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Ray_USMC_1968

Question of intrepretation from VHA C&P Examiner's report

Question

I am concerned the "Diagnosis and Rationale" section are going to be the stumbling block for a DRO; in MY opinion, they are contradictory. The examiner wrote out a DBQ that I would have paid an independent examiner to write. The wording the examiner used could not have been any more favorable to my claim, at all! If I had chosen the words to use in my behalf, I would have fallen short of her submitted DBQ. However, the examiner left the diagnosis and rationale sections open to intrepretation. 

Does any one here on this forum have insight that will be helpful in explaining what I am seeing? Basically, am I looking at a blanket denial, or is there the possibility of a "reasonable doubt" situation?

The following is a cut and paste from a C&P for mental health. I am not currently rated for any service-connected disability. I also have a current VHA psychiatrist diagnosis which matches the C&P examiner's diagnosis (Major Depressive Disorder). I read the request for the recent C&P, the rater did request two separate issues to be addressed: 
1) Does the Veteran have a diagnosis of PTSD, Major Depressive Disorder, or other mental disorder that was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed stressors?
2) Does the Veteran have a diagnosis of PTSD, Major Depressive Disorder, or other mental disorder that clearly and unmistakably existed prior to his military service, and that was at least as likely as not (50 percent or greater probability) aggravated beyond its natural progression by the claimed stressors?

"Taken as a whole, in this examiner's opinion, the evidence available at this time is most supportive of a diagnosis of Major Depressive Disorder With Anxious Distress, and is insufficient to determine whether this condition was incurred during the Veteran's military service, or was aggravated by it. To make such a determination would require evidence regarding his pre-military history which has direct bearing on the question of the onset and etiology of his mental health difficulties, and which was not available to the present examiner."

I claimed 3 stressors, applied for PTSD, or other MH diagnosis. The DBQ was well written, addressing each of the stressors. The examiners tied each of the stressors to DSM-V. Then, as part of her narrative, she included the following: "Consequently, for the purpose of the present examination, the claimed stressors are considered to be corroborated. For the purpose of this examination, the claimed stressors are also considered to be sufficient to cause PTSD as specified by DSM-5 diagnostic criteria, a clinical judgment which is inherently and unavoidably subjective to some extent."

However, instead of a PTSD diagnosis, she chose "Major Depressive Disorder with Anxious Distress." 

Now, I am most concerned about her "Diagnosis and Rationale":  She used the same wording to answer both of the rater's questions. 

"OPINION: It is this examiner's opinion that the Veteran DOES NOT have a diagnosis of PTSD, Major Depressive Disorder, or other mental disorder that was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed stressors.

RATIONALE: The evidence available is insufficient to determine whether the Veteran's diagnosed mental disorder was incurred during his military service. To make such a determination would require evidence regarding his pre-military history which has direct bearing on the question of the onset and etiology of his mental health difficulties, and which was not available to the present examiner."

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Welcome to Hadit!

This is a tricky one. For mental health claims, the VA changed the rules a few years ago to require one of their C&P examiners. The VA claims to want a review by a fresh set of eyes instead of accepting what your treating MH provider thinks.

It sounds like the examiner says your stressors are sufficient to cause PTSD, but stopped short of meeting the 50/50 threshold for SC. If those stressors occurred while in the military, then that is very important.

Relative equipoise (evidence for/against) might be an option regarding the evidence, but you really need a 50/50 opinion or better. If the DRO does not accept it, you might be able to request a new C&P exam. Consider checking the credentials of the examiner. If your initial exam was done by a nurse practitioner, you should consider asking for a new C&P exam by a board certified psych MD doctor.

Another often overlooked aspect of PTSD diagnosis is combat. If you served in a combat, you should have an award for it. For PTSD claims, the VA typically concedes in favor of veterans who served in combat.

 

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Vync is spot on in his reading of this in my opinion.  Unless you have seen combat it looks like you may need another C&P.  The examiner coped out in declaring if your condition was aggravated or caused by your service.

Edited by vetquest
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Thank you to Vync and Vetquest for taking your time to reply to my original posting. 

Some additional information that may be helpful: This was the 3rd C&P for the same claimed disability. The first two were done by 3rd party examiners (LHI and QTC). I challenged each of them based on having used DSM-IV instead of DSM-V. The cut and paste shown in my posting is directly from the latest C&P, examiner is a VHA Psychologist. Her diagnosis matches the diagnosis my VHA Psychiatrist has in my VHA treatment records... Both of those also match what is in my Vet Center counselor's clinic notes... 

