38 U.S.C 1702

38 U.S.C 1702

44

    Dec 15, 2013#1

    Hi to all who read this post. I'm lost for words and  in need of serious help. I'm a veteran of the gulf war era and have been denied  for PTSD even with lay evidence. After years of denial of my illness I finally filed for benefits 10yrs later after this 2yr seperation law 38 U.S.C 1702 My question would be do I have a chance of winning this appeal for PTSD or should i look to file for a secondary disorder. It's baffling to me how the VA can put a timeline on filing a claim.Thank you

    14K1,349
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    14K1,349

      Dec 15, 2013#2

      The problem is that lay evidence simply will NOT be adequate for filing a claim.

      You need a diagnosis from a Psychiatrist or Clinical Psychologist (Doctorate level). It also helps a LOT to have treatment records, etc.

      Now, your problem is to prove that your PTSD is caused by events while you were in service. You need to have a copy of your entire Service Medical Records (SMR's), which you can get from the VA Regional Office that is handling your claim.

      Then, you need a professional to tie your current problems to your time in the service. They can't just say, "Mr. lost10years is disabled because he served in the Gulf War". They have to be able to show that the events that you were exposed to caused emotional trauma, and that you current problems are directly related to that trauma. In order to do that, it will require at a bare minimum, a comprehensive evaluation, and probably Psychological Testing.

      Then, if you can flesh out things by obtaining written reports from lay people (ones that do NOT benefit from you getting benefits help a LOT. People like former employers, clergy, etc. Spouses DO have a financial interest, so their evidence has to be more carefully stated. NONE of those people can diagnose you with PTSD. They can ONLY describe your behaviors, how you react to certain things, etc. Family members and long term friends can write about how your personality changed from before, to after the Gulf War.

      The time frame that you mentioned was for a "Presumptive" disorder. For the first year after discharge (or release from active duty), virtually anything that you come down with will be considered to be Service Connected. You missed that deadline by about 9 years.

      I would VERY strongly suggest that you get a Veterans Service Officer (VSO) to help you with your claim. You obviously do not understad the process, so help is definitely indicated.
      The Old Medic, M.A., M.S., Ed.D
      US Army 10/1959 - 09/1969 SFC E-7
      91C40 91F40 91B40 55G20

      Licensed Clinical Psychologist (Retired)
      Certified Rehabilitation Counselor (Retired)

      2,42561
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      2,42561

        Dec 15, 2013#3

        Nothing to add. OM answered it more comprehensive than I would have. Great advice given.
        Pop
        Hae autem princeps / no pugnam win

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        44

          Dec 15, 2013#4

          Thank you for your reply, that's some vital info. My denial letter quotes "Although you have a diagnosis of ptsd by a vamc staff psychiatrist, the denial of SC for ptsd is confirmed and continued.  The evidence of records does not demonstrate that your diagnosis of ptsd has been linked to a verified in-service stressor. As such, the denial is continued."So now i'm like a rock in a hard place of not knowing what to do or route to take.

          3,8475
          3,8475

            Dec 15, 2013#5

            The bottom line is connecting your stressor to your active service.

            If the event happened outside of that, that is the problem.

            65

              Dec 15, 2013#6

              I to was a gulf war vet. been out since 94 in 2010 the va said I had ptsd they sc it but ithink it had more to do with my wife talking to them then me.find you a vet center in your area and start getting help and try again

              2,42561
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              2,42561

                Dec 15, 2013#7

                The rock and hard place are only as related to the VA.

                You can still get treatment for the PTSD. It just won't be at the VA unless you work something out with them.
                Pop
                Hae autem princeps / no pugnam win

                https://scontent-dft4-3.xx.fbcdn.net/v/t1.0-9/22089413_10155568325407040_2267588676296593077_n.jpg?oh=a328b2115c4f9bb3acb452ba3b70be5a&oe=5A7AEDFE

                4,91029
                10 Year Member10 Year Member
                4,91029

                  Dec 15, 2013#8

                  plilley wrote:
                  I to was a gulf war vet. been out since 94 in 2010 the va said I had ptsd they sc it but ithink it had more to do with my wife talking to them then me.find you a vet center in your area and start getting help and try again
                  I am a bit confused here.  You say they service-connected you in 2010?  What do you mean by that?  If the VHA treated you for PTSD that alone does not make the disability service-connected.

                  Based on what you have offered, you must present a verifiable in service stressor.  You can provide facts relating to this event, but it must be able to be verified.  This is normally done through unit records, awards and citations, and in some cases by buddy statements which also must be verifiable.


