Sleep Apnea secondary to PTSD possible problem

[grayling12]

I am planning on filing a claim soon for Sleep Apnea secondary to PTSD/ MDD/ Alcohol Abuse/ and Associated Meds. In going over all my records and evidence, I noticed that my POS shrink has been reporting that I'm doing great, making great progress and that I'm very happy with my meds for the best part of six years now. This is straight fabricated bullshit.

The back story with him is that, I started seeing him around 2009 when he diagnosed me with the above conditions. Around 2016, I was about to have a complete meltdown from my job as a correctional officer with the state. He had told me for years that I needed to quit my job because it triggered me too much and was preventing me from making progress in my treatment. You would never know this from looking at my treatment notes because like a lot of other information and facts, he conveniently never included any of this in my notes. I worked in a very toxic environment, where you had to not only watch out for prisoners that wanted to assault or kill you, but also watch out for coworkers that would stab you in the back in a heart beat, watch out for supervisors that head hunted everyday looking for any reason to write you up or take your job, and watch out for the administration that loved prisoners and hated staff. In 2016, I was about to go off the deep end, bad. I asked my POS shrink to approve a stress leave so I could defuse, and this POS made me beg for it, but he eventually approved it. 

About three months latter, I told him I was putting in for a disability retirement from the state and asked him if he would support me in applying for IU. As soon as I mentioned IU his attitude changed and he perked right up. He told me that I didn't need IU or a disability retirement, all of a sudden he's telling me that my job is just fine for me. This contradicted what he had told me previously about how I needed to quit because it caused too much stress and triggers. I can't prove this because he strategically left the part about telling me to quit out of his notes. Soon after I mentioned IU he decided that I was cured and ready to go back to that toxic environment. He signed off on returning me back to work even though I begged him not too, I couldn't handle the stress yet. When I found out that he cleared me to go back to work I flipped out and ended up in the nut house for a week. When I got out he approved me to be off for another three months reluctantly. 

At the six month mark I gave up on the disability retirement and figured that this POS wanted to see me dead. When I went back to work I was making plans for my last big hoorah, I felt like it was over one way or another. I wrote a note thanking my POS psych and the VA for making what was about to happen, happen, I planned on carrying it in my front pocket so it would be found on me and it would explain why this happened. Fortunately, a month after I returned, the crap hole that I worked at was shut down and everyone was scattered to the wind. This solved one problem but also created more problems latter on. 

Before 2016, his notes were all over the place, some were consistent with our visit, others were way off the mark. After 2016, nearly all of his notes now indicate that the visits went well, I'm making great progress and I'm very happy with my pharmacological treatment. This is very far from the truth.  The only times that his notes don't say this, is when I have confronted him about the magical improvement that he keeps reporting, then for a visit or two he reports things closer to what actually went on during the visit after that he goes back to reporting the magical improvement again. I firmly believe that he is either biased against veterans as a whole, he has a beef with me specifically, or maybe he gets a big fat bonus at the end of the year by artificially showing progress in his patients.

He always acts like he can't figure out why I don't make long lasting, sustained progress and he can't seem to figure out how I am able to function in my toxic environment. I have explained to him dozens of times what it is like working in a dangerous, high security, state prison, but non of this information has ever made it into my treatment notes, and he acts like it's the first time has heard this each time I explain it to him. I have also explained numerous times how I have managed to cope with job all this time, but once again that information never makes it into my notes and he acts like it is the first time I have ever said anything about it. 

He has a narrative that he created, that I am practically cured and he makes sure that he only reports things that support his narrative. Since 2016, nothing that contradicts his narrative makes it into my notes. I believe that he has a problem with veterans receiving compensation for their disabilities, It is the only thing that explains his behavior. I know this is long winded, and I apologize, but I felt like I needed to give a back story so it made more sense.

My problem now is, when I file this claim they are most likely going to open my mental health claims and more than likely propose a reduction. I want to try and cut them off at the pass!

Questions:

1. My PTSD/ MDD/ ALCOHOL ABUSE ratings are over ten years old and static. Can they reduce based on the Psychiatrist notes alone? 

2. Will they have to offer me at least two C&P exams before reducing and how far apart would they need to be?

3. Would it be helpful to have an independent Dr. level Psychologist review my therapist notes, assessments and family and coworker statements that are contradictory to my shrinks notes and make an opinion as to       whether he thinks I have truly made significant improvement?  

4. I'm planning on changing VA shrinks because this turd has stuck to his agenda for way too long now. Can I request a specific shrink or do I have to take whomever they give me?

5. I plan on sending a manifesto on myhealthevet IM to my shrink, explaining what this turd has been doing and why I believe he's doing it, it'll be close to what I've reported above. I'm going to demand that it be posted to my chart, I want to direct anyone looking into my chart and seeing his notes to review my therapist notes and assessments as well, so they have a better picture of what's going on.  Is this a good or bad idea?

