My letter to VA - refuting C&P before denial

[IMEF-Gunny]

I know that I'm just pissing in the wind here, but I attached this letter to ebennies after reading the C&P examiner's report. It won't do a damn bit of good, but, for what it's worth....made me feel better!

So, I was diagnosed for, being treated by local VAMC for PTSD. Currently take Zoloft, Prazosin & Bupropion.....Zoloft helps. Filed a PTSD claim, stressors verified, C&P exam was attended. C&P doc says I meet none of the criteria basically for PTSD based on his exam/testing and that I have major depressive disorder. His opinion is it is "less likely than not (Less than 50%)" related to service, as it was pre-existing and I was "relatively symptom free" for decades. What evidence he used for that statement remains to be a mystery. Anyway....here's the letter....thoughts?

 

RE: C&P Examiner’s Notes Dated 7/14/2017

I am writing in regard to the C&P examiner’s notes from 7/14/2017. In reviewing the notes from the exam, it is clear that much of the information/opinions entered seem to be skewed from facts/evidence presented to fit a certain diagnosis, misconstrued or some items left out entirely. The report seems to be formed around the idea that a "pre-existing" condition (based on two minor incidents as a young teenager) is the cause of Major Depressive Disorder, which in turn is the cause of my current issues, but that my time spent in a combat zone at the age of 19 has little or no bearing on my current mental health.

"38 C.F.R. § 4.125(b) Diagnosis of mental disorders. If the diagnosis of a mental disorder is changed, the rating agency shall determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. If it is not clear from the available records what the change of diagnosis represents, the rating agency shall return the report to the examiner for a determination."

I would start by pointing out that the doctors opinion is stated as the following:

b. The condition claimed was less likely than not (less than 50%

probability) incurred in or caused by the claimed in-service injury, event

or illness.

c. Rationale: The primary rationale for this opinion is the presence of

symptoms similar to his current symptoms prior to joining the military (see

Mental Health history, Substance Abuse history). As stated in a December 1,

1989 Mental Health note "referral for eval of EPTE SA in 1987 of putting

His head through a glass window while drunk. States he was in a state of

depression at the time." and goes on "Significant hx of feeling

dression with suicidal ideation both sober and intoxicated. Has stopped himself from

killing himself with gun but can not verbalize why he stopped."

Similarly, veteran's history is inconsistent with his service being the

Major precipitant of his current distress. While veteran identifies distress upon

his return and a June 1, 2017 buddy statement by his mother, indicates

distress after deployment (see partial statement below), his history

indicates he experiences marked distress before the deployment and was

relatively symptom free until 3 to 5 years ago. Such a history is

inconsistent with that expected of the deployment being the primary truama.

The two isolated incidents he references are as follows:

1.) At the age of 14 years old, I was invited by a friend of mine to go to St Francisville Illinois to visit two teenage girls who were babysitting. We went to see the girls and being teenage boys, we wanted to impress the girls. The people that owned the home had a party the night before. There was a box filled with alcohol and we bragged to the girls how we were experienced party guys. I poured a glass of rum, not having any experience with alcohol outside of the occasional Busch Light beer my friends and I would sneak on a weekend, as all the boys did, I gulped down approximately 20 ounces of the rum. I had no knowledge that hard alcohol affected a person differently than a beer would. I woke up on my bed, in my house. I had blacked out and had no memory after the rum. I was awaken by a very upset mother who smacked me, which she had never done in my 14 years. I smacked my head into my bedroom window. This would later be called "a suicide attempt" by hospital staff. It wasn’t at all. I was taken to the ER with a .27 BAC and later released. In an effort to avoid legal issues, I was made to attend mandatory drug and alcohol counceling, which is a requirement for alcohol related offenses such as minor consuming in Knox County.

