ptsd My Denovo Review Results...

[BoonDoc]

I had applied for a "De Novo Review" and was denied.

I went point for point as to their reasons for denial in the first place...they didn't even mention the original reasons they denied but came up with some new ones. Most of My evidence was not even listed on the SOC...they omited the secondary disabilities, and PTSD that I had asked for their consideration just 3 weeks ago...

I will appeal to the BVA...just have to figure how the best way to do it is

I will open a new claim for secondary conditions

I will open a new claim for PTSD. This way it can't get lost in the paperwork as it deems to have done.

It gets harder to stay sane the seeper I get down this rabbitt hole....maybe I'll come out better taking the "red" pill, or maynbe the "Blue" is better...go ask Alice when she's ten feet tall....

FTVA

BoonDoc

[Tbird]

here's the law

The Three Requirements for a PTSD claim

38CFR3.304(f)

(f) Post-traumatic stress disorder. Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with §4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. Although service connection may be established based on other in-service stressors, the following provisions apply for specified in-service stressors as set forth below:

(1) If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.

(2) If the evidence establishes that the veteran was a prisoner-of-war under the provisions of §3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.

(3) If a post-traumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.

Source http://ecfr.gpoaccess.gov/cgi/t/text/text-...111&idno=38

[Hoppy]

T-bird, and others

If you have an interest in the assault provisions of this law and or, you are planning on or currently advancing a PTSD claim due to an assault read this post.

Adjudicators have discretion and a very narrow interpretation of the corroborating evidence that they will accept. They put a very strong emphasis on police reports and medical reports showing serious injury. What they are saying is that reporting the incident is not sufficient. The report could be fabricated.  I learned this when I fought my claim with a DRO.

I was evaluated by psychiatrists three times and had numerous notes in my SMR of anxiety, depression, somatization, pain and breathing difficulty. My records support decline in performance, requests for transfers. Requests for medical procedures. Complaints of specific stressors not typical of personality disorders. I took these reports to a VA psychiatrist who wrote a report that after review of my SMR the symptoms and events in my personnel file meet the diagnostic requirements of the DSM IV for "CHRONIC PTSD" prior to discharge. And my current PTSD condition is the direct result of military service. Additionally, the VA shrink wrote that the reports made by military doctors were so superficial and lacked an in-depth investigation as to make an accurate diagnosis of personality disorder. My SO had been a rating specialist for twenty years for the VA and had never seen the volume of in-service psychiatric reports as those available to the VA shrinks as there were in my case. It was the strongest case he had seen where there was no report of the event and no physical evidence of the assault such as severe injuries being noted in the medical record. However, the psychiatric records supported the PTSD diagnosis.

The DRO in my case had all these reports available to him and said "no police report = no PTSD". He said the injury I claimed was not verified by doctors or police reports and he could not verify specifics of the time, date and place of the assault with a reliable source. I went back to the shrink and she gave me a dual diagnosis of PTSD and anxiety disorder that meets the requirements of the DSM IV for both "chronic anxiety disorder and chronic PTSD" prior to discharge. The DRO sent me to a C&P to resolve the multiple diagnoses with the instruction that if the diagnoses cannot be resolved that he would service connect me anyway. The multiple diagnoses were entwined and thus I was service connected for "anxiety".  

If you are interested in understanding how it is I had a PTSD level stressor and reported no injuries at the time of the assault. keep on reading.  

In my case I was assaulted will sleeping in the barracks. It does not sound like much and is often done as a "funny prank". The prank has some twisted sexual connotations that I do not want to go into. In my case it was not funny at all. Somebody in the barracks was disturbed by the fact that I made breathing noises while sleeping and these noises were keeping people in the barracks awake. I am a mouth breather and breath through my mouth while asleep. Somebody who was never identified filled my mouth with shaving cream. Placing a foreign substance or object into any body cavity without the consent of the individual is "Felony Aggravated Assault". I inhaled the shaving cream which caused a laryngeal spasm. These types of spasms kill thousands of people every year in the USA. I could not breath for over two minutes and thought I had taken my last breath. I did recover and broke the nose of the first person I saw. The barracks MAA heard a commotion and came down the hall to see what was going on. I reported the incident to the MAA. He took no report and told us to forget about it or people would wind up in the brig. Figuring that I was the guy that would wind up in the brig. for punching the first guy a saw I took his advice. The next day the guy whose nose I broke explained to me that I was keeping people awake and that is why it was done. I told him I broke my nose playing football in High School and it affects my breathing. A couple days later he tells me that people in the barracks were still upset and that if I did not get my nose fixed they were planning to continue their pranks and if it was not fixed by the time we went aboard ship the planned to throw me overboard.  

