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.

[free_spirit_etc]

Could you post what the C&P examiner said?

[free_spirit_etc]

"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."

This is an excellent point. When we finally got my husband's medical records, and C&P reports, I found several cases on some of his older claims where the RO twisted what the C&P examiner had said in order to deny the claims. In one claim the C&P examiner cited specific evidence in the STRs that showed the condition not only started in service, but was diagnosed as chronic in service. The RO said the condition was NOT shown to be chronic in service. So no, you cannot go by what the RO says the doctor said. They twist their own doctors' words as well.

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.

This is also an excellent point! In my husband's case, we wrote a letter to the RO that we considered the exam to be inadequate, and gave the reasons why. They ignored our letter. We continued to state our position that the exam was inadequate (and the reasons) on all of the appeals. However, when I finally figured out I would need to go to the BVA to be granted, I backed off that a bit. At that point, because the decisions were so crappy, and couldn't be considered very probative, I didn't really want to keep opening the door for them to get another opinion, and find someone who would write another crappy opinion, but support it better (and make it more probative). So I just figured they had laid their cards on the table and played their hand. Now, all I had to do was trump their hand. I didn't want them to start drawing more cards to try to beat my hand. So, though I argued that the RO was in error to rely on those opinions, I didn't push for the opinions to be considered inadequate, and give them one more chance to obtain another opinion. I pointed out the weaknesses in their opinions, and pointed out the strengths in my opinions.

The BVA decision stated

"In consideration of the opinions of the two private oncologists, both of whom opined that the Veteran's fatal lung cancer "certainly" began in service, the Board has determined that the Veteran's lung cancer likely began on active duty and that service connection for the cause of his death is thus warranted. In so finding, the Board accepts the private oncologists' opinions as being the most probative medical evidence on the subject, as such were based on a review of all historical records, and contain detailed rationale for the medical conclusions. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination reports, and the fact that the opinions were based on a review of the applicable record, the Board finds such opinions are probative and material to the Appellant's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). The March 2002 VA negative etiological opinion is entitled to less probative weight, as it does not specifically address whether lung cancer had its onset in service. Similarly, the October 2007 VA opinion is entitled to less probative weight, as it concentrated on whether the Veteran's in-service respiratory complaints were an early manifestation of his lung cancer and not the growth rate of the disease and whether the asymptomatic tumor was present in service. To the contrary, both private oncologists reviewed the record and cited extensively to their own expertise in the field as well as the current state of medical knowledge in reasoning that the Veteran's lung cancer likely began while he was in active duty. Thus, in light of the opinions of the private oncologists, which both cite to applicable studies and contain supporting rationale, the Board finds that the Veteran's lung cancer likely began while he was on active duty, and entitlement to service connection for the cause of the Veteran's death is established."

Edited April 24, 2015 by free_spirit_etc

[broncovet]

Subic

Its what the VA does. Dont feel bad, they have done something similar to almost all of us. You just have to be persistent, they dont expect to deny you for long, but if they can delay you for a couple more years, then that will go in another budget.

I had 3 favorable medical opinions from 3 different VA docs, so what does the VA do? Well, they ordered more C and P's of course! Its called "developing to deny" and the VA is not supposed to do that. They have had evidence to award in 2007 (it should have been developed in 2002, but that is what shreddergate is for), so, they decide in 2009 the issue of tdiu is "moot". I appeal. In 2012, it made it to the BVA, and, sure enough, BVA agreed with me its "not moot" (BVA's words). The require an SOC. Now why would they require an SOC..why not an adjutication with an SOC if denied? Why? Because BVA presupposed a denial!

You just have to hang in there. As Berta said, they will eventually find someone who can read.

In my case, my RBA is 1500 confusing, out of order, disorganized pages. If they could read a page in 3 minutes, this would mean it would take 75 hours to read my cfile. Im not foolish enough to think they will. So, when I appeal AGAIN, the whole appeal is gonna be TWO easy to read pages, or, even 1...citing decisions and med records. I know what is in the RBA, because I have it on DVD. Im gonna organize everything so that someone in 6th grade counld understand and award. My file is so long and complex, in no small part, because they shredded my evidence and reshredded the new evidence, or lost it.

[broncovet]

free spirit

You also make an excellent point!! Sometimes, its better to let some stuff go that does not matter, and precisely focus on what does matter. You had a couple bad exams, you refuted them, and, of course, VA loses your document refuting them.