2.) When I was approximately 16 years of age, I was riding to school with a group of friends. One of the boys had stolen a bottle of Wild Turkey from his dad’s liquor cabinet. We were all taking sips from the bottle. A teacher had driven by us on the way to school and saw me tilt the alcohol bottle. First period of class, I was taken to the office and given a breathalyzer. The test showed alcohol in my system, so I was suspended from school for 5 days. My mother grounded me for several weeks. I was kept from my friends, my girlfriend, etc. This is the incident I confessed to in the "truth room" at MEPS, where I considered suicide because I was so distraught from being grounded. I agreed to attend a couple of AA meetings with my step dad’s mother in an effort to avoid legal trouble. I quickly discovered that I had nothing in common with the people at these meetings.

I had no further issues after this incident.

So, it is this doctor’s opinion, and we are led to believe that two incidents, mentioned here in detail, that took place at the ages of 14 and 16 years of age, as a young teenager, in the company of peers experimenting with alcohol are "more likely than not" the cause of 26 years of mental health issues, but that 6 months in a combat theater being bombed by shrapnel, witnessing death, having a friend killed in theater, being surrounded by Arabs that are actively trying to kill you, sleeping an hour at a time per night and patrolling hostile areas is "less likely than not" the cause of my issues.

The doctor goes on to mention that I spent decades "relatively symptom free", although there is no evidence to support that statement, actually quite the contrary is true. The doctor also

fails to mention or consider that before and after these two incidents, up until the age of 20 years, I had no further incidents similar to those he quotes as signs of significant history of depression and/or alcohol abuse. I maintained healthy, happy friendships and family relations until 1991, post war, when all of that changed.

As further evidence, he cuts & pastes portions from my Mother’s statement to VA. If you compare the C&P to the original statement from my mother, dated June 1, 2017, you will notice that he neglected to include the beginning and the last part of the statement. He only presents the text that he feels supports his opinion. A trend that is repeated throughout the report.

Further into the document, he expresses the opinion that, based on the MMPI, that my emotional distress is relatively low; However, his findings in regard to social impairment, symptoms of major depressive disorder, violence, mood, suicidal ideation, memory and cognition contradict this opinion sharply. The MMPI also shows no indication of dishonesty, as it shouldn’t, I was honest.

Veteran's responses indicate significant thought dysfunction.

Significant persecutory ideation such as believing that others seek to harm him or

her. Is suspicious of and alienated from others. Experiences interpersonal difficulties as a result of suspiciousness. Lacks insight. Blames others for his or her difficulties.

He alludes to alcohol disorder and/or abuse as a contributor; although, pre-combat, I had only two isolated incidents experimenting with peers at the ages of 14 and 16 years. My post-war alcohol use was dramatically increased in the first few years after returning home. His notes appear to paint a picture of "significant history " of pre-service substance abuse based on pre-service use? He does not address the idea/possibility that alcohol was a "self medicating" tool after deployment.

In light of his previous alcohol history and possible denial (see

Substance Abuse history), the possibility of an additional Alcohol

Use disorder should be considered if more history of abuse becomes

salient.

He also states later in the report, the following statement in regard to impairment:

a. Which of the following best summarizes the Veteran's level of

occupational and social impairment with regards to all mental diagnoses? (Check only

one)

[X] Occupational and social impairment with occasional decrease in work

efficiency and intermittent periods of inability to perform

occupational tasks, although generally functioning satisfactorily,

with normal routine behavior, self-care and conversation

Which, even based on the information/opinion he provides, however skewed or misrepresented it may be, seems mild for a veteran with Major Depression, suicidal ideation, problems at every job, no friendships, family relationships, etc.

He goes on to mention that marital difficulties may account for present issues as well. He references my first marriage after deployment as I stated "I got married for the wrong reason". The doctor however does not seek out that that reason was because I was overcome with feelings of anxiety and fear from the Gulf War. I felt as though, I almost died many, many times and therefore needed to have a wife, have kids, buy a house, start a life. My marriage failed due to anger issues, interpersonal issues, anxiety and the fact that the girl I married was the first girl I dated post war. The girl was of low moral character, as I described to him.

