free_spirit_etc

Broncovet says: "3. You wait again. If you submit more evidence, you will have to wait for a SSOC." So does this mean if you do not submit more evidence you don't have to wait for a SSOC? That would be great news!

That is great that you got some movement on your claim. Hoping it will continue to move... in the right direction.

Here is a BVA case on the matter: The minor children have the right to substitute for the appellant and continue the claim. But they need to make sure it is done properly or it can take forever. http://www.va.gov/vetapp12/Files4/1229764.txt

I was under the impression this is already a survivor's claim. And the question is whether the survivors of the survivor would be entitled to benefits. Am I correct? Part of that depends on if the claim is decided prior to the survivor's death. And part of it depends on the age of the children. I know some of the regulations have changed since 2008. But I am thinking that the children still have to be under 23 to get full accrued benefits. It would probably be best to do what you can to get the decision processed quickly, based on your terminal illness.

Thanks for the info SubicBay. I can see that you are shooting for that the condition actually did manifest while you were in the service. And it looks like you have a strong case. But I was asking when you finally got the official diagnosis of MS. I know that sometimes takes awhile for them to figure out.

There is some interesting info on obtaining clarification or an additional exam in this case: https://veteranclaims.wordpress.com/2010/11/05/savage-v-shinseki-no-09-4406-clarification-of-exam-report-cfr-4-2-insufficient-exam-report/ Don't expect anyone lower than the BVA to understand any of this.

I am so sorry to hear this. Is this for a DIC or accrued benefits claim? Are your children still underage?

What a wonderfully descriptive term!

I am not sure about the exact regulations, but I was thinking there is one that if the VA considers an exam inadequate -- then they are supposed to obtain another exam. That was why I stopped pushing the issue of whether the exam was adequate or not. I just let them keep their crappy exam -- and addressed it at face value in my appeal. So - at the RO level - I am thinking (and I am sure someone will correct me if I am wrong) if they actually consider your exam to be inadequate, they are supposed to grant you another one. As long as you are going to get IMOs, I sometimes wonder how useful it is to have the VA provide you with another exam. Sometimes it might be better to take it at face value -- since it is easy to defeat a crappy, poorly written exam that is not based on sound reasoning at the BVA level. (** However, if you do write the VA and challenge the exam, they will probably ignore the letter anyway... and not order another exam. And at least you will have a record of the challenge if needed at the CVAC level. But how much you want to keep pushing the issue after your initial challenge might be another matter). At the BVA level, they should only seek another opinion if there is not enough evidence in the file for them to make a decision without another opinion, otherwise, they are on a fishing expedition to deny the claim. It is pretty hard to conceive why they would actually need an additional opinion in most cases, since: When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).”

They can actually seek more evidence if they decide more evidence is needed to make a decision, even on an appeal. I didn't mess with submitting an IMO to the RO because I didn't want to take a chance they would seek another opinion (under the guise of needing it in order to make a decision) to use against me. I submitted my IMOs at the BVA level and tried to point out that the evidence was strong enough to grant the claim (i.e. that they didn't need to seek another opinion to decide). In your case, it sounds like you have some pretty strong medical evidence - and the VA has pretty weak evidence. So you would point out how all the evidence supports the claim. They should not need to seek another opinion. They are actually only supposed to seek a medical opinion if they cannot decide the case without another opinion. There are other case citations that state the VA should not develop the claim in order to deny it. I used the one that stated they shouldn't continue to seek medical opinions if the medical evidence was unrefuted, because I was able to apply it in my case. It may also apply in your case. I don't know. It depends on what the C&P examiner they are using actually said. If they are just basing their opinion on the fact you weren't diagnosed in service, I would say your IMOs might still be unrefuted. This was part of my "argument" to show my IMOs were unrefuted: "As evidence in the record reported the asymptomatic nature of lung cancer in its early stages, the VA examiner’s October 2007 opinion does not conflict with the evidence we submitted in support of the claim. Though the VA examiner did not address this well-established medical principle when opining whether my husband’s viral respiratory illness could be early manifestations of lung cancer, he also did not indicate that lung cancer requires obvious respiratory symptoms in order to be present, nor provide any rationale to support such a conclusion. He merely opined that my husband’s viral respiratory illnesses were less likely than not early manifestations of lung cancer."