I immediately went to sick call and requested that my nose be repaired. The doctors refused to do the procedure citing that it was not necessary. I developed a serious sleep disorder that was so obviously effecting me that I was sent to see a psychiatrist even though I did not request it. The psychiatrist was a full captain in the navy. Four big gold bars on his shoulders. The first words out of his mouth were that "there are a lot of people putting in a full days work to support their country. What was your problem?" I replied. "I do not know about you but I am surrounded by idiots". I was talking about the guys in the barracks. The shrink did not even ask me why I would make such a statement. I could see smoke coming out of his ears as he laid a tirade on me about my bad attitude and that I had a personality disorder and did not belong in the military. He did not give me a chance to add one word to my statement and asked me to leave his office. Later, I was sent again to see another psychiatrist because they thought my performance had dropped off. I told the new shrink that I had liked my job and had no problem with military duty but was having problems sleeping in the barracks and moved off base. Again the psychiatrist asked no questions and told me I had a personality disorder.  

The thoughts and emotions of waking up from a sound sleep and not being able to breath haunted me and I was having nightmares which have continued to this day. I put in for a captains mass and requested a change of duty. Without going into details I told my CO that I could not sleep in a barracks and .if he transferred me to shore duty that I could finish my enlistment. Otherwise, my performance was likely to get worse when we went aboard ship. The CO informed me that a change of orders from sea duty to shore duty was made by BUPERS not at his command level. Instead he discharged me for having a personality disorder. The amount of time between the attack and the discharge took over a year. During that one year period the stress levels caused my ability to function to be permanently impaired.  

I was evaluated by psychiatrists three times and had numerous notes in my SMR of anxiety, depression, somatization, pain and breathing difficulty. My records support decline in performance, requests for transfers. Requests for medical procedures. Complaints of specific stressors not typical of personality disorders. I took these reports to a VA psychiatrist who wrote a report that after review of my SMR the symptoms and events in my personnel file meet the diagnostic requirements of the DSM IV for "CHRONIC PTSD" prior to discharge. And my current PTSD condition is the direct result of military service. Additionally, the VA shrink wrote that the reports were so superficial and lacked an in-depth investigation as to make an accurate diagnosis of personality disorder. The claim was shot down because there was no police report and no noted severe injuries in my SMR.

[Hoppy]

This is a continuation of the problem I had with a DRO on my PTSD due to assault claim.

Had I decided to appeal the DRO's decision I probably would have argued that his empahsis on the need for a police report or evidence of severe injury is unjustified considering the mountain of in service symptoms that were available the the evaluatior who made the post service initial diagnosis of PTSD while serving in the armed forces. In view of the strong evidence available to the examiner the DRO's application of the law is an unjustified rebuttal of a medical opinion by an adjudicator. Considering the presumption of soundness and the fact that the examiner had ample valid records of in-service symptoms to make the assesment.of chronic PTSD prior to discharge it would be reasonable to determine that a PTSD level stressor occured after entry into the military and prior to discharge. The adjudicator did not find fault with the examiners determination and misused his emphasis on the need for a police report or evidence of severe injuries to rebut a valid medical opinion.

[john999]

I had a diagnoses of PTSD along with panic disorder and manic depression. I did not even try to work on the PTSD since I was already SC'ed for anxiety and depression. It seemed to me that the VA and the Vet Center were trying to frame my claim for an increase as being a claim for PTSD. They were setting me up for failure. I would have had to prove the stressor and try and change my initial 1972 diagnoses. A claim for depression or anxiety can be proved even easier than PTSD if you have any in-service treatment records, or file within a year of discharge. In 1972 there was no such thing as PTSD.

[Guest allan]

June 4, 2001 M21-1, Part IV

Change 136

Chapter 35

Decision Review Officers, Informal Conferences and Hearings

M21-1, Part IV, Chapter 35 in its entirety has been rescinded per M21-1MR, Part I, Chapter 5 dated December 9, 2004 and per M21-1MR, Part I, Chapter 4 dated August 24, 2004.

Source: http://www.warms.vba.va.gov/admin21/m21_1/part4/ch35.doc

Edited February 27, 2007 by allan

[Guest allan]

Veterans Benefits Administration M21-1MR, Part I

Department of Veterans Affairs August 19, 2005

Washington, DC 20420

Veterans Benefits Administration M21-1MR, Part I, Continued

Changes Included in This Part (continued) In 5.A.1.b.

• Stage 6 is revised to reflect that a hearing may be scheduled before regional office personnel other than a Decision Review Officer (DRO)

• Stage 8 is revised and Stage 9 is added to show that a Claims Assistant is responsible for transferring the claims folder to the Board of Veterans’ Appeals (BVA)

• Stages 9 through 12 are renumbered accordingly, and

• a note is added to reflect that the composition of the local appeals teams may vary.