                  In regards to 38 USC, Section 1702, this deals with a presumptive disability and an associated time period for the manifestation of the disability.  If it can be shown that you were diagnosed with PTSD within the time period specified, it does not matter when the claim was filed.  If, as it appears to be here, the diagnosis is beyond that period then the presumptive does not apply.  That does not mean it cannot be service connected.


                  As others have indicated, return to treatment or continue if you are in a program now.
                  Cav1Sgt

                  3,08762
                  ..
                  3,08762

                    Dec 16, 2013#9

                    Presumption applies to a psychosis, and PTSD is not a psychosis so a dx of this condition within one year after service is pretty meaningless.

                    What does apply is a diagnosis by the appropriate specialist, evidence of an event in service that caused the PTSD and a nexus between the 2.

                    You need to talk to your psychiatrist or clinical psychologist so that he/she can form a nexus in order for your claim to be approved. Once that is done VA will apply the laws governing the correct effective date for your compensation.

                    Ivac

                      Dec 16, 2013#10

                      I have been asked by another VSO to clarify something ......and I am doing it because I don't recall ever seeing 1702 discussed here before.

                      1702 provides a presumption " for treatment purposes " for a psychosis that is diagnosed within 2 years after service. That has no applicability to service connection and compensation, all it does is allow VAMC to treat a vet to whom this applies.

                      A presumption of service connection applies for a vet who has no in-service record of a psychosis but has a diagnosis made within one year after separation.

                      If anyone has any questions about either, please post them here and I will try to respond promptly.

                      Ivac

                      44

                        Dec 16, 2013#11

                        Thank you all for taking the time out and giving your well needed advice. Given the fact i'm clueless to when it comes to this i clearly need more insight. So i even though i didn't apply immediately 2yrs after separation is it possible i can still be granted SC, its a matter of now getting my Dr. form a nexus letter and linking my in service stressor.

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                        2,42561

                          Dec 17, 2013#12

                          I think I know what u just said 10yrs but its not just getting the doc to form the nexus and link it.

                          The nexus needs to be proven. A doc can say anything but it needs to be "verifiable".
                          Pop
                          Hae autem princeps / no pugnam win

                          https://scontent-dft4-3.xx.fbcdn.net/v/t1.0-9/22089413_10155568325407040_2267588676296593077_n.jpg?oh=a328b2115c4f9bb3acb452ba3b70be5a&oe=5A7AEDFE

                          3,08762
                          ..
                          3,08762

                            Dec 17, 2013#13

                            Lost, forget 1702 - all that provision did for you was get you VA medical treatment without you having to show that you are eligible for VA treatment based on some other provision the laws & regs.

                            Your problem, and your post, seem to be about how to have VA grant SC for PTSD - this basically means you have to provide evidence of an in-service stressor event, a diagnosis of PTSD and medical evidence of a nexus between the stressor event and the PTSD. PTSD has been granted to vet's who left service many years in the past, so the amount of time lapsed since service is not a factor.

                            The denial could be based on the fact that you have claimed a combat stressor and your service records do not show combat, or possibly your doc has not linked your PTSD symptoms to whatever you claimed was a stressor event. Without access to your records I can only guess.

                            I can suggest that you have an accredited VSO review your records and advise you on the next step.

                            Ivac

                            44

                              Dec 17, 2013#14

                              Ivac wrote:
                              The denial could be based on the fact that you have claimed a combat stressor and your service records do not show combat, or possibly your doc has not linked your PTSD symptoms to whatever you claimed was a stressor event.
                              I actually agree with you Ivac that may be the problem  i claimed a combat stressor which my service records doesn't show. I never went into combat or even deployed across seas but i guess my doc did not link my stressor but only diagnosed me.

                              3,8475
                              3,8475

                                Dec 17, 2013#15

                                Why are you claiming a "combat stressor" if you were never in combat?

                                3,0791
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                                3,0791

                                  Dec 17, 2013#16

                                  lost10yrs wrote:
                                  Ivac wrote:
                                  The denial could be based on the fact that you have claimed a combat stressor and your service records do not show combat, or possibly your doc has not linked your PTSD symptoms to whatever you claimed was a stressor event.
                                  I actually agree with you Ivac that may be the problem  i claimed a combat stressor which my service records doesn't show. I never went into combat or even deployed across seas but i guess my doc did not link my stressor but only diagnosed me.
                                  lost, What is your active duty stressor, that resulted in a diagnosis of PTSD ?

                                  44

                                    Dec 17, 2013#17

                                    AKC wrote:
                                    Why are you claiming a "combat stressor" if you were never in combat?
                                    From my understanding i thought a veteran didn't have to actually be in combat to have this disorder but have either witness an event or own life put in harms way which has happen to me. If im wrong someone please let me know i cannot express how helpful you all are.