I have zero combat assignments; my stressors were non-combat related; they occurred in-service and are supported by 3 buddy statements plus in-service treatement records showing diagnosis of "Anxiety" and "Depression." I received psychiatric treatment as well as prescriptions for treatment in-service... My discharge (in 1969) was for a mental health disorder though they tagged me with a personality disorder (PD) discharge. Since PTSD wasn't recognized in 1969, my current counselors have appeared to overcome that PD misdiagnosis. Personality disorders apparently don't just 'go away.' 

I am probably not going to be able to contest this C&P examiner's credentials since she was at one of the VAMCs. I also want to believe she knows what she is doing. 

I don't understand how she would have written an excellent (in my view) DBQ for PTSD, but then fail to tie it to the conceded stressors... I don't have a preference whether she chooses "PTSD" or the (diagnosed) "Major Depressive Disorder with Anxiety Distress" as my disability. I remain confused why she would state an "Opinion", yet in the next sentence indicate she doesn't have enough evidence to connect to in-service stressors.

I continue to appreciate any one who can help me to understand what I preceive to be conflicting statements in the report. I would also appreciate any advice/suggestions/recommendations regarding what steps I should anticipate taking. 

With genuine thanks for all who help other Veterans on this site!!!

Ray 

 

 

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6 hours ago, Ray_USMC_1968 said:

Thank you to Vync and Vetquest for taking your time to reply to my original posting. 

Some additional information that may be helpful: This was the 3rd C&P for the same claimed disability. The first two were done by 3rd party examiners (LHI and QTC). I challenged each of them based on having used DSM-IV instead of DSM-V. The cut and paste shown in my posting is directly from the latest C&P, examiner is a VHA Psychologist. Her diagnosis matches the diagnosis my VHA Psychiatrist has in my VHA treatment records... Both of those also match what is in my Vet Center counselor's clinic notes... 

I have zero combat assignments; my stressors were non-combat related; they occurred in-service and are supported by 3 buddy statements plus in-service treatement records showing diagnosis of "Anxiety" and "Depression." I received psychiatric treatment as well as prescriptions for treatment in-service... My discharge (in 1969) was for a mental health disorder though they tagged me with a personality disorder (PD) discharge. Since PTSD wasn't recognized in 1969, my current counselors have appeared to overcome that PD misdiagnosis. Personality disorders apparently don't just 'go away.' 

I am probably not going to be able to contest this C&P examiner's credentials since she was at one of the VAMCs. I also want to believe she knows what she is doing. 

I don't understand how she would have written an excellent (in my view) DBQ for PTSD, but then fail to tie it to the conceded stressors... I don't have a preference whether she chooses "PTSD" or the (diagnosed) "Major Depressive Disorder with Anxiety Distress" as my disability. I remain confused why she would state an "Opinion", yet in the next sentence indicate she doesn't have enough evidence to connect to in-service stressors.

I continue to appreciate any one who can help me to understand what I preceive to be conflicting statements in the report. I would also appreciate any advice/suggestions/recommendations regarding what steps I should anticipate taking. 

With genuine thanks for all who help other Veterans on this site!!!

Ray 

 

 

The examiner's nexus is inadequate and; to be honest, shows the examiner's gross incompetence of how to write a nexus of opinion. 

The examiner did not correctly use "not due to" or "less likely than not" in her nexus. Therefore, that's an inadequate nexus of opinion. Furthermore, to allude to, that a determination could not be made because of pre-military history? Is wrong and unlawful.

If she had looked at your daggum entrance exam, any etiology or pre-military history of a mental condition would have been noted. If it wasn't noted in your entrance exam, you were deemed healthy of mind and body.

You're going to have to appeal on the basis of an inadequate nexus of opinion, inadequate rationale, and gross incompetence of the presumption of soundness rule. The only way that the unfavorable nexus could POSSIBLY be overruled is if your buddy statements corroborrate the VA's Joint Services Records Research Center (JSSRC) requests. Hope this helps. It might be a setback, but you're not alone in this fight. Just gotta standby to standby for the official VA letter in the mail. 

 

38 U.S. Code § 1111 - Presumption of sound condition

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For the purposes of section 1110 of this title, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1119, § 311; renumbered § 1111 and amended Pub. L. 102–83, § 5(a), (c)(1), Aug. 6, 1991, 105 Stat. 406.)
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Thank you to doc25 for your well-reasoned response. 

