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Would This Be New And Material Evidence?

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kate7772

Question

Husband was recently awarded 50% mental health. We feel it should have been 70% and would like to reopen/reconsider. I know we need new and material evidence to do so. There are many symptoms in my husband's VA treatment notes that are in the 70% range but were never included in his very incomplete C&P exam. When asked. rater said they did consider the treatment notes but if so they sure missed a ton of references to all these symptoms. One of the symptoms is suicidal ideation. This is and continues to be an ongoing problem. But, since they said they considered the records, we likely cannot try to reopen with this. However, recently my husband's mental health nurse practitioner referred him to a suicide prevention therapist due to the fact that much of the treatment so far has been borderline helpful at most. He does not have an active plan but the thought is always there. So, would this referral be considered new and material evidence to reopen the claim and at that time we can refer to all the other overlooked symptoms also?

Thanks

Kate

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Kate,

I agree with Berta. Since you are still within the one year appeal period, the MH claim is not a reopen issue at this time. You stated the award letter stated "a higher rating is not warranted unless the evidence shows........and then goes on to list the symptoms and problems it must show." However, the C & P failed to include the suicidal ideation or address all of his MH symptoms which would have been necessary for the higher rating.

Does your husband's MH records, especially a DBQ, that were provided to the RO for his MH claim show he had the required symptoms for the higher rating? If your answer is yes and there is no doubt the records show he meets the requirements for the higher rating, file a NOD based on his MH doctor's records. If the answer is no, I believe you will need a DBQ (showing the required symptoms for the higher rating) from your husband's VA MH doctor or an IMO from a private MH doctor to overcome the bad C & P. JMO

Georgiapapa.

He did not have a DBQ, just the C&P. This is what happened. We filed for PTSD and the kidney disease among other things. All were denied which, looking back was right because it was filed badly by the VSO we used at the time. We sent no evidence or anything. After the denial, my husband filed for reopen/reconsideration of the PTSD. We didn't file at the time for the kidney disease because we were waiting for a IMO. Once we received that, we filed a NOD for the kidney disease and requested a DRO. Filed the reconsideration for PTSD in May of 2014 and the NOD for the kidneys in Sept 2014. In November 2014 he had his C&P for PTSD, which was horrible. The examiner decided he did not have Ptsd without really questioning him much and also indicated he was overstating his symptoms. His reasoning was that since we have had a successful marriage for 40+ years and he held jobs throughout most of that time, he couldn't have PTSD. My husband's symptoms were severe and becoming more so. He did say my husband had an adjustment disorder due to the kidney disease and indicated a 50% level of disability. Since the kidney disease was not yet service connected, the adjustment disorder was denied. By this time I had gone from annoyed by everything to damn well mad. So, I emailed Allison Hickey and told her my husband was diagnosed by a clinical psychologist at the VA and had been undergoing treatment at the VA for over a year. So, how can this C&P examiner decide not?

To her credit, ms. hickey got right on it and within a couple days we had calls from several offices and within another couple weeks a new C&P had been scheduled. This C&P was subsequently canceled and we got a call from a senior rater saying they would award the adjustment disorder based on the original diagnosis in the c&p. They would also award the kidney disease and schedule a C&P to determine severity for rating. That took place and the award quickly followed. But, it doesn't seem that they really delved into the treatment records (which have many references to all the symptoms. The c&p examiner did not state any.

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Kate: You have to watch that "HOPE" thing. Be proactive, file for IU YESTERDAY. No reason to rely on "Hoping the VA sees the error of their way regarding the rating %. If your husband is Unemployable due to his SC conditions, the reason you aren't filing for IU is?????? Work with what you actually have now, not what you HOPE to have in the next 11 months.

As always it comes down to your informed decisions and what your comfortable with. On your husbands recent award, was an "Inferred IU Claim" listed?

Semper Fi

Gastone

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Kate: You have to watch that "HOPE" thing. Be proactive, file for IU YESTERDAY. No reason to rely on "Hoping the VA sees the error of their way regarding the rating %. If your husband is Unemployable due to his SC conditions, the reason you aren't filing for IU is?????? Work with what you actually have now, not what you HOPE to have in the next 11 months.

As always it comes down to your informed decisions and what your comfortable with. On your husbands recent award, was an "Inferred IU Claim" listed?

