ptsd Clemons V Shinseki

[Berta]

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

[Guest]

Berta,

Take a look at these both are Clemons one is mental and one is not. What do you think?

http://www.va.gov/vetapp14/Files4/1427053.txt

This claim involves PTSD and anxiety disorder

http://www.va.gov/vetapp11/Files1/1101052.txt

Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that the scope of a health disability claim includes any disability that may reasonably be encompassed by the
claimant's description of the claim, reported symptoms, and the other information of record). This Claim does not involve a mental health issue.

[Berta]

WOW These are great finds Pete 992!!!!

I have been at the BVA for the last hour or so, trying to find something like this.

Unfortunately I found many that cited Clemons regarding a MH issue filed as PTSD, but they were still denied and I only found one on remand.

"Finally, in January 2011 the Veteran was afforded a PTSD examination. And although, as already explained, he was not diagnosed with PTSD, a diagnosis was made of adjustment disorder with mixed anxiety and depression. The examiner's later May 2011 addendum opinion did not appear to take into consideration the Veteran's lay statements regarding the onset of his symptoms. Therefore, additional comment also is needed before deciding this claim for mental illness other than PTSD."

http://www.va.gov/vetapp14/Files3/1421014.txt

Superb work Pete 992!

Both cases you linked us to are very important BVA decisions that show how Clemons and Barr can work.

Edited December 18, 2014 by Berta

[broncovet]

As to the issue of whether Clemons applies broadly or narrowly, I would refer you to 38 CFR 4.3 explained by this BVA case:

itation Nr: 0917935
Decision Date: 05/13/09 Archive Date: 05/21/09

DOCKET NO. 09-01 477 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Providence,
Rhode Island


THE ISSUES

1. Entitlement to an effective date prior to January 23,
2008, for a grant of service connection for major depressive
disorder.

2. Entitlement to service connection for hypersomnia,
formerly claimed as a sleep disorder.


REPRESENTATION

Appellant represented by: Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

J. Murray, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army
from September 1998 to July 2005, to include a tour of duty
in Iraq.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from March 2006 and April 2008 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office (RO) in Providence, Rhode Island. In the March 2006
rating decision, the RO denied service connection for a sleep
disorder, now characterized as hypersomnia. In the April
2008 rating decision, the RO granted service connection for
major depressive disorder, rated 30 percent disabling
effective from January 3, 2008.

In March 2009, the Veteran testified before the undersigned
Acting Veterans Law Judge at a personal hearing held via
videoconference from the RO. A copy of the hearing
transcript is associated with the record.

The issue of service connection for hypersomnia is addressed
in the REMAND portion of the decision below and is REMANDED
to the RO via the Appeals Management Center (AMC), in
Washington, DC.


FINDINGS OF FACT

1. The RO received the Veteran's claim for a sleep disorder
in November 2005, within one year from his discharge from
active duty in July 2005.

2. The evidence of record manifests an intent to claim
entitlement to service connection for a psychiatric disorder
as of November 2005.


CONCLUSION OF LAW

The criteria for an earlier effective date of July 12, 2005,
for the grant of service connection for major depressive
disorder have been met. 38 U.S.C.A. §§ 5107, 5110(a) (West
2002); 38 C.F.R. §§ 3.1, 3.102, 3.400 (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified
in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38
C.F.R. § 3.159, amended VA's duties to notify and assist a
claimant in developing the information and evidence necessary
to substantiate a claim.

The Board notes that in the current appeal, the Veteran's
claim arose from the Veteran's disagreement with the
effective date of the award of service connection for major
depressive disorder. The United States Court of Appeals for
the Federal Circuit (Federal Circuit) has held that once
service connection is granted the claim is substantiated,
additional notice is not required, and any defect in the
notice is not prejudicial. Hartman v. Nicholson, 483 F.3d
1311 (Fed. Cir. 2007).

Moreover, in view of the Board's favorable decision below,
any additional discussion regarding any lapses in duties to
assist and notify, or regarding whether the veteran was
prejudiced by any such lapses, would serve no useful purpose.

Earlier Effective Date

Currently, the assigned effective date of service connection
for the Veteran's major depressive disorder is January 23,
2008, the date of receipt of a claim for that specific
diagnosis. The Veteran contends that an earlier effective
date is warranted. The Board agrees.

Under the applicable criteria, the effective date for a grant
of direct service connection will be the day following
separation from active service, or the date entitlement arose
if a claim is received within one year after separation from
service. Otherwise, the effective date is the date of
receipt of claim or date entitlement arose, whichever is
later. 38 U.S.C.A. 5110(a); 38 C.F.R. § 3.400(b). Unless
specifically provided, the effective date will be assigned on
the basis of the facts as found. 38 C.F.R. § 3.400(a).