He mentions in his notes the following, but represents it as normalcy, leaving out the fact that I avoid crowds because I do not trust people, especially Arabs. I avoid crowds because it raises my anxiety and makes me extremely nervous. Especially in light of all of the extremist attacks that take place today. He also references my carrying a gun, especially in Indy, but fails to expound on the fact that I carry that gun/ammo at different levels of readiness based on threat assessment. In Vincennes, I may carry only one spare magazine. In somewhere as dangerous as indy, I generally carry a minimum of 60-90 rounds.

Veteran sees himself as a home body who prefers to avoid crowds. He

does run family errands without incident, for example, he went to the

grocery store yesterday by himself, "one of my kids was sickly,

got prescriptions, went okay I guess." Similarly, he went out to

dinner last night, "it went all right;" however, this was first time

eatingout, "in a long time."

The VA doctor also states the following in regard to friendships/social relationships:

Initially, veteran denies having any friends; however, when pressed

For details he describes several on-going relationships. He has a

neighbor, "navy veteran, occasionally go over and talk." His

"best friend" in high school, "is married to my sister." He

has a friend that he served with who comes by his house regularly, the last time,

"3, 4 weeks ago." Veteran reports that he enjoys preparing meals for

his family on the grill but denies any other pleasurable activities in his life.

This statement skews fact to make it appear that I, in fact, do maintain "several" close relationships; However, it fails to acknowledge that the neighbor lives directly across from me,

he is a navy vet who has rather severe hearing loss from flight deck work. We speak occasionally when we are both out in the yard. We do not have any type of ongoing social interaction and conversations are generally about, weather, military service, etc and are brief.

He alludes to my "best friend" in high school who is married to my sister. He fails or neglects to mention that I have not spent time with that friend since 2007. Also, that my sister hasn’t spoke to me in atleast a year. I have no ongoing relationship with either.

Lastly, he mentions a friend that I served with that comes by my house regularly. That "friend" is a person I went to highschool with. He served with 2/7 in Desert Storm as a machine gunner. He has been to my house two times in the last 26 years, both of those in the past 3 months, both were to speak about disabilities and VA. He has leukemia, severe memory issues, PTSD and a chronic cough that he has been denied service connection for. I am trying to help him with his claim denials. So, this is definitely presented much differently than it really is.

The doctor also references the fact that I do not react to stressor discussion, but react more to conversation about anger, depression. I would point out that stressors were mentioned and/or asked about briefly one time. Most of the interview was guided toward how I’m affected socially/family, not why.

I was actively crying when discussing the following death of a friend in Desert Storm:

Prior to being mobilized, I had an older Harley Davidson motorcycle that had charging issues. The bike had to be push started. A friend of mine helped me start the bike for like 20 minutes of pushing together. That friend was Jeff Reel. Jeff was about 10 or so days from deploying to theater. He was a couple years older than I and was very anxious/ nervous about going to war. He said he "just wanted to make it home". I re-assured him that he would be okay, he’d make it and had a long life ahead of him. In 1991, sometime around my birthday, I received a letter from my grandmother, in it, she informed me that Jeff was killed in Saudi Arabia. He did not make it home.

The doctor, seemingly agitated, ask me "so, is it the letter you’re upset about or the scuds"? I answered both. That was the only conversation and/or mention of stressors by the VA doc throughout the entire 3 hour exam. Also, as you’ll note, there was no mention of Jeff’s death in his report.

Later in the exam, the doctor notes that I "seek out stimuli" related to combat theater, terrorism, military service. As evidence, he lists facebook and my trying to re-join the military. He neglects to mention that the reason I wanted to re-enlist was to contribute to the fight

against radical islam by killing as many Jihadis as humanly possible with 76th Infantry Division.I was told that being treated for PTSD, I cannot join. I did not say anything about being too old. I can still join based on age/ years of service.

I do not seek out stimuli on facebook. I have no friends. Facebook is my only interaction with peers. My therapist , Rhonda Bray at the VAMC, is of the opinion that the last 3 years have been markedly more difficult because of social media and the fact that terrorism reporting is always present, therefore raising my anxiety, anger much higher than in the past.

