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

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IMEF-Gunny

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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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Yes, the C&P examiner done such things as discussed my panic episodes, which he asked me to describe the physical reaction to as well (sweating, anxious, etc) he did not mention that convesation, instead listing it as Panic- None......he excluded a lot, re-diagnosed things as due to depression, failed to mention any reference to my friend who died, etc,etc,etc.........Yes she diagnosed me, they accepted it, conceded my stressors but their PHD level psychologist did not support or agree and instead changed my diagnosis to MDD......ststing that I had depression, alcohol abuse and he would have to "speculate" to tie my stressor activity or service to my current symptoms.....he keeps referencing 25 years, "relatively" symptom free.......there is NO evidence to support that notion either.

Here is a letter I am drafting to send in, along with my IMO's after they are complete. I believe that an honest, unbias examiner will not only support the PTSD diagnosis, but also the idea that MDD is comorbid and would definitely have been aggrivated beyond normal progression by service outside the wire.

 

NODPTSD.pdf

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This is Very well done and does challenge the PTSD criteria in the C & P exam.

You have time to request a reconsideration, and even ask for a new C & P exam, and then if they do not act on the recon request within the one year appellate time frame, they have your DRO request as well as the formal and timely NOD.

I would just make that point right away- the reconsideration request -and you could support this in November if the IMO is favorable to what you seek.

Reconsideration requests can go 2 ways- they can act on it in a reasonable period of time, or they might appear to be working on it, and then try to piss away the NOD deadline....which , as I see, is a formal and timely NOD statement within this letter....

 

but one question to all.....

I havent filed a NOD in a long time....does the VA require that the specific NOD form be used?

If so, should this vet make sure he uses that form along with this letter?

 

Edited by Berta
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I need to chage what I just posted.........I have been griping for years that a reconsideration request will not stop the NOD clock---griping here as well as to the VA itself----

This new version of M 21 says it Will stop the NOD clock !~!!!!....

. "Submitting a request for reconsideration shall constitute a notice of disagreement for purposes of filing a timely notice of disagreement under 38 U.S.C. 7105(b)."

in part:

"(b) Process. An individual who disagrees with the initial decision denying the claim in whole or in part may obtain reconsideration under this section by submitting a reconsideration request in writing to the Director of the healthcare facility of jurisdiction within one year of the date of the initial decision. The reconsideration decision will be made by the immediate supervisor of the initial VA decision-maker. The request must state why it is concluded that the decision is in error and must include any new and relevant information not previously considered. Any request for reconsideration that does not identify the reason for the dispute will be returned to the sender without further consideration. The request for

reconsideration may include a request for a meeting with the immediate supervisor of the initial VA decision-maker, the claimant, and the claimant’s representative (if the claimant wishes to have a representative present). Such a meeting shall only be for the purpose of discussing the issues and shall not include formal procedures (e.g., presentation, cross-examination of witnesses, etc.). The meeting will be taped and transcribed by VA if requested by the claimant and a copy of the transcription shall be provided to the claimant. After reviewing the matter, the immediate supervisor of the initial VA decision-maker shall issue a written decision that affirms, reverses, or modifies the initial decision.

 

Note to §17.133: The final decision of the immediate supervisor of the initial VA decision-maker will inform the claimant of further appellate rights for an appeal to the Board of Veterans’ Appeals."

 

https://www.benefits.va.gov/warms/docs/Regs/38CFR/BookI/Part17/s17_133.doc

Geez when did that change? Yippee.

The Nod form is 21-0958 but apparently not needed , as I understand this newer version of M21......regarding reconsideration requests.

This is far diffgerent from the regs I used when I had a recon request long ago..I filed the NOD almost at the last minute because the rhetoric from VA ( ie: Bull crap) did indicate the claim was being worked on,with a CUE  specialist at some point. Until I realized they had no CUE specialist.

Or maybe they did have  a CUE specialist- Cant Understand Evidence Specialist - Hell that describes just about everyone at my VARO.

Edited by Berta
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Yes ma'am, I actually re-opened for reconsideration "short term memory loss from a NOD in 2016 claim that was denied becuase my 87 year old Iranian C&P examiner asked me what all contentions I had, I told him my stomach issues, fecal incontinence (embarrassing so I usually don't mention it), sleep impairment, bi-lateral arm/shoulder pain and memory issues. He simply replied "Memory is mental health" and ended the exam without further questions. They added the short term memory loss to this claim, as I knew was their policy.

C&P doc only examined my stomach and sphincter. The VA rated me at 30% for undiagnosed illness on my stomach, combining incontenence with that issue, returned the C&P exam as Inadequate for all other conditions.

My good old C&P doctor said in response that "veteran denied all other contentions, he only complained of his stomach and hemmoroids".......so they denied all other contentions.....whether he forgot our convesration, lied to cover his ass.....I don't know.......oh, and I did not claim hemmoroids, nor have I ever had or complained of hemmoroids.....

War of words, but VA doctors always win......for example, my primary care VA doc has in her notes that I am an Air Force vet, my wife is an Air Force vet and our daughter is trying to join the Air Force".....this is direct dictation during an exam!!!! I am a Marine Corps vet (as well as IANG), wife has never served in any branch, daughter has never tried to join the ASAF? I did not correct it, because at some point, VA will argue that the notes state this or that and I'm going to point them to this as evidence of how "accurate" their VA docs "notes" are!

In my earlier NOD, I filled out the NOD form and noted for them to also see the attached statement and supporting evidence for reconsideration, so I covered my bases in two prongs. My previous NOD is in and verified via ebennies as to status, the memory claim shows combined to the new claim.

 

Edited by IMEF-Gunny
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So, I had the IME done last Friday.....6 hours of testing, interviewing and records review. Very difficult 6 hours to say the least. I will be posting about the Psychologist in the IMO/IME forum. I do not have the exam report yet, but whether it's in my favor or not, the Doc was great, very thorough, genuinely caring guy and a Marine and Vietnam veteran to boot.

Should have the results by November 15th or so, then I'll file the NOD paperwork, asking for reconsideration and if not granted DRO review. I will post the IME notes when they come in.

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On ‎10‎/‎6‎/‎2017 at 8:47 AM, Berta said:

 

I would just make that point right away- the reconsideration request -and you could support this in November if the IMO is favorable to what you seek

 

The IME report is in.......Thoughts? I warn you, it is lengthy......oddly, as much social issues, no friends,  agression,etc as I have....he gave me a GAF score of 65.

DrCoyleIMERedacted.docx

Edited by IMEF-Gunny
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