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]

You can also look up BVA cases on MS and read both cases that have been denied and cases that have been granted. Pay attention to the reasoning given in both. The information you find might give you lots of info to build your case.

Edited April 24, 2015 by free_spirit_etc

[broncovet]

Asknod:

Ok, so when (not if) VA does "develop to deny" what do we do about it? Case in point: I have 2 favorable med exams, one favorable c and p. So VA orders another. This should not even matter, because 2 beats one UNLESS VA can attack one or more of my favorable exams. What did Chris Attig and the other attorney's suggest when VA "develops to deny"?

[free_spirit_etc]

They consistently violate the regulations concerning post-service diagnosis of disease. §3.303(d).

§3.303(d) does not require an illness to be diagnosed or treated in service in order to establish service connection.

It is not easy to get SC granted, but it is possible. However, it is hard to even get them to consider this regulation. It is so hard that most people will advise you not to pursue a claim unless treatment is noted in your SMRs.

But with MS, the fact that the VA allows 7 years before the disease even becomes manifest at all, is showing that they realize it takes a long time to manifest and a long time to be diagnosed. The fact that they are honing in on whether it was diagnosed in service shows they are not even considering the nature of the disease.

[SubicBay0311]

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!!!

[SubicBay0311]

Berta, Im sorry. I was just trying to demonstrate how ridiculous this is. Thank you very much for your advice!

[free_spirit_etc]

Bronco,

I am not asknod -- but I was very concerned with this in my claim. That is why when I decided I needed to go to the BVA to be granted, I changed my strategy. I did not even bother submitting IMOs to the RO. Why play my hand and give them the opportunity to let them draw another card? I just let them play their cards -- and started building my own hand to play at the BVA. The opinion they obtained right after my husband's death was so weak it was pathetic. At first I was offended that they dismissed my husband's life with a brief hand written (scribbled) opinion. But I let that be their hand. It was easy to trump.

Luckily, in my case, their opinions did not outright refute the opinions I obtained. They played the "deny by side-stepping the actual issue" game. Though their opinions stated "less likely than not," they did not address the major issue. So I was able to argue (sorry asknod):

"1. The only competent medical evidence in the record that specifically addresses whether it is more likely than not my husband’s cancer had its onset in service clearly establishes that it did.

2. The VA has obtained two VA medical opinions concerning the claim. Neither VA examiner actually refuted the assertion that my husband’s cancer had its onset in service, nor provided any sound medical reasoning for doing so.

3. As there is substantial competent medical evidence establishing my husband’s lung cancer had its onset in service, and no competent medical evidence that actually conflicts with this, I believe that the probative evidence is in favor of the claim. 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…).” "

In the event the VA medical opinion actually refutes what your IMO says, I think it could be a bit harder..especially if they give sound medical reasons for doing so. But part of the strategy would be to try to keep them from drawing another card every time you play your hand. In my case, I just waited to play my hand.