Elders Please Help...

[SubicBay0311]

Suppose a veteran was discharged from the service due to disability. Specifically, ongoing weakness in both legs. The cause at the time was considered psychosomatic illness. Years after discharge, it is determined the veteran has and had MS as the cause of his weakness. The veteran files a claim for multiple sclerosis (MS), and leg weakness “secondary to M.S.”

The VA denies the claim for M.S., stating he was not diagnosed with MS while in service. They also deny claims for leg weakness claimed as “secondary to MS”, stating A) did not have diagnosis of MS in service, and B) that did not have symptoms of leg weakness while in service (clearly an erroneous oversight)

QUESTIONS: Can the veteran file new claim for direct service connection of leg weakness, based upon showing them the in service complaints of leg weakness (that led to medical discharge)(along with IMO nexus statements), AND at the same time, file NOD/appeal for the underlying etiology, M.S.? Or, would the RO state that they will not reopen the direct service connection for the leg weakness, because the “etiology” (MS) is currently on appeal?

Important points:

1. VA psychiatrist has already stated in the C&P notes that veteran did not have psychosomatic illness while in service, and that his service connected depression is worsened due to his “in service Multiple Sclerosis”.
2. Another VA examiner said MS “less likely than not” incurred in service. But that C&P exam was conducted a week before the RO even requested STR from the veteran and National Achieves (proof of that is in c file in form of letter sent to veteran requesting STR the week after the C&P exam)
3. Veteran had submitted FOUR IMOs from neurologist stating they have reviewed STR and its clear it was MS while in service based upon review of neurological exam findings while in service.

They basically ignored a mountain of evidence in favor to the single C&P opinion (#2 above).

Any advice greatly appreciated.

[FormerMember]

You will win on appeal and not a moment sooner. Sorry I'm not an elder but here's why. Lawrence v. Derwinski 1991. The attachment widget is broken here right now and I cannot attach it. Go to the CAVC website and look at CAVC # 90-673 in search for decisions. Quite simply, it states that "Symptoms, not treatment, are the hallmark of a disability" Thus, your symptoms in service are proof of the MS- albeit misdiagnosed. Your probative IMOs trump the VA's podiatrist or proctologist nexus letters as well. Therein lies the path to the win. Sometimes they add a few miles onto the tunnel to separate the poker players from the ribbon clerks. Hang in there and prove you're holding a full house, cowboy. Remember also to request the bona fides of the Certified Bed Pan Changer VA hired to say the MS was less likely as not incurred in service. We learned a lot about not having a specific disease/injury mentioned in our STRs when we started filing Hepatitis C claims in the 1990s-2000s. VA's favorite ploy was to say "Sorry, hoss but we see no mention of Hepatitis C in your STRs." Seems Hep C wasn't "discovered" until 1992. Kind of like looking for a left front quarter panel for a 67 Mustang in a junkyard... in 1946. Win or Die trying.

[free_spirit_etc]

Was your MS diagnosed within 7 years of discharge? If so, you might try for presumptive service connection. If not; don't let them convince you that it has to be diagnosed within 7 years to be service connected.

Actually, it only has to become manifest to the point that it is 10% disabling within 7 years of service.

§3.307(a)

(3) Chronic disease. The disease must have become manifest to a degree of 10 percent or more within 1 year (for Hansen's disease (leprosy) and tuberculosis, within 3 years; multiple sclerosis, within 7 years) from the date of separation from service as specified in paragraph (a)(2) of this section.

So, though most chronic diseases have to be manifest to the 10% degree within a year of discharge to be granted under the presumption, with MS they give you 7 years before it has to be manifest to that point. That doesn't even mean it has to be diagnosed. Many diseases are not diagnosed until they become more than 10% disabling.

Also - pay attention to

§3.307 ©

© Prohibition of certain presumptions. No presumptions may be invoked on the basis of advancement of the disease when first definitely diagnosed for the purpose of showing its existence to a degree of 10 percent within the applicable period. This will not be interpreted as requiring that the disease be diagnosed in the presumptive period, but only that there be then shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.

AND -- Even if you aren't granted presumptive service connection -- you can still fight for direct service connection:

§3.303(d) states “Postservice initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.

Edited April 24, 2015 by free_spirit_etc

[Fat]

Good information.

I thought MS was a presumptive disease for up to 7 years since discharge.

