EED CUE?

[Billielea]

I have asked if this is CUE on here before, but I have since received my C-file and am able to upload my C&P exams. I was initially denied PTSD in 2009. I was awarded 50% in 2015. I have filed a NOD on the rating and effective date last month and made inquiries to a lawyer to handle my claim. The problem is it doesn't seem like CUE to me as I understand the definition. I was diagnosed with adjustment order in 2009 and then PTSD in 2015. The main reason I would like to try for an EED is the last paragraph of the 2015 C&P exam where the Dr. states:

However, it should be pointed out that most of

the symptoms the veteran described during today's MH examination, certainly

those common to a PTSD diagnosis- she also described during her

7/8/09 Initial PTSD examination, in Oklahoma City

Both C&P exams are attached. Any thoughts?

2009 C&P exam notes2.pdf

2015 - C&P exam Notes.pdf

[Berta]

What diagnostic code and rating percent did they give you for the 

adjustment disorder with mixed anxiety and depression?

That is a ratable condition,if there was a service nexus.

I will try to find your past posts.

CUEs are found within decisions and rating sheets and depend on established medical evidence.

It seems to me that the examiner, in 2015,  referred to established medical evidence.

Have you filed a NOD yet?

 

 

"CONCLUSIONS OF LAW

 

1.  The criteria are not met for an effective date earlier than August 12, 2004, for the grant of service connection for adjustment disorder with mixed anxiety and depression.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2015).

 

2.  The criteria are not met for an effective date earlier than May 16, 2006, for the grant of service connection for headaches.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.105, 3.151, 3.155, 3.156, 3.400 (2015).

 

3.  The criteria are met for an initial rating of 100 percent for adjustment disorder with mixed anxiety and depression for the period from August 12, 2004 to January 8, 2015.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.340, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2015)."

http://www.va.gov/vetapp16/Files3/1621642.txt

 

http://www.va.gov/vetapp16/Files3/1621642.txt

[Berta]

I just found one of your past posts and regret I never read it that time:

Holy S---!

in part:

"Hi Everyone, I am a first time poster. I have been reading this site for a few weeks now and have found it very helpful. This is my story. I served 9 years in the Army National Guard. I deployed to Iraq in March 2003 until March 2004 as a truck driver and witnessed many things. I received the Combat Action Badge (a year or two later when it was created). I was on several convoy's that were attacked with IED's and small arms, including one IED that hit my truck directly. I was not wounded, but was very dazed afterward. It took me several years to come to terms with the fact that I was suffering from PTSD. I was also afraid to seek help due the stigma that I felt it would have created in the Military at the time. In 2008 I ETS'd from the Guard. In 2009, My husband ( a combat vet as well) finally convinced me to seek help from the VA. I went to all my initial appointments, but was very disappointed with the level of care I received. Especially in instances where I would have to drive 3 hours to Oklahoma City, just to be told that one or more of my appointments would have to be re-scheduled. I was told that I have PTSD and TBI in some of the appointments. Later that year, I filed a claim for PTSD, TBI, and gall bladder residuals. (I had to be flown to Germany July 4th 2003 to have my gallbladder removed, then returned to Iraq. ) In my 2009 claim, I was denied PTSD, received 10% TBI, and 0% gallbladder residuals. I did file a NOD for the PTSD, but after that I did not follow thru on anything else concerning the VA. The C&P examiner for PTSD acted like it was impossible for me to have been in combat because I was a woman, and blamed everything on my hormones. I was done with the VA after that.

