Clemons V Shinseki and PTSD

[Berta]

"The scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  Clemons v. Shinseki,"

23 Vet. App. 1, 5 (2009).

This came up this AM in a different reply I made but Clemons is why I often say here-dont lock yourself into a PTSD claim,if you do not fall under the 2010 regulations---

There are many types of MH issues that would get a VA diagnosis that is service connectable, with proof of inservice events,accidents, etc etc, that would not fall under the "hostile proximity ,enemy  fire etc etc ) clause of the 2010 regulations. The compensation and rating schedule is the same for all MH disorders.

Clemons was discussed her in the past and derives from common sense ( that VA does not have unless they are provoked into using it)

Anyone with a MH condition is not always qualified to really diagnose themselves, and then if they file a claim for PTSD, thinking they have PTSD- meaning they could claim PTSD but instead might well have another type of MH issue, such as depression, etc etc,  A VA MH professional could find they do not have PTSD, and do not fall under the 2010 regs as to proximity to the enemy etc...and the PTSD claim would be denied unless the VARO properly considers that Clemons covers many MH disorders.

It is best to claim PTSD, and any other mental disability, reasonably encompassed , by the medical evidence , in order to make sure the VA properly characterizes the claim....why wait for years to get a BVA remand, for that. I suggest citing Clemons right from the git go, unlerss your stressor  proof is obvious and can be conceded without any challenge.

 

https://www.va.gov/vetapp16/Files3/1619420.txt

https://www.va.gov/vetapp12/files3/1217273.txt

and many more 're characterized MH disabilities that did get awarded for SC.

 

 

 

 

Also see more on Clemons and other strong court cases that had been denied at RO ,BVA, (even CAVC as to the Fed Circuit Court award)as in Davidson analysis

http://www.purpleheart.org/ServiceProgram/Training2010/19- Recent Definitive Court Decisions Handout, NVLSP.pdf

Edited August 13, 2017 by Berta
added more info

[Berta]

I found more on Clemons here at hadit:

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[FormerMember]

Here's  Mr. Clemons case in asknodspeak.

https://asknod.org/2011/09/27/cavc-clemons-v-shinseki-2009-not-an-m-d/

[broncovet]

Well, yes.   The question becomes what should a Vet do?  

1.  First of all, dont try too hard to be a doctor, absent a medical license to do so.  Dont apply for "paranoid schizophrenic disorder", but instead tell the VA "there is something wrong with my head.  All that is necessary to "identify the benefit sought" is to "point to the body part that hurts", you dont need to slice it up as a doctor would.  

2.  However, if you did, indeed, apply for PTSD when a doctor ultimately said you had paranoid schizophrenic disorder, then you need to establish a link between these two and establish them as ONE claim.  While its best to prevent this from occurring by saying, "I would like to apply for PTSD or whatever mental health disorder that a doctor determines I have", it will be harder to fix this later, but not impossible.     To do this, you should freely admit you are a Veteran with no medical training or expertise and that you obviously misdiagnosed your own mental health disorder.    Now, bring out the Clemon's tool and explain that you were not competent to diagnose it in the first place, and you certainly can not provide your own diagnosis and nexus statements, either.  So, defer to the doctor who did have training and diagnosed you with another disorder instead, and that you would like to amend your claim to also consider this ailment as well.  

[john999]

There are certain sign posts during the C&P interview that should throw up a red flag.  I will try and enumerate some of them here:

1.  Questions about childhood abuse

2.  Questions about drug abuse

3. Questions about legal trouble

4. Questions about trouble teen years

5. Questions about difficulty with authority

6.  Sexual deviations

These are just some of the questions that if you answer "yes" the VA begins looking at Personality Disorder.  Back in my day and I should say Alex's day PD was the default condition for soldiers and vets with emotional problems.  In other words  "you were born that way and the military had nothing to do with all that shaking, bad dreams and inability to work steady you complain about"  .   They tried that out on me and a million other guys.   I showed the VA an IME back in 1972 and that said "veteran is totally disabled" and they just dropped back and said "Schizophrenia and above all "personality disorder". 

[Berta]

 a Just to add, the good part about Clemons is that ,if VA will not diagnose PTSD, there is still a way to get a private shrink to diagnose the disability a different way, and then VA would have to accept their diagnosis and a strong IMO , if the stressor can be proven. 

I have a  friend who thinks he has PTSD. No combat service or any other MOS etc to warrant a PTSD diagnosis.

His stressor descriptions are vague and really not valid stressors at all.No flashbacks, nightmares, survival guilt, nada....no treatment records postservice 

He wont file a claim because I think he knows it would be denied. He did have a depressive episode in service but told me he doesnt know if it is documented or not and does not want to get his SMRs.

I think some vets see a PTSD diagnosis as comparable to Glory. But PTSD is absolute Hell.

Those vets are few and far between..... fortunately. 

 

 

[Oceanbound]

Once again great information that I will be using.