VSO Training: Mental disorders, SMC, game changer case law

[broncovet]

http://www.purpleheart.org/ServiceProgram/Training2010/Tuesday Training Outline NVLSP.pdf

 

Short summary:

    If VA said you have a genetic defect, if you have PTSD or depression and are seeking an EED, or if you are seeking SMC read the above.  

1.  If you have a mental disorder, the VA does not require self diagnosis for a claim date.  Applying for something else, and being treated by VAMC for a mental disorder, should suffice for the effective date.

2.  Special cases:  

     Clemons vs Shinseki: and Beverly v. Nicholson:  These cases reaffirmed Roberson mandate, and made it even stronger for PTSD/depression victims, making it easier to get an EED.     1. “Appellant did not file to receive benefits only for a particular diagnosis, but for the affliction his mental condition, whatever that is, causes him.” 2. Vet’s “claim for benefits based on PTSD encompassed benefits based on an anxiety disorder and/or a schizoid disorder b/c evidence developed during processing of claim indicated that the symptoms for which [he] was seeking VA benefits may have been caused by an anxiety and/or schizoid disorder”  

      I like the term "MAY" because that means the Veterans is given a very broad benefit of the doubt, this is much wider than just "equipose", its "may have been caused."    This NEVER flies with other issues.  The Veterans xx condition "may have been caused"  by military service always means a denial with anything other than mental disorders.  The Veteran still needs a regular nexus, but if his mental condition prevented him from applying, and his VSO did it later, then this should be an EED.  

 

         Davidson vs Shinseki:   . CAVC & VA were wrong to conclude that “a valid medical opinion” was required to establish nexus.

         Polovick v. Shinseki i. Vet claimed SC for malignant glioma, a cancer not listed on presumptive list 

Stefl & Polovick mean: i. Possible for vet to win SC for disability claimed as due to herbicide exposure under a theory of direct service connection ii. Gives advocates ideas re: how to win these claims iii. What does it take to win? 

 

         Quirin v. Shinseki –  VA Gen. Coun. Prec. 82-90 a. There are differences between a congenital defect, and a congentital disease.  A congenital defect is static, ie, you were born without a left arm.  A congenetial disease, however, can be "aggravated" by military service.  

    

 

Edited December 19, 2015 by broncovet

[ArNG11]

Love this post and reference.  It breaks down the mandatory responsibility that the VA has in developing a claim.  It is quite clear that they fail miserably at this unique and pretty well spelled out meaning of the regulation and law.

Excellent post Broncovet, very helpful and affirms my stances on my claims.  Thanks.

[Vync]

Great information, Broncovet! Thanks for keeping us informed!

[Vync]

         Davidson vs Shinseki:   . CAVC & VA were wrong to conclude that “a valid medical opinion” was required to establish nexus. 

It is a shame this was a single judge decision and is not applied as precedent...

[john999]

If military experience makes a personality disorder worse you still don't get compensated, but you can have medical mental disorder superimposed on a PD.   People with PD's get PTSD just like anyone else usually worse.  During Vietnam if you began to have anxiety or depression about 90% of the time you would get PD diagnosis and the  AR-635-212 discharge.  Glad that has changed somewhat.  I remember having phobias in service and all were dx'ed at a PD.   A phobia is not a PD but it is cheaper to just dx it as a PD and kick out the vet as having congenital defect.   The military has done this for 70 years at least.  They used to shoot guys with combat fatigue so I guess we have made progress.