A Change In Diagnosis In An Original Claim?

[Guest Jim S.]

B) Must an original diagnosis, made during time in service, be shown to be clear and unmistakenly in error, before an alternative diagnosis made by a VA C&P Examinercan be used, when predicated upon the same evidence of record?

Must the VA C&P Examiner state conclusively and give reason and basis, for why the original diagnosis is in error and show why his new diagnosis should be alternatively used instead?

Is the VA C&P Examiner required to say his diagnosis is a correction of the prior diagnosis and use evidence seperate from the evidence in which the original diagnosis is predicated on?

Jim Scott :)

Edited October 23, 2005 by Jim S.

[Guest Berta]

A C & P exam is ordered for a specific disability (or in some cases the vet gets more than one C & P)

I dont see how a doctor at a C & P would have the time to "change" a prior diagnosis- then again-

one of my vets brought his two IMOs to the C & P doctor and it helped assess the extent of his disability (diabetes with heart and vision problems as secondary)-now he needs a cardiac C & P and I think he already got the vision C & P.

The C & P was for Diabetes Mellitus.

If a C & P doctor "changed" a diagnosis they would somehow have to re-schedule the vet for the "new " diagnosed disability.

I know of 2 vets that were diagnosed with diabetes as part of a C & P exam for something else.

This added to their original diagnosed disabilities but did not "change" them.

I was reading some BVA decisions as to PTSD and personality disorders.

The veterans in these cases had been diagnosed with both.

The C & P for PTSD and subsequent psychiatric testing could assess the level of PTSD, the nature of the stressors and their validity, and

then determine how disabling the PTSD was to the veteran.There was no change to diagnosis but an expansion on the affects of both disorders to the veteran.

This is an odd case:

http://www.va.gov/vetapp03/files/0308579.txt

The veteran had handled body bags at the Danang hospital during the war-

he had been diagnosed with PTSD for many years but then-

the "examiners amended" his diagnosis.

In this case the amended diagnosis found the veteran did NOT have PTSD.

Years later the veteran tried to claim PTSD again but had no current diagnosis of it so the Board had no basis to even remand it.They denied the claim.

I guess a C & P doctor could "amend " a diagnosis- in your case-

but it would have to based on a solid and different interpretation of the evidence.

I the above veteran's case-

the PTSD diagnosis was "amended" by the examiners as VA had found that the "Body bag" duties and other stressors the veteran had claimed were not at all valid.

If a vet gets set for a C & P -lets say for Labyrhithitis and temporary tinnitus- and the C & P is set for November 3rd, 2005.

Then lets say the vet is found to have considerable cerebral infarction after getting an MRI for a stroke he suffers weeks before the C & P-

lets say the vet somehow manages to get to the scheduled Labyrhithitis C & P (under Hearing exams) this vet could well expect a "change" in diagnosis as the Labyrythitis might have been a symptom of the stroke- a whole different C & P-and the C & P doctor would have to take note of the newly diagnosed stroke-making the other C & P most likely moot-

If you have a newly diagnosed condition prior to a C & P-this might lend to a change in the C & P exam you get.

I dont see how a C & P doctor could actually "change" a diagnosis.

[Hoppy]

B) Must an original diagnosis, made during time in service, be shown to be clear and unmistakenly in error, before an alternative diagnosis made by a VA C&P Examinercan be used, when predicated upon the same evidence of record?

Must the VA C&P Examiner state conclusively and give reason and basis, for why the original diagnosis is in error and show why his new diagnosis should be alternatively used instead?

Is the VA C&P Examiner required to say his diagnosis is a correction of the prior diagnosis and use evidence seperate from the evidence in which the original diagnosis is predicated on?

Jim Scott :)

Jim,

I am sure there are general provisions of the code that allow a change in diagnosis when there is evidence that the medical principals support the change. The adjudicator must have intrepreted the personality disorder as being supported by the medical evidence. I am not sure that the C&P examiner is required to do anything. However, adjudicators usually give weight the the reports that explain the logic behind the diagnosis. Back to my original argument. I think that the adjudicator would have been bound to use the clear and convincing level of evidence to allow the change of diagnosis in your case. This is because the first time the personality disorder was ever addressed was post service. Also the C&P examiner did not say when the personality disorder first onset. Thus the personality disorder has taken on the same characteristics as an intercurrent injury. Intercurrent injuries must be shown as clear and convincing when replacing a condition that onset in the service. Use any other argument you can think of in addition to the intercurrent angle.

If it where me, I would appeal saying that the adjudicator did not use the clear and convincing level of evidence. If he did he would have had to have cited it in his decision. Your claim is probably rather unique. Just appeal it and see if they salute it. It might even be a CUE, if using the wrong evidentuary standard is the basis for a CUE.

[Guest Jim S.]

Hoppy and Berta: The only statements made by the examiner that reflect the time and evidence used were these. "My mjor opinion at this time are that the person does represent an inadequate personality with moderate intellectual capabilities and that on the basis of the history it would be difficult to substantiate in his opinion a solid diagnosis of the mental disorder noted:

I'm not an expert in semantics, but by the inclusion of "at this time" and "does represent", the examiniers appears to be giving a narrow interpretation of his findings, only to the present time and that it is his opinion, making no reference to the records.

