MST C&P exam contradictory

[finajones]

I recently had my c&p for mst ptsd.  The c&p examiner diagnosed me with ptsd.  The stressor was MST.  Her opinion on the DQB form was MST.  

However, she wrote that she couldn't say without speculation if my stressor contributed to my diagnosis.  The rater sent the exam back to her for clarification saying that she said on the DBQ that attributed my ptsd diagnosis with the MST but her written opinion said something different.  She responded and stated the same thing that she couldn't say without speculating that the stressor caused the ptsd.   

What do I make of this?  

 1. Diagnostic Summary  

   Does the Veteran have a diagnosis of PTSD that conforms to DSM-5 criteria    based on today's evaluation?    [X] Yes   [ ] No           ICD code:  F43.10        

  2. Current Diagnoses      a. Mental Disorder Diagnosis #1: PTSD           ICD code: F43.10
    b. Medical diagnoses relevant to the understanding or management of the       mental health disorder (to include TBI): none identified
    3. Differentiation of symptoms    -----------------------------    a. Does the Veteran have more than one mental disorder diagnosed? 

 [ ] Yes   [X] No          

c. Does the Veteran have a diagnosed traumatic brain injury (TBI)?       [ ] Yes   [ ] No   [X] Not shown in records reviewed        

  4. Occupational and social 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 reduced reliability and productivity
    b. For the indicated occupational and social impairment, is it possible to       differentiate which impairment is caused by each mental disorder?       [ ] Yes   [ ] No   [X] Not Applicable (N/A)           c. If a diagnosis of TBI exists, is it possible to differentiate which       occupational and social impairment indicated above is caused by the TBI?       [ ] Yes   [ ] No   [X] Not Applicable (N/A) 

              SECTION II:        

Clinical Findings:  

1. Evidence Review    Evidence reviewed (check all that apply):        [X] VA e-folder    [X] CPRS
 3. Stressors 

Describe one or more specific stressor event(s) the Veteran considers    traumatic (may be pre-military, military, or post-military):      

 a. Stressor #1: Veteran repors verbal harrassment at her unit from 2004-2006   and being sexually assaulted in 2006          
          Does this stressor meet Criterion A (i.e., is it adequate to support          the diagnosis of PTSD)?          [X] Yes  [ ] No            

       Is the stressor related to the Veteran's fear of hostile military or          terrorist activity?          [ ] Yes  [X] No                        If no, explain:                reported MST 

    Is the stressor related to personal assault, e.g. military sexual          trauma?          [X] Yes  [ ] No  

 If yes, please describe the markers that may substantiate the              stressor.                
 4. PTSD Diagnostic Criteria   

Note: Please check criteria used for establishing the current PTSD diagnosis.    Do NOT mark symptoms below that are clearly not attributable to the Criterion
 A stressor/PTSD.  Instead, overlapping symptoms clearly attributable to other    things should be noted under #7 - Other symptoms.  The diagnostic criteria    for PTSD, referred to as Criterion A-H, are from the Diagnostic and    Statistical Manual of Mental Disorders, 5th edition (DSM-5). 

Criterion (A) Exposure to actual or threatened a) death, b) serious injury,    c) sexual violence, in one or more of the following ways:  

                                    [X] Directly experiencing the traumatic event(s)

Criterion (B) Presence of (one or more) of the following intrusion symptoms  associated with the traumatic event(s), beginning after the  traumatic event(s) occurred:                                       [X] Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s).                   [X] Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s).    [X] Intense or prolonged psychological distress at exposure to  internal or external cues that symbolize or resemble an   aspect of the traumatic event(s).

 Criterion (C) Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic events(s) occurred,  as evidenced by one or both of the following:                         [X] Avoidance of or efforts to avoid external reminders  (people, places, conversations, activities, objects,  situations) that arouse distressing memories, thoughts, or                       feelings about or closely associated with the traumatic  event(s).
Criterion (D) Negative alterations in cognitions and mood associated with  the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of  the following:

[X] Persistent, distorted cognitions about the cause or   consequences of the traumatic event(s) that lead the  individual to blame himself/herself or others.   [X] Markedly diminished interest or participation in  significant activities.   [X] Feelings of detachment or estrangement from others.

Criterion (E) Marked alterations in arousal and reactivity associated with  the traumatic event(s), beginning or worsening after the  traumatic event(s) occurred, as evidenced by two (or more) of  the following:   [X] Irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects. [X] Hypervigilance.   [X] Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).