The date of receipt of a claim is the date on which a claim,
information, or evidence is received by VA. 38 C.F.R. §
3.1®. A claim is a formal or informal communication in
writing requesting a determination of entitlement or
evidencing a belief in entitlement, to a benefit. 38 C.F.R.
§§ 3.1(p); 3.155.

It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. § 4.3.

A review of the record shows that the Veteran separated from
active service on July 11, 2005. The Veteran submitted a
claim of entitlement to service connection for a sleep
disorder on November 8, 2005. He stated that his disability
would cause him to "just fall asleep," and on one occasion,
his condition had resulted in a motor vehicle accident.

The Veteran's claims file shows that he received treatment
from VA Medical Center (VAMC) in Providence, Rhode Island
from November 2005 to November 2008, which include treatment
for excessive sleeping disorder and depression. At the time
of his initial treatment at a VA facility, the doctor noted
the Veteran's complaints of fatigue and sleepiness, and
indicated that these may be associated with a psychiatric
disability or some organic disease. In several of the VAMC
mental health treatment reports, the Veteran was diagnosed
with hypersomnia as well as depression, and that he was
treated for both conditions.

On January 23, 2008, the Veteran submitted a claim of
entitlement to service connection for "depression [and]
sleep disorder". VA afforded the Veteran a psychological
examination in April 2008. In the examination report, the
April 2008 VA examiner diagnosed the Veteran with major
depressive disorder. The examiner listed hypersomnia among
of the Veteran's symptomotalogy for his psychiatric
condition.

During the Veteran's March 2009 hearing, the Veteran stated
that he felt that his sleeping disorder "was part and
parcel" of his depression. The Veteran testified that when
he first spoke with the VA representative in November 2005
about filing a claim for his sleeping condition, he intended
it as a claim to include a psychiatric disorder. He stated
that he always felt that his symptomatology "was connected
to a psychiatric disorder." The Veteran essentially
testified that he thought he had a psychiatric disorder claim
pending prior to the January 23, 2008 submission.

VA has an obligation, under its uniquely non-adversarial
system, to "administer the law under a broad interpretation."
38 C.F.R. § 3.102. The Board finds the Veteran's testimony,
that he intended the November 8, 2005 claim for entitlement
to disability compensation to include a psychiatric disorder
claim, is credible. See Layno v. Brown, 6 Vet. App. 465, 469
(1994). Further, reading the Veteran's November 8, 2005
submission liberally, and in light of the other evidence of
record, he did indeed manifest an intent to file a claim for
psychiatric disorder. Resolving all reasonable doubt in
favor of the claimant, the Board finds that November 8, 2005,
is the date of receipt of a claim for a psychiatric disorder.
November 8, 2008, the dated VA received the claim, was within
one year of the Veteran's separation from active duty.
Competent lay evidence, in the form of the Veteran's
statements, indicates that the psychiatric symptoms have
existed since separation. Therefore, assignment of an
effective date for the grant of service connection for major
depressive disorder should be the day following the Veteran's
discharge from service, July 12, 2005. See 38 U.S.C.A. §
5110(a); 38 C.F.R. § 3.400(b).

Based on the forgoing, the preponderance of the evidence
shows that July 12, 2005, the date following the Veteran's
separation from active duty, is the appropriate effective
date of service connection for major depressive disorder.


ORDER

Entitlement to an earlier effective date of July 11, 2005 for
grant of service connection for major depressive disorder is
granted, subject to the laws and regulations governing
payment of monetary benefits.


REMAND

The Veteran claims entitlement to service connection for
hypersomnia formerly claimed as a sleep disorder. The Board
finds that additional development by the RO is necessary
prior to adjudication of this claim.

The RO initially developed the Veteran's claim of service
connection for sleep disorder as related to a physiological
condition, specifically, as sleep apnea . See October 2007
VA Sleep Study Report. The evidence of record indicates that
the Veteran's hypersomnia might be related to either a
psychological disorder or a post-concussion disorder.

As was noted above, the initial November 2005 VA treatment
record notes the presence of fatigue and sleepiness, and
discussed both psychiatric and physical causes for the
symptomatology.

In the December 2007 Polytrauma Evaluation, the examiner
reported the Veteran's chief complaint was excessive sleep.
The VA examiner noted the Veteran's medical history of
depression and symptoms of other related psychiatric
disorders. The VA examiner also noted that while in service,
the Veteran was exposed to two blast-related events in which
he sustained concussions. The VA examiner reported that the
"Veteran endorsed a number of non-specific symptoms that are
often associated with post-concussion syndrome." He further
reported that a November 2007 MRI report revealed the Veteran
had a "poorly defined, irregular area of roughly 5 mm in
size in the brain, and recommended further testing to better
characterize the lesion. The VA examiner concluded that "it
seems likely that depression, some degree of PTSD symptoms,
and a possible sleep disorder are the most parsimonious
explanations for his current difficulties... [h]owever, a
possible contribution from his concussions should not be
ruled out."