And seperately that he and he alone, based on the history, would find it difficult to substantiate a solid diagnosis of a mental disorder. Basicly, the VARO is saying his opinion is worth more than a conferance of Dr's who made up the medical board who made and supported the diagnosis of a mental disorder.

I do not see where by this statement, "find it difficult to substantiate", as being clearly and convincing that he could not support the diagnosis of a mental disorder. This also appears to be a long way from saying that the diagnosis from the Navy Medical Board was in error and a basis by which to deny the Veterans claim.

It does appear to me that this report of findings by the VA examiner, should have at the very least, be sent back to him for clarification. Also, nothing being said or stated that the personality disorder was a different diagnosis to replace the one of a mental disorder. Nothing being said about the nature of the mental diagnosis and to the fact that the Veteran was being examined during a period of remission of his symptoms of his mental disorder.

Jim S. B)

[wallyg]

Jim,

Just my opinion, but if the RO is trying to use one medical examination as a basis of taking away a previously established award, then they are again violating their own regulations. Look for the requirement that an award cannot be removed based upon one medical opinion.

The fact that the doctor is stating a different opinion, should NOT, under existing regulation, justify the removal of an award. As I remember that is categorical, and does NOT make any provision for a change in diagnosis.

Sorry I don't have the time to give you the relevant cites.

Edited October 24, 2005 by wallyg

[Guest Jim S.]

Wallyg: This is not an award being taken away, this is a case in which the VARO adjudicator stated in the reason and basis for denying Veterans claim for a disability of a mental disorder, assuming an alternative diagnosis was presented by the VA C&P examiner, when their is nothing in the report from the examiner that conclusively and convencingly atest to this fact.

I am already aware of the regulation you are suggesting. This regulation deals with awards already in place and the VARO wants to reduce or take the award away.

Jim S. B)

[Hoppy]

Hoppy and Berta: The only statements made by the examiner that reflect the time and evidence used were these. "My mjor opinion at this time are that the person does represent an inadequate personality with moderate intellectual capabilities and that on the basis of the history it would be difficult to substantiate in his opinion a solid diagnosis of the mental disorder noted:

I'm not an expert in semantics, but by the inclusion of "at this time" and "does represent", the examiniers appears to be giving a narrow interpretation of his findings, only to the present time and that it is his opinion, making no reference to the records.

And seperately that he and he alone, based on the history, would find it difficult to substantiate a solid diagnosis of a mental disorder. Basicly, the VARO is saying his opinion is worth more than a conferance of Dr's who made up the medical board who made and supported the diagnosis of a mental disorder.

I do not see where by this statement, "find it difficult to substantiate", as being clearly and convincing that he could not support the diagnosis of a mental disorder. This also appears to be a long way from saying that the diagnosis from the Navy Medical Board was in error and a basis by which to deny the Veterans claim.

It does appear to me that this report of findings by the VA examiner, should have at the very least, be sent back to him for clarification. Also, nothing being said or stated that the personality disorder was a different diagnosis to replace the one of a mental disorder. Nothing being said about the nature of the mental diagnosis and to the fact that the Veteran was being examined during a period of remission of his symptoms of his mental disorder.

Jim S. B)

Jim,

The big problem that I have with the narrow and vague report is that if the C&P examiner did not specifically note in his report that he had the SMR in his possesion and read it then the only was he could have got his information about the military is from your recollection. How could he make an accurate diagnosis without a review of the medical history based on the records.

Adjudicators must have a wide range of intrepretation of the evidence. from the cases I have read adjudicators make some really creative stretches of the truth.

I went to a C&P exam for a knee condition I had for 25 years. I was seeking an upgrade in my service connected rating of 10%. When I went to the exam, the guy doing the exam was a physicians assistant who I had seen on several ocassions previously for general medical exams. The guy was not even a doctor.

I had 2 operations on this knee. I had been seen by at least 20 different doctors over the 25 year period. I knew how to do a knee exam. The physicians assistant who did my C&P exam did not know how to do a "drawer test on a knee" He tried but he was not strong enough to get an accurate result. I was so pissed that I went to the ortho clinic and asked the head of the clinic to do a drawer test on my knee and write his findings in my file. The head of ortho was amazed that they scheduled a C&P nexam with a physicians assistant. He did the test and I submitted it as new and material evidence with a letter telling them that they were not dealing with an idiot.

I had requested a C&P exam from an allergy doctor and never received it. I was seeing the allergy clinic on a regular basis. I figured out that adjudication was calling the clinic and getting opinions from the doctors in the clinic without telling me or scheduling a specific C&P exam. This is probably legal in the VA system. In workers comp they would be put in jail for exparte communications. The fact that the VA botched the medical evidence in your case is par for the course. This is why we all need MD/JD's to assist us with our claims.

The doctors are not trained well enough and often resist writing good reports becuase they do not know the difference from a preducial and biased medical opinion based on speculation and assumption and the truth. Adjudicators and service rep's do not always have the medical training to ask the right questions. If I had the time I could list examples of these flaws that have ocurred in the adjudication of my claims for the next hour. However I am taking a break.