Appealing Muscular Dystrophy Claims Denial

[MDA]

I was given a medical discharge from the USAF because of a high enzyme count in my liver. I was asymptomatic at the time but now I have developed a limb girdle muscular dystrophy. The high enzyme count was found after I was already through basic training. I had never had any problems with my liver before and had completed a full physical before enlisting. I recently applied for disability and was denied on the basis of congenital or developmental defect. I have no family history of muscular dystrophy. The wording used in the denial decision is as follows: Muscular dystrophy is considered a congenital or developmental defect and therefore considered by law to be unrelated to military service and not subject to service connection.

Is there anywhere for me to go with this? Does anyone have any experience with this kind of ruling? Thanks for your help.

[broncovet]

Well, yes.

Read your C and P exam. What does it say is the origin of your MD? Does it say it was inherited?

If it does not Say something similar to "Veterans MD is at least as likely as not due to ....suffered in military service"

You need a Nexus. No, not the one you get at a Toyota dealer.

If you dont have a Nexus...get one. There are choices: 1. C and P exam 2. Another VA doc.

3. IME/IMO exam.

ONe of these needs to prove a nexus.

File a NOD citing your nexus as criteria. If you have N and M evidence, you can try a Motion for Reconsideration. Otherwise, IMHO file a NOD and request DRO review.

[Berta]

You need to file a Notice of Disagreement on this decision.

Although there is some medical logic for VA's statement, they apparently have not provided it.

There are Muscular dystrophy cases at the BVA web site.

Do you have any other medical terms a doctor has used for this disability?

You would need a medical opinion that could associate the high liver enzyme count in the military with the disability you now have and that would rule out any other cause for the high enzyme count.

This veterans has a 30% SC rating for muscular dystrophy.

http://www4.va.gov/vetapp05/files3/0520813.txt

In this case the veteran asked for better EED:

Entitlement to an effective date earlier than December 11,

2000, for the assignment of a 60 percent rating for service-

connected reflex sympathetic dystrophy, left lower extremity,

is denied.

He received the 60% SC however as his reflex sympathetic SC disability had marked muscular dystrophy involvement.

Incomplete paralysis of the

sciatic nerve warrants a 60 percent evaluation if it is

severe with marked muscular dystrophy, a 40 percent

evaluation if it is moderately severe, a 20 percent

evaluation if it is moderate or a 10 percent evaluation if it

is mild.

http://www4.va.gov/vetapp09/files2/0914961.txt

How soon after service were you diagnosed with this disability?

Broncovet is correct that you need to establish a nexus.

"I have no family history of muscular dystrophy. The wording used in the denial decision is as follows: Muscular dystrophy is considered a congenital or developmental defect and therefore considered by law to be unrelated to military service and not subject to service connection."

This is a point to raise in the NOD as to no familial history.Obviously the first BVA decision link I posted proves their "considered by law" etc statement to be factual untrue.

A strong IMO could be costly and even end up not giving you the evidence you need.

Are there any other entrees in your SMRs that could by symptomatic of this condition?

Do you have private medical records and did VA obtain them?

[Berta]

It pays to spend the time to research the BVA cases! I found this one in mere seconds-

I never suggest to ever send the VA a BVA decision in support of a claim because the VA will reject the decision ,saying it only applies to the specific vet in question.

UNLESS it involves a legal issue.

This case is a Beauty and I suggest that you send VA a Request for Reconsideration due to their erroneous statement in the denial:

"Muscular dystrophy is considered a congenital or developmental defect and therefore considered by law to be unrelated to military service and not subject to service connection."

BS!!!! Tel them they are wrong and refer the the entire decision and enclose a copy of it.

Send the Reconsideration Request as Attention to and then put the initials that appear in the upper rght and Re: part of the letter with the numerical VARO code and put the Attention to on the envelope on top of the VA Regional Office , and address.

Make copies of all and send t with proof of mailing.

Or you could ask them to CUE themselves but I think most here will agree to do the Recon request.(I would ask them to CUE themselves personally but that can get involved.)

Mark your calender.

I assume you have plenty of time to NOD this but if they do NOT correct their error within the NOD year you MUST file the NOD on time and raise this error again in the NOD.

I will find the OGC Pres Op that BVA refers to and you should send them that too.

BUT this does not satisfy the nexus requirement- however it will establish the possibility that your MD should be SC.

"I was given a medical discharge from the USAF because of a high enzyme count in my liver."

Do you have copies of the MEB stuff?

Did the Mil give you any rating at all?

Did the VARO even send you a VCAA letter or did they arbitrarily deny with this congenital BS without even a C & P exam?

