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.

[SubicBay0311]

Still torn between reconsideration and NOD on this. Can I appeal only the MS, and ask for reconsideration of direct service connection of the leg weakness? Please advise.

[SubicBay0311]

Thanks Berta I will try to scan soon.

[SubicBay0311]

Okay this is what it says verbatim:

Service connection for multiple sclerosis is denied.

Service connection may be granted for disability which began in military service or was caused by some event or experience in service. Service connection for multiple sclerosis is denied since this condition neither occurred in nor was caused by service.

We received the disability benefits questionnaire on May 21, 2014 signed by Dr. Smith. However, our decision remains the same.

The records indicate you serve until November 14, 1989 and were diagnosed with multiple sclerosis in 2006, or about 16 years after military service. You are not diagnosed with multiple sclerosis in service, although you were seen by a neurologist and psychiatrist in the service. Your private Dr. opines in the urinary tract disability benefits questionnaire state for multiple sclerosis started in 1989. There is no evidence of this diagnosis in active military service. Preponderance of the evidence shows multiple sclerosis is less likely as not to have been incurred in, caused or aggravated by service

The medical opinion we received from the VA medical center was more persuasive than your private physicians opinions because it was based on a more thorough review of your relevant military and/or personal history and contain more convincing rationale. The VA medical opinion found no link between your diagnosed medical condition and military service.

The evidence does not show your multiple sclerosis is related to service, therefore service connection for multiple sclerosis remains denied.

Heres the problems:

1. the diagnosis in 2006 was not “being made” in 2006, but rather stating that my current MS began in 1989
2. the VA review was conducted by a PEDIATRICIAN with no formal training in neurology. And, by the letter in my c file, the RO had not even requested my Service Medical Records prior to his exam. And, he failed to discuss ANY of the “neurological findings” that the private neurologist discussed in their review of my service records. And, a week prior, at a Mental Health C&P, the psychiatrist stated in his report that he was correcting my in service diagnosis of “psychosomatic illness” to be generalized anxiety, and then refers to my anxiety and depression as being worse as a result of my “in service multiple sclerosis”. I don’t think they even read that report, it was not listed as evidence in the denial.
3. How can they possibly rely on this single report when it is so inconsistent with numerous other reports by SPECIALIST in the field, and even in conflict with another C&P examiner? I'm sorry, but I think there is some Intellectual dishonestly going on here.

In summary, its so many errors that its mind boggling and hard to know where to start with addressing them to these people…

[broncovet]

You need to file a NOD. I agree with Berta and Ask nod but add my 2 cents:

Specifically, you probably want to "Attack" the VA doc who opined against you. Just look on your C and P exam for the C and P examiner who opined against you and check his qualifciations. Make sure the C and P examiner ACTUALLY did opine what the VA said, as Berta pointed out they often can not read.

CHris Attig, the attorney, has special wording he recommends for attacking a bad C and P exam, and that has been posted. If you can not find it, I will help you try. The wording you need is here on hadit and on Chris Attig's website. Your nod needs to include wording disputing the Doc's qualifications to examine you due to lack of expertise in that field. If you do NOT dispute the adequacy of the exam, YOU wont be able to do it later, at the CAVC level, if necessary. The doc is given a presumptive, if you dont dispute his expertise/qualifications they are assumed good.

2. You said you had 4 IMO's, but the decision seemed to only cite ONE. You may need to "reopen" due to N and M evidence 38 CFR 3.156. This should preserve your effective date. The VA decision was defective in that it only cited ONE of your IMO's not all of them. This is important. Why did the decision not cite the other 3? Probably, they either did not read them, or shredded them.

As far as the difference between a MFR and a NOD, you can go ahead and request a MFR, BUT dont let the 1 year appeal period slip by without a Nod filed UNLESS you get all the benefits you deserve before that one year (unlikely). VA takes all the Nod's which are over a year old, rolls em up into "logs" and has a weenie roast with the nod's as the fuel, AFTER, someone who cant read stamps "claim denied due to late filing" on them.

Edited April 24, 2015 by broncovet

[Berta]

Broncovet is right on all counts. I too was looking for 3 more IMOs.

If IMOs do not follow the IMO criteria here at hadit, the VA will give them no weight.

[broncovet]

Great point Berta! But, if the 3 IMO's did NOT meet VA criteria, they should have so stated in the reasons and bases, and how/why they did not meet VA criteria. Remember, you can appeal based on an inadequate reasons and bases. You will almost always get a remand, guarnteed. But an inadequate reasons and bases for decision remand WILL allow you to submit new evidence and have it considered at the beginning of the appeal period.

The fact they "never mentioned" the 3 other IMO's PROBABLY indicates a) they never read em or b) they dont have them.

Do you have a copy of your cfile? If not, you need to get one. The VA says, "if its not in the cfile, it did not happen". I guess my kids were never born, then, because they are not in my cfile even tho I submitted their info in 2002, again in 2006, again in 2007 and again in 2013. They still dont have them!!

The VA says my oldest son does not exist...Interesting, especially when they paid him Chapter 35 benefits for 4 years. How did they know about him to send him the eligibility letter, if they "never got" his information? Now you see why I dont trust VA...there are good reasons for this..they earned their "untrustworthiness" reputation, fair and square.

Edited April 24, 2015 by broncovet