Bronco, I am not asknod -- but I was very concerned with this in my claim. That is why when I decided I needed to go to the BVA to be granted, I changed my strategy. I did not even bother submitting IMOs to the RO. Why play my hand and give them the opportunity to let them draw another card? I just let them play their cards -- and started building my own hand to play at the BVA. The opinion they obtained right after my husband's death was so weak it was pathetic. At first I was offended that they dismissed my husband's life with a brief hand written (scribbled) opinion. But I let that be their hand. It was easy to trump. Luckily, in my case, their opinions did not outright refute the opinions I obtained. They played the "deny by side-stepping the actual issue" game. Though their opinions stated "less likely than not," they did not address the major issue. So I was able to argue (sorry asknod): "1. The only competent medical evidence in the record that specifically addresses whether it is more likely than not my husband’s cancer had its onset in service clearly establishes that it did. 2. The VA has obtained two VA medical opinions concerning the claim. Neither VA examiner actually refuted the assertion that my husband’s cancer had its onset in service, nor provided any sound medical reasoning for doing so. 3. As there is substantial competent medical evidence establishing my husband’s lung cancer had its onset in service, and no competent medical evidence that actually conflicts with this, I believe that the probative evidence is in favor of the claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (“The Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted…).” " In the event the VA medical opinion actually refutes what your IMO says, I think it could be a bit harder..especially if they give sound medical reasons for doing so. But part of the strategy would be to try to keep them from drawing another card every time you play your hand. In my case, I just waited to play my hand.

They consistently violate the regulations concerning post-service diagnosis of disease. §3.303(d). §3.303(d) does not require an illness to be diagnosed or treated in service in order to establish service connection. It is not easy to get SC granted, but it is possible. However, it is hard to even get them to consider this regulation. It is so hard that most people will advise you not to pursue a claim unless treatment is noted in your SMRs. But with MS, the fact that the VA allows 7 years before the disease even becomes manifest at all, is showing that they realize it takes a long time to manifest and a long time to be diagnosed. The fact that they are honing in on whether it was diagnosed in service shows they are not even considering the nature of the disease.

You can also look up BVA cases on MS and read both cases that have been denied and cases that have been granted. Pay attention to the reasoning given in both. The information you find might give you lots of info to build your case.

Keep it factual. spell out the evidence in support of the claim, connect the dots, quote relevant laws. Then look for any weaknesses in your argument, or places that give them some wiggle room, and try to plug those holes. Stay focused on your purpose -- to be granted benefits. Don't let them pull you into side arguments. Also - pay very close attention to what they ignore -- The keys to winning are often in those issues / evidence. They will often fail to mention things things that will grant the claim. If they can't outright combat the issue / evidence, or twist it enough, they will often fail to mention it. So keep the focus on YOUR argument, and keep bringing up the things they fail to mention.

"Specifically, you probably want to "Attack" the VA doc who opined against you. Just look on your C and P exam for the C and P examiner who opined against you and check his qualifciations. Make sure the C and P examiner ACTUALLY did opine what the VA said, as Berta pointed out they often can not read." This is an excellent point. When we finally got my husband's medical records, and C&P reports, I found several cases on some of his older claims where the RO twisted what the C&P examiner had said in order to deny the claims. In one claim the C&P examiner cited specific evidence in the STRs that showed the condition not only started in service, but was diagnosed as chronic in service. The RO said the condition was NOT shown to be chronic in service. So no, you cannot go by what the RO says the doctor said. They twist their own doctors' words as well. CHris Attig, the attorney, has special wording he recommends for attacking a bad C and P exam, and that has been posted. If you can not find it, I will help you try. The wording you need is here on hadit and on Chris Attig's website. Your nod needs to include wording disputing the Doc's qualifications to examine you due to lack of expertise in that field. If you do NOT dispute the adequacy of the exam, YOU wont be able to do it later, at the CAVC level, if necessary. The doc is given a presumptive, if you dont dispute his expertise/qualifications they are assumed good. This is also an excellent point! In my husband's case, we wrote a letter to the RO that we considered the exam to be inadequate, and gave the reasons why. They ignored our letter. We continued to state our position that the exam was inadequate (and the reasons) on all of the appeals. However, when I finally figured out I would need to go to the BVA to be granted, I backed off that a bit. At that point, because the decisions were so crappy, and couldn't be considered very probative, I didn't really want to keep opening the door for them to get another opinion, and find someone who would write another crappy opinion, but support it better (and make it more probative). So I just figured they had laid their cards on the table and played their hand. Now, all I had to do was trump their hand. I didn't want them to start drawing more cards to try to beat my hand. So, though I argued that the RO was in error to rely on those opinions, I didn't push for the opinions to be considered inadequate, and give them one more chance to obtain another opinion. I pointed out the weaknesses in their opinions, and pointed out the strengths in my opinions. The BVA decision stated "In consideration of the opinions of the two private oncologists, both of whom opined that the Veteran's fatal lung cancer "certainly" began in service, the Board has determined that the Veteran's lung cancer likely began on active duty and that service connection for the cause of his death is thus warranted. In so finding, the Board accepts the private oncologists' opinions as being the most probative medical evidence on the subject, as such were based on a review of all historical records, and contain detailed rationale for the medical conclusions. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination reports, and the fact that the opinions were based on a review of the applicable record, the Board finds such opinions are probative and material to the Appellant's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). The March 2002 VA negative etiological opinion is entitled to less probative weight, as it does not specifically address whether lung cancer had its onset in service. Similarly, the October 2007 VA opinion is entitled to less probative weight, as it concentrated on whether the Veteran's in-service respiratory complaints were an early manifestation of his lung cancer and not the growth rate of the disease and whether the asymptomatic tumor was present in service. To the contrary, both private oncologists reviewed the record and cited extensively to their own expertise in the field as well as the current state of medical knowledge in reasoning that the Veteran's lung cancer likely began while he was in active duty. Thus, in light of the opinions of the private oncologists, which both cite to applicable studies and contain supporting rationale, the Board finds that the Veteran's lung cancer likely began while he was on active duty, and entitlement to service connection for the cause of the Veteran's death is established."

