Backpay? Reopened PTSD claim after previous denial

[cco0112]

I really appreciate everyone who takes the time to help other veterans out with these types of questions.

I initially file for PTSD in 2016 which was denied. I did not appeal as appealing was the least of my concerns as I was suffering with severe substance abuse/ptsd issues. I completed inpatient and am coming up on a year sober. I reopened my PTSD claim in September of 2018. I had my CP exam and the psychologist gave a PTSD  diagnoses and opined it was service connection. He also stated   "It is noted that the PTSD symptoms were partially masked by his substance use, which explains why he did not appear to meet diagnostic criteria for PTSD at the time of Dr. Ewing's evaluation (March 2017)."

Is there anyway to get my rating retroactively applied to when I initially filed in 2016? 

[cco0112]

Should I argue that the VA missed critical evidence from my active duty service files when making their initial denial?   

 

 

       I.            The Veteran’s Administration failed to consider critical service records at the time of denial. Please consider the following information from my mental health physical conducted on or around May 31, 2016 by Dr. John C. Coleman, a military psychiatrist. This exam was performed while I was on active duty at REDACTED. Dr. John C. Coleman states the following in his notes (Exhibit B): Sergeant REDACTED “finds himself irritable and will shut himself off from others to avoid snapping at them” …” Patient became tearful when describing soldiers that died or incurred serious morbidity from war in Afghanistan. He explained as a REDACTED he had to see all dead civilians that were brought in for against U.S. government. He also described significant anxiety over his future.”  Dr. Coleman went on to notate the following psychiatric symptoms”

a.       significant weight loss (not dieting),

b.       insomnia or hypersomnia nearly everyday

c.       fatigue or loss of energy nearly every day

d.       excessive anxiety and worry

e.       difficult to control/stop the worry

f.        restlessness or feeling keyed up or on edge

g.       difficulty concentrating or mind going blank

h.       irritability (doesn’t want to be around anyone)

i.         sleep disturbance

j.         anxiety attacks.

 

Dr. John C. Coleman continues “Patient did 15-6 Investigations while deployed as redacted, saw Afghan bodies and processed claims from Afghan Nationals. The worst thing that happened was seeing the results of War. He experienced/witnessed events in which he thought life was in danger or thought he was going to be seriously injured or endangered. He is re-experiencing these events and is experiencing intrusion, in addition to arousal/reactivity. Experiences 2-3 hours of sleep on weekdays, experiences excessive sleepiness, sleeping partner noticed unusual behaviors while sleeping. He describes insomnia, symptoms possibly consistent with PTSD. His exposure to atrocities of war either first or second hand with threat of possible death could be etiology of possible PTSD that is part of differential diagnosis. Dr. John C. Coleman makes the following four (4) DSM 5 diagnoses:

a.        (F41.9) Unspecified Anxiety Disorder

b.        (F90.0) Attention-deficit hyperactivity disorder, predominantly inattentive type

c.        (Z63.4) Uncomplicated Bereavement

d.        (Z91.82) Personal History of Military Deployment

       II.            Less than seven months following Dr. Coleman’s opine, I would check myself into REDACTED, a treatment center that specializes in PTSD and Substance Abuse Disorders within the military community. I was diagnosed by REDACTED, Licensed Professional Counselor, and REDACTED, Clinical Dependency Counselor on January 10, 2017 with the following DSM 5 diagnoses:

a.       (F43.10) Post-Traumatic Stress Disorder

[broncovet]

Maybe, but likely.  When you "reopend" your claim, did you submit "new service records" (38 cfr 3.156 c) or new evidence (38 cfr 3.156 b)?  

What were the reasons and bases for denial in 2016?  Can you post them?  

     I dont recommend using substance abuse as an excuse for not timely appealing the 2016 decision, but, at a later date, your lawyer may suggest otherwise, and you should follow his advice. 

    Other than what I posted above, the issue would be if your PTSD symptoms increased in the applicable period (2016 to 2018), and I dont know that.  The effective date is the later of the date  you applied or the facts found.  So if the doctor said you did not have PTSD until 2018, you wont be getting it earlier than that.  I have not read your file and I dont know what it says.  

You can get and read your own file (recommended).  

    "Symptoms possibly consistent with PTSD" is not in your favor.  You need a unambigious diagnosis of PTSD.  The VA may view that term as "speculative" on the part of the doc.  