Criterion (F)                          [X] Duration of the disturbance (Criteria B, C, D, and E) is  more than 1 month.
Criterion (G)                          [X] The disturbance causes clinically significant distress or impairment in social, occupational, or other important  areas of functioning. Criterion (H)      

[X] The disturbance is not attributable to the physiological                       effects of a substance (e.g., medication, alcohol) or                       another medical condition.
Criterion (I)  Which stressor(s) contributed to the Veteran's PTSD  diagnosis?:    [X] Stressor #1
5. Symptoms    ----------    For VA rating purposes, check all symptoms that actively apply to the 

 [X] Depressed mood       [X] Anxiety       [X] Suspiciousness       [X] Panic attacks that occur weekly or less often       [X] Chronic sleep impairment       [X] Disturbances of motivation and mood       [X] Difficulty in establishing and maintaining effective work and social           relationships

 The following contentions need to be examined:       post traumatic stress disorder (PTSD) personal trauma - mental disorders        (related to: PTSD - personal trauma)
       DBQ PSYCH PTSD Initial:
       Please review the Veteran's electronic folder in VBMS and state that it       was        reviewed in your report.
       MEDICAL OPINION REQUEST
       TYPE OF MEDICAL OPINION REQUESTED: Military Sexual Trauma (MST)
       OPINION: Military Sexual Trauma (MST)
 

What the rater sent back to the examiner:

  Please return the exam to the examiner as on the exam she attributed the PTSD diagnosis to the Veterans MST and then in the separate opinion said     differently. Please have the examiner provide an opinion as to whether the     current PTSD diagnosis is at least as likely as not (50 percent or greater     probability) caused by or a result of the in-service MST-related marker(s),     and provide a rationale. Please note that only PTSD can be service connected based on circumstantial marker evidence    *****************************************************************************    *************

What the examiner wrote back:

Veteran's Service Treatment Records document the presence of events that VBA    has identifiend as potential markers for MST prior to the reported incident    as well as following the reported incident. Writer is unable to opine without    resorting to speculation if Veteran's diagnosis of PTSD is at least as likely    as not caused by or a result of the in-service MST-related marker.
    Determining if a MST stressor occurred is a legal issue not a clinical issue.    Writer is not qualified to opine if a specific marker is sufficient evidence    to support a claim of MST or if the absence of a marker is sufficient    evidence to dispute the claim of MST.
 

 

[Buck52]

 Looks like a 70% rating.. just my opinion.

This C&P Examiner can speculate  rather or MST caused/related to your MST PTSD.  with these 4 words

''IS LEAST LIKELY AS NOT''

Make sure this examiner is qualified  to do a PTSD  MST C&P Exam.

Quote from Attorney Chris Attig

'' A medical examiner who states “no conclusion as to etiology or diagnosis can be reached without resorting to speculation” may be obligated to research medical literature; his/her conclusions as to service connection must reflect the limitations of knowledge in the medical community at large and not those of a particular examiner or doctor''

Read what Veteran Attorney  Chris Attig mentions about Speculation  from C&P Examiners

https://www.veteranslawblog.org/veterans-disability-benefits-service-connection-cannot-be-determined-without-resort-to-speculation/

 

Edited August 28, 2018 by Buck52 (see edit history)

[finajones]

Thanks for the link.  I think she was qualified, she is a VA psychologist and seems to have a lot of training in this area.  I guess I'm just confused by the diagnosis and then the opinion.  Doesn't make a lot of sense to me how are the raters supposed to make a decision when their examiner couldn't.  

 

[Buck52]

Usually if you get a decent rater  one that will read your records and evidence  and this shows to be favorable to you  to make a decision   he will ,  if not then usually he will send it back to the examiner for clarification  and you may get another C&P hopefully with a different examiner.  it is what the rater decides if this examiner don't redo or do as the rater ask  or just deny the claim from lack of information on the examiners part.  if this happens  SEND IN YOUR NOD ASAP. if you have a MST PTSD Diagnose from the VA then you may want to get an IMO/IME from an qualified  Dr opinion.favorable to you.about your condition.

jmo

 

[finajones]

I will have to wait and see as my claim is pending decision approval.  It has moved quickly since my exam.  I appreciate the information.

[finajones]

So I got my envelope last night in the mail and my claim was denied.  The reason for denial is that the doctor couldn't opine without resorting to mere speculation.  Does anyone have any advice?  

I'm not sure how she came to that opinion when according to her exam, she diagnosed PTSD and related it to the stressor which was MST.  Doesn't make sense to me.  

[vetquest]

It looks like the medical examiner took the easy way out on the denial.  I would file a NOD and request a DRO review, request it on your NOD.  They can deny you or recommend another C&P, I got another C&P out of one.  

You might want to employ a lawyer at this point, or after your DRO review.  They take 20% of your award but 80% is better than nothing.  They also have much better luck in finding someone to do an IMO for you.  An IMO would hopefully relate the stressor to your PTSD in service.  Only the VA can diagnose PTSD but it looks like this has already been done.

