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

[jbasser]

To avoid this, one needs to file claims for ptsd as Mental Health Condition. That to include PTSD and any other MH condition associated to service.

Use your words wisely folks. The VA has mnany tank traps in place.

J

[broncovet]

BOD 38 CFR 4.3 is one of the top reasons great VSO's sometimes get benefits for their claimant....they argue "benefit of the doubt". It does work rather frequently if there is some type of balance of negative and positive. If you have two docs with differening opinions, then argue 38CFR 4.3 BOD.

Even if you have two conflicting legal interpretations...The VA's overly restricive one, and yours...then argue that a "broad interpretation" applies.

The second portion of 4.3 is the "catch 22", tho:

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.

So, be careful about arguing about this, reminding you that when the evidence conflicts the Vets statements, the VA always sides against the Vet. In other words, the Doc whose diagnosis you dispute could have 99 complaints against him, and you never ever wore anything but white to your wedding, and the VA will always rule against you. If there is a medical contradiction, the best way to reconcile it is with an IMO or other docs appointment...you simply can not refute medical evidence with lay evidence. You must refute medical evidence with medical evidence.

I will add, however, you can argue that Doc A, was your regular doc, he had seen you for 8 years and knew you better than the C and P doc who saw you for 20 minutes and did not even read your medical history (if thats the case). As far as "persuaviseness" The VA seems to rely more on the thoroughness of the exam, whether the doc said he reviewed your records, than the letters behind the examiners name.

I think the reason is the VA often uses "non MD's" in its C and p exams. If your "regular" doc is a MD, and the C and P examiner is a nurse practitioner, dont expect the VA to automatically say..gee your regular doc is a MD so lets take that opinion as gospel. No. They will often consider the most thorough exam more important than the degree or lack of them c and p examiner.

Edited December 20, 2014 by broncovet

[ArNG11]

BOD 38 CFR 4.3 is one of the top reasons great VSO's sometimes get benefits for their claimant....they argue "benefit of the doubt". It does work rather frequently if there is some type of balance of negative and positive. If you have two docs with differening opinions, then argue 38CFR 4.3 BOD.

Even if you have two conflicting legal interpretations...The VA's overly restricive one, and yours...then argue that a "broad interpretation" applies.

The second portion of 4.3 is the "catch 22", tho:

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.

So, be careful about arguing about this, reminding you that when the evidence conflicts the Vets statements, the VA always sides against the Vet. In other words, the Doc whose diagnosis you dispute could have 99 complaints against him, and you never ever wore anything but white to your wedding, and the VA will always rule against you. If there is a medical contradiction, the best way to reconcile it is with an IMO or other docs appointment...you simply can not refute medical evidence with lay evidence. You must refute medical evidence with medical evidence.

I will add, however, you can argue that Doc A, was your regular doc, he had seen you for 8 years and knew you better than the C and P doc who saw you for 20 minutes and did not even read your medical history (if thats the case). As far as "persuaviseness" The VA seems to rely more on the thoroughness of the exam, whether the doc said he reviewed your records, than the letters behind the examiners name.

I think the reason is the VA often uses "non MD's" in its C and p exams. If your "regular" doc is a MD, and the C and P examiner is a nurse practitioner, dont expect the VA to automatically say..gee your regular doc is a MD so lets take that opinion as gospel. No. They will often consider the most thorough exam more important than the degree or lack of them c and p examiner.

You're right to a certain degree. This process is not vet friendly at all. The game is stacked very heavily against you from the get go. I agree that the opinion of a doc that has seen you for years should blow the opinion of a one time 20 minute doc out of the water, from a logical perspective you would think that would be the case. I have found that it doesn't matter how solid your claims are if they are intent on denying you they will and they won't fold until they get their hand caught in the cookie jar. From history it seems that the BVA is the start of where things might be to your favor. Definitely at the CAVC, but at that point, you really are afforded no luxuries, you are on an equal footing with an agency that is out to snuff you out, destroy your credibility and out to shame your service to your country. I may be going off the deep end here a bit but there is truth to my statements and opinions.

The thoroughness of an exam still escapes me. I can and will point out, behind my attorney, the conflicting statements that the VA examiners have made in my claims, how they omit information to justify the denial, at the same time acknowledging the information to approve a lesser rating for another condition.

I believe that you definitely should not be specific when filing claims, even though most veterans are competent enough to know the illness and conditions they suffer from. I write this in reference to starting the claim. At least from my experience you don't want to do that from the get go. Let the VA make their diagnosis and then fight it with the medical evidence and diagnosis from your treating docs and service medical records. They are so intent on denying that they misdirect and misconstrue the very simplest of claims.

I have been learning this the hard way. I am off to the lengthy part of my fight and the stakes are high now. Man I so wish I would have found this forum before I started my fights with the VA. It would have been much easier with a lot less headaches. The broad argument I think is a good move and a solid foundation from which to build upon.