Could you post what the C&P examiner said?

The decision doesn't even show they considered whether it could be presumptive.

http://www.vetsfirst.org/obtaining-va-benefits-for-veterans-with-multiple-sclerosis/ http://www.benefits.va.gov/warms/bookc.asp#p 8018 Multiple sclerosis: Minimum rating........................................................................................................ 30 So ANY manifestation of a condition that is later identified as MS should meet the 10% standard required. And again, this doesn't even have to be while in the service. It only has to show some type of symptoms within 7 years of your discharge to be considered presumptive.

When were you actually diagnosed?

In many cases, if the RO wants to deny the claim, they will deny the claim, regardless of what the evidence says. If it is a simple misinterpretation of information, that might be resolved at the RO level. If they are twisting and distorting information in order to deny a valid claim, they will most likely continue to do so. In my case, I saw enough evidence of twisting and distorting information that I pretty much decided my claim would never be granted at the RO level. I went through the motions with them that I had to, but focused mostly on getting my claim ready for the BVA. Unfortunately, this takes time. But I didn't want to waste any more time at the RO than necessary, because I figured I needed to get to the BVA to have a better chance of having a decision made based on the actual facts and evidence.

Love it!

"It has been three years since my discharge, does the VA not look favorably on those who file claims so long after being discharged? I didn't file because I felt and still feel that there are others who are much more deserving of these benefits than myself." The time between your discharge and when you file your claim shouldn't matter (except in regard to getting back pay). What matters is if the medical evidence shows the PTSD was manifest in service or was caused by some event in the service. Please note the VA motto merely says, "“To care for him who shall have borne the battle” It does not say “To care for him who shall have borne the battle as long as there is no one more deserving....."

Was your MS diagnosed within 7 years of discharge? If so, you might try for presumptive service connection. If not; don't let them convince you that it has to be diagnosed within 7 years to be service connected. Actually, it only has to become manifest to the point that it is 10% disabling within 7 years of service. §3.307(a) (3) Chronic disease. The disease must have become manifest to a degree of 10 percent or more within 1 year (for Hansen's disease (leprosy) and tuberculosis, within 3 years; multiple sclerosis, within 7 years) from the date of separation from service as specified in paragraph (a)(2) of this section. So, though most chronic diseases have to be manifest to the 10% degree within a year of discharge to be granted under the presumption, with MS they give you 7 years before it has to be manifest to that point. That doesn't even mean it has to be diagnosed. Many diseases are not diagnosed until they become more than 10% disabling. Also - pay attention to §3.307 © © Prohibition of certain presumptions. No presumptions may be invoked on the basis of advancement of the disease when first definitely diagnosed for the purpose of showing its existence to a degree of 10 percent within the applicable period. This will not be interpreted as requiring that the disease be diagnosed in the presumptive period, but only that there be then shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree. AND -- Even if you aren't granted presumptive service connection -- you can still fight for direct service connection: §3.303(d) states “Postservice initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.

Whomever thought they were going to push you to the side that easy was mistaken. :)

Awww - That is downright sweet asknod! And to have asknod, the champion of champions in VA battles, be proud of me -- that is such an honor.