The medical evidence of record establishes that the etiology
of the Veteran's hypersomnia is unclear, and a VA examination
to determine the etiology of the Veteran's hypersomnia is
warranted. The RO should schedule the Veteran for a VA
examination to determine whether the Veteran's hypersomnia is
related to his psychiatric disorder, including depression, or
whether it is related to his exposure to blast-related events
while in service.

Prior to any examination, an attempt should be made to obtain
any outstanding records of pertinent treatment. The Board
notes that the record shows that the Veteran has been
receiving medical treatment from VAMC regularly, and the most
recent VA treatment report of record was a November 2008
neurological consult request. If there are any outstanding
pertinent VA medical records, those records must be
associated with the Veteran's claims file. See 38 U.S.C.A §
5103A (West 2002); see also VAOPGCPREC 12-95, 60 Fed. Reg.
43186 (1995) ("... an [agency of original jurisdiction's]
failure to consider records which were in the VA's possession
at the time of the decision, although not actually in the
record before the AOJ, may constitute clear and unmistakable
error").

Accordingly, the case is REMANDED for the following action:

1. The RO should obtain updated VA
treatment records from VAMC Providence,
all associated clinics, and any other VA
facilities identified in the record.

2. Schedule the Veteran for VA
psychiatric and traumatic brain injury
examinations. All studies deemed
appropriate in the medical opinion of the
examiner(s) should be performed, and all
the findings should be set forth in
detail. The claims file should be made
available to the examiner(s), who should
review the entire claims folder in
conjunction with this examination. This
fact should be so indicated in the
examination report.

After review of the claims file and
examination, the examiner(s) should
provide an opinion on whether the
Veteran's hypersomnolence is related to
his psychiatric disorder or to his blast-
related exposure in service, or some other
cause. The examiner is asked to
specifically state whether any sleep
disorder is at least as likely as not
related to service or a service connected
disability. A full and complete rationale
is required for all opinions expressed.

3. The RO should review the claims file to
ensure that all the foregoing requested
development is completed, and arrange for
any additional development indicated. The
RO should then readjudicate the claims on
appeal. If any benefit sought remains
denied, the RO should issue an appropriate
SSOC and provide the veteran and his
representative the requisite time period to
respond. The case should then be returned
to the Board for further appellate review,
if otherwise in order. No action is
required of the appellant unless he is
notified.

The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).

No action is required of the Veteran until further notice.
However, the Board takes this opportunity to advise the
Veteran that the conduct of the efforts as directed in this
remand, as well as any other development deemed necessary, is
needed for a comprehensive and correct adjudication of his
claim. His cooperation in VA's efforts to develop his claim,
including reporting for any scheduled VA examinations, is
both critical and appreciated. The Veteran is also advised
that failure to report for any scheduled examination may
result in the denial of a claim. 38 C.F.R. § 3.655.

This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).


______________________________________________
WILLIAM H. DONNELLY
Acting Veterans Law Judge, Board of Veterans' Appeals

[Berta]

Great case Broncovet!

Every time I see a BVA decision, particularly whereby the vet had representation, and the BVA awarded...I wonder why the POA didn't raise VA case law in the NOD, or at least tell the vet they could do that.

Also reading between the lines in this decision, it looks to me like the veteran's VCAA letter could have been prejudicial,per this statement.

"Moreover, in view of the Board's favorable decision below,

any additional discussion regarding any lapses in duties to

assist and notify, or regarding whether the veteran was

prejudiced by any such lapses, would serve no useful purpose."

Awards at the BVA result from inaccurate RO decisions, that occur when VA raters fail to address everything pertinent and probative to the claim, as in this case.

Duty to Assist fails flat on it's face when VAROs fail to honor the most critical regulations we have.

And if they have a vet rep who does not know basic VA 101, the claimant has two hands tied behind their back, unless they can prevail at the BVA level.

Part of the reason claims take so long at the BVA, is the fact that this might be the very first good reading and thorough assessment of the veteran's evidence,that they ever get.

[georgiapapa]

Berta, broncovet and pete992,

After reading all of your posts, I feel like I just attended a VA legal course based on the question, "Does the claimant have recourse if the VA denies a disability claim because the veteran failed to properly identify the medical condition being claimed although there is medical evidence of record of another similar medical condition?" Thank all of you for a very informative session. I hope to read many more of these type of discussions.

[Berta]

Georgiapapa---

the entire amount of intellect here at hadit is outstanding!

There has never been a dumb question asked here and Everyone here is smart.

I have been here long enough to recall newbies who joined and didnt have a clue on VAOLA , who, these days ,are now giving superb advise to others.

Us hardcore claimants have learned so much from fighting back over the bogus denials we have gotten in the past, that those denials ,which caused so much frustration and anger to us when they occurred,

have become a fountain of knowledge that we can share with others.

Citations to precedent setting CAVC cases ( which are cited in the VBM as well as within M21-1MR and always within BVA decisions),

control the VA.