Also, I would point out that he questions Rhonda Bray’s diagnosis, but did not inquire as to how she arrived at a PTSD diagnosis, and also, the only notes from my sessions with behavioral health at the Vincennes VAMC he cut/pasted were the initial intake, where I was guarded in fear of losing my handgun licesnse and the only positive report that Rhonda wrote, directly after I started Zoloft and was experiencing a "euphoric" like start, which is obviously not representative of the last decade. Again, these seemed to be hand-picked to fit the narrative.

A March 3, 2017 Behavioral Medicine note reports remarkable progress,

"reports that he is doing much better. 'I wanted to call you

the other day and thank you, I really didn't think I could feel normal

again.'"

The note went on, "Vet is happy that he has been able to enjoy

life, hestated his wife has really noticed a difference. Vet stated he

hadn't cried in three weeks. Vet has had no suicidal ideations. Vet states

he feels his memory may be a little better." The note finishes,

"Vet stated he and his wife have been going out one night per week and he

has been enjoying that." Veteran confirms this initial success

which he attributes to Zoloft. He feels that his symptoms are still

improved but that the initial period of "almost euphoria" have left.

Veteran has been diagnosed with PTSD by his providers; however, the

basis of this diagnosis is unclear. Veteran's January 6, 2017

Initial Psychiatry Consult does not report apparent intrusive symptoms of

PTSD.

As described there, "HISTORY OF PRESENT ILLNESS: Vet reports he

Cries whenever he comes to the VA, Vet states he also cries sometimes at

Home for no reason. Vet reports problems sleeping, states he is up five

times per night. Vet does check locks every night, he contributes it

to having small children, not to being hypervigilant. Vet reports road

rage. Vet states he doesn't feel depressed, Vet denies suicidal

or homicidal ideations. Vet does not wish to take any medications. Vet

states he will think about buying Melatonin over the counter to try

for sleep. Vet is agreeable to discussing with his wife and made f/u

appointment with this writer for one month. Vet provided with

information for the Vet Center. Vet reports poor short term memory,

Vet states that he makes lists on his phone, Vet is worried that he will

not be able to 'remember anything when I am 50.'"

.

I would also mention that he rates Panic as "None". I described having episodes of panic regularly when he asked me, and especially when I am at work and we have to donn SCBA’s, similar to a gas mask in MOP4. He asked me what the panic was like and I described to him my heart pounding/racing and I sweat, especially my palms. He neglected to put that in his report and instead listed it as none.

In closing, I cannot believe that any rational human being could weigh the evidence, view this C&P report and conclude that two minor incidents as a young teen experimenting with alcohol as teens do is far more likely to have caused a lifetime of mental health, social issues barring the fact that the evidence contradicts that in every way, but believes that 6 months in a combat theater is far less likely to have caused or , at a minimum aggravated any possible pre-existing condition. I feel that this C&P is, not at all, a valid depiction of my last 26 years and hope that whoever is reading it for rating purposes can clearly discern that.

Sincerely,

[MikeHunt]

Stop.

Right now you need to get another medical opinion, and stop writing/talking.

I only read the first bit of your post, but it sounds like you loaned the hangman rope for your own execution, so to speak!

The VA, right now, even if the rater were your brother and wanted to grant; couldn't.

Now, you're providing all your defenses to the enemy through your writings- You 'Showed your hand' so to speak.

They should've gone to an independent physician to work into a medical opinion.

Maybe you'll get lucky and that rater will take pity on you, and have an in-house physician refute the exam, and schedule another. Hadit, what's the likelihood of that?

[Berta]

This vet was accepted into the Military in Sound condition...as far as I know...so the Presumption of Soundness should apply

https://www.hillandponton.com/va-disability-presumption-soundness/

In part it states:

"The presumption of soundness is an important concept to keep in mind when it comes to establishing service connection for a disability that was incurred or aggravated in service. Basically, the presumption means that the VA cannot deny a claim simply because it believes that a veteran’s disability existed before service. The presumption of soundness is detailed in 38 U.S.C. 1111, which states: “For the purposes of section 1110 of this title, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.”