6. Do you think calling my current shrink out and putting him on blast in my chart will negatively affect the new VA shrink taking me on as a patient?

7. Would it be very beneficial to follow up with a private Dr. level psychologist on a regular basis to balance out what that turd put in my records?

8. What can I do to get ready for the possible proposal to reduce that I haven't considered above?

Thanks for any info!

 

 

Edited December 29, 2022 by grayling12

[broncovet]

You mentioned, 

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when I file this claim they are most likely going to open my mental health claims and more than likely propose a reduction. I want to try and cut them off at the pass!

Filing for new benefits, including increase, secondary, primary, etc. etc., does NOT cause a reductions.  (Its not in the criteria).  

You can be reduced (if you meet the reduction criteria), if you do apply for new benefits, if you dont apply for new benefits, if wearing a green shirt, or if you drink Jack Daniels or dont drink Jack Daniel.  None of this matters, the only thing that does matter is "did your PTSD actually improve under ordinary conditions of life"? 

"Ordinary conditions of life" means while working, since "ordinary people" work, and disabled people dont work. 

 

Here is how this is said in the criteria: (Remember, VA has to rate on the criteria, not if you have green hair, apply for benefits, drink beer, go to NFL  games wearing only a barrel, or hang glide with a home made hang glider. These things are all independent of the criteria). 

Instead, this is the reduction criteria:

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§ 3.344 Stabilization of disability evaluations.

(a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ______ months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

and:

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ome of the most common reasons for the reduction of you VA disabiltiy Compensation are:

  I.   Failure to Report for the "Pre-Reduction" Examination.

 II.  Unprotected Benefit Rating and Your Condition Improves

An Unprotected Benefit Rating is when your disability rating is above the minimum for the disability but below the 100% rating and you have been receiving the rating for less than five (5) years.  

When reducing a total disability rating based on the severity of an appellant's condition, the burden falls on VA to show "material improvement" in the veteran's condition from the time of the previous rating examination that assigned the appellant's 100% disability rating.  Ternus v. Brown, 6 Vet. App. 370, 376 (1994); Hohol v. Derwinski, 2 Vet. App. 169, 172 (1992); see also Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992); 38 C.F.R. § 3 .343(a).  The reduction must be based on "[e]xamination reports showing material improvement[, which] must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life."  38 C.F.R. § 3.343(a).

Pursuant to 38 C.F.R. section 3.105(e), when the RO determines that a rating reduction is warranted, it is required to issue a proposed rating reduction, setting forth the reasons for the proposed reduction, and to allow the veteran a period of at least 60 days to submit additional evidence to show that the rating should not be reduced.  Furthermore, when, after such period, the RO issues a decision reducing the rating, that reduction does not become effective until the "[l]ast day of [the] month following 60 days after notice to [the] payee" of the reduction decision.  38 C.F.R. § 3.400(r); see 38 C.F.R. § 3.105(e).  The effect of sections 3.105(e) and 3.400(r) combined is that a rating reduction cannot be made effective for a minimum of 120 days after it is proposed in writing to the veteran.  Brown (Kevin) v. Brown, 5 Vet. App. 413, 418 (1993).

An important right that can easily be overlooked in the notice of a proposed reduction (because VA buries it in the notice), is the right for a "pre-determination hearing" under 38 C.F.R. section 3.105(i).  A claimant has a right to this hearing if he or she requests it within 30 days of the notice of proposed reduction.  Requesting a pre-determination is important because VA cannot implement the proposed reduction until after the hearing and it reaches a decision based on the evidence and the hearing.  In practice, this means that a claimant can delay a reduction and continue to receive full payments for some months in order to obtain evidence or assistance.

There is a risk, however, in continuing to receive full benefit payments under these circumstances.  Should the VA still conclude that a reduction is appropriate, it will create a debt against the veterans for the "overpayments" during the time waiting for the pre-determination hearing and decision.  This means that a veteran can end up with lower benefits payments and owe the VA a large sum.  Veteran's requesting a pre-determination hearing are, therefore, strongly urged to be careful with their finances until the reduction issue is finally decided

In every rating reduction case, the Board must "ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations."  Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (requirements "operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition"); 38 C.F.R. §§ 4.1, 4.2, 4.13.  Where the Court concludes that the Board has reduced a veteran's rating without observing applicable laws and regulation, such a rating is void ab initio and the Court will set it aside as "not in accordance with the law."  38 U.S.C. § 7261(a)(3)(A); Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); see Brown, 5 Vet. App. at 422; Horowitz v. Brown, 5 Vet. App. 217 (1993).

