Different Diagnoses Same Symptoms

[Bevo]

Another question. I talked to my VSO and got some discouragement. Here is the basic story: 2006 discharge, PDHA claim of symptoms get 1 diagnose, 2007 see chiro and va, same symptoms, new diagnoses, 2008 private ortho sand symptoms, new diagnoses. 2013 c&p same symptoms, new diagnoses. Denied because condition did not arise within a year of discharge. C&p and AMC both failed to include pre-2008 records of resumes in-service injuries and symptoms occurred as spelled out in remand.

So I'm feelingpretty confident at vlj and my VSO says he could still deny me because the diagnoses is different even though it's the same body part and symptoms. If that's true, it seems va could just change the diagnoses and say its new. Is there any case law or statute to prevent that? Or is my VSO correct?

Of resumes = or presume.

[free_spirit_etc]

Since the attorneys write the decisions, I wonder if your case is assigned to the same attorney when it returns from a remand. That would be a good thing.

Did the C&P examiners give any more likely than not statements? What was their reasoning?

[Bevo]

C&P examiner said less likely than not because condition did not arise within a year (lack of service treatment records). In the records he listed, he started with my 2008 records and did not review my 2007 or 2006 records. He also ignored where the remand said

"The examiner should provide reasons for the opinions that take into account the Veteran's reports of in-service injuries and symptoms and symptoms since service.

The absence of supporting treatment records is not a sufficient reason, by itself, for rejecting the Veteran's reports."

He did not reference my in-service injuries or symptoms once in his rationale or his statement. Since then, my chiropractor who has treated me since 2007 sent a letter in saying he saw me with these same symptoms since 2007 and that those symptoms conform to the current diagnoses.

The only reason they could deny me is if they say I have had a different condition from 2008 to now as I did in 2006 and 2007 with the exact same symptoms. Not close to... exact same. OR if they say I complained about my upper back, neck and shoulder instead of saying splenius cervicis and levator scapula.... which are just the muscles there. I could see this also being remanded for another opinion, but hope for a grant. They granted my lumbar spine from the same incidents without an etiology opinion on record.

[Bevo]

I just spoke to BVA ombudsmen. The claim has been decided and is being typed up for the VLJs signature. I think my chiropractors statement made it in time, but I am not sure my buddy's did. If they deny me for it being not arising within a year, I don't know what to do. All the evidence points that it did. And since it occurred in combat, I am supposed to have a lenient standard.

[free_spirit_etc]

Did your VSO make any arguments? I really think your chances look good - based on how they wrote the remand. They already said you presented competent evidence of the injuries. Even if the diagnosis is different, it is the same symptoms. And the record does show symptoms since service? right after service?

[FormerMember]

<<<<If they can just change the name of the diagnoses and deny for that, I don't know how anyone could ever get benefits. Just change the name of the issue.>>>>> Welcome to ex parte justice, Bevo. A priceless observation. You have the 38 USC 1154b combat enhancement in your favor. Anything that falls from your lips is the truth unless incredible (like alien abduction). One decision from the dawn of time that many fail to cite when they lose at the RO is even more important now in light of the recent Walker decision striking down the essence of 38 CFR 3.303(b)http://asknod.wordpress.com/2013/02/25/fed-cir-walker-v-shinseki-%C2%A73-303b-says-what/. Wilson v. Derwinski (1991) [see attached] is just the panacea for your circumstances. If the BVA denies, you'll need it when you go to the big house up on Indiana Ave. NW. Remember, the law is explicit in 3.303(a) and (d). The regulation requires continuity of symptomatology, not continuity of treatment. This is where many Vets and their chucklehead VSO reps step on their neckties.

​It is SOP for VA raters to use the boilerplate language of " symptoms were acute and resolved prior to discharge" regardless of whether they wheeled you out the front gate on a gurney. Often, your records consisted of a partial dx with a "rule out" clause. Many are discharged for medical reasons with no definitive diagnosis. This is where the Wilson case is instrumental in winning. While the Fed. Cir. Walker Court struck down the underpinnings of 3.303(b) in Wilson, it did not disturb (a) and (d). If you have the STRs from service clearly delineating a recorded injury, a continuing history of chronicity and continuity, and you have proof of combat (1154(b), you are golden.

Having a good nexus letter(IMO ) is also imperative, but you can win it on the simple proof of it occurring in service with an unbroken record of continuity after service. Your lay testimony is unimpeachable unless you have a history of drug abuse and bank robbery.

Remember one thing when you file. VA raters start from the presumption of guilty (didn't occur in service) and work toward a theory of it being service connected. Once you've proven beyond the shadow of a doubt that it did, indeed, occur in service and it is the same injury now, you will finally be accorded the good old benefit of the doubt. Perseverance is also the winning ticket. Nobody likes a squeaky, annoying wheel.

Wilson_90-673.pdf

Edited October 24, 2013 by asknod

[Bevo]

Thanks. Great info! I honestly am not even sure my VSO is aware of 38 USC 1154b. He never acts like he's heard of it.