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Clemons V Shinseki


Berta
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I mentioned Clemons V Shinseki this AM to kate7772 and it is a good reference for anyone on appeal in a similar situation.

Vets often claim PTSD but the fact is they might have a different and service connectable disorder.

They can lock themselves in to a lay diagnosis of their own that VA, under the new 2010 PTSD regs, might not agree with.

But Clemons might well help them on appeal (or even on a reconsideration) of any PTSD denial,based on a diagnosis other than PTSD.

This is a brief run down on Clemons V. Shinseki by the MOPH:

http://www.purpleheart.org/ServiceProgram/Training2010/19-%20Recent%20Definitive%20Court%20Decisions%20Handout,%20NVLSP.pdf

But ASKNOD's rundown is better:

https://asknod.wordpress.com/2011/09/27/cavc-clemons-v-shinseki-2009-not-an-m-d/

More on this case is here:

http://www.veteranslaw.com/psychiatric-disability-claims-information

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Berta

Great minds think alike. I tried to post this same link (purple heart game changers) yesterday, but hadit was apparently down when I tried.

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We have DeJavu from time to time Broncovet!

Clemons is an important decision

"In Clemons, the veteran’s claim only alleged entitled to service-connected post-traumatic stress disorder (PTSD). However, submitted with his claim were medical records, reflecting diagnoses of anxiety disorder and schizoid disorder. The question before the Veterans Court was whether the submission encompassed not only a claim to service-connected PTSD, but also claims to service-connected anxiety and schizoid disorder.

The Court held that the submission included claims for all three disorders, explaining:

Although the appellant's claim identifies PTSD without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim. Reasonably, the appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction his mental condition, whatever that is, causes him. Id. at 5."

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Berta, let's not forget.

Jandreau v. Nicholson, basically states lay evidence can be competent and sufficient to establish a diagnosis of a condition. It boils downs to what evidence is really in the records at the time of the original rating decision.

38 C.F.R. § 3.159(a)

Lay persons are competent to provide evidence regarding things they have personally observed, including symptoms that are capable of lay observation and when those symptoms occurred.

Edited by pete992
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I will "take a stab" at interpreting Clemons in simple language to try to help Veterans.

Veterans (most of the time) are not doctors. Diagnosis are made by doctors, not Veterans. So, Vets are not required to "self diagnose" their own diseases.

The VA tried, but is not able to "hold" the Veteran to his diagnosis. In other words if the Vet says, "I have PTSD", and it turns out to be depression or paranoid schizophrenia, its not the Vets fault he misdiagnosed his PTSD, and the Va has to view his "PTSD" as a claim for whatever mental disorder the VA doc thinks he has.

This is important, because, previously VA tried to hornswaggle Vet..if you dont have (the claimed PTSD), then you have to re apply for depression, and lose 4 years of retro because the Vet incorectly self diagnosed. Now, after Clemons, the Vet isnt compent to self diagnose, so the Va has to process whatever mental disorder as a claim that the docs diagnose him with.

I speculate this may apply to other things, too. For example, if you apply for "arthritis", but it turns out the doc diagnosis you with some other joint disorder, you wont be held to this self diagnosis, but instead, if you are eligible for these benifits you should be rated for what ever the diagnosis may be.

Someday, I hope that Clemons becomes even more broadly interpreted. An example may be..the one I did.

I had no idea what "unemployability" or TDIU meant...nor did I know there was such a thing as a VA rating for it. I did tell the VA I was seeking benefits..and I did tell them I was unemployed, saying, to the effect that my (to be service connected condition) made it so I could not get a job. While I have not been successful yet, my position is that was a claim for IU. (Now, I know what it means, but I do not think a Veteran should have to have a PHD in Vetrans benefits to get compensated).

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Bronco, This is What I told SigBNsoldier

I myself think I fall in the category of the crazy one, so here is my humble opinion.

IMHO, you can still file a NOD EED since your most recent claim was granted around September 2013. It would be a lot easier to win and you do not have to go through all of the stress that filing a CUE will cause.

I think what you are looking for is Clemons VS. Shinseki, 23 Vet. App. 1 (2009) Basically, when a veteran files a claim, he/she is seeking service connection for the symptoms regardless of how those symptoms are diagnosed and labeled. Keep in mind that winning an EED should award you back to your original claim.

I think Clemons go along with lay evidence because a veteran and or his/her spouse can observe when symptoms occur and help document them or help report them to medical doctors.

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Just to add, on Clemons........

(Good discussion men)

As Broncovet stated:

"This is important, because, previously VA tried to hornswaggle Vet..if you dont have (the claimed PTSD), then you have to re apply for depression, and lose 4 years of retro because the Vet incorectly self diagnosed. Now, after Clemons, the Vet isnt compent to self diagnose, so the Va has to process whatever mental disorder as a claim that the docs diagnose him with."

I think the new 2010 PTSD regulations have allowed VA to continue to "hornswaggle" veterans with MH disabilities , because the VA MH diagnosis of PTSD is critical these days.

In many cases the VA can "re characterize" the disability and perhaps that would lead to an award without filing under a different diagnosis.

Pete992 made excellent points here and stated :

"I think Clemons go along with lay evidence because a veteran and or his/her spouse can observe when symptoms occur and help document them or help report them to medical doctors."

I sure agree with you but I thought Clemons was only regarding MH issues...and I sure could be wrong.

I need to look into that further.

Barr V Nicholson caused a remand in this case:

"

The Board notes that once VA undertakes the effort to provide

an examination when developing a service-connection claim,

even if not statutorily obligated to do so, it must provide

an adequate one or, at a minimum, notify the claimant why one

will not or cannot be provided. Barr v. Nicholson, 21 Vet.

App. 303, 311 (2007). As the examiner in May 2008, while

diagnosing PTSD, failed to render an opinion regarding the

etiology of the Veteran's condition and the examiner in May

2009, while diagnosing a mood disorder and schizoid

personality disorder and excluding a diagnosis of PTSD,

failed to render an opinion regarding whether the Veteran's

mood disorder and/or schizoid personality disorder was

related to the Veteran's active service, the claim must be

remanded for the Veteran to be afforded a VA medical

examination and for an opinion to be rendered regarding the

etiology of any and all acquired psychiatric disorders found

to be present."

"Accordingly, the case is REMANDED for the following action:

1. Afford the Veteran a VA psychiatric

examination to determine the nature,

extent and etiology of any and all

psychiatric disability found to be

present. The claims folder should be

made available to and reviewed by the

examiner. All necessary tests should be

conducted, and the examiner should rule

in or exclude a diagnosis of PTSD. The

report of examination should note all

psychiatric disabilities found to be

present, and the examiner must

acknowledge and comment on the Veteran's

reports of a continuity of psychiatric

symptoms since service. Thereafter, he

or she must opine as to whether it is at

least as likely as not that any

psychiatric disability found to be

present is related to or had its onset

during service. If the examiner

diagnoses the Veteran as having PTSD, the

examiner should indicate the stressor(s)

underlying that diagnosis. The rationale

for any opinion expressed should be

provided in a legible report."

http://www.va.gov/vetapp10/files1/1002953.txt

This gave the veteran a chance for a MH diagnosis that could be service connectable.

BUT this decision and Barr preceded the 2010 PTSD regulations and Clemons.

I am trying to find out if ,under the new regulations, a PTSD claim can still be recharacterized at the RO lovel, without a loss of the initial EED,

And I think Clemons V Shinseki as well as Barr V. Nicholson could help with that.

Edited by Berta
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