Veterans Disability Compensation: What does a Veteran do when a C&P Examiner changes the diagnosis?By Chris Attig | Permalink
December 17th in VA Benefits.
In an earlier post, I talked about the new PTSD regs, and some of my fears and concerns about these new regs.
I am starting to see signs that this fear is becoming a reality. Last week, I reviewed a Veteran’s claim for PTSD. This young gentleman went off to Vietnam at an all-too-young age, and was immediately subjected to the horrors that the Vietnam War is known for. He returned with PTSD and a substance abuse problem (although, God forbid the VA should have recognized that when he first applied for benefits in 1976.)
The Veterans spent the larger part of 1976-1992 moving from state-to-state, home to home, treatment facility to treatment facility. In 1992, he finally started to come to grips with his experiences in Vietnam, and sobered up. Since that time, the Veteran had a clear history diagnosing (and treating) PTSD in at least 2-3 VA Medical Centers and Outpatient Clinics.
Each time the Veteran sought disability compensation for his PTSD, though, the VA denied his claim for combat-related PTSD. Nevertheless, he continued treatment through the VA. In 2010, the VA finally sent the Veteran for a Compensation and Pension Exam (C&P Exam), and in the 15 minutes that the C&P Examiner met with the Veteran, the C&P Examiner amazingly determined that: the 9 year old diagnosis and treatment plan for PTSD was (apparently) incorrect – the C&P Examiner concluded that the Veteran in fact had a personality disorder and substance abuse that pre-existed his military service (primary and secondary substance abuse will be discussed in a later post). [I am sure that the Veteran was relieved to hear that his nightly-recurring nightmares about the Vietnam War have nothing to do with combat, and everything to do with the substances he hasn't abused in over 18 years.]
The first question might be this: Chris, why do you think this is a function of the new PTSD Regs – after all, Vietnam Vets have been getting a raw deal from the VA (and this country) since the first soldier’s boots hit the ground in Vietnam. Here’s why – in this case, the VA did not contest the in-service and combat stressors – they conceded that they occurred. The VA also did not contest the diagnosis of PTSD by its treating physicians.
Instead, the VA used its C&P exam process to “back-door” one of the requirements of the new regs. The new VA regs require that:
“A Veteran will be able to establish the occurrence of an in-service stressor through his or her own testimony, provided that: (A) the Veteran is diagnosed with PTSD; (B) a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted confirms that the claimed stressor is adequate to support a PTSD diagnosis; (C) the Veteran’s symptoms are related to the claimed stressor; (D) the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service and the record provides no clear and convincing evidence to the contrary.”
I put Requirement (C) in bold – here, the VA C&P examiner has in essence concluded that this particular Veteran’s symptoms are not related to the claimed stressor – they are more related to his substance abuse problem (the substance abuse problem the Veteran “kicked” 18 years earlier). In other words, this “doctor” concluded that the Veteran does not have combat related PTSD but a substance abuse problem which is producing the same symptoms that PTSD might display – 18 years after the Veteran stopped the substance abuse.
Pretty sneaky? Absolutely.
Effective? Sadly, yes – in many cases, the Veteran will not challenge a decision like this and the VA’s strategy might work.
Many Vietnam Veterans return home with three things:
a) Unshakeable memories of some of the most violent combat that our nation’s soldiers have experienced in the last fifty (50) years
b) Alcohol and drug abuse problems (often encouraged by the air-dropping of alcohol to high “op-tempo) units in the field in Vietnam), and,
c) Post Traumatic Stress Disorder from their combat experiences.
What can this Veteran do?
The first thing he can do is to file a Notice of Disagreement (NOD), and request a DRO Review. A VA C&P Examiner may not change a treating physician’s mental health diagnosis without following strict requirements. Here is the passage from 38 C.F.R. §4.125(b), which lays out the elements for a changed mental health diagnosis:
“38 C.F.R. § 4.125(b) Diagnosis of mental disorders. If the diagnosis of a mental disorder is changed, the rating agency shall determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. If it is not clear from the available records what the change of diagnosis represents, the rating agency shall return the report to the examiner for a determination.”
The second thing he can do is to talk to an attorney with experience handling Veteran’s claims for disability compensation. What the VA is doing, not so subtly, is trying to re-cast the Veteran’s combat related PTSD from Vietnam into a pre-military drug abuse problem.
The third thing he might consider doing is take the C&P Examiner’s “opinion” to his treating doctors (or, better yet, an Independent Medical Examiner) and ask them to comment in writing on the Examiner’s changed diagnosis.
Lastly, the Veteran might consider securing an Independent Medical Exam to substantiate the diagnosis of PTSD, and to show that the substance abuse problems were the result of (or better said, a way of dealing with) the PTSD and combat experiences, and not an independent n0n-military related problem with symptoms correlating to PTSD.
If you are a Vietnam Veteran, and the VA has changed your PTSD or other mental health diagnosis in a C&P Exam, please consider contacting the Attig Law Firm to request a free consultation. The VA may be developing your claim for the purpose of denying it, or the VA may not have handled your claim in accordance with the law.
The Attig Law Firm represents U.S. Veterans who have been denied benefits in their VA Disability claims for compensation due to injuries or diseases incurred during military service. The Firm currently represents peace-time and war-time veterans of all branches of the military, at all levels of the VA disability claim process (VA Regional Office, Board of Veterans’ Appeals, and the Court of Appeals for Veterans’ Claims). Contact the Attig Law Firm if you would like to discuss your claim for disability benefits before the VA.
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It is best to consult with a lawyer familiar with VA Disability claims to examine your particular claim. If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appeals, contact the Attig Law Firm, PLLC, for a free consultation with a VA Disability attorney.
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