneously “cherry picked” from intake diagnoses I
received when I entered into drug and alcohol treatments. The (again initial
impression) diagnosis of ‘Personality Disorder NOS’ given by Dr. Soman was removed
very soon in my treatment with him. Also, none of my VA discharge notes
list personality disorder as a diagnosis or problem. Additionally, the first
C&P examiner gave “No Diagnosis” for Axis II. And in service psychiatric testing
(1/29/1992) showed no personality disorder- in fact, the examiner stated, “No psychiatric
disorders were noted”. I feel this satisfies a presumption of soundness.

I have cleaned up and feel much better emotionally but the
symptoms of PTSD have definitely become amplified and at times have seriously
hindered my attempts to settle into a normal life and be around normal people.
I am currently working on this and have been in treatment for ‘Complex PTSD’
since

Also, I am service connected and currently treated for a sleep disorder noted
as “severe” in my STR on 1/24/95 and a severed nerve. I feel that this, the
current C&P exam note and my current treatment and diagnoses satisfies the
evidence of a continuing disability. To me, it seems as if the symptoms are
compensated but not the cause.

Dr. ---- in his C&P note states that I
experience “Social and occupational
impairment due to mild or transient symptoms which decrease work efficiency and
ability to perform occupational tasks only during periods of significant
stress, or; symptoms controlled by medication” I feel this is accurate.

[Berta]

“I am currently working on this and
have been in treatment for ‘Complex PTSD’
since “

Where is this treatment coming from and
did the C & P doctor know of that diagnosis?

Could you explain the 20% SC for a
sleep disorder ?I usually never see 20%. Is it Sleep apnea?

“The (again initial
impression)
diagnosis of ‘Personality Disorder NOS’ given by Dr. Soman was
removed
very soon in my treatment with him. Also, none of my VA
discharge notes
list personality disorder as a diagnosis or
problem. Additionally, the first
C&P examiner gave “No
Diagnosis” for Axis II. And in service psychiatric
testing
(1/29/1992) showed no personality disorder- in fact, the
examiner stated, “No psychiatric
disorders were noted”. I feel
this satisfies a presumption of soundness. “

Yeah the PD stuff is BS.

Yet this does not indicate any
inservice depression or MH issues.

Do you have a vet rep on your POA? You
made some excellent points in the NOD but I feel this situation
should take a good review by a vet rep.

Others will chime in ere too.

“The SOC states “While the veteran has
furnished
statements dealing with possible stressors for a diagnosis of
post-traumatic
stress disorder, the examiner did not furnish a
diagnosis of post-traumatic
stress disorder.”

It is possible the examiner did not diagnose PTSD because
the
exam/DBQ I was given was for Mental Disorders (other than PTSD
and eating
disorders). I would like to bring to your attention
that the assault is noted
in my STR by Master Chief Creel on
1/9/95”

If I were you I would send them an IRIS (the VA email contact
system available at the main VA web site and file the IRIS as a
complaint and tell them you filed for PTSD but got a C & P for
something else and want a C & P exam scheduled for PTSD.

Try to get a vet rep or VSO to support you on that.

Send the RO a letter to that affect as well. ASAP.

How long do you have before the NOD deadline is up?

Make sure you bring up ANY evidence they had that they never listed in the decision.

Also you can ask them to CUE themselves. I think the wrong C & P defies VA case law.

I posted info ere as to how I got VA to do that.....It is available either in CUE forum or under a search.

I commend you for articulating that NOD so well...it can be punched up and I feerl an IRIS complaint and/or a' VA go CUE yourself' request could get this into better shape,sooner then later.

[Swarthy]

“I am currently working on this and

have been in treatment for ‘Complex PTSD’

since

“

"Where is this treatment coming from and did the examiner know of this diagnosis?"

I have been in treatment for over a year with a VA psychiatrist for my meds and a VA psychologist for my therapy

I can only assume he knew

Could you explain the 20% SC for a

sleep disorder ?I usually never see 20%. Is it Sleep apnea?

I have 10% for a sleep disorder (listed by the Va as a'nervous tic') and I have 10% for a severed nerve (incomplete paralysis of the long thoracic nerve)

Both of these occurred after my assault. but again it seems that this evidence isn't considered by the RO and certainly not the examiner for some odd reason.

Yet this does not indicate any

inservice depression or MH issues.

I have documentation of MH treatment for dysthymia in service

Do you have a vet rep on your POA? You

made some excellent points in the NOD but I feel this situation

should take a good review by a vet rep.

I do have a a VSO (the American Legion in town and the DAV at the RO who I have not spoken with or written to as of yet)

If I were you I would send them an IRIS (the VA email contact

system available at the main VA web site and file the IRIS as a

complaint and tell them you filed for PTSD but got a C & P for

something else and want a C & P exam scheduled for PTSD.

Try to get a vet rep or VSO to support you on that.

Send the RO a letter to that affect as well. ASAP.

"How long do you have before the NOD deadline is up?"

It is my understanding that I have 60 days from the date of my SOC

[carlie]

Ask your VA psychiatrist for a written letter of support / opinion,

stating a diagnosis and nexus to what ever happened on active duty.