Fast forward to 2013. I was still dealing with PTSD. After years of pleading with me, my husband finally dragged me back to the VA. Since we live on the Oklahoma / Texas line, My husband enrolled me in the North TX VA system. I started receiving treatment there and I was very impressed. I have even started to feel like I am making some improvement. In March 2015, I filed a Re-open PTSD claim and TBI increase. My ebenefits has been bouncing back and forth from "prep for notification" to "prep for final approval" to "gathering evidence" and up and down for three weeks now. It sits at "prep for notification" today. I called the VFW VSO a few days ago and they said that they can see where I have been awarded 50% for PTSD effective March 2015 but my TBI was decreased to 0%. I can see my C&P exam notes in blue button, and the PTSD examiner states that it is the same symptoms that I presented with in 2009. I am very elated that I am receiving 50%.

While surfing the web doing some research on VA claims in the last few days, I discovered an article about the OKC C&P mental health examiner (Dr. Gail Poyner) being dismissed in 2010 for not following guidelines and performing test for malingering and pretty much denying most PTSD claims. After more research I discovered that it was the same examiner that I had. She has also written an article stating this out right. While I'm sure that malingering does happen, I wonder if she just assumes that everyone is faking. Although it took me a long time to come forward for help, my symptoms are real and her out right dismissal just made me feel like no one could help me and I just had to suck it up and drive on at the expense of my mind and my family.

Does any one feel that I might have a case to appeal the effective date, or should I just leave well enough alone? All advice is appreciated."

I definitely feel there is a CUE here and the C & P would have been different (in my opinion, if the new July 2010 regulations for PTSD had been applied-if not by the C & P examiner,but  by the RO when they rendered the decision.

Are you able to scan and attach here the 2009 decision, as to their Reason and Bases for the PTSD denial? And what Evidence they used?

(Cover C file # name, etc prior to scanning)

 

 

 

 

 

 

 

 

 

 

 

 

 

http://www.va.gov/vetapp16/Files3/1621642.txt

 

 

 

Edited July 24, 2016 by Berta

[Berta]

Yes , this article quotes her as saying she was fired:

http://www.scpr.org/blogs/health/2014/08/04/17100/are-some-veterans-exaggerating-or-lying-about-thei/

I guess she was a QTC doctor?

You have the CAB and even if it was issued after VA knew you had it, this is a disgrace.

How many other combat vets ( men and women) did she screw for  PTSD claims?

if we can see their words in the PTSD denial, we can help more.

Personally I think any C & P done by someone who has been "fired" should be a good cause for a better EED.

But I saw her name in many articles and cannot determine if QTC or the VA itself fired her and if the firing was specifically for misinterpreting PTSD claims.

You certainly should try for a better EED.

The diagnosis was obviously wrong from her, but the diagnostic code might have been right.

 

 

 

[Billielea]

Berta,

 Thank you so much for your reply. Yes, I have filed a NOD for the latest PTSD rating and effective date and for my TBI rating decrease. Here is my 2009 decision letter.

Quote

 

 

2009 - Decision1.pdf

[Billielea]

As for Dr. Gail Poyner, I was convinced she did my initial C&P exam, but after receiving my C-File, I learned it was from a Dr. Rosco. I'm not sure if I saw her during another visit or if they just look alike. Sorry for that bit of erroneous information.

[Berta]

The PTSD C & P exam of 2015 clearly indicates you had PTSD, when they denied in 2009.

VA had knowledge of your receipt of the CAR then, and also the recent exam states that the TBI was a stressor.

You certainly fell into the 2010 PTSD regulations.But they were not out yet in 2009.

The 2009 denial for PTSD clearly states:

“This award verifies an inservice stressor occurred which is one of the requirements for a grant of service connection.”

But then it states:

“A diagnosis of post-traumatic stress disorder must meet all diagnostic criteria as stated in the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. The evidence does not show a confirmed diagnosis of posttraumatic stress disorder which would permit a finding of service connection.  “

 

ALL diagnostic criteria? I think that is BS……

I need to find the DSM for 2009.

That can’t be right.

I sure hope others chime in on this.

The C & P examiner in 2015 gave you good evidence in their statement, for a better EED.

I do think a NOD should be filed but maybe there is a way to file a CUE claim on the older decision, as well as NOD on the 2015  decision..