Also Chris Attig ( Both Chris and Matt Hill are great  vet lawyers and also hadit members) gets to the point as well as to how VA can and will use some bogus statement or unfortunately like Mike Hunt noted, something the veteran tells them about, to deny the claim. Here is Chris Attig's article.

https://www.veteranslawblog.org/presumption-of-soundness/

 

https://www.law.cornell.edu/uscode/text/38/1111 as well as a copy of the 2010 PTSD regulations, - actually I would cut back on that whole letter above that you wrote  and ask the VA for a new C & P exam.

Do you have the CAB or CIB on your DD 214?

You said the VA verified your stressors so do you mean they confirmed you were in close proximity to and/or in fear of the enemy? 

"Effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3) (2013).

If I were you I would ask for a new C & P that follows both 38 CFR 3.304 as well as applies the presumption of soundness and send them an attachment of those regulations above.And tell them you are filing a complaint with the White House Hot Line at 1-855-948-2311 if the new C & P is not ordered ASAP.

Also you can file a complaint at IRIS, under the complaint box pop up.

Iris complaints get to VA Central and they usually act on them.

And also, have you googled this MH doctor's name to see if he in fact is a qualified MH professional?

Hopefully many here will read this thread and learn from it .

Every the closest family members might innocently give VA statements that they will definitely use against a veteran if they can.

And often the veteran themselves will tell the VA too much extemporaneous stuff that should not affect the  C & P exam, but often does.

 

 

 

 

 

 

 

 

 

Edited July 27, 2017 by Berta

[Berta]

"I know that I'm just pissing in the wind here, but I attached this letter to ebennies after reading the C&P examiner's report. It won't do a damn bit of good, but, for what it's worth....made me feel better!"

Oh, I didnt realise you attached it already.....

I sure do not think any vet who refuses to take their BS is "pissing in the wind."

I still think you should provide the regulations to them and follow up on either filing an IRIS complaint or calling the WH Hot Line or both. Or tell me what RO this is and I will find the contact info for their director and post it here for you.

When more vets get over their fears of the VA and start really complaining about the inadequate C & Ps  they get, that alone could make a difference in the backlog.

And if you-anyone here-  are at the BVA and get a remand for a specific type of doctor, do what I did (I already had 3 IMOs for the claim, they had 2 against so they wanted another posthumous C  & P..).I was able to get a copy of the C & P right away at the local VAMC, and it had been done by a PA,instead of a cardiologist the remand called for.He didnt have a clue about cardio stuff, and I knocked down the exam myself ( VA forced me to acquire a good cardio background when they killed my husband ( FTCA/1151 awards)and I told the BVA the C & P exam was not done by a cardiologist as they had ordered and it  was too speculative. The BVA shit canned it and sent me the award letter.

You have the right to get a BVA remanded order for an additional C & P exam, to be done by the type of doctor the BVA wants it done by.

Edited July 27, 2017 by Berta

[IMEF-Gunny]

Thank you for the help and opinions. The VA doc was new to the medical center, so all I could really find on him was he is a psychologist. My RO is Indianapolis. You, ma'am are a wealth of info and I truly appreciate all you do for Vets. Mike, I appreciate your candor and while I agree, I likely fired that off too quickly, this is the 2nd C&P that I've had that's BS.....I already scheduled an independent exam to get another opinion prior to the C&P as I anticipated this kind of horse shit! That appointment is in about two weeks.

 

They verified that I was hammered with shrapnel, witness to injuries and deaths. Marine corp policy does not award CARs for shrapnel from missles, I believe IED's are included now, and direct fire incidents. Unfortunately, by nature of our work, we recieved a lot of indirect, but not direct fire/return to close enemy.