I'd do this ASAP and submit it.

Probably with a 21-4138 stating that I did not agree with the denial /

SOC dated XX/XX/XXXX and that I want this additional evidence factored in.

JMHO

[Swarthy]

The NOD evolves:

I.

Please accept my submission of a Notice of Disagreement with
the Statement of Case denying my claim of service connection to entitlement for
an Acquired Psychiatric Condition to include post traumatic stress disorder,
major depression and alcohol and polysubstance abuse (also claimed as dysthymia
and ethanol abuse and anxiety) with the reason stated that I have a Personality
Disorder.

The 2008 exam states “Axis II: No Diagnosis”

The 2012 exam does not diagnose Personality Disorder.
Instead the examiner states that “Test data, history, and clinical interview
are most consistent with a diagnosis of Personality Disorder NOS with
passive-aggressive and anti-social features.”

The evidence is in equipoise, at least.

Additionally, the 2012 examiner fails to acknowledge or note
that these diagnoses are either deferred or ruled out. I am submitting evidence
from VA treatment records of hospital discharge diagnoses to substantiate doubt
that a personality disorder exists in my case:

Bay Pines Progress Note dated 8/29/01
lists “Axis II Deferred”

Menlo Park VAMC Discharge Summary dated 3/25/03 lists “Axis II Deferred”

Battle Creek VAMC Discharge Summary dated 12/22/03 lists “Axis II No Diagnosis”

Sheridan VAMC Discharge addendum dated 12/03/09 “Axis II Deferred”

Current Psychiatric Progress Note dated: 6/22/12 lists “Axis II – Personality
Disorders: None”

If the Board or Regional Office maintains a diagnosis of personality
disorder still applies and as my diagnoses only begin to appear after my
reported stressors, please see the following decision that granted service
connection for aggravation of a personality disorder and cites:

“Generally, personality disorders,
mental deficiency, mental retardation and other such "defects" are
not "diseases" or "injuries" within the meaning of
applicable legislation. 38 C.F.R. §§
3.303©, 4.9, 4.127. However, evidence
of additional disability resulting from a mental disorder that is superimposed
upon and aggravates a congenital defect such as a personality disorder or
mental deficiency during service may be service-connected. 38 C.F.R. §§ 3.303©, 4.9, 4.127; see also
VAOPGCPREC 82-90, 55 Fed Reg. 45,711; Carpenter v. Brown, 8 Vet. App. 240, 245
(1995); and Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993)”

[Citation Nr: 1243369 DOCKET
NO. 04-37 861 Date: 12/18/12]

II.

The SOC states “While
the veteran has furnished statements dealing with possible stressors for a
diagnosis of post-traumatic stress disorder, the examiner did not furnish a
diagnosis of post-traumatic stress disorder.”

The exam/DBQ I was given was for Mental Disorders (other
than PTSD and eating disorders).

I am currently treated for, CAPS testing (7/12) confirms
moderate PTSD and I am service connected for the severed nerve and sleep
disorder I incurred from the stressors and the assault (which is noted in my STR on 1/9/95).
Additionally, previously submitted evidence of letters from ----- and ---- and evidence from my STRs shows I experienced several of the
following from Manual M21-1:

“Evidence that might indicate such
a stressor as lay statements describing episodes of depression; panic
attacks or anxiety but no identifiable reasons for the episodes; visits
to medical clinics without a specific ailment; evidence of substance abuse; and
increased disregard for military or civilian authority. The Manual also lists behaviors such as
requests for change of military occupational specialty (MOS) or duty
assignment, increased use or abuse of leave, changes in performance and
performance evaluations, increased use of over-the-counter medications, unexplained
economic or social behavior changes, and breakup of a primary
relationship as possibly indicative of a personal assault, provided that
such changes occurred at the time of the incident. The Court has also held that the provisions in
M21-1, Part III, 5.14©, which address PTSD claims based on personal assault,
are substantive rules that are the equivalent of VA regulations and binding on
VA. Y.R. v. West, 11 Vet. App. 393,
398-99 (1998); Patton, 12 Vet. App. at 272.

[carlie]

I wouldn't be fighting against the PD as much as I would be fighting to

SC the PTSD.

I'm not sure but from you posting,

'I have 10% for a severed nerve (incomplete paralysis of the long thoracic nerve)

Both of these occurred after my assault. but again it seems that this evidence isn't considered by the RO

and certainly not the examiner for some odd reason.'

was this SC'd nerve severed during an attack ?

If yes, the MH peeps can easily support the PTSD as secondary to the attack

that left you with a SC'd disability.

JMHO

[Swarthy]

Yes the nerve was severed during the attack and likewise the sleep disorder and "behavioral problems" showed up after the assault.
The whole time my claim has been for PTSD,
I don't know why the RO will not pay attention to the PTSD diagnoses. In the SOC they state it is because the examiner failed to diagnose it.
They recharacterize it as for depression (which is what I was treated for in service)

I seem to have to fight the PD diagnosis because that is the reason they list for the denial.

its like I'm playing checkers and they are playing chess:)