[Unique11128]

Finajones

I had the exact same thing happen to me. I made the mistake by requesting another Comp Exam. They granted another exam and got another opion almost identical to the first report. So I suggest you don't ask the Va for another Comp Exam..Get you a IMO it may cost you some money but at least you will hopefully get the benefit of the doubt..Meaning one Va comp exam and private exam...In this case the veteran should get the benefit of the doubt.

 

Good luck

Unique11128

 

 

[GeekySquid]

On 8/28/2018 at 4:41 AM, finajones said:

I think she was qualified, she is a VA psychologist

@finajones

for whatever it is worth, her statement that a legal opinion is what is needed is wrong, that brings her 'qualifications' into question

If she has been trained in this area and in performing C&P exams she is supposed to know better than that response. She is not asked for a legal description but a medical opinion. two different things.

I would look closely at her listed credentials and when you appeal point them out and ask how could a qualified C&P examiner believe she was being asked a legal question. The RO will need to justify under what legal theory, and section of 38 USC and 38 CFR they accept her claim that an MST diagnosis and service connection is a legal opinion.

@Buck52 is right, read the link on Chris Attig's blog, it's called Veterans Law Blog. 

Frankly it sounds like she is unqualified, uninterested or for some reason does not really like your claim.

[broncovet]

You can challenge the competence of the examiner, but all of us are entitled to our opinion.  For example, if the examiner did not have expertise in this field, then a challenge is indicated.  My impression is not to go that route, because you would (probably) still lack a nexus if this exam was thrown out.  

The bottom line is you are going to need a favorable IMO/IME to get past this.  You are going to continue to get denials until you get a favorable IMO/IME.  

However, go ahead and file the NOD, but submit your IMO/IME as soon as you can.  There are a few attorney's who will "up front" for you the cost of an IMO/IME and take that money out of your eventual award, if the attorney thinks, like I do, that a favorable IMO/IME will win your benefits eventually.  

[vetquest]

I agree with Broncovet on this.  You have a strong exam, the examiner just did not finish the exam in your favor.  An IMO/IME should carry the day, especially if you have a lawyer.

[finajones]

I have submitted my NOD and I am in touch with a representative from DAV who is assisting me in obtaining a IMO. 

I requested a DRO review on my NOD.  I am waiting to see what happens. I'm sure it will be a long process. 

 

[pwrslm]

Throw everything at them and something will stick.

The balance of the examiners denial is in equipoise. The exam states that these conditions exist, that others also exist, and that it cannot be determined if any of them contributed to PTSD, but she did certify that you have PTSD via MST, not in dispute. Also not in dispute or even addressed in if the MST in service even aggravated a pre-existing condition, if it existed. Did you give them anything on previous sexual assaults or harassment before you joined? They MUST have reasonable facts to go by, not just speculation by the examiner that you have gone through sexual trauma before the MST.

To me, that is equipoise, and you should get the benefit of the doubt. Ramp, reconsideration. Write your lay statement to claim this as equipoise. Every other thing is still in reserve, including the competency of the examiner. Do the easy part first. The examiner does not make claim decisions, the RO does that. If they goof, and they do very often, you get BS results. This is one of the BS results.

 

also...

 

go back through your VA MH records with a fine tooth comb. Look at what the Psych notes say, and if the psych you are seeing has made notes on MST causes in your file. ... That would give you ammo to push this over the mark.

Edited October 10, 2018 by pwrslm (see edit history)

[finajones]

I did not have any previous assaults.  I will go back and look through my records but I can't think of anything. 

 

[finajones]

So it has been a while since I have responded to this post, was waiting to hear back from VA.  Sent for a higher level review and was ultimately denied.  I will submit my claim for appeal to the BVA.  Just getting my thoughts together. 

 

[Guest]

I am sorry that you are going through this but please don't give up. VA in their ways deny veterans for little or no reason at all because they know some veterans won't appeal or wait too long to appeal then the veteran has to re-open his/her claim and start all over again.

[GBArmy]

finajones I echo Pete's response; don't give up on this. You're going after a disability that, if you win, will result in a high total disability rating. In my opinion, the VA doubles their efforts to deny the higher up the ladder you go. If you have been reading here, you shouldn't be surprised. It's what they do. If you just received the formal paperwork on the denial, you might do well to consider BVA supplemental lane. Give it some thought; is there some additional evidence that you should add to make it stronger? Be objective; is your case strong enough right now to go with just what you have? This lane might take a little less time than the supplemental lane but you want to be sure if you are investing the time to appeal to BVA. Be good and attentive on your paperwork too; don't miss deadlines. You can do this.

[finajones]

Thank you all for your responses.  I do in fact have more paperwork, I am working with the VSO to make sure I have everything I need.  Thank you again.

[finajones]

So it's been a while and alot of back and forth, I had another C&P exam, my last one was found to be not effective based on something with the examiner and was diagnosed with General Anxiety disorder.  Not sure how we got there from where we started.  But nonetheless, I got SC 50%.