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Nsc And Sc Symptoms Overlap


Dorothy Kansas

Question

When itis not possible to seperate the effects of the service-connected condition and the non-service conected condition, the VA [must] attribute the signs and symptoms of the non-service conidition to the serce-connected condition. See Mittleider v. West, 11 Vet. App. 345 (1998); 38 C.F.R. [ss] 3.102 (reasonable doubt on any issue must be resolved in the claimant's favor) In 1996, when adopting a revised rating schedule for mental disorders, the VA stated "{W}hen it is not possible to separate the effects of the service-connected condition and the non-service connected} VA regulations at 38 C.F.R. [/ss] 3.102, which requires that reasonable doubt on any issue be resolved in the veterans favor, clearly dictate that such signs and symptoms be attributed to the service-connected conditio. 61 Fed. Reg. 52698 (Oct. 8, 1996).

In Miltleider, the CAVC noted that there was no medical evidence in the record separating the effects of the appelant's service-connected PTSD from his personality disorders. In fact a VA physician stated, "there is no doubt in my mind from the record about his post-traumatic stress disorder. This is all muddied howevere by his Axis II problems[personality disorders] and drug abuse." Although the Board noted the VA physician's statement in its decision, the board never discussed whether it considered all of the appelant's various symptoms in assigning a rating for his service-connected PTSD. The Court ordered the Board to consider 38 C.F.R. [ss] 3.102 and VA's interpretation of the regulations, explained in the Federal Register in 1996, and provide an adequate statement of reasons or bases for any conclusions made concernung the symptoms of each mental disorder and whether those sy

mptoms were seperable or should be considered part of his service connected PTSD symptology.

Advocates are reminded that the Mittleider rule should be applied not only in assessing the severity of service-connected mental disorders. It may also apply when assessing the severity of a service-connected physical condition where there is a non-service connected condition whose symtoms overlap and cannot be clearly separated. However the VA's tendency is to consider its application, if at all, only when evaluating mental disorders.

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Dorothy

When the VA has reasonable doubt at the VARO level it seems to me they find against the veteran in most cases. They have their thumbs right on the scale.

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Yeah or they weigh each side of the scale with evidence-theirs and yours -and then kick Blind Justice in the knee.

So she is blind and disabled.

Advocates have to strongly push for Benefit of Doubt in any way they can.

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