ptsd Sorta Vindicated

[broncovet]

If you have a PTSD diagnosis and also a conflicting diagnosis, the VA should give you the benefit of the doubt.   Now that you have been awarded compensation for PTSD, its easier to show that the symptoms of PTSD manifested themselves as another disorder.  

It sounds like it would be well worth your time to consider hiring an attorney to fight the earlier effective date, alleging the original diagnosis was really PTSD but it went by another name.  Its not unusual for Doctors to change a mental health diagnosis.  

Further, it may not matter that much the (early) diagnosis, since all mental health disorders are diagnosed with the same symptoms.  That is, it would not matter if they called it PTSD, depression, bi polar, etc., as long as it is service connected.   Finally, you are not competent to diagnose your own mental health disorders, unless you have a phd is psychiatry.   So, if you applied for PTSD and were actually diagnosed with a similar mental health disorder (that was service connected), the VA can not fault you for inaccurately specifying an alternate mental health disorder in your application.  (But watch them try).  

This is a great reason why I suggest not applying for "PTSD" but rather any mental health disorder which a doctor may so diagnose.  Its not a requirement to get service connected that you are an expert in diagnosing your own mental health disorders.  Instead, you rely upon the diagnosis of mental health professionals.  

Stuff like this has gone through the courts before, but Im relatively certain that the courts are not requiring Vets be certain of the diagnosis.  

In fact, earlier "informal" claims, a Veteran could "point" to the affected body part to which he was seeking compensation.  Im virtually certain the VA can not require a Veteran specify the exact mental health disorder to which he is seeking, as he is simply not competent to self diagnose anyway.  Those older claims could be "informal" and you did not need to have a phd to accurately and precisely define the exact diagnosis to the benefit which you are seeking.  You can say stuff like, "my knee hurts".  This should cover a variety of knee issues/diagnosis.  

Again, I recommend you get an attorney and fight for an earlier effective date.  

Read item number 2 :

https://www.veteranslawblog.org/the-ultimate-va-claims-effective-date-checklist-how-to-get-an-earlier-effective-date-in-your-va-claim-or-appeal/

Chris Attig says, in part:

Quote

Earlier Effective Date Argument #2

Next, you are going to want to see if there are any previous claims that are open and pending.

You have a prior claim for the same condition, or that reasonably encompassed the condition you just won, and it was never finally adjudicated by the VA, then it is still open and pending.

There are many ways that a claim could still be “open and pending”. Here are 2 of the most common scenarios

• You or your representative did not get a copy of an adjudicatory document in the prior claim. See 38 CFR 5.125(d)
• You filed evidence or argument relating to the reason for the denial within one year of the VA Ratings Decision that the VA says you did not appeal. See 38 CFR 3.156(a)

Example: You just won service connection of your PTSD in 2017.  In reviewing your C-File, you find an old claim for service connection of your PTSD that you filed in 1998.  The VA issued a decision denying the claim, but when you look at the decision, it was not sent to your VSO or lawyer (or to an address that was not your address of record in the file at the time).  Because the VA failed to provide notice, that claim is open and pending, and your 2015 PTSD claim’s effective date could be the 1998 claim date that is still open and pending.

Example:  You just won service connection of your PTSD in 2017.  In reviewing your C-File, you find an old claim for service connection of your PTSD that you filed in 1998.  The VA issued a decision denying the claim because there was no evidence of a current diagnosis.  You received the decision, but in looking through your C-File, you see that you sent in a lot of civilian medical records for treatment of PTSD in a local hospital shortly after you separated from military service.  Because the VA never addressed this evidence in a VA Rating decision, your claim for PTSD was open and pending since 1998 and would serve as the effective date for the 2017 grant of service connection.

Earlier Effective Date Argument #3

So you could not find any open and pending claims for service connection using the regulations.  Now what you want to do is look for old claims that reasonably encompassed the condition that you just won service connection for, and see if you can make an argument that your current claim was reasonably encompassed in the prior claim.