                                    88516
                                    88516

                                      1702

                                      Dec 17, 2013#18

                                      I think the old medic gave you good advice. You have a case that is going to require expert help.  It is not necessary to have been in combat to to experience an event which is out of the norm of human experience. If you experienced a traumatic event of this type while on active duty and as others have a said a nexus (connection) can be made to your service then you you may file and have a a good shot at a rating.

                                      Unless you can do this I would rate your chances as poor. In any case get yourself a VSO who is interested and motivated and let them evaluate your case.

                                      3,8475
                                      3,8475

                                        Dec 17, 2013#19

                                        lost10yrs wrote:
                                        AKC wrote:
                                        Why are you claiming a "combat stressor" if you were never in combat?
                                        From my understanding i thought a veteran didn't have to actually be in combat to have this disorder but have either witness an event or own life put in harms way which has happen to me. If im wrong someone please let me know i cannot express how helpful you all are.
                                        No, that's correct, but it wouldn't be a 'combat' stressor, and in fact would be a 'non-combat' stressor.




                                        Example: Car rolls over three times and comes to a rest in the middle of a road. Trapped inside, both legs multiple fractures rendering you immobile and the elec gas pump is spewing gas all over you and the engine bay, and the engine is leaking hot oil all over you... you are upside down and under the hood still trapped by the lap belts, and the driver had just lit a cigarette prior to the impact.




                                        Non-combat stressor.

                                          

                                        1,024

                                          Dec 18, 2013#20

                                          Lost, try just to focus on providing some kind of documentation that the stressor that you claim caused your PTSD actually happened. The VA is not going to go digging in piles of papper in some warehouse looking for your proof.

                                          It is up to you to prove your stressor happend!
                                          100% P&T


                                          Batsh$@t crazy so I will carry the pig, you can stand over there!

                                          63038
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                                          63038

                                            Dec 18, 2013#21

                                            Lost, several replies have mentioned you find a VSO. I am not sure you know what that is. A VSO is an expert who will help you with your claim at no charge to you. If you let us know where you live, we can point to where you can find a VSO who will help you.

                                            44

                                              Dec 18, 2013#22

                                              Yes i've been getting help from a VSO since i submitted my 1st initial claim for ptsd in Nov' 2010 and i swear the va keep sending me the same denial letter. Like many other vets out there i will continue to fight.

                                              987

                                                Dec 18, 2013#23

                                                lost10yrs wrote:
                                                Thank you for your reply, that's some vital info. My denial letter quotes "Although you have a diagnosis of ptsd by a vamc staff psychiatrist, the denial of SC for ptsd is confirmed and continued.  The evidence of records does not demonstrate that your diagnosis of ptsd has been linked to a verified in-service stressor. As such, the denial is continued."So now i'm like a rock in a hard place of not knowing what to do or route to take.
                                                It will help for you to share what your inservice stressor is. You do not have to give specifics. But, what exactly are you stipulating that caused your PTSD ?

                                                1,024

                                                  Dec 18, 2013#24

                                                  BrokenSolder wrote:
                                                  Lost, try just to focus on providing some kind of documentation that the stressor that you claim caused your PTSD actually happened. The VA is not going to go digging in piles of papper in some warehouse looking for your proof.

                                                  It is up to you to prove your stressor happend!
                                                  Oh look what this guy is saying!
                                                  100% P&T


                                                  Batsh$@t crazy so I will carry the pig, you can stand over there!

                                                  1,167
                                                  1,167

                                                    Dec 19, 2013#25

                                                    Lost, this is your claim there is certain information that only you can provide.  Not only do you need to detail and verify your stressors, you must also seek some medical health.  PTSD is more than just compensation.  You have not really spoke on treatment that you  are undergoing or seeking seeking.  I do hope that you have a successful claim but you are going to have to put this claim together with the assistance of a VSO. Good luck..

                                                    1,10865
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                                                    1,10865

                                                      Dec 20, 2013#26

                                                      A stessor must be caused by an event outside that of the normal human experience. The event(s) is/are usually contained in your medical records, service records, military police or civilian police files, or unit records (ship's log), etc.  Without one of those, a buddy statement can be used.  However, as stated in a post above, a buddy statement must be verifiable. A nexus (connection) of a trauma you sustained while you served must be fact based.  Medically the VA is not denying you have PTSD, they are denying it is connected to your service. The VA has a duty  to assist in your claim which means they will obtain government records or request civilian records (with properly signed releases by you).. Once they exhaust a reasonable efforts to establish proof of your stressor, it is up to you to make your case.  For example a private doctor treated you and after a request from the VA (with a signed release by you) they have not received records after two attempts, the VA will abandon future efforts.  In this scenario, you would have to personally intervene with the doctor and request they immediately comply with a release of your file. 