Chris Attig's wording is legalese, that they wont read, of course, but the CAVC will if you ever have to go there. That is why I like it. I too, skim over the decision's regulatory mumbo jumbo, as these are regs I have already read over and over.

[free_spirit_etc]

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."

Keep it factual. spell out the evidence in support of the claim, connect the dots, quote relevant laws.

Then look for any weaknesses in your argument, or places that give them some wiggle room, and try to plug those holes.

Stay focused on your purpose -- to be granted benefits. Don't let them pull you into side arguments.

Also - pay very close attention to what they ignore -- The keys to winning are often in those issues / evidence. They will often fail to mention things things that will grant the claim. If they can't outright combat the issue / evidence, or twist it enough, they will often fail to mention it. So keep the focus on YOUR argument, and keep bringing up the things they fail to mention.

[FormerMember]

One thing enunciated by Veterans' lawyers over and over in San Francisco last week was the new propensity to "develop to deny" VA claims at the AOJs. The clear purpose being to sweep the decks clean of backlogs before the magic end of 2015 as USB Hickey promised. Toward that goal, the default setting is to deny all and get them into appellate status and off the RO's books.

DBQs were created with no clearly labeled area to enter a definitive nexus. Hickey promised to fix this in front of Rep. Filner several years ago "as soon as all the forms are used up". How do you "use up" electronic forms? Good question. You will prevail for any number of reasons cited by Berta and, to a certain extent, Broncovet above.

One thing to always keep in your back pocket for these contingencies is the latest sharp sword in the Veterans' scabbard. I speak of the Presumption of Regularity. If it appears irregular, then it is irregular and the presumption of administrative regularity cannot attach. If they did not have your STRs available for perusal and the VA cat veterinarian opined that he reviewed the records and it's less likely rather than more likely... ad nauseum, that you condition is not related to service, then it falls into the irregular column. This may be found in Butler v. Principi http://caselaw.findlaw.com/us-federal-circuit/1146368.html

Please keep in mind that just because a Veteran didn't prevail in a legal case, the precedent s/he set is the paramount consideration. Mario Caluza, Norm Gilbert, Tom Caffrey, Bob Russell and thousands of others lost but the jurisprudence they left in their wake has enabled hundreds of thousands of Vets to win utilizing their cases to win. Plagiarizing from Forrest Gump-- "Justice is like a box of chocolates-you never know what you're going to get." At least here, we offer time-tested techniques that succeed. Do not worry so much about which vehicle to employ to right the injustice. Focus on the wrong. I utilize legal format but you are not so constricted. If you are pro se, I suggest the NOD (21-0958) and list under the "reasons you believe VA is in error" the individual rundown of the items in error i.e.

1) VA C&P authored by medical personnel unfamiliar/unqualified to opine professionally or probatively.

2) Violation of 38 CFR 3.307 re seven year manifestation of MS at a compensable rate.

3) Violation of ________________________.

Never get into a "I had blah blah blah in 1989 but VA refuses to recognize it. Let your records do the talking. Let your doctors do the talking. Sit back and let them explain why they are right. I include this from Black's Law- the seminal book we all turn to in an attempt to clear the air:

Evidence is defined as records, documents, testimony, etc., that are offered in proof of an alleged fact. BLACK'S LAW DICTIONARY 555 (6th ed. 1990). An argument, on the other hand, is defined as "an effort to establish a belief by a course of reasoning." BLACK'S at 107.

You want to focus on evidence, not argument. You want to show, by the preponderance of your evidence and nexus letters / IMOs/ IMEs, that your logic is empirical and, when weighed in total must be given the benefit of the doubt. Let VA stumble into the quicksand and try to extricate themselves from their stupid conclusions. They in essence already have shot themselves in the foot. That's the beauty of ex parte justice You let them clothesline themselves and then step in and point out the illogical arguments.

Seven IMOs are like a royal flush in this game. Wait patiently for your win but under no circumstances give up. You're 7-1 in the bottom of the 6th inning and it isn't even raining. Sit tight, file a NOD and sent it to Cheeseville/Newnan's own and wait patiently. CUE, by it's inherent strictures, can only be employed after finality attaches ( failure to timely appeal). We are starting to see "slippage" of the term CUE in that it is being employed before BVA finality. The correct definition of clear and unmistakable error before finality is parsed " clear and unmistakable evidence"- subtly different but legally correct. Book 'em, Dano.