Preliminary Appeal Draft

[Josh]

The VA examiners fails to mention and correlate competent medical evidence provided by qualified individuals as well as well as statements contained in authoritative writings such medical and scientific articles or analyses. The information contained within the evidence impeached and contradicts, by known facts, the examiner’s review. Therefore, the information far exceeds the 38CFR 3.102 under the reasonable doubt doctrine.

In Dr. Rene Camacho Cordoba’s report and Dr. Reynold´s competent opinion there is sufficient positive scientific evidence for this claim that brings substantial doubt within the range of possibility as distinguished from Dr. Mosier´s statement of pure speculation.

In Dr. Camacho´s document a comprehensive clinical correlation was finally made and definitive care and treatment for “Encephalomyelitis most likely of bacterial origin” was given. He also gives an implicit statement of mistreatment while under VA care when indicates,” The patient, Joseph Hertrich, presents an infectious process, which was left without treatment for a period of seven (7) years”.

Dr. Reynolds bases his retrospective opinion in Dr. Rene Camacho´s report written in 1999. “However, the underlying occult infection continued to run uncontrolled and unchecked. The patient did not benefit from a definitive diagnostic workup or treatment in any US facility”. Dr. Reynolds direct addressed the veteran´s treating physician culpably failed to diagnose a treatable infection of the CNS. “ In retrospect, it certainly appears that a definitive work up and diagnosis could have been accomplished within the VAMC´s, Boulder Medical Center or the HMO with the input of appropriate experts”.

Although clinical work ups were done for the Multiple Sclerosis condition, there was absolutely no clinical nor laboratory correlations made by VA physicians to rule out an infectious process that mimics the symptoms of a disease that has an unknown cause such as MS. As there are no tests available to confirm or refute the diagnosis of Multiple Sclerosis, it is highly appropriate to ruled out all other conditions before a confident diagnosis of MS can be made. Therefore, Multiple Sclerosis is a diagnosis of exclusion and MRI’s are just one piece of a complex clinical picture.

The examiner, Dr. Mosier, continued to disregard evidence that clearly shows the presence of an infectious process (brain abscess). MRI taken on 1995 by Denver VAMC submitted in the previous NOD.

• The images uncontestable show multiple “Ring Lesions” “Very suggestive according to medicine texts to cerebral abscess” ( Dr. Camacho´s report, page 4)
  
• “There are no longer ring lesions demonstrated in white matter” The radiologist's conclusion: “The exact etiology of these findings is uncertain and could be due to demyelinating process, but other etiologies cannot be excluded. Recommend clinical correlation. ( MCDI, Dr. David Daniels).
  
  
  • Description of Brain abscess. ( Page-------).
    
    
    Dr. Camacho also indicates: “The patient was asked and indicated that during that period of time no kind of biopsy was carried out to determine the cause”[1] This is a direct answer as to why there is not a microbiological agent identified. The Denver VA Doctors culpably failed to consider a critical clinical procedure that was available but not performed. This without any doubt failed to determine an infection of the CNS at the time of the abscess.
    
    
    
    This brings to the forefront a major factor addressed by Dr. Mosier’s report in the SOC’s Reasons and Bases section “The screening tests conducted by the VA did not establish a microbiologic diagnosis to refute the clinical and imaging impressions of MS.”
    
    Although his wording is very loose I must assume he is referring to the Cerebral Spinal Fluid (CSF) tests and cultures.
    
    • On 11/06/1995, the Milwaukee VAMC performed a Lumbar Puncture and the CSF Routine Chemistry analysis shows a protein level of 74mg/dl[2] (High) when the upper limit noted at 45 mg/dl. In February of 1996, three months later, they were “elevated” to 87 (mg/dl).
      
    • Elevated CSF protein levels are clearly indication of a potential cerebral infection. ( attach page------Brain Abscess line, Protein Column).
      
    • See attachement page------------taken from the Merck on-line Manual regarding brain abscesses.
      
    • It is of particular interest, that Bacterial are cultured from CSF in LESS than 10% of cases.
      

    With Regard to his statement: “It is unlikely that a chronic, treatable peripheral infection was overlooked by VA physicians”. In numerous VA records you can see the chronic sinusitis noted and in the previous NOD is a clear explanation regarding the dental procedure occurring at the time.