5.B.5.b. is revised to show that when a hearing request is received with a notice of disagreement (NOD), the hearing will be scheduled and held prior to the release of the statement of the case (SOC) regardless of which review process is elected. This is in accordance with 38 U.S.C. 1705(d)(1), which states that an SOC should be prepared only after development or review action has failed to resolve the NOD.

5.B.6.b. is revised to explain the procedures to follow when an NOD involves multiple issues, and at least one of the issues requires clarification.

5.C.11.b. and 5.C.11.c. are revised to reflect that a DRO is under the direct

supervision of the Veterans Service Center Manager (VSCM) or assistant VSCM and that the Appeals Team Coach may assign work to the DRO.

A reference to M21-1MR, Part IX, Subpart i, is added to 5.C.12.b.

In 5.C.17.a., the Appeals Response form is revised to refer to a "self-addressed" return envelope rather than a "prepaid" return envelope.

5.D.18.d. is revised to correct the reference citation for NODs related to attorney fee agreements.

5.D.19.f. is deleted because it is no longer proper procedure to prepare an SOC prior to a hearing date. Blocks 5.D.19.g. though 5.D.19.i. are renumbered. 5.D.19.g. is revised to correct the M21-1 reference citation for new and material evidence.

Topic 5.D.22 is deleted because it is no longer proper procedure to release an SOC or SSOC in advance of a hearing date. Subsequent topics 5.D.23 through 5.K.54 are renumbered, and references to these topics are updated throughout chapter 5.

Continued on next page

Veterans Benefits Administration M21-1MR, Part I

Department of Veterans Affairs August 19, 2005

Washington, DC 20420

Veterans Benefits Administration M21-1MR, Part I, Continued

Changes Included in This Part (continued) 5.E.23.b. is revised to indicate that when a substantive appeal is not timely filed, the VACOLS record should be closed out only if the record was established erroneously.

The note in 5.F.25.a. is revised to clarify that an appellant’s claims folder will not be transferred to BVA immediately after being certified if a BVA Travel Board or videoconference hearing is scheduled.

5.F.28.b. is revised to reflect that a temporary claims folder should be created before a claims folder is transferred to BVA and to clarify what documents the temporary claims folder should contain.

The table in 5.F.29.a. is revised to state that when a regional office (RO) receives evidence related to an appeal after the appeal has been certified and transferred to the Board of Veterans’ Appeals (BVA), the RO should forward the new evidence and a copy of the Veterans Appeals Control and Locator System (VACOLS) screen or VA Form 8, Certification of Appeal, to BVA. Per BVA Memorandum No. 01-05-09 (May 25, 2005), it is BVA’s responsibility to solicit a waiver of initial RO consideration from an appellant.

References to Disabled American Veterans et al. v. Principi (Fed. Cir. May 1, 2003) and VAOPGCPREC 1-2003 are added to the table in 5.F.29.a.

5.H.38.c. is revised and a note is added to reflect that five hearings should be scheduled on the Travel Board’s arrival and departure days, typically Mondays and Fridays. The example of a five-day visit shown in 5.H.38.e. is updated.

A note is added to 5.H.38.g. to state the requirement to notify an appellant of a scheduled BVA Travel Board hearing at least thirty days before the date of the Travel Board visit.

5.H.38.j. is added to explain the procedures to follow when an appellant fails to report for a BVA Travel Board hearing.

5.H.38.k. is added to provide a sample of a Failure to Appear for Board Hearing claims folder flash.

Continued on next page

Veterans Benefits Administration M21-1MR, Part I

Department of Veterans Affairs August 19, 2005

Washington, DC 20420

Veterans Benefits Administration M21-1MR, Part I, Continued

Changes Included in This Part (continued) 5.I.44.b. is revised to clarify which appeals are not under the jurisdiction of the Court of Appeals for Veterans Claims (CAVC).

The table in 5.I.45.e. is revised to show the correct routing for returning a remanded CAVC appeal to BVA and to explain what action to take when the appeal cannot be returned by the suspense date.

Rescissions • Change to M21-1MR, Part I, 5.F dated March 8, 2005, and

• M21-1, Part III, Chapter 1, paragraphs 1.01 and 1.02 (unrelated rescission).

Authority By Direction of the Under Secretary for Benefits

Signature

_____________________________________________________

Renée L. Szybala, Director

Compensation and Pension Service

Distribution RPC: 2068

FD: EX: ASO and AR (included in RPC 2068)

LOCAL REPRODUCTION AUTHORIZED

http://www.warms.vba.va.gov/Admin21/M21_1/MR/Part1/trans.doc

Edited February 27, 2007 by allan