miked23

Berta, Do you have an email or another secure place I can send the IMO so you can read it and discern where it might be deficient? Thanks, Mike

Berta, I did file a strong medical opinion, and it was totally ignored by the DRO, and only tangentially referenced in the remand. The physician who wrote the medical opinion is both an attorney and doctor who specializes in VA cases. it was really frustrating to have the DRO not even list the medical opinion as a document that was reviewed, even though earlier documentation from the VA described it as "well-reasoned". You are correct about the C & P "physician", who among other things stated that he looked at my 'C' file and there was no reference for continuity of problems, even though there were 12 different medical reports that showed exactly that. Another thing you might find interesting is that my EDS is severe enough to require me to wear long-leg braces since the '70's. The C & P "doctor" mentioned them but then stated that I didn't use any kind of device. The VA has provided new braces for me 3 times and the 4th set is being made at this time, so evidently they agree that they are necessary. Also, though the remand indicated the VA had never examined me specifically for EDS, in fact, I have been examined by orthopedics three different times, and rheumatology sees me every year to follow-up, and ophthalmology sees me every year for EDS as well. I did call the white-house hotline as you suggested, and they were great, but I am still awaiting a response from them. On the other hand, I didn't try the IRIS line. You can see why I am so frustrated with the VA. It isn't merely a matter of me disagreeing with their decisions, they have shown a surprising degree of incompetence.

Berta, Here is the webpage that precipitated my first inquiry. Notice that the wrong conditions are still listed, and when I called the help line, they also indicated the records showed the conditions as listed on this page. An official website of the United States government Here’s how you know Get help from Veterans Crisis Line Search Help Michael Explore and Apply for Benefits Manage Your Health and Benefits Request Your Records Find VA Locations Home Disability Benefits Track Your Claims and Appeals Appeal of October 2011 Claim Decision Appeal of October 2011 Claim Decision Up to date as of May 12, 2018, at 2:14 a.m. (ET) Status Issues Issues Currently on appeal Remand Service connection, lupus Service connection, sciatic nerve neuritis Service connection, hypertensive vascular disease Service connection, osteoporosis Need help? Call the Veterans Affairs Benefits and Services 1-800-827-1000 Monday - Friday, 8:00am - 9:00pm (ET)

