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,

[broncovet]

From my perspective, I never offer VA "my opinion" to refute anything the VA says.  Of course, I disagree, but I always cite legal cases, evidence, but never my opinion.  So, I suggest you use 3.179 to correct errors in your medical records, revising what you beleive is incorrect.  

[Buck52]

Just from my experience in dealing with the VA

They don't like to read long drawn out lay statements  maybe 3 or 4 paragraphs or so but not a ''BOOK''

What I did was give a quick detail of what I was explaining and also copy links to the disability and added the correct CFR# along with Private Dr's statements  specialist ect,,ect,,, and a when applying  during your statements its best to put them in order or organized in a way the rater can read them better

example.

You maybe giving evidence that pertains to be favorable to your claim by

page # or Alphabetical order...I used numbers.

To whom this may concern,

My medical statements and evidence have be organized for the convinced  of clarification of my claim # (*** ** ****) in this order (index) of content

 Please See corresponding pages.

See Dr Johnson medical statement  on page 3 that examined me on (date)** ** ****for details of the severity of my claimed disability

See VA PCP For medical documentation of?  on page 2

  See page 5 forVA Specialiity MH clinic Dr J Smith for Diagnose of my PTSD Diagnose

 Please see page 6 for DD-214 & my MOS of military duty that co-exist to my claim or pertains  to my claim....and so on  just organize your claim that will make it easy for the rater.

  My point is When we go in to a long drawn out detail of our claim without making your point until the end  they may not get that far!

and this will result in a denial 90% of the time.

As broncovet mention never say'' in my opinion''   let the Medical Dr's talk for you in your claim with their pro medical opinion's  that always works the best.

unless your a medical Dr yourself with proven criteria  but as I understand  it  even a Medical Dr that is a veteran with a claim they will need another Dr to opine for them.

keep it short as you can and get to the point as soon as you can.

Remember this

Conclude your statement with this declaration: I certify under penalty of perjury that the foregoing statement is true and correct to the best of my knowledge and belief.

Based off my experience over the last 30 or so years  with my claims this is what I did and it seem to work ok for me.

Remember Medical Evidence from Specialist with the correct medical criteria that's in your favor is what wins claims.

Edited July 28, 2017 by Buck52

[Berta]

I have read over the C & P exam many times.

Also I have worked with PTSD vets since 1984, at a vet center and then as an advocate helping them with their claims.And I married a PTSD veteran (100% SC)

I agree with this statement in the doctor's exam:

" Such a history is

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

You stated that VA verified your stressors. 

If you had given details of the stressors to the vet center you had been at, that information will  probably not be in your VA MH records.

How do you know VA verified your stressors? What specific stressors did they verify?

You stated:

"They verified that I was hammered with shrapnel, witness to injuries and deaths. "

Can you scan and attach here ( cover C file # prior to scanning) the letter or decision that says that from the VA?

The Buddy statements you have ,as far as I can tell  ,are from family members.

Do you have any actual Buddy statements from your unit buddies?

https://community.hadit.com/topic/70171-ptsd-cp-louisville-this-week-anyone-have-experience-with-this-ro/?tab=comments#comment-432833

You stated you filed the PTSD claim in June 2017. And got the C & P in July....2017.

Are those dates correct as to the filing date?

 

 

 

 

[IMEF-Gunny]

Yes, I have a buddy statement from a corporal that I served alongside, as well as a newspaper article where a few Marines from our unit were being interviewed a decade after the war, in it, one describes one of the scud incidents. 

I also have statements from employers that date from 1992 - present that were uploaded to my claim when filed.

The problem, being a Gulf War vet, is people you served with often have trouble remembering things, so it can be challenging getting statements from fellow Marines. For example, we had a weapons company guy that was shot by friendly fire. I queried my company commander, as we are connected via FB, what happened to the guy. I don't know if he died, lived, etc. Company CO, doesn't even remember the incident.......it was under his command!

Yes, my filing date is correct, as is my C&P date. When the VA called me to schedule, the fellow actual stated that they needed to schedule me so they could expedite my claim.....

Two problems for me Berta, and it is my own doing, the C&P doctor states that I went many years without any issues. That is a false statement entirely, BUT, I  never sought help until 2016. I'm not someone who asks for help. Unfortunately, for purposes of establishing a history.....that hurts me, because it leaves me with only lay statements from family, and employment records to attempt to show social/interpersonal issues.

Edited July 31, 2017 by IMEF-Gunny

[IMEF-Gunny]

The difficulty here is the following, My MEPS physical doesn't note any pre-existing mental health condition. That determination was made during bootcamp, based on a confession in the "Last Chance truth Room" prior to swearing in....which is what sparked the DI's to send me to medical. I spent about 5 minutes talking to a Corpsman (not a psychologist/psychiatrist), then the commander (MSC, not a PHD psychology/psychiatry) for the med unit, looked over the notes from corpsman and wrote "Dr's Opinion..... alcohol disorder".......symptoms of depression from past,  no current signs of depression currently present, fit for duty".......so would the following case even apply for "pre-existing" MDD?

II. Service Connection-General Criteria

Under 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service.

Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be applied only in cases involving those diseases explicitly recognized as chronic under 38 C.F.R. § 3.309(a)).

To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

A Veteran is presumed to be in sound condition when examined and accepted into service, except for defects or disorders noted when examined and accepted for service or where clear and unmistakably evidence establishes that the injury or disease existed before service and was not aggravated by service.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); See Cotant v. Principi, 17 Vet. App. 116 (2003); Wagner v. Principi, 370 F.3d 1989 (Fed. Cir. 2004); see also VAOPGCPREC 3-2003.

A preexisting disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a), (b).  Aggravation of a preexisting condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b).  See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 231 (1991).

In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111.  Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based.  See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  If the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  If a stressor claimed by a veteran is related to the 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 the 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 the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  "Fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  38 C.F.R. § 3.304(f).

 

[IMEF-Gunny]

 

 

This was a very informative read!

 

Edited July 31, 2017 by IMEF-Gunny