When I filed my NOD, I indicated a reference to being in sound condition upon enlistment; because I was given a misdiagnosed discharge for "Personality Disorder", during the C&P exam, the examiner and I even discussed this topic. I pointed out to her my pre-enlistment physical documents and explained to her why I disputed the PD disagnosis. She is aware of the paperwork; she SHOULD have known the difference when she filed her DBQ. 

After pursuing this disability claim since July 2016, I can clearly recognize how Veterans get frustrated with "the system." After having 3 separate C&P examinations for the same disability, and not having even one examiner to agree with either of the other two, and none of the 3 to be in agreement with my VHA psychiatrist or Vet Center counselor... The frustration continues to build. 

For me, the frustration is in not having any one at VBA to speak directly with - in not having a warm set of eyes to point out the apparent discrepancy between the documented reality of STR, and connecting the dots between those records and a DBQ. 

If the current examiner has only submitted her DBQ without a medical opinion and rationale, she would have submitted the perfect supporting examination for me... When she submitted the opinion and rationale, she chose to use conflicting terminology. Using her terminology, I feel the DRO will be justified in denying my claim. 

I realize how many other Veterans are in my age group, and I also realize the odds are significantly against me being around another 5 - 7 years while my claim is appealed. This is what makes the frustration level nearly unbearable. 

Again, I thank everyone who has offered their insight to my posting. Thank you for helping me, and a huge thank you for being here as you continue to help others!!!!

 

Ray

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      7. Other symptoms ----------------- Does the Veteran have any other symptoms attributable to PTSD (and other mental disorders) that are not listed above? [ ] Yes [X] No
      8. Competency ------------- Is the Veteran capable of managing his or her financial affairs? [X] Yes [ ] No
      .9 Remarks, (including any testing results) if any -------------------------------------------------- In my opinion, the veteran meets DSM 5 diagnostic criteria for posttraumatic stress disorder, which is more likely than not secondary to military trauma. In this veteran's case, there is a strong component of shame that is also associated with his military service and is foundationally related to his depressive disorder. His experience of freezing during 3 artillery attacks is something that is associated with feelings of overwhelming shame, worthlessness, helplessness, and inadequacy for the veteran. These thoughts and feelings contribute significantly to his depressive condition, and contribute meaningfully to his PTSD symptoms as well. The veteran also experienced significant losses during military service that have likely aggravated his PTSD and depressive conditions. Notably, the veteran's grandfather died in 2011 when the veteran was deployed to Afghanistan, and his best friend committed suicide on Christmas day in 2013. Both losses were experienced by the veteran as emotionally traumatic and contribute to his symptomatology. The veteran has developed a dysfunctional coping mechanism of excessive alcohol intake in his efforts to suppress negative feelings associated with his traumas. As his excessive alcohol use appears to be largely in the service of avoidance of distress and suppression of intrusive/reexperiencing symptoms, it is my opinion that his alcohol use disorder is secondary to his PTSD and depressive disorders. The veteran's mental health symptoms have severely impaired his functional capacity. He is socially disengaged and avoidant. He has difficulty expressing himself emotionally, showing empathy, or forming emotional bonds with others. Occupationally, the veteran has exhibited significant dysfunction as he has been unable to maintain employment due to anxiety, depression, avoidance, alcohol abuse, irritability, shame. Hs shame about his reactions of freezing during artillery attacks prompts him to avoid interpersonal interactions as much as possible as he fears that the topic of his military service will arise. Recently, the veteran has begun outpatient mental health treatment in the form of individual counseling, and he is awaiting an appointment for trial of medication.
    • By weep4souls
      I'm a Gulf War veteran with 90% S/C for various conditions. Some conditions that have been denied have been frustrating since I'm still suffering with symptoms. How can I create a Nexus for sinusitis and sleep apnea? I'm 30% for asthma and tried to create a relation between sleep apnea and asthma, but that was a no go. I was thinking trying again and tying my PTSD to that. Any thoughts? 
      I was also shot down on sinusitis from the get go, but I thought all I had to do was tie my gulf war time to that condition. I guess I was wrong.
    • By Tanker1
      I was scheduled for a C and P exam recently and this is what happened and what I submitted to the VA asking to be placed in my file also.  Have you seen this before and does anyone have any clue as to why a doc would act this way?  Does this make sense?  I have no idea what the outcome will be yet.  The claim is in preparation for decision now.
       