Semper Fi

Gastone

No inferred IU. Not sure why. The kidney C&P doctor did say " ability to work is limited due to edema".

Only thing in packet was a form for rehabilitation.

Going to visit DAV tomorrow. If he files for TDIU with the kidney disease and also. nod for the mental issue, would the NOD delay the TDIU claim?

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I agree with Gastone, file for the TDIU now.

Just curious as to what your husband's VA clinical psychologist thought about your husband's diagnosis being changed from PTSD to adjustment disorder by a VA examiner who had never seen your husband prior to his C & P exam.

Is your husband still being treated by the VA clinical psychologist for PTSD or adjustment disorder? I don't know if there are similarities for treatment of PTSD and treatment of adjustment disorder but if your husband is not treated for adjustment disorder, it may be difficult for him to request an increase in his rating for adjustment disorder in the future.

You could still file an appeal for the PTSD citing the facts that the senior rater apparently ignored the original PTSD diagnosis by the VA clinical psychologist and treatment records showing your husband had most of the symptoms listed in the 70% PTSD rating requirements. However, would you possibly be jeopardizing your husband's current 50% rating for adjustment disorder if you appeal and ask for it to be changed to PTSD? To a certain degree, your husband has more options with an adjustment disorder diagnosis over the PTSD since he could seek treatment and request an IMO from a private non-VA psychologist. Depending on your VA psychologist's willingness to treat your husband's MH condition as an adjustment disorder and prepare treatment records which could be used in the future to support a rating increase request, you may have to seek treatment for adjustment disorder at a private non-VA psychologist.

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I agree with Gastone, file for the TDIU now.

Just curious as to what your husband's VA clinical psychologist thought about your husband's diagnosis being changed from PTSD to adjustment disorder by a VA examiner who had never seen your husband prior to his C & P exam.

Is your husband still being treated by the VA clinical psychologist for PTSD or adjustment disorder? I don't know if there are similarities for treatment of PTSD and treatment of adjustment disorder but if your husband is not treated for adjustment disorder, it may be difficult for him to request an increase in his rating for adjustment disorder in the future.

You could still file an appeal for the PTSD citing the facts that the senior rater apparently ignored the original PTSD diagnosis by the VA clinical psychologist and treatment records showing your husband had most of the symptoms listed in the 70% PTSD rating requirements. However, would you possibly be jeopardizing your husband's current 50% rating for adjustment disorder if you appeal and ask for it to be changed to PTSD? To a certain degree, your husband has more options with an adjustment disorder diagnosis over the PTSD since he could seek treatment and request an IMO from a private non-VA psychologist. Depending on your VA psychologist's willingness to treat your husband's MH condition as an adjustment disorder and prepare treatment records which could be used in the future to support a rating increase request, you may have to seek treatment for adjustment disorder at a private non-VA psychologist.

The clinical psychologist who diagnosed him at the VAMC was not his regular treatment person. He was referred for a diagnosis by his nurse practitioner. Since beginning treatment, his treatment team has consisted of weekly/bi-monthly visits with a clinical mental health nurse practitioner, weekly sessions with a sicial worker specializing in PTSD therapy. As of this month, he is seeing a social worker for depression monthly and a suicide prevention therapist and a psychiatrist.

Would it be acceptable to see an outside psychologist? I thought mental health had to be done at the VA.

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Kate: Even if the "Inferred IU claim" was listed in his last award, it wouldn't be an official claim until you actually filed it yourself. Don"t sweat the "possible wait time," VA claims have 1 speed, SLOW. Unless the VA has all of a sudden started taking Roids, NOD DRO Reviews (review only no hearing req) were taking 1+ yrs and my 6/14 DRO Hearing took 4+ yrs.

I was 90% with inferred claim early 12, filed IU claim immediately. At time of filing I was about 4+ months into Voc Rehab trying to get a VA Job, didn't work out. IU Denial was NOD'd immediately 09/13.

My 1st NOD (9/10) DRO Hearing request was finally held 6/14. My 9/13 IU NOD was awarded at same hearing and DRO said the Voc Rehab Denial letter was the best evidence for verifying Unemployability. He said a large number of Vets that meet the SC requirements to file for IU are really just unemployed or underemployed. A VA Vocational Rehab Councilor's determination that your SC conditions currently preclude you from successfully completing the Rehab Program seals the Deal.

Semper Fi

Gastone

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