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OEFracer35

Denied For Ptsd/anxiety. How To Appeal This Decision?

Question

I was hoping I could have some input on my claim decision I just received for my PTSD claim that I initially submitted Dec 2010.

I will type info from my C&P exam, and then decision letter. As I am at a loss for how to proceed with my appeal? and what new evidence I need to present with appeal?? I thought the C&P examiner stated it is least as likely as not that the veteran’s anxiety is related to combat experience.

C&P Exam Notes:

WERE PRIVATE MEDICAL RECORDS REVIEWED: No

WERE SERVICE MEDICAL RECOREDS REVIEWED: Yes--no mental health dx or tx

WERE VA MEDICAL RECORDS REVIEWED: yes--dx and tx for Anxiety Disorder.

NOS

WERE OTHER RECORDS REVIEWED: No

RATIONALE FOR OPINION GIVEN: Based on clinical interview of the veteran and review of available records, it is the opinion of this examiner that he does not currently meet the criteria for PTSD; a more appropriate qualification of his current anxiety symptom’s is a diagnosis of Anxiety Disorder, Not Otherwise Specified. There is no evidence of any pre- or post service trauma that would better explain the veteran's current anxiety symptom presentation; therefore, it is least as likely as not that the veteran’s Anxiety Disorder is related to his conceded military combat experience.

Notes from the decision (denial) letter:

Medical Description: Anxiety disorder not otherwise specified (claimed as post-traumatic stress disorder (PTSD))

Denial Reason:

  • The evidence does not show an event, disease or injury in service.
  • We did not find a link between Anxiety disorder not otherwise specified (claimed as post-traumatic stress disorder (PTSD) and military service.

Explanation: We received your medical evidence from VA examination and VA outpatient treatment records, which discusses the symptom’s of your medical condition. Your service treatment records do not contain complaints, treatments, or diagnosis for this condition.

On July 13, 2010, the regulation regarding the evidence required to support an in-service stressor for PTSD was amended. According to the amendment, service connection for PTSD may be granted if the evidence demonstrates a current diagnosis of PTSD (rendered by an examiner specified by the regulation); an in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) has been medically related to the Veteran's fear of hostile military or terrorist activity by the VA psychiatrist or psychologist, or one contracted with the VA; and the Veteran’s PTSD symptoms have been medically related to the in-service stressor by a VA psychiatrist or psychologist, or one contracted with by VA. Your VA examiner determined that you do not meet the requirements for a diagnosis of PTSD. Instead, you were diagnosed with anxiety disorder otherwise specified. As a result, the relaxed standards (described above) for establishing an in-service stressor cannot be applied in your case, because the relaxed standards only apply to Veterans with clinical diagnosis of PTSD. We are unable to verify the in-service stressors you reported in support of your claim. Due to the fact that your records fail to show an event, disease, or injury in service related to your mental condition, a direct link between your current condition and your military service cannot be made.

I do not know what to do? Do I appeal asking to be evaluated for PTSD, and Anxiety secondary? All my diagnoses from VA mental health is for Anxiety and related to experiences from deployment.

Thanks for any help, advice, or suggestions on the course of action I should take next. I know I need to file a NOD ..but, what evidence do I now need to provide the VA in appeal??

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“ All my diagnoses from VA mental health is for Anxiety and related to experiences from deployment.”

PTSD IS an anxiety disorder BUT the 2010 criteria ,for claimed PTSD, does not seem to apply in your case”

According to the amendment, service connection for PTSD may be granted if the evidence demonstrates a current diagnosis of PTSD (rendered by an examiner specified by the regulation); an in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) has been medically related to the Veteran's fear of hostile military or terrorist activity by the VA psychiatrist or psychologist, or one contracted with the VA; and the Veteran’s PTSD symptoms have been medically related to the in-service stressor by a VA psychiatrist or psychologist, or one contracted with by VA. Your VA examiner determined that you do not meet the requirements for a

A current diagnosis pf PTSD by a VA MH provider.

in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) has been medically related to the Veteran's fear of hostile military or terrorist activity by the VA psychiatrist or psychologist, or one contracted with the VA; and the Veteran’s PTSD symptoms have been medically related to the in-service stressor by a VA psychiatrist or psychologist, or one contracted with by VA.