Berta, Per your request, here is a copy of the remand. Sorry for the formatting, I don't know how to insert a PDF. BOARD OF VETERANS' APPEALS DEPARTMENT OF VETERANS AFFAIRS WASHINGTON, DC 20420 IN THE APPEAL OF MICHAEL DOCKET NO. ) ) ) DATE On appeal from the APR 26,2018 Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for Ehlers-Danlos Syndrome type II (hypermobility type). 3. Entitlement to service connection for a neurological disorder. 4. Entitlement to service connection for osteoporosis. REPRESENTATION Veteran represented by: Valerie D. Metrakos, Attorney ATTORNEYFORTHEBOARD Donna D. Ebaugh, Counsel IN THE APPEAL OF MICHAEL INTRODUCTION The Veteran served on active duty from December 1966 to December 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the RO in Oakland, California. The Board notes that although the Veteran initially appealed six issues, following the issuance of the statement of the case, he limited the appeal to the issues listed on the title page above. See October 2014 Substantive Appeal Form 9. Thus, the Board does not have jurisdiction over the issues of entitlement to service connection for anemia and tinnitus. The appeal is REMANDED to the Agency of Original Jurisdiction (A OJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Regarding service connection for hypertension, there is no dispute that the Veteran has a current diagnosis of the same. The Veteran asserts that his hypertension is either directly related to service, or secondary to his service-connected posttraumatic stress disorder (PTSD). The Veteran has not yet been provided with a VA medical opinion to determine whether his current hypertension is related to service or service-connected disability. The Board observes that the Veteran's separation examination revealed blood pressure readings of 150/80 and 136/80. The 150/80 reading was noted to be a high blood pressure reading at the time, although no diagnosis of hypertension was -2- IN THE APPEAL OF MICHAEL rendered at that time or within one year of separation. Regarding secondary service connection, the Veteran asserts that clinical study evidence suggests that PTSD causes hypertension. See October 2014 Substantive Appeal Form 9. Given his current diagnosis of hypertension and the incident of a high blood pressure reading in service as well as statements regarding clinical studies relating hypertension to PTSD, a VA opinion is necessary under McLendon v. Nicholson, 20 Vet. App. 79 (2006) to determine whether the Veteran's current disorder is causally related to active service or service-connected disability. Regarding the claim for service connection for Ehlers-Danlos syndrome, Type ill (EDS), the Veteran asserts that the hypermobility syndrome preexisted his military service and was aggravated by service. In this regard, the Veteran asserts that EDS is a congenital disorder even though it was not diagnosed until many years after service. Generally, a veteran is presumed to be in sound condition when examined and accepted into service except for defects or disorders noted at that time. 38 U.S.C. § 1111. The presumption is rebutted where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. "[T]he Government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness ... " Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see VAOPGCPREC 3-2003 (July 16, 2003) (cited at 69 Fed. Reg. 25,178 (May 5, 2004)). Significantly, the presumption of soundness applies to congenital diseases, but not congenital defects. See Quirin v. Shinseki, 22 Vet. App. 390 (2009). The Board observes that congenital and developmental defects are not "diseases or injuries" in the meaning of applicable legislation for disability compensation purposes. 38 C.P.R.§ 3.303 (c), 4.9. VA's General Counsel has held, however, that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease - 3- IN THE APPEAL OF MICHAEL within the meaning of applicable VA regulations. V AOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303 (c), 3.306. According to the VA General Counsel's opinion; however, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. V AOPGCPREC 82-90. In this case, EDS was not noted on the Veteran's service entrance examination. The Veteran asserts that EDS was present during service, even though it was not known at the time, and that it was aggravated by the multiple shoulder and knee problems in service. In a May 2012 VA examination undertaken for knee and shoulder claims, a VA examiner indicated that the Veteran had generalized looseness of joints due to congenital EDS. The examiner also specifically noted that the Veteran was known to have a congenital condition of Ehlers-Danlos Syndrome with loose joints. The VA examiner did not address whether EDS is a developmental defect or disease or discuss any relationship to service. In an October 2012 report, Dr. D.M. opined "[t]here is no question that the trauma the veteran sustained to his right shoulder during military service has permanently aggravated his [EDS] as it relates to the right shoulder." The October 2012 Independent Review by Dr. D.M. was undertaken for the purpose of determining whether the Veteran had knee and shoulder disorders related to service. Thus, Dr. D.M.'s report did not discuss whether EDS is a developmental defect or disease, or offer rationale for the aforementioned opinion. As the Veteran has not been afforded a VA examination specifically for the EDS disorder and there remain pertinent medical questions, the Board finds that a VA examination is required. See McLendon, supra. With respect to the claims for service connection for a neurological disorder and osteoporosis, the Board finds that these claims are intertwined with the claim for EDS. In this regard, the Veteran asserts that these disorders are secondary to EDS, if not directly related to service. See October 2014 Substantive Appeal Form 9. See -4- IN THE APPEAL OF MICHAEL Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Lastly, in order to ensure that all of the pertinent treatment records are reviewed, any outstanding VA outpatient treatment records should be obtained. The most recent VA treatment records in the file are dated in March 2013. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated since March 2013. 2. Afford the Veteran a VA examination to determine whether the Veteran's hypertension is due to service or service-connected disability. The content of the entire electronic claims file, to include a complete copy of the REMAND must be made available to the individual designated to issue the opinion and the examiner should discuss the Veteran's documented medical history and assertions. The examiner is asked to answer the following questions: (a) Is it at least as likely as not (a 50 percent probability or higher) that the Veteran's hypertension had its onset in service, during his first post-service year, or is otherwise related to service? In reaching any conclusion, the examiner is asked to consider the instance of a high blood pressure reading (150/80) at service separation. -5- IN THE APPEAL OF MICHAEL (b) If the Veteran's hypertension is not directly related to service, is it at least as likely as not (a 50 percent probability or higher) caused or aggravated by the Veteran's service-connected PTSD? In reaching any conclusion, consider the Veteran's reference to clinical studies which relate hypertension to PTSD. The examiner must provide complete rationale for the conclusions reached. 3. Afford the Veteran a VA examination to determine whether his Ehlers-Danlos syndrome, type III (EDS) is related to service. All necessary studies and/or tests should be conducted. The content of the entire electronic claims file, to include a complete copy of the REMAND must be made available to the individual designated to issue the opinion and the examiner should discuss the Veteran's documented medical history and assertions. The examiner is asked to answer the following questions: (a) Does the Veteran's diagnosed EDS, constitute a congenital defect or disease? (b) If the Veteran's EDS is considered a congenital defect, is it as likely as not that there was a superimposed disease or injury in connection with the congenital defect during the Veteran's active duty service? (c) If EDS is a disease, did it clearly and unmistakably preexist the Veteran's active duty military service? -6- IN THE APPEAL OF MICHAEL (d) If the answer to question (c) is "yes" is there also clear and unmistakable evidence that EDS was NOT permanently aggravated beyond its natural progress during service? (e) If the answer to either question (c) or (d) is "no," assume as true that the Veteran did not enter service with the disability. With this assumption in mind, is it at least as likely as not (i.e. a 50 percent or greater probability) that EDS had its onset in service, or is otherwise related to active service? The examiner must provide complete rationale for the conclusions reached. 4. After completing items 1 through 3, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. ApJ?. 369 (1999). (CONTINUED ON NEXT PAGE) -7- IN THE APPEAL OF MICHAEL This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S. C. § 7252 (2012), only a decision of the Board ofVeterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.P.R. § 20.1100(b) (2017). - 8-

