1. Entitlement to service connection for PTSD
The primary basis for the denial of service connection is the conclusion of the VA examiner that Mr. Lisby does not meet requirements for a DSM-IV diagnosis of PTSD for the reason that Mr. Lisby "did not report any significant psychosocial dysfunction that could be attributed to any Posttraumatic Stress disorder like symptoms." This is simply not true. As documented in the VA Form 21-4138 from Mr. Lisby dated August 25, 2008, a copy of which is attached hereto, Dr. Vasily simply did not ask and/or incorrectly stated what Mr. Lisby said about his psychosocial functioning. Consequently, the examination and it's resulting conclusion are without any merit and should not be considered in any decision. Mr. Lisby is entitled to another C&P examination for clarification of these issues and should not be sent back to Dr. Vasily because he has demonstrated both a lack of objectivity and competency.
Additionally, on July 8, 2008, I, Ralph Bratch, on behalf of Mr. Lisby as his Power of Attorney and agent, sent the Indianapolis Regional Office a letter requesting that a rating decision be postponed until Mr. Lisby and I had an opportunity to review and comment upon the recent C&P examinations, including Dr. Vasily's. However, instead of granting the veteran this opportunity a decision was rendered on the issue without allowing the veteran the opportunity for input. This is a direct and blatant violation of the duty to assist.
2. Failure to adjudicate the claim for Anxiety Disorder
The VA has a duty to give sympathetic reading to a veteran's filings and adjudicate all potential claims reasonably raised by the evidence of record. The VA continues to have the duty to consider all legal theories raised by the record that may lead to a grant of the benefits requested, regardless of whether they are specifically raise by the claimant. (See V.B.M. 3.1.7 citing numerous cases as authority).
The VA examiner, Dr. Vasily, concluded in that Mr. Lisby suffered from a mixed anxiety-mood disorder (anxiety disorder not otherwise specified) that he further opined was, in part, the result of his military service. Given that the condition is inextricably intertwined with other admittedly non service connected issues, Mr. Lisby is entitled to service connection for the condition.