I know it sounds like VA double talk but this is the exact regulation they are using.

We are unable to verify the in-service stressors you reported in support of your claim

I suggest that you get a vet rep tp help you either amend the claim to claim Anxiety disorder,NOS due to your service, ) but I dont know if that would work) or file a new claim based exactly on the diagnosis you have.

This is unfortunate but others might disagree with me and have a better idea.

Also I am concerned that the VA didn't even attempt to verify your stressor, as this is not a PTSD claim.

But that too is because this claim does bot have a PTSD diagnosis from the examiner.

You can write to JSRRC (Joint Services Records Research Center) yourself and give them as many details as to time and place as possible and describe the stressor itself in detail.

All my diagnoses from VA mental health is for Anxiety and related to experiences from deployment. “ Then that is what you need to claim. The examiner mentioned that your TX also was for anxiety.

Is your MOS etc and your stressor consistent with the criteria above in the PTSD regulation or consistent with anything else in your military experience?

Were you OEF in theatre?

Are you still in contact with any of your unit buddies, if you need some buddy statements to prove the stressor?

I am a little surprised that VA didnt re- characterize the claim as Anxiety NOS.

But I guess that is expecting way too much from them.

Not all is lost, but I sure hope others come up with some good suggestions here.....

good rule of thumb for all out there.........stick with the diagnosis your medical records reveal.

Under the new PTSD criteria, even if Sigmund Freud prepared a stunning IMO with a full medical rationale, that this vet had PTSD , the VA still would not advance his claim.

Only a VA MH provider's PTSD diagnosis is acceptable under the new regs.

Edited by Berta

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I am still rethinking this regarding

Recharacterization of a claim:

In Part:

The Board notes that, in the December 2002 rating decision, the 
RO (in pertinent part) denied service connection for PTSD.  The 
RO has continued to characterize this claim as entitlement to 
service connection for PTSD.  However, review of the claims file 
reflects that the Veteran has been diagnosed with other 
psychiatric disabilities, including mood disorder and depression.  
Given the diagnoses of record, the Board has re-characterized 
this issue on appeal as entitlement to service connection for a 
psychiatric disability, to include PTSD.  See Clemons v. 
Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health 
disability claim includes any mental disability that may 
reasonably be encompassed by the claimant's description of the 
claim, reported symptoms, and the other information of record).  

http://www.va.gov/vetapp10/Files6/1044397.txt

This case also makes my point too:

In part:

in Clemons, the Board finds that it would be best to re-characterize the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, and PTSD.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp10/Files4/1033780.txt

Now I am thinking that you could ask the VA for a Reconsideration and use the Clemons case to support that, and request that they recharacterize the disability from PTSD to Anxiety NOS

You will still need proof of the stressor. And I sure suggest getting a vet rep top back you up on whatever course of action you take.

A reconsider request will NOT stop the NOD deadline ,so mark your calendar for that, if VA doesnt act on this favorably during the NOD year.

Direct the request Attention to : to the Initials found in the numeric and initial code to the right of the decision over the date.

This way the same rater will get the request.

Others will chime in here too with their ideas...... with a stressor proven, this can be fixed hopefully at the RO Level, otherwise the BVA would remand it I bet.

The above decisions and Clemons itself can be used as legal evidence to warrant the recharacterization.Enclose them and highlight with a magic marker the above part of the BVA decisions.(put your name address and C file number in the print out margins of the decisions.

Refer directly to them in the Recon Request and state that you are aware BVA decisions cannot be used as evidence regarding similar medical disability claims, however Clemons and the BVA's interpretation of Clemons in these decisions, is a Legal issue the BVA has referenced, as Clemons is part of established VA case law and VA must apply that case to this situation.

(maybe that will fix it!)

Edited by Berta

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