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]

Free spirit: Are you suggesting NOD and appeal forces them to make a decision based upon the totality of the evidence, but by reopening, I giving them yet another chance to develop more evidence against the claim?

[FormerMember]

NOD and appeal forces them to open the c-file and read it. Never ever reopen a claim during it's pendency. VA should have enough common sense to prevent you from shooting yourself in the foot by doing this but then VA doesn't exactly have your best interests at heart. If this whole adjudications thing has you in a quandary as to what to do, I suggest an atty. to make it painless. Ask for aconsult if nothing else. If the atty. seems eager to take it, that speaks for its viability. My opinion is it will be an easy win but a legal jungle to traverse. VA has indicated by their actions that you are not going to waltz in and win. If that were the case, you'd have a rating by now. How you play your cards ( as described cogently by Free Spirit ) will determine if this takes two years or ten. I'd say you could do it in less than two with a rainmaker knocking on their door every morning. Just my opinion. I see a lot of hesitation and indecision in your responses that indicate you are confused. A lot of advice has been offered in the last day or two above. Don't let it overwhelm you. It's fairly straight forward. File to appeal. Pronto. Knowing how long it takes VA to accomplish the simplest task, you have ample time to make the next big leap of DIY or law dog. You will win. How soon is all there is to debate.

[broncovet]

Free spirit

Thank you. That about does it. I will be studying the case you cited, that is, if I have to appeal (again):

See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (“The Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted…).” "

I posted this from Chris Attig's website on his opinion of "develop to deny". I like that term and plan to use it. I also love the term

"claim spoilation" which is what happens when VARO shreds or mishandles evidence.

[SubicBay0311]

Asknod, thank you sir. Very Very Much.

Ok, enough said.

[free_spirit_etc]

Free spirit: Are you suggesting NOD and appeal forces them to make a decision based upon the totality of the evidence, but by reopening, I giving them yet another chance to develop more evidence against the claim?

They can actually seek more evidence if they decide more evidence is needed to make a decision, even on an appeal. I didn't mess with submitting an IMO to the RO because I didn't want to take a chance they would seek another opinion (under the guise of needing it in order to make a decision) to use against me. I submitted my IMOs at the BVA level and tried to point out that the evidence was strong enough to grant the claim (i.e. that they didn't need to seek another opinion to decide).

In your case, it sounds like you have some pretty strong medical evidence - and the VA has pretty weak evidence. So you would point out how all the evidence supports the claim. They should not need to seek another opinion. They are actually only supposed to seek a medical opinion if they cannot decide the case without another opinion. There are other case citations that state the VA should not develop the claim in order to deny it. I used the one that stated they shouldn't continue to seek medical opinions if the medical evidence was unrefuted, because I was able to apply it in my case.

It may also apply in your case. I don't know. It depends on what the C&P examiner they are using actually said. If they are just basing their opinion on the fact you weren't diagnosed in service, I would say your IMOs might still be unrefuted.

This was part of my "argument" to show my IMOs were unrefuted:

"As evidence in the record reported the asymptomatic nature of lung cancer in its early stages, the VA examiner’s October 2007 opinion does not conflict with the evidence we submitted in support of the claim. Though the VA examiner did not address this well-established medical principle when opining whether my husband’s viral respiratory illness could be early manifestations of lung cancer, he also did not indicate that lung cancer requires obvious respiratory symptoms in order to be present, nor provide any rationale to support such a conclusion. He merely opined that my husband’s viral respiratory illnesses were less likely than not early manifestations of lung cancer."

[free_spirit_etc]

I am not sure about the exact regulations, but I was thinking there is one that if the VA considers an exam inadequate -- then they are supposed to obtain another exam. That was why I stopped pushing the issue of whether the exam was adequate or not. I just let them keep their crappy exam -- and addressed it at face value in my appeal.

So - at the RO level - I am thinking (and I am sure someone will correct me if I am wrong) if they actually consider your exam to be inadequate, they are supposed to grant you another one. As long as you are going to get IMOs, I sometimes wonder how useful it is to have the VA provide you with another exam. Sometimes it might be better to take it at face value -- since it is easy to defeat a crappy, poorly written exam that is not based on sound reasoning at the BVA level.

(** However, if you do write the VA and challenge the exam, they will probably ignore the letter anyway... and not order another exam. And at least you will have a record of the challenge if needed at the CVAC level. But how much you want to keep pushing the issue after your initial challenge might be another matter).

At the BVA level, they should only seek another opinion if there is not enough evidence in the file for them to make a decision without another opinion, otherwise, they are on a fishing expedition to deny the claim. It is pretty hard to conceive why they would actually need an additional opinion in most cases, since:

When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).”

Edited April 24, 2015 by free_spirit_etc