[Berta]

It is. Free Spirit is correct.

If manifested at least at 10% disabling within 7 years after service, MS is a chronic presumptive.

The VA denies the claim for M.S., stating he was not diagnosed with MS while in service

Subic Bay,

What is the date of the decision?

Can you scan and attach the decision here, as to their Reasons and Bases and the Evidence list?

Cover C file number, name, address prior to scanning it.

"Veteran had submitted FOUR IMOs from neurologist stating they have reviewed STR and its clear it was MS while in service based upon review of neurological exam findings while in service.

They basically ignored a mountain of evidence in favor to the single C&P opinion (#2 above)."

Something is drastically wrong here.

If they completely ignored those IMOs, that is a 38 CFR 4.6 violation.

Were any of the IMOs from Dr. Bash? He has MS.

[SubicBay0311]

Asknod, FreeSpirit, Fat and Berta: thank you all for your advice and thoughts.

FreeSpirit, §3.303(d) states “Postservice initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. I believe this is most likely route. One of my IME/IMO stated in a new, (not submitted) report, that "all the information required to determine that he had M.S. is noted in his military treatment records", referring to this being "classic presentation" of MS. Another specialist actually stated that even senior medical student would have recognized the condition as organic, and not psychosomatic.

Berta, thanks for 38 CFR 4.6 . And yes: Something is drastically wrong here. How do I present the evidence? Do I need to actually quote the M21 and CFR regs in my statement in support of claim, or would that just piss them off? What is an appropriate opening statement, being that "can you people even read?" would not likely be helpful...

Thank you all for your support. I have depression and get "stuck", and I am struggling with the temptation to just give up. Should my Statement in support of claim begin with a list of all the evidence, or a narrative of the claim and list of errors previously made, then the list of evidence? Perhaps my first words should be, "Something is drastically wrong here."

[Berta]

Geeez you sound like me.... If I have to file an I-9 on a pending issue I am fighting,

My first statement on it will be.

'THANK GOD I am at the BVA. The BVA, unlike my past 20 years of experience with the Buffalo RO,

CAN READ'

I asked when this decision occurred because I might be able to help prepare here ,a basic CUE claim for you ( meaning my GCY tactic, which has been working for me quite well and I recently got 2 denials reversed in weeks because of it.)

Can you scan and attach the decision here because it is the actual words of the VA that determine what actions claimants can take.

"How do I present the evidence? Do I need to actually quote the M21 and CFR regs in my statement in support of claim, or would that just piss them off?"

I love pissing them off , by telling them their own regulations they violated.

I used 38 CFR 4.6 recently, and filed a few other CUEs via email with the Director and she actually apologized for some of their ridiculous legal errors.

The VA controls us with the same regulations we can use to control them. It really should not piss them off, but the VA does NOT want us to even understand the regulations, so that they can get away with this kind of crap. I had a CUE in 1998 decision, that my former wussy assed vet rep told me not to even file a NOD on.

And then when I got a double DRO review due to a CUE I filed (which they acted on fast) he messed up the whole DRO review my failing to get my evidence into the record AGAIN.

38 CFR 4.6 is basic VA case law.

I cannot tell here if they completely ignored your evidence or gave some sort of rhetoric that showed they did actually consider it.,but rejected it.

The only regulations you might need, if you file a CUE against them is 38 CFR 4.6.

But Not enough info here to be sure....

A CUE during the appellate period or after the appeal period has passed still does not stop the NOD clock however.

As I mentioned here the other day, I have had CUEs resolved in mere weeks ( MY Nehmer IHD AO CUE) and some took years (my SMC CUEs filed in 2003 IHD, and 2004 CVA, and awarded just prior to BVA transfer by Nehmer RO in 2012.)

You might want to contact Allison Hickey,the Under Secretary of the VA.

allison.hickey@va.gov

If I had not done that in February, my claims (filed over 2 1/2 years ago with no action whatsoever) would still be collecting dust at my VARO.

I quoted the above reg in my email to her asking for her assurance this regulation would be applied to my evidence.

After some BS from my RO, and many emails and phone calls, and yada yada they applied that regulation properly

I won the CUEs but now I am fighting over the cash they say they don't owe me.

Of course they didnt offer any regulations at all as to why they wont pay me..

Edited April 24, 2015 by Berta