When determining whether VA was justified in reducing a veteran's disability rating that has continued at the same level for five or more years, "the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted."  Sorakubo v. Principi, 16 Vet. App. 120, 12324 (2002) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993)); see also Kitchens v. Brown, 7 Vet. App. 320, 325 (1995) (holding that when the regional office reduces a veteran's rating without observing the applicable VA regulations, the reduction is void).  The regulatory requirements for reducing a disability rating that has continued at the same level for five years or more are more stringent than the general requirements for increasing or decreasing a disability rating that has been in effect for a shorter amount of time.  See 38 C.F.R. §§ 3.344(a)-(c); Collier v. Derwinski, 2 Vet. App. 247, 24950 (1992).  "Such disabilities are considered 'stabilized,' and the regulation thus requires a high degree of accuracy in decisions reducing those ratings."  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (citing 38 C.F.R. § 3.344(c)).  In addition, certain regulations "are applicable to all rating reductions regardless of whether the rating has been in effect for five years or more as required by section 3.344(c)," including 38 C.F.R. sections 4.1, 4.2, 4.10, and 4.13.  Brown, 5 Vet. App. at 420.

Pursuant to sections 4.1, 4.2, and 4.13, VA is required in any rating-reduction case "to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations."  Brown, 5 Vet. App. at 421; see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (such requirements "operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition").  In addition, "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work."  Brown, 5 Vet. App. at 421; see also 38 C.F.R. §§ 4.2, 4.10.

The Court has specifically required VA to follow its own regulations when it attempts to reduce a veteran's rating.  See Fugere v. Derwinski, 1 Vet. App. 103 (1990) (holding that VA was required to give notice and opportunity to be heard prior to deleting provision of VA Adjudication Procedure Manual M211MR that had provided regulatory-like procedural protections prior to reducing veteran's rating, and noting: "Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures." (citations omitted)), aff'd, 972 F.2d 331 (Fed. Cir. 1992).  The Court determines de novo whether VA has followed and applied its own regulations in reducing or terminating VA benefits.  See Wilson (Merritte) (making determination de novo without so stating) and Fugere (same), both supra; Brown (Kevin) v. Brown, 5 Vet. App. 413, 41621 (1993) (same); cf. Buzinski, supra (reviewing de novo compliance with VA regulation regarding mortgage foreclosure).  

If VA affords to a veteran the applicable procedural protections and nonetheless determines that a reduction in rating is warranted, the determination as to the degree of disability under the applicable diagnostic code is a finding of fact subject to the "clearly erroneous" standard of review.  See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Faust v. West, 13 Vet. App. 342, 348 (2000).

In reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of section 3.105(e) apply but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence.  If a veteran with a total disability rating for compensation purposes based on individual unemployability begins to engage in a substantially gainful occupation during the period beginning after January 1, 1985, the veteran's rating may not be reduced solely on the basis of having secured and followed such substantially gainful occupation unless the veteran maintains the occupation for a period of 12 consecutive months.  For purposes of this subparagraph, temporary interruptions in employment which are of short duration shall not be considered breaks in otherwise continuous employment.  38 C.F.R. §§ 3.343(a), (c); Faust v. West, 13 Vet. App. 342, 352 (2000).

There is a clear distinction between a claim challenging a reduction in a schedular rating and one involving a claim for a restoration or an increase in a schedular rating.  See Peyton v. Derwinski, 1 Vet. App. 282 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992).  "The initial procedural burden regarding proposed rating reductions [pursuant to section 3.343(a) ] ... falls squarely on the VA to show material improvement from the previous rating examination that had continued a veteran's 100% disability rating."  Ternus v. Brown, 6 Vet. App. 370, 376 (1994).  "[T]he circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary."  Dofflemyer, 2 Vet. App.at 280.

That the Court has jurisdiction to review the BVA's failure to decide the improper reduction claim is clear.  See 38 U.S.C. § 511(a) ("The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary to veterans ..."); In the Matter of Fee Agreement of Smith, 10 Vet. App. 311 (1997) (BVA failure to adjudicate veteran's claims properly before it was a final adverse decision with respect to that claim); Suttmann v. Brown, 5 Vet. App. 127, 133 (1993) (Board erred in failing to adjudicate a claim reasonably raised to it); see also Carpenter v. Gober, 11 Vet. App. 140 (1998) (an implied claim which is not reviewed by the BVA is considered a denial).  Thus, while the Court may not review nonfinal BVA decisions to remand, it clearly mayindeed, mustreview claims explicitly or implicitly raised by the appellant and not adjudicated by the BVA.

 

Ive highlighted a few of the reasons its difficult for VA to reduce you (but they may try, even when you dont meet the reduction criteria!).