Highlight this part of the decision:

"Although the

VA physician who reviewed the claims folder in May 2007 has

opined that the veteran's muscular dystrophy is a congenital

defect, rather than a disease, the Board believes that the

preponderance of the medical evidence establishes that it is

a disease, as that term has been defined by VA's General

Counsel."

http://www4.va.gov/vetapp07/files4/0733072.txt

In Part:

"Congenital or developmental defects are not diseases or

injuries for VA compensation purposes. 38 C.F.R. § 3.303

©.

VA's General Counsel has held that service connection may be

granted for diseases (but not defects) of congenital,

developmental or familial origin, as long as the evidence as

a whole establishes that the conditions in question were

incurred or aggravated during service within the meaning of

VA laws and regulations. It has also expressly stated that

the terms "disease" and "defects" must be interpreted as

being mutually exclusive. The term "disease" is broadly

defined as any deviation from or interruption of the normal

structure or function of any part, organ, or system of the

body that is manifested by a characteristic set of symptoms

and signs and whose etiology, pathology, and prognosis may be

known or unknown. On the other hand, the term "defects"

would be definable as structural or inherent abnormalities or

conditions that are more or less stationary in nature. See

VAOPGCPREC 82-90 (July 18, 1990)."

"Analysis

The physicians who have provided opinions concerning the

etiology of the veteran's muscular dystrophy and scoliosis

generally agree that the veteran manifested muscular

dystrophy during service and that his scoliosis is due to the

muscular dystropy. In addition, they generally agree that

the muscular dystrophy is congenital in origin. Although the

VA physician who reviewed the claims folder in May 2007 has

opined that the veteran's muscular dystrophy is a congenital

defect, rather than a disease, the Board believes that the

preponderance of the medical evidence establishes that it is

a disease, as that term has been defined by VA's General

Counsel. In this regard, the Board notes that Dr. Rioux has

stated that the veteran's muscular dystrophy had its onset in

adulthood. Moreover, the progressive nature of the veteran's

muscular dystrophy is clearly shown by the medical evidence."

"No evidence of muscular dystrophy was found on either of the

veteran's examinations for entrance onto active duty.

Therefore, the presumption of soundness applies. There is

conflicting medical evidence concerning whether the veteran's

muscular dystrophy was manifested prior to service. In

particular, the Board notes that Dr. Rioux, who has been

treating the veteran for muscular dystrophy for many years,

is of the opinion that the muscular dystrophy was initially

manifested while the veteran was on active duty. In light of

Dr. Rioux's opinion and the lay evidence to the effect that

the veteran had no noticeable problems prior to service, the

Board concludes that the evidence does not clearly and

unmistakably establish that the muscular dystrophy existed

prior to service and was not aggravated by service.

Accordingly, the presumption of soundness has not been

rebutted and the veteran is entitled to service connection

for muscular dystrophy with scoliosis."

"ORDER

Entitlement to service connection for muscular dystrophy is

granted.

Entitlement to service connection for scoliosis is granted."

Edited March 8, 2011 by Berta

[Berta]

Here is the link to the OGC Pres Op that BVA relied on for that grant:

http://www.va.gov/ogc/opinions/1990precedentopinions.asp

It is Pres Op # 82.

This is one more case that shows VA is making up the regs as they go along-

This is the kind of crap I have gotten from Buffalo RO for almost 2 decades.

If we buy what they are selling when they have deliberately manipulated the regs, then our claim is doomed right from the git go.

If the VA did NOT send this vet a VCAA letter they have clearly erred there too.

Edited March 8, 2011 by Berta

[Berta]

PS-you will still need a strong IMO- there is format for IMOs in our IMO forum.

The IMO doc will need your SMRs and results of any C & P but I wonder if they even gave you one and all private medical records.

They will have to rule out any other causes for the high liver enzyme count and also will need the MEB records.

I would think any good vet rep would certainly want to help you with this claim.

Do you have a vet rep yet?

[retiredat44]

This is a very interesting thead for me. I have a claim with one of the issues claimed is for Myotonic Dystrophy... connected to my disabilities for chemical exposures and diseases from them,,.. also I had symptoms in the service of tremors... I have been seeing a VA neurolgist. I had a DNA test (for Dystrophy) recently (early January 2011), but they will not release the results until my next neurolgoy appointment in a couple weeks...

At my VA DRO hearing and subsequent additional evidence forms, I informed the the DRO hearing officer of the Tests for Dystrophy, and the results were supposedly avaivable 6-8 weeks after the test.

Edited March 19, 2011 by retiredat44