Never told About disability

[Maxmus]

I was diagnosed with a mental disorder in 1988 and never told or treated and then discharged in 89. Filed for other issues that were denied and the VA tells me that a favorable finding is that I was diagnosed with this mental disorder. So I decided to put the other claims on hold and file for the mental disorder they diagnosed me with and never treated me for. My question is how should i pursue this and can I get effective date back to discharge since they never told me?

[pacmanx1]

2 hours ago, Lemuel said:

Also, the VA, under 4.42 is require to do a full review of the record and (another section I do not have memorized) make an application for a correction of military records on anything missed on your behalf.

Can you please post your cite? I am a little off.

38 CFR 4.42 Does not mention a full review of records it suggest complete medical examination(s) of different body systems which a lot of VA C & P examiner don't do, not even close.

4.42 - Complete medical examination of injury cases.

The importance of complete medical examination of injury cases at the time of first medical examination by the Department of Veterans Affairs cannot be overemphasized. When possible, this should include complete neurological and psychiatric examination, and other special examinations indicated by the physical condition, in addition to the required general and orthopedic or surgical examinations. When complete examinations are not conducted covering all systems of the body affected by disease or injury, it is impossible to visualize the nature and extent of the service connected disability. Incomplete examination is a common cause of incorrect diagnosis, especially in the neurological and psychiatric fields, and frequently leaves the Department of Veterans Affairs in doubt as to the presence or absence of disabling conditions at the time of the examination.

[Lemuel]

19 minutes ago, pacmanx1 said:

Can you please post your cite? I am a little off.

38 CFR 4.2. 

It is probably quoted under due process.  I''ll post when I find it.  Probably in my BVA decision.

Memory is not so good anymore.  Need to get my feet up awhile.

[Lemuel]

4 hours ago, Lemuel said:

38 CFR 4.2. 

It is probably quoted under due process.  I''ll post when I find it.  Probably in my BVA decision.

Memory is not so good anymore.  Need to get my feet up awhile.

38 CFR 4.2 is specific to re-examinations but covers.

§ 4.2 Interpretation of examination reports.

Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.

[41 FR 11292, Mar. 18, 1976]

 

It is taking the requirement in 4.42 together that you get the following orders which is of several more in my BVA Decision of 05/11/2017:

 

"The Board has considered the Veteran's lay statements that his disability has been consistent over time prior to the submission of his July 2009 claim. In this regard, he is competent to report on factual matters of which he had firsthand knowledge.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board further finds that the Veteran's statements are credible..."

 

"The Veteran generally contends that his service-connected disabilities prevent him from maintaining gainful employment. In November 2016, he submitted a formal application for a TDIU, alleging that his service-connected TBI, in part, rendered him unemployable. During the August 2016 hearing, the Board determined that the issue of whether the Veteran's service-connected disabilities renders him unemployable had been raised in connection with his claims for increased ratings.
However, review of the record demonstrates that he filed an informal claim for a TDIU in June 1987. Specifically, in a June 24, 1987 statement, the Veteran requested consideration for additional compensation benefits based on his
employability situation which prevented him from substantially gainful employment. The AOJ never acknowledged his claim, and entitlement to a TDIU was not adjudicated until a June 2015 rating decision denied the claim. As such the Board finds his claim for a TDIU stems from the June 1987 informal claim..."

 

"Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016).
With regard to the Veteran's claims for increased ratings, the Board notes that he was not afforded a VA examination to address the nature and severity of his service-connected tinnitus, and the most recent VA examinations to address the current nature and severity of his TBI and mixed organic personality syndrome with depression were performed in June 2015. Since that time, he has claimed that his
condition is worse than that reflected in the June 2015 VA examination. Specifically, during the August 2016 hearing, his attorney argued that the June 2015 VA examination reports are inadequate to adjudicate his claims for increased ratings. In reviewing the June 2015 VA TBI examination, the Board notes that the examiner indicated that there are no subjective symptoms. With regard to the
Facets of Cognitive Impairment, the examiner noted that the June 2015 VA mental health examiner would address those problems. The June 2015 VA mental health examination indicated that the Veteran had never been diagnosed with a mental health disorder. The examiner indicated that there was no occupational/social impairment with a mental health condition caused by his TBI. The examiner noted that he "completed neuropsychological testing at Post and Associates" June 1 9, 2015, four days after the examination report was signed. In an addendum opinion, the VA mental health examiner noted that the Veteran was diagnosed with a mental health disorder, but indicated that he previous diagnosis had been changed to "depressive disorder due to another medical condition-TB!," and that such did not cause an impairment severe enough to interfere with occupational and social functioning or require continuous medication.
Given the foregoing, the Board finds that a more contemporaneous examination is needed to fully and fairly evaluate the Veteran's claim for an increased rating for
his tinnitus, TBI, and mixed organic personality syndrome with depression. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997).
Furthermore, the Board notes that the June 2015 neuropsychological testing at Post and Associates, including the eight examinations/tests and the clinical interview cited by the June 2015 VA examiner are not associated with the record. Because the June 2015 neuropsychological testing, if procured, could bear on the outcome of his claims for increased ratings, efforts must be made to obtain them, as well as any outstanding VA treatment records dated after May 9, 2016. See 38 U.S.C.A.
§ 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession).
Entitlement to a TDIU on an Extraschedular Basis With regard to the claim for a TDIU prior to July 10, 2009, as noted in the Introduction, the Board has assumed jurisdiction of the Veteran's claim for a TDIU pursuant to the Court's holding in Rice, supra. Moreover, as noted in the decision above, the Veteran filed a claim for a TDIU in June 1987 that was never adjudicated by the AOJ.
In the decision above, the Board granted entitlement to a TDIU, effective July 10, 2009, the date the Veteran met the schedular criteria. A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a).
It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b ). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). However, the Board does have the authority to decide whether a claim should be referred to the Director, Compensation Service. See Barringer v. Peake, 22 Vet. App. 242 (2008). 

With respect to the assignment of a TDIU under the provisions of 38 C.F.R. § 4. l 6(b ), the Board finds that the Veteran's claim should be submitted to the Director, Compensation Service, for a determination as to whether a TDIU should be awarded on an extraschedular rating basis prior to July 10, 2009. The Board finds that the medical and lay evidence of record, including the Veteran's SSA records, provides plausible evidence that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected TBI and mixed organic personality syndrome with depression. Accordingly, the Board finds that the claim should be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU under 38 C.F.R. § 4.16(b).

Service Connection for a Lumbar Spine Disorder and a Cervical Spine Disorder The Veteran argues that service connection for a lumbar spine disorder and a cervical spine disorder is warranted due to his military service. See May 2010 Notice of Disagreement. Alternatively, he argues that service connection for a lumbar spine disorder and a cervical spine disorder is warranted as secondary to his service-connected TBI. Specifically, he alleges that his lumbar and cervical spine disorder are secondary to a September 1990 motor vehicle accident that was caused by what he calls a seizure, absence, or attention deficit, associated with his serviceconnected TBI. See, e.g. , January 2010 Statement. In connection with his petition to reopen, the Veteran underwent a VA examination in June 2015. He was diagnosed with degenerative arthritis of the lumbar spine and cervical spine. The examiner opined that his spinal disorders were less likely than not related to his military service, to include motor vehicle accidents that occurred in 1969 and 1971. The examiner reasoned that there was no evidence of a low back or neck condition in his service treatment record, including his  discharge examination. The examiner noted that the Veteran reported that his problems with his back and neck started after the September 1990 motor vehicle accident. The Board finds that the June 2015 examination is inadequate for two reasons. First, the examiner merely relied upon the lack of any complaints of back or neck pain in the service treatment records to support the opinion. See Dalton v. Nicholson, 21 Vet. App. 23 30-31 (2007) ( examination inadequate where the examiner relied on the lack of evidence in service treatment records, and does not account for competent lay testimony, to provide a negative opinion). Furthermore, the examiner failed to address the Veteran's primary contention that his lumbar and cervical spine disorders are secondary to his service-connected TBI, to include the symptoms of a seizure, absence, or attention deficit that led to the September 1990 motor vehicle accident. Once VA provides a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Because of these deficiencies, and to ensure that the Veteran' s lay statements concerning his military service and the circumstances of the September 1990 motor vehicle accident are adequately considered, the Board finds that a new VA examination is  necessary. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board ' s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. Obtain and associate with the Veteran' s electronic claims file any outstanding VA treatment records relevant to his claims on appeal, including the June 2015 neuropsychological testing from Post and Associates that were addressed by the June 2015 VA examiner, as well as any records dated after May 9, 2016..." (from my complaint of missing probative documents at the hearing)

 

"2. Contact the Veteran and request authorization to obtain any outstanding private medical records pertinent to his claims on
appeal. Make at least two (2) attempts to obtain records from any identified source. 3. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).