Still, it may be worth your while provided that your symptoms at that time were ratable.  Further, you apparently had "another" doc who diagnosed you, unambigiously,  with PTSD, at some point.     

     Further, if you applied within a year of your discharge, then that is  critically important, also, in regards to your effective date, and I dont know that either. 

     It would take a review of your file to determine your likely outcome.  I see it that you have 3 choices:

1.  Dont appeal, and "settle" for a bad effective date. (not recommended).

2.  File a nod, disputing the effective date of the most recent decision and represent yourself.  This will mean that you will need to do some study, being persistent, and have good follow up and good internet skills.    A VSO may be able to do this for you also, but you may be better off buying a lottery ticket and skipping the appeal than expecting a VSO to get everything right.  

3.  Contact an attorney representing Vets, show him your file, and discuss your claim with him in the detail he requests.  If awarded benefits, you "may" have to pay up to 20 percent for attorney fees.  Still, 80 percent of say 60,000 is much better than 100 percent of zero.  Two years of backpay can be about sixty grand or so.  I say you "may" have to pay 20 percent because its not always the case that a Vet has to pay an attorney when he wins.  For example, if your attorney wins at the CAVC, then EAJA may cover all or some of that 20 percent, so you could wind up hiring an attorney at it costs you zero.   

     Personally, on at least one occassion, I chose option 3.  EAJA paid almost all my attorney fees.   If I recall, I paid about 1000 attorney fees, and was awarded about 60 grand.  That is because EAJA paid all the attorney fees at the CAVC level, but my claim was remanded and I paid the attorney fees for representation at the BVA, which, in my case, amounted to about 1000.  I would have had to pay around 12,000 except EAJA paid about 11,000.  

    There are some great attorneys who represent Vets.  Mr. Ken Carpenter (Topeka Ks) has won millions for Vets.  So has CCK law firm.  Chris Attig of Attig Steele is my attorney, and Im happy with him so far, but dont have a result yet on this part of my claim.  Hill and Pontoon has a great reputation.  There are other great law firms.  You can choose here:

https://www.vetadvocates.org/cpages/sustaining-members-directory

[cco0112]

1 hour ago, broncovet said:

Maybe, but likely.  When you "reopend" your claim, did you submit "new service records" (38 cfr 3.156 c) or new evidence (38 cfr 3.156 b)?  

What were the reasons and bases for denial in 2016?  Can you post them?  

     I dont recommend using substance abuse as an excuse for not timely appealing the 2016 decision, but, at a later date, your lawyer may suggest otherwise, and you should follow his advice. 

    Other than what I posted above, the issue would be if your PTSD symptoms increased in the applicable period (2016 to 2018), and I dont know that.  The effective date is the later of the date  you applied or the facts found.  So if the doctor said you did not have PTSD until 2018, you wont be getting it earlier than that.  I have not read your file and I dont know what it says.  

You can get and read your own file (recommended).  

    "Symptoms possibly consistent with PTSD" is not in your favor.  You need a unambigious diagnosis of PTSD.  The VA may view that term as "speculative" on the part of the doc.  

Still, it may be worth your while provided that your symptoms at that time were ratable.  Further, you apparently had "another" doc who diagnosed you, unambigiously,  with PTSD, at some point.     

     Further, if you applied within a year of your discharge, then that is  critically important, also, in regards to your effective date, and I dont know that either. 

     It would take a review of your file to determine your likely outcome.  I see it that you have 3 choices:

1.  Dont appeal, and "settle" for a bad effective date. (not recommended).

2.  File a nod, disputing the effective date of the most recent decision and represent yourself.  This will mean that you will need to do some study, being persistent, and have good follow up and good internet skills.    A VSO may be able to do this for you also, but you may be better off buying a lottery ticket and skipping the appeal than expecting a VSO to get everything right.  

3.  Contact an attorney representing Vets, show him your file, and discuss your claim with him in the detail he requests.  If awarded benefits, you "may" have to pay up to 20 percent for attorney fees.  Still, 80 percent of say 60,000 is much better than 100 percent of zero.  Two years of backpay can be about sixty grand or so.  I say you "may" have to pay 20 percent because its not always the case that a Vet has to pay an attorney when he wins.  For example, if your attorney wins at the CAVC, then EAJA may cover all or some of that 20 percent, so you could wind up hiring an attorney at it costs you zero.   

