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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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IMEF-Gunny

Berta, need your expertise..Which way to go on denial?

Question

So, I recieved my denial from VA, as expected. I have an IMO scheduled for November, but I'm not sure which way to go with my NOD.....thankfully, I have a couple of options here.

So, VA C&P doctor said that he did not agree with my diagnosis of PTSD, he asked about stressors one time in his interview and instead focussed on history. He diagnosed MDD, based on notes from bootcamp from MH (Not exams from MEPS, but rather lay admission in the "moment of truth" room seconds before swearing in).

 He based the entire C&P on the notion of "pre-existing" Depression, alcohol abuse and suicidal ideation. What is interesting here is the "depression/alcohol was not noted in my MEPS physical. It was "investigated" during 3rd week of bootcamp based on "moment of truth" admission. So, in investigating this, I find the following:

"What this all means for the Veteran is that he or she can point to an entrance examination in which a  condition is not noted in order to cancel most VA arguments that his or her  condition was a preexisting condition.  This also means that if a Veteran signs a statement that he or she had  issues prior to joining the military during a moment of truth prior to basic training, the VA cannot use that statement to show a preexisting condition".

Also, the "notes" from bootcamp, because they were based on my lay statements/ admission, cannot be considered during my C&P examination and must be treated as though it was never said:

§ 3.304 Direct service connection; wartime and peacetime.

(a)General. The basic considerations relating to service connection are stated in § 3.303. The criteria in this section apply only to disabilities which may have resulted from service in a period of war or service rendered on or after January 1, 1947.

(b)Presumption of soundness. The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted.

(Authority: 38 U.S.C. 1111)

(1) History of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease. They should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof.

(2) History conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles in relation to value consistent with accepted medical evidence relating to incurrence, symptoms and course of the injury or disease, including official and other records made prior to, during or subsequent to service, together with all other lay and medical evidence concerning the inception, development and manifestations of the particular condition will be taken into full account.

(3) Signed statements of veterans relating to the origin, or incurrence of any disease or injury made in service if against his or her own interest is of no force and effect if other data do not establish the fact. Other evidence will be considered as though such statement were not of record.

So, do I ask that the C&P be thrown out, a new PTSD C&P be ordered and also that I get a different examiner as this one's opinion would now be bias given the notes he recieved which were supposed to be treated as though they were not of record, because it was based on the premise of a Pre-existing condition from a "moment of truth" admission, and therfor should not have been considered at the C&P exam to begin with? Also, note that because of his language, such as "speculation, likely, etc" VSO says the C&P should already be thrown out.

OR, should I argue that both VA and the examiner stated that depression was "Clearly and unmistakably present prior to service" and put VA in the position of having to prove that aggrivation could/did not take place?

The VA currently states that I am presumed to have been in "sound condition" because it was noted in bootcamp that I had no sx depression the day I talked to MH, even though the notes indicated "Guarded modd and affect" and I was made to sign a "No harm contract" to return to training..........However, at the same time VA is saying I had "clear and unmistakable pre-existing depression in the same breath that could/would not be aggrivated by service!

 

Do I file to have the C&P thrown out, requesting a new C&P exam and different examiner.....pursuing PTSD diagnosis to be SC

or

Do I argue that VA has already conceded "pre-existing" depression and force them to prove no aggrivation (knowing that they cannot measure pre-service %, in service aggrivation or post service % and that an IMO is likely to support both PTSD diagnosis as well as MDD aggrivation due to service?

 

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I need to find and read over the past posts you have made.....did you attach the C & P results to any of them?

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I will attach it here now, as well as the denial letter

 

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Thanks I managed to find it myself and read it all again.

You stated

“I currently have two seperate PHD level Psychologist reviewing my entire file to evaluate the Dr's opinion give me their independent medical opinion. One of those Dr's has performed C&P exams for VA as a contracted Psychologist.” Sept 2017

 

Are you treated for depression by the VA.?

Good questions- this is an odd denial

 

"I file to have the C&P thrown out, requesting a new C&P exam and different examiner.....pursuing PTSD diagnosis to be SC"

you could try but this might be better:

"I argue that VA has already conceded "pre-existing" depression and force them to prove no aggrivation (knowing that they cannot measure pre-service %, in service aggrivation or post service % and that an IMO is likely to support both PTSD diagnosis as well as MDD aggrivation due to service?"

Since you have 2 MH docs looking at your records,would they consider to re characterize the disability and diagnose it as depression too  (since the decision states the diagnosis fromVA is Major Depressive Disorderand then say that the verified stressors had aggravated the depression to a higher level that the examiner stated in the C & P exam, and give a full medical rationale for the level of aggravation  ?

Hope others chime in but I think some here already suggested going with the depression diagnosis.

I think that is the best bet.It would be great if you can file the NOD along with an IMO-referenced in the NOD

and maybe the PHD who is former VA would do it the best way., following the IMO criteria here at hadit that a former VA doctor gave me the idea for ,within the IMO he did for me.( Dr Bash)

 

 

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I was diagnosed with PTSD by a VA psychiatric NP. C&P doc saw my "truth room" admission and labeled it MDD pre-existing then VA denied saying because it read no sx of depression that day.....I was considered sound

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