                                                      You may also wish to discuss your case with another VSO.  Only one can represent you, but that doesn't preclude you from receiving a second opinion.  You can change VSOs if you feel you have not been given proper representation or advice.
                                                      Vietnam '67 - '68
                                                      11B
                                                      100% P&T

                                                      302

                                                        Dec 22, 2013#27

                                                        Lost, go see a Veterans Service Officer. The VSO can send in a request for your records so that the VSO can review to try to locate the nexus. You need help in filing the claim. If a nexus can be found, then the VSO can argue your claim in the best manner possible.

                                                        61

                                                          Jul 26, 2014#28

                                                          See: www.va.gov/vhapublications/ViewPublicat ... ub_ID=2893

                                                          There's the law...and then there's the VA's interpretation of it.

                                                          13K9,388
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                                                          13K9,388

                                                            Jul 27, 2014#29

                                                            Lost, do us all a huge favor and tell us what you are claiming as a stressor and why you are having difficulty in finding proof to verify the stressor.  There are many folks who provide advice on the website that are experts in finding all types of service records but right now we do not really have sufficient info on your claimed stressor to provide opinions in how to proceed.  Good luck with your claim.
                                                             

                                                               
                                                                  
                                                                  A Co. 2nd/2nd
                                                                  1st Infantry
                                                                  11/66-11/67     

                                                            61

                                                              38USC1702 (b) Provides A Presumption of That A MH Disability was Incurred In Service For Treatment

                                                              Jul 27, 2014#30

                                                              Ivac wrote:
                                                              I have been asked by another VSO to clarify something ......and I am doing it because I don't recall ever seeing 1702 discussed here before.

                                                              1702 provides a presumption " for treatment purposes " for a psychosis that is diagnosed within 2 years after service. That has no applicability to service connection and compensation, all it does is allow VAMC to treat a vet to whom this applies.

                                                              A presumption of service connection applies for a vet who has no in-service record of a psychosis but has a diagnosis made within one year after separation.

                                                              If anyone has any questions about either, please post them here and I will try to respond promptly.

                                                              Ivac
                                                              38 USC 1702: (b) Mental Illness.—For purposes of this chapter, any veteran of the Persian Gulf War who develops an active mental illness (other than psychosis) shall be deemed to have incurred such DISABILITY in the active military, naval, or air service if such veteran develops such DISABILITY— (1) within two years after discharge or release from the active military, naval, or air service; and (2) before the end of the two-year period beginning on the last day of the Persian Gulf War.

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                                                                Jul 27, 2014#31

                                                                Here is a link to the Federal Register and it clearly explains that the law is for obtaining health care benefits only as stated by Ivac.
                                                                https://www.federalregister.gov/article ... al-illness


                                                                Edit:  Here is a comment from an expert in this area, Cruiser.


                                                                "38 USC 1702 is found in Chapter 17 of 38 USC.  Chapter 17 contains the laws pertaining to medical care by VA, not compensation.  The laws pertaining to service connection for compensation purposes are contained in Chapter 11.  Nothing in Chapter 17 conveys entitlement to compensation, only medical care."
                                                                 

                                                                   
                                                                      
                                                                      A Co. 2nd/2nd
                                                                      1st Infantry
                                                                      11/66-11/67     

                                                                61

                                                                  Correction: 38USC1702 Is For Medical Treatment

                                                                  Jul 28, 2014#32

                                                                  "We also propose a new § 17.109 that would codify in regulation for the first time two presumptions of eligibility for medical care based on specific diagnoses in certain veteran populations. Pursuant to 38 U.S.C. 1702(a), for the purposes of VA's authority to provide medical benefits under chapter 17 of title 38, United States Code, certain veterans who developed an active psychosis within a time period specified in the statute “shall be deemed to have incurred such disability in the active military, naval, or air service.” The effect of a presumption of incurrence means that VA must provide medical care to the veteran as if the condition for which the veteran is treated were service connected. Although VA complies with this mandate, this statutory authority has never been articulated in a VA regulation."

                                                                  https://www.federalregister.gov/article ... al-illness Although quote above mentions only 38 USC 1702(a), it probably also applies to 38 USC 1702(b) as well. A tip of the hat to both BROVET and Cruiser. Thank you for the clarification.