Edited July 27, 2017 by IMEF-Gunny

[IMEF-Gunny]

I should also mention, the notation concerning the incident when I was 14 was brought about when, as a tender young 18 year old at MEPS, they take you into the last chance truth room.....that's when I spilled about the incident described above. They did not send me to be evaluated by a DR at MEPS. They cleared me, swore me in and off I went. It was ,maybe my third week in my training company in boot camp, they came got me, said there was a notation about possible suicidal ideation so I had to go to medical. I went, talked to a guy. I don't know if he was a psychiatrist, LCSW, therapist or what. He spoke with me for 5 minutes or so, asked me the story, ask me if I wanted to continue traing, I said yes, he noted the incident in med report and the last thing he wrote was "No current signs of depression, deemed fit for duty, return to training company".

[broncovet]

I agree with Gastone.  "Medical opinions" need to be refuted by other "medical opinions" and cant be refuted by lay evidence.  You are close, but try this instead:

1.  Challenge the "competency" of the examiner.  To do that, you should try to find out:  Was the examiner a MD, and/or did the examiner have training or experience in your specialty?  

If the "doc" had little or no expertise in diagnosing or treating mental health disorders, then this exam should be thrown out.  Vets often think the examiner, by virtue of him wearing "a white coat" must be experienced and competent.  This is often not true, VA often hires examiners which are not qualified to be expert witnesses.  This works, mostly because the Veteran does not know to challenge the competency of the examiner.  The examiner is presumed competent absent a challenge from the Veteran or his representative.  

2.  Dispute the medical records, using 38 CFR 3.179, as follows:

1. CFR › Title 38 › Chapter I › Part 1 › Section 1.579

38 CFR 1.579 - Amendment of records.

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§ 1.579 Amendment of records.

(a) Any individual may request amendment of any Department of Veterans Affairs record pertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date or receipt of such request, the Department of Veterans Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs will complete the review to amend or correct a record as soon as reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal public holidays) unless unusual circumstances preclude completing action within that time. The Department of Veterans Affairs will promptly either:

(1) Correct any part thereof which the individual believes is not accurate, relevant, timely or complete; or

(2) Inform the individual of the Department of Veterans Affairs refusal to amend the record in accordance with his or her request, the reason for the refusal, the procedures by which the individual may request a review of that refusal by the Secretary or designee, and the name and address of such official.

(Authority: 5 U.S.C. 552a(d)(2))

(b) The administration or staff office having jurisdiction over the records involved will establish procedures for reviewing a request from an individual concerning the amendment of any record or information pertaining to the individual, for making a determination on the request, for an appeal within the Department of Veterans Affairs of an initial adverse Department of Veterans Affairs determination, and for whatever additional means may be necessary for each individual to be able to exercise fully, his or her right under 5 U.S.C. 552a.

(1) Headquarters officials designated as responsible for the amendment of records or information located in Central Office and under their jurisdiction include, but are not limited to: Secretary; Deputy Secretary, as well as other appropriate individuals responsible for the conduct of business within the various Department of Veterans Affairs administrations and staff offices. These officials will determine and advise the requester of the identifying information required to relate the request to the appropriate record, evaluate and grant or deny requests to amend, review initial adverse determinations upon request, and assist requesters desiring to amend or appeal initial adverse determinations or learn further of the provisions for judicial review.

(2) The following field officials are designated as responsible for the amendment of records or information located in facilities under their jurisdiction, as appropriate: The Director of each Center, Domiciliary, Medical Center, Outpatient Clinic, Regional Office, Supply Depot, and Regional Counsels. These officials will function in the same manner at field facilities as that specified in the preceding subparagraph for headquarters officials in Central Office.

(Authority: 5 U.S.C. 552a(f)(4))

(c) Any individual who disagrees with the Department of Veterans Affairs refusal to amend his or her record may request a review of such refusal. The Department of Veterans Affairs will complete such review not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual request such review and make a final determination unless, for good cause shown, the Secretary extends such 30-day period. If, after review, the Secretary or designee also refuses to amend the record in accordance with the request the individual will be advised of the right to file with the Department of Veterans Affairs a concise statement setting forth the reasons for his or her disagreement with the Department of Veterans Affairs refusal and also advise of the provisions for judicial review of the reviewing official's determination. ( 5 U.S.C. 552a(g)(1)(A))