This is a tricky argument…mostly because the VA itself doesn’t understand it.  The VA thinks that you cannot file a claim for benefits without a claim form that specifically mentions a particular condition. Time and again, the courts have told them that they are wrong: the courts have said that the VA should liberally construe the record to determine if additional conditions were raised in a prior claim even though they weren’t specifically mentioned on the VA Claims form.

Now, there is “some” merit to the VA’s arguments after March 2015 – after that date, you need an informal or formal claim form to be filed to demonstrate intent to file a claim.  Prior to that date, though, this is not the case.

Now, if you have to “reach” to make the argument, you are not going to win, in all likelihood. The courts have also been very clear that the VA shouldn’t have to go on a fishing expedition to discern every possible claim that could have been possibly raised in a claim for a separate and distinct condition.

What you are looking for are things like this:

• medical records in an original claim for Condition A that show that Condition B was caused by or related to or aggravated by Condition A.
• claims related documents in a claim for Condition A that show that the claim was actually for a body system or a general illness or ailment and not a specific diagnosis
• claims that describe symptoms or impact on body systems, that are subsequently diagnosed in the course of developing the claim.

More on this later….we’ll get together a whole post on what it takes to prove that an earlier claim “reasonably encompassed” a later condition for effective date purposes.

Earlier Effective Date Argument #4.

Was the claim that you just won a claim for increased rating? If so, remember that increased rating claims can have effective dates up to 1 year prior to the actual claim for increased rating, if you can prove that the condition worsened in that preceding year.

EXAMPLE: In September 2015, you filed a claim to increase your prostate cancer rating from 40% to 60% because your “voiding” function worsened.  The VA grants the increased rating effective September 2015 saying that the effective date of an increased rating claim is the date of the claim.  But you have evidence that your prostate cancer worsened to the 60% level as far back as August 2014. September 2014 is the earliest effective date you can get (see, however, Arguments 1, 2, and 3, to see if there was an earlier original or increased or reopened rating claim prior to that date that would support an even earlier effective date).

EXAMPLE: In September 2015, you filed a claim to increase your prostate cancer rating from 40% to 60% because your “voiding” function worsened.  The VA grants the increased rating effective September 2015 saying that the effective date of an increased rating claim is the date of the claim.  But you have evidence that your prostate cancer worsened to the 60% level as far back as January 2015.  January 2015 is the earliest effective date you can get (see, however, Arguments 1, 2, and 3, to see if there was an earlier original or increased or reopened rating claim prior to that date that would support an even earlier effective date).

Earlier Effective Date Argument #5.

If you have a claim denied, and the law changes in such a way that your claim is now granted, then you may be entitled to an earlier effective date base on the “liberalizing rule effective date rule”.

Yes, it’s a mouthful, and there are a lot of “ifs, ands, and buts” that control this one….so many that there will be a future post on this topic to go into more detail.   Sometimes it depends on what the rule change says (new laws typically  state when they go into effect, and this effective date rule often turns on how far after – or before – the new law’s effective date a Veteran filed a claim.

This is one of the more complex effective date rules, especially when you throw Nehmer into the mix. More on that later.

 

 

[Berta]

" I have been diagnosed by three different private Psychiatrist since 2005, and treated for PTSD at a VET center and the VA ignored all of those diagnoses. I was diagnosed with PTSD by the VA Psychologist on 8/6/2015 I was given an C&P today (8/11/2015) lets see if the VA believes there own diagnosis"  2015

 

"Just wanted to follow up........after 10 years and multiple DXs the VA decided they were wrong after all and awarded me 30% ptsd."

This thread is all messed up-----I have been seeing that here lately-

I think it happens when someone posts a reply to a page of the thread that is ot the last page...???

However this vet had private diagnosis of PTSD prior to 2010 (when the PTSD regulations changed).

If the VA completely ignored those private records and the VA Vet center records, they committed a CUE and they owe him cash.

 

 

[Vync]

Congratulations on your hard fought victory!