    [*]Most commonly, infectious agents gain access to the CNS by spread from a contiguous focus of infection, such as otitis media, mastoiditis, infection of the paranasal sinuses, or dental infection.[3]

    [*]Look for medical reference sinus infection and dental.

    Regarding Dr Mosier statement “given the absence of an identified infectious agent in the veteran´s case, together with substantial uncertainty in this case as to why the veterans may have improved with his empiric regimens, as well as the duration of improvement, the examiner finds it unreasonable to assume that an apparent treatment response to antibiotics compels a diagnosis of missed infection.

    Contrary to the examiner’s opinion, the conclusions from Dr. Camacho, MD attending physician and Dr. Almeida, Neurosurgeon was that even without an identified agent the most likely diagnosis was an infectious process that was left without treatment and ended in an Encephalomyelitis of bacterial origin.

    Dr. Reynolds, Chief of Neurology Milwaukee VAMC, and years later, Dr. Benedetti, who during examination, concurs with the diagnosis of Encephalomyelitis.

    Dr. Mosier not only denies their competent medical opinion but is contrary to medical practice and research.

    · Symptoms and signs of a CNS infection are commonly identified in the records while under the Kaiser and VA care and were submitted in the previous NOD.

    Without getting into detail here, we will identified some of them: headache, nausea, vomiting, focal neurological deficits develop over days to weeks, fever, chills, and leukocytosis may develop before the infection is encapsulated.

    · CT or MRI is usually diagnostic and most patients are treated without bacteriologic diagnosis.

    · Lumbar puncture is not advised because it may precipate transtentorial herniation. .

    · cultures are rarely positive ( unless the abscess has rupture).

    · Traditional empirical therapy of antibiotics is the commonly understood method of managing CNS infections and in particular brain abscess. Here lies the reason as to why the veteran’s improvement occurred.

    · Dr. Benedetti´s 2003 physical examination four (4) years later, when he states: “Although significant alteration exists in all four appendages, it is noted by comparison with previous medical examinations, Mr. Hertrich has made impressive gains in his physical and motor skills since that period”. This respond to the time of improvement questioned by Dr. Mosier in his review.

    Based on the records mentioned within this document and the evidence supplied by specialists, supported with medical records as well as medical research, show indeed that the veteran suffers from Encephalomyelitis of bacterial origin. Infection that was left untreated for an extended period of time. These are not merely speculations but known facts that produced in the veteran’s physical condition:

    · “Lost of hearing in the left side” copied from Dr. Camacho’s medical opinion in 1999.

    · “a severe debilitating neuromuscular syndrome which, during its prolonged course resulting in varying degrees of quadriplegia, bilateral pyramidal tract involvement with severe gait ataxia and atrophic neuromuscular weakness” copied from Dr. Reynolds’s medical opinion in 2000.

    · “ Physical strength is generally depressed in all appendages, the lower limbs and buttocks show bilateral atrophy in muscle group XVII. Of note when question and bowl and bladder problems indicates a catheter is currently used and training has reduced bowel incontinence” Copied from Dr. Benedetti´s medical opinion in 2003.

    .

    still working on

    Footnotes

    Personal behavior in SOC.

    Question appropriate treatments. Inmunosupresive. Contraindicated. CBC distortion.

    [1] Op sit 6, page 4

    [2] See attached 11/06/1995, Milwaukee, VAMC, CSF results

    http://www.hadit.com/forums/index.php?act=post&do=new_post&f=36#_ftnref3' target="_blank">

[Guest Berta]

This is the stuff they want to ignore-

I would rebutt anything they said negative to your claim- with all of this even if you have already sent it to them----

They hate 1151s and will do all they can to discourage the claimant-

They have to practically be hit over the head with evidence like this-

I would sure attach it again to your rebuttal-it fully supports your claim-

[Josh]

Hi Berta,

Thank for your answer. :-} The final will be posted here in the upcoming days complete to correct the gramatical errors (imagine that). Thanks ever so much for your tireless support.

I will win eventually if I live through this stressful period. After that I will be able to support Hadit and in its suporting role in helping veterans fight and get back what is deserved even though it is but a token compared to the losses we have suffered.

Joseph

Edited March 16, 2006 by Josh