4. After all outstanding records have been associated with the claims file, the Veteran should be afforded a VA audiological
examination in order to determine the current nature and severity of his service-connected tinnitus. The entire claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examination report should include discussion of the Veteran's documented medical history and lay statements. Any additional evaluations, studies, and tests deemed necessary should be conducted. The examiner is specifically requested to describe the functional effects caused by the Veteran' s tinnitus. The examiner should also describe the impact that the Veteran's tinnitus has on his daily life, as well as whether his tinnitus causes marked interference with employment and/or frequent periods of hospitalization. The examiner should list all symptoms associated with tinnitus and distinguish those that may be associated with TBI and reasons for
each distinction should be provided. All opinions or findings provided must include an explanation for the bases for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. 

5. After all outstanding records have been associated with the claims file, schedule the Veteran for an appropriate VA TBI examination with an appropriate examiner (such as a specialist in neurology, neurosurgery, and/or psychiatry, who has training and experience with TBI) to determine the current nature and severity of his service-connected TBI. The entire claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examination report should include discussion of the Veteran' s documented medical history and lay statements. Any indicated evaluations, studies, and tests, such as neurological testing, must be conducted. This examiner must also list all symptoms associated with tinnitus and distinguish those that may be associated with TBI and reasons for each distinction should be provided. To ensure that the all medical findings are expressed in terms conforming to the amended schedular criteria of 38 C.F.R. § 4. 1 24a, Diagnostic Code 8045, in effect as of October 23, 2008, the Board requests that the examination be completed in accordance with the Review Evaluation of Residuals of TBI Disability Benefits Questionnaire (DBQ). Based on the examination results, the examiner should provide an assessment of the current nature and severity of the serviceconnected TBI consistent with the revised schedular criteria for evaluating the residuals of TBI under 38 C.F.R. § 4. 1 24a, Diagnostic Code 8045. The examiner is asked to specifically address the degree to which the service-connected disability is manifested by facets of cognitive impairment including memory, attention, concentration, and executive functions; judgment; social interaction; orientation; motor activity; visual spatial rientation; subjective symptoms; neurobehavioral effects; communication; and consciousness. In making his or her assessment, the examiner should identify all comorbid physical, neurological, or mental disorder(s), and state whether each is shown to be caused by the Veteran's TBI. If not, then, with respect to each comorbid disorder identified, the examiner should attempt to distinguish any symptoms and impairment attributable to such disability from identified residuals of a head injury. If the manifestations cannot clearly be distinguished, the examiner should clearly so state. All opinions or findings provided must include an  explanation for the bases for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided
without resort to speculation..."

6.  (More essentially repeating the above just on different examination orders.  Note the specific requirement for 4.42 examinations)

 

If you get a good BVA Judge like this one, things can be forced to happen.  If not and you cannot get compliant examinations ordered or done refer to DOCKET NO. 15-34 597 citing an arbitrary and capricious substandard review by the Judge in not ordering compliant examinations at the CAVC.

Edited November 28, 2020 by Lemuel
edit format

[Lemuel]

11 hours ago, MrPain7 said:

In February 1975 I was discharged from service I applied for compensation for a head injury in July 1975 and was denied in 1976 then in 1984 I was awarded 100% for seizure disorder secondary to my in service traumatic head injury.  In 2009 I applied for TBI and was awarded 70% for direct service connection in 2011, I requested an earlier effective date for my TBI since my original claim was in 1975 less then 5 months after my ETS,  I feel my original claim should have been reconsidered but the RO and the BVA overlooked my original claim so I took it to the CAVC and waiting for a decision.

Ask extra-schedular.  My 1987 claim for TDIU was granted by the Director, Compensation Services back to my last day of employment in 1985, just over 2 years before my claim.  Your claim goes to the Central Office DROs for recommendation, then to the Director.  

[broncovet]

Mr. Pain...Welcome to hadit and thank you for your question.  So that more people will notice, Im moving this to a new topic.  

[MrPain7]

Brocovet  actually  that was a comment not a question but thanks for moving it I would like to hear the replies.........