Outline of appeal & request for advice

[jlrith]

Good day all,

I am currently waiting to receive a copy of the SSOC relating to my case, which means I was denied again.  I am looking forward to having a competent person review my case as I believe it to be well grounded and well documented. 

I am asking any of you who are interested, to review what I provide below and provide feedback and potential avenues to a successful appeal. 

Basis of appeal: 

Service connection for a cold injury

 

Facts:

I suffered a non-freezing cold injury while in Marine Combat Training in 1997/1998. 

I was service connected for Raynaud’s in 2002, based on an in service diagnosis of Raynaud’s

Had worsening symptoms in 2011 and was diagnosed with chilblains.

Submitted claim February 2012.

Denied, appealed, denied by DRO, appealed (form 9), waiting on SSOC (completed 16 Feb 2018.  Not yet received)

 

Evidence:

16 April 2014 – Dr. H Medical Opinion that my Raynaud’s and other symptoms are due to a cold injury.

7 August 2014 – Dr. O Medical Opinion that my symptoms are due to a cold injury, plus explanation of why I did not seek medical attention for the original injury.

02 April 2015 – Dr. A Medical Opinion

Certified meteorological records for Camp Pendleton covering the time I was in MCT. 

VA training: “Cold Injury: Diagnosis and Management of Long Term Sequelae”

VA training letter 00-07

Service medical records: Diagnosis of Raynaud’s from a military general practitioner.  He had to look up the symptoms in his desk reference.

Service entrance exam records:  Evaluated for cold injury and Raynaud’s.  Nothing found.

Buddy letters from my parents detailing no cold injury or Raynaud’s symptoms prior to the military.

Letter from Dr. P (C&P #1 examiner) stating he was unable to provide an etiology for my symptoms as it was outside the scope of his exam and he was not my regular physician. 

Buddy letter from friend stating we had at one point discussed the symptoms I had during MCT.

 

C&P exam #1:

https://www.dropbox.com/s/fzzfafizakct2zw/2013-03-30 C%26P exam.pdf?dl=0

Denial:

https://www.dropbox.com/s/oo9upihjzt4vnna/2013_09_10 va decision.pdf?dl=0

Statement Of Case:

https://www.dropbox.com/s/rsi183kfekcrv9a/2014_09_10 Statement of Case 9.pdf?dl=0

C&P exam #2:

https://www.dropbox.com/s/mp73bygjbre2rsy/2016-05-11 C%26P exam 0.pdf?dl=0

 

My response to the Statement Of Case:

#1: “The preponderance of the evidence would indicate the condition was incurred before service.”

This is in contradiction to 38 CFR 3.304 (b):