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]

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

What a wonderfully descriptive term!

[free_spirit_etc]

There is some interesting info on obtaining clarification or an additional exam in this case:

https://veteranclaims.wordpress.com/2010/11/05/savage-v-shinseki-no-09-4406-clarification-of-exam-report-cfr-4-2-insufficient-exam-report/

Don't expect anyone lower than the BVA to understand any of this.

[jefmil50]

I was awarded 30% for ms back in 1991 and it was presumptive because I was discharged in 1985. It took 3 years just to come up with the diagnosis of ms. I started with optic neuritis and had a couple mri's in Syracuse NY that came up negative, the Dr. there even said I had a low grade glioma. Well I had a diagnosis of ms from a Pennsylavania Dr. Then when I moved to Syracuse I had a brain tumor. I took it on my own a decided to persue ms.

Glad I went the ms route. It was in Syracuse that I was working with the DAV and Senator D' Amatos office to get both my VA and SS claims moving. Now here I am working on my claim at a very different stage. I am lost still trying to figure this claim stuff out. All I can say is your in great hands here at Hadit. Good luck I hope the best for you SubicBay0311!

Edited April 24, 2015 by jefmil50

[free_spirit_etc]

FreeSpirit: I was medically discharged due to the weakness in my legs. I had documented "sustained clonus" at my ankles.. This is basically diagnostic of nervous system pathology, and they discharged me calling it psychosomatic. The neurologist are beside themselves when that read the STR.

Thank you EVERYONE!!!

Thanks for the info SubicBay. I can see that you are shooting for that the condition actually did manifest while you were in the service. And it looks like you have a strong case. But I was asking when you finally got the official diagnosis of MS. I know that sometimes takes awhile for them to figure out.