     Personally, on at least one occassion, I chose option 3.  EAJA paid almost all my attorney fees.   If I recall, I paid about 1000 attorney fees, and was awarded about 60 grand.  That is because EAJA paid all the attorney fees at the CAVC level, but my claim was remanded and I paid the attorney fees for representation at the BVA, which, in my case, amounted to about 1000.  I would have had to pay around 12,000 except EAJA paid about 11,000.  

    There are some great attorneys who represent Vets.  Mr. Ken Carpenter (Topeka Ks) has won millions for Vets.  So has CCK law firm.  Chris Attig of Attig Steele is my attorney, and Im happy with him so far, but dont have a result yet on this part of my claim.  Hill and Pontoon has a great reputation.  There are other great law firms.  You can choose here:

https://www.vetadvocates.org/cpages/sustaining-members-directory

Thanks for taking the time to respond. 

 

To answer your questions:

1. I submitted new evidence consisting of buddy statements (military supervisor, wife, dad who is a veteran, and a coworker), a letter from an LPC stating I had PTSD which was caused by military service, a synopsis of everything I experienced in Afghanistan, and a daily journal of symptoms of 14 days. I also submitted that a request for my rating be retroactive to my initial submission/ETS date based on the information in my second post. 

2. I was denied because the C and P examiner didn’t provide a PTSD diagnosis. I’ll work on uploading the documents.

This doesn’t matter except to echo what many vets have previously stated throughout this forum but I was very naive about the C and P exam. The examiner asked for background (school, work, childhood) and then asked if there was anything else I’d like to discuss. I thought she was taking about my background so I said no. Then she ended the exam.  I naively thought that she must have read my file and already knew I had PTSD. It’s laughable now looking back. 

 

[vetquest]

Good advice all around, thanks.

[Berta]

I agree with Broncovet- that maybe-

if you are awarded for PTSD by the VA, you might well be able to challenge the Earliest Effective Date.

Broncovet said:

"AlsoFurther, if you applied within a year of your discharge, then that is  critically important, also, in regards to your effective date, and I dont know that either. "

     I

Also  a PTSD diagnosis is only half of the hurdle-

 “Patient did 15-6 Investigations while deployed as redacted, saw Afghan bodies and processed claims from Afghan Nationals."

I assume you were OIF/OEF in country.

I also assume the redaction of your MOS means  your job was classified as Top Secret.

If you do not fall into the PTSD regulations of 2010 as to 'close proximity to " and "fear of" hostile fire, 

I hope your MOS and Military personnel records will reveal the proof of your stressor (s).

If  you can scan and attach the denial here we can help more.

Cover your C file #, name, address prior to scanning it.

It does appear that the VA might have overlooked that inservice report from Dr. Coleman, so we need to see the Evidence list as well.

 

 

 

 

[broncovet]

Check your cfile and find out your earliest date of a ptsd diagnosis.  Sometimes docs may prescribe PTSD meds but without a DOCUMENTED ptsd diagnosis.  However, I beleve your attorney can argue that, your treatment with PTSD meds means you had a PTSD diagnosis UNLESS the doctor specifically said he was prescribing these meds "off label".  You see drugs are used to treat a specific condition, BUT your doctor can prescribe meds "off label", that is for a purpose that the drug maker did not intend.  

Yours is a rather interesting case:  Especially if you had PTSD symptoms prior to having been diagnosed with PTSD.  

Remember, too, you did NOT get PTSD in a docs office.  In other words, lets say a doc diagnoses you with PTSD in May, 2018.  This does not mean his exam CAUSED PTSD..you already had it when you walked in his door.  You need a doctor to say "when" your diagnosis of PTSD began if your exam that diagnosed PTSD did NOT give a date to when the Doc indicated your PTSD began.  (OFten, the va uses the date of exam even tho I think they should ask the doc for clarification..as to the date the ptsd began.) . 

An IMO may suffice to establish an eed in the case I discussed above.  The doctor can opine that your symptoms of PTSD began on (date), that is, the IMO doc can review your records and opine that you met the DSM criteria for PTSD on xx date.

This evidence may suffice to win an earlier effecitive date.