      On 6/28/2019 I showed up to an appointment with xxxxxxxxxxx in Horn Lake, MS for a VA requested C and P exam for what I was advised to be Anxiety and depression that was setup through VES contracting. Upon entering the room the doctor advised that I was there for a C and P exam for anxiety and depression and explained that the reason they do these exams sometimes is to be sure veterans are not lying about their claims. This struck me as an odd way to begin an exam and then the Dr. proceeded to look over my C-File and advised that it appeared that I had someone else's records that had served from somewhere around 1958 to 1964 and asked if that was me. I of course stated no. I was not even born yet. She then went on to say that sometimes these files are put in our veterans records by the VA accidentally. I asked if that is what they base my claim on and she stated that there were disagreements in my file about dates by raters and that this file was causing confusion. She stated that she would let them know that they should remove it. After the appointment I called the VA and spoke to an operator that stated that the record mentioned above was never in my file and she had no idea what the doctor was talking about. As the appointment continued it seemed as if the Dr. was continuing to try to discredit anything wrong with me by asking if I thought I had biological depression and could have had it all my life. I advised her that I had a great childhood and after joining the service I started noticing my anxiety and depression becoming worse. The doctor also advised that I must have made my previous boss mad and that is why I was fired which should have nothing to do with why I am at a anxiety and depression C and P exam 2 years later than the termination. The doctor also asked if I was mad because I was released from the military when I stated that to my knowledge I was released from the service due to sleep apnea, anxiety and depression. I stated life goes on. Which it does. We are soldiers and we learn to keep going no matter how much it hurts emotionally or physically, or at least we try even though appointments like this one remind me that evidently, possibly not everyone has our best interest at heart. I miss the people I served with as an M1A1 Tanker. I miss serving and I love my country even though my body is worn because of it. I do not regret serving by any means. I feel as though this exam was more of an inquisition and have had more anxiety due to the unsettling nature of the exam since it unfortunately. Thank you for taking the time to read this if you do. I just wanted someone to hear my side. I am attaching the C and P request also to this letter so that you will have their information also.
       
    • By tw4904
      So I pretty much have my statements together. I feel pretty confident especially since I do have a CAB. However, I am already diagnosed with Chronic PTSD by my psychiatrist who works for the VA. I am also being treated by him with medication. And it helps me out alot. Will the doctor who I see during the examination judge me off of how he see's me in my current condition and say I am fine even though I am medication to help with PTSD? I typed up a very lengthy paragraph in the remarks section of the 21-0781 and stated two incidents like directed. Surely they wouldnt judge on my current well being because I am being treated. Also it has been 1 year and 3 months since I got out, and I have been on medication for about 2 and a half months. Also, one of my parents committed suicide a day after I got back from deployment. I was on the fence about bringing this up, but I would be lying through my teeth if I brought up all the things that happened since I was 19 and didnt bring this up. Will this hurt my case in any way?
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      • 6 replies
    • Need your support - T-shirts Available - Please buy a mug or a membership
      if you have been thinking about subscribing to an ad-free forum or buying a mug now would a very helpful time to do that.

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    • OK everyone thanks for all the advice I need your help I called VSO complained about length of time on Wednesday of this week today I checked my E benefits and my ratings are in for my ankles that they were denying me 10% for each bilateral which makes 21% I was originally 80% now they’re still saying I’m 80% 

      I’m 50% pes planus 30% migraine headaches 20% lumbar 10% tinnitus and now bilateral 21% so 10% left and right ankle Can someone else please do the math because I come up with 86% which makes me 90 what am I missing please help and thank you
    • I was denied SC for IBS and GERD IN 2011. In 2019 I was awarded SC for GERD. This CUE  is for 2011, both GERD and IBS. There are some odd aspects regarding the 2011 decision, the way it was written and the C&P report and the way it was written. I've tried to present this as clearly as I can. Note: the decision contradicts itself. the decision also contradicts the C&P Report. Honestly, I think the rater just got confused because the C&P was so poorly written. *THIS CUE HAS NOT YET BEEN SUBMITTED*Please let me know what you think. Appreciate all comments and suggestions. Thanks.

       

      VA RATING DECISION MARCH 23 2011 GERD IBS.pdf C P REPORT 7312010 GERD IBS.pdf GERD IBS CUE 2011(1).pdf

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      • 56 replies
    • 14 Questions about VA Disability Compensation Benefits Claims
      When a Veteran starts considering whether or not to file a Veterans Affairs 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 when it comes to filing Veterans Affairs Disability Claims. [Reprinted here with permission from Veterans Law Blog]
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