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

[Ray_USMC_1968]

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."

[Vync]

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.

 

[vetquest]

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 December 26, 2018 by vetquest
sp

[Ray_USMC_1968]

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 

 

 

[doc25]

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

• US Code
• Notes

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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.)

[Ray_USMC_1968]

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

[vetquest]

As for the claim being denied it might be denied at the RO level but I doubt it would be denied at BVA.  BVA is strong on good buddy letters.  Before we start thinking about appealing, did the previous C&P's or your VA doctor provide a nexus?  This could be used in your favor.  As long as a doctor provides a nexus you can point this out.  I would request your records and see what the other C&P's said about this.  I would also request your treatment records.   I am hoping that your claim will not be denied and need to go to BVA.

As for personality disorders, the military and VA love to claim personality disorders.  I was diagnosed with about six different ones before the VA settled on PTSD.