Berta, in reference to your questions, I looked it up, and it was in 2016 that I called and was told the case was closed in 2014. They reopened it because they had no idea why it was closed in the first place. At that time, I hadn't moved or anything, although I recently moved as a result of the October wildfires in Santa Rosa. It was a relief to see that they ordered the remand for the correct conditions, although the website still shows the wrong ones.

As an update: I went to the Oakland VA office today and got a copy of the remand. Despite what the VA website says about the contested conditions, they did, in fact, make their remand on the correct issues. I am contending that my EDS got worse as a direct result of my time in the military. The remand is somewhat confusing as it asks whether EDS is a condition or a disease. If it is a condition, then I must show aggravation (I do), but if its a disease then I must show aggravation. Forgive me but I fail to make the distinction, either way, I need to show aggravation, which I did. There are many medical reports in my 'C' file, by several different doctors spanning over a decade, as well as a long written medical opinion that tied several distinct things that happened in the military (and which are in my military records) that obviously aggravated the condition. My VA records also show a diagnosis of EDS (many actually), and I have seen orthopedics several times as well as rheumatology every year. Nobody is contesting the diagnosis or the seriousness of the condition, just whether or not it was aggravated by the military. I am wondering just what they expect, a bolt from the blue? In the first denial, they contended that 1. It is genetic, therefore I had it before entering the military, and 2, that it was not diagnosed for many years, therefore I didn't have it while in the military. It is frustrating dealing with that kind of circular logic.

In 2011 I filed an appeal with the VA. In 2012 I filed a NOD and a form 9. I called the VA several times and was assured my case "Was working its way through the process". Then around 2015 I called and was told: "Your case has already been closed, but there is no reason why." The VA then reopened my case. Finally, it recently showed it was "Pending dispatch", but for the WRONG claims! For example, I filed for Ehlers-Danlos syndrome but they then showed Lupus. I filed for high blood pressure, and they showed Sciatica. I called again and was told those were errors because my form 9 showed Ehlers-Danlos not Lupus etc. How can I deal with this? As far as I can tell, it is currently being decided, but for the wrong claims! This is really frustrating, its hard to believe how incompetent they seem. What should I do at this point? The last thing I want to do is start the 7 1/2 year process all over.

In 2011 I filed an appeal with the VA. In 2012 I filed a NOD and a form 9. I called the VA several times and was assured my case "Was working its way through the process". Then around 2015 I called and was told: "Your case has already been closed, but there is no reason why." The VA then reopened my case. Finally, it recently showed it was "Pending dispatch", but for the WRONG claims! For example, I filed for Ehlers-Danlos syndrome but they then showed Lupus. I filed for high blood pressure, and they showed Sciatica. I called again and was told those were errors because my form 9 showed Ehlers-Danlos not Lupus etc. How can I deal with this? As far as I can tell, it is currently being decided, but for the wrong claims! This is really frustrating, its hard to believe how incompetent they seem. What should I do at this point? The last thing I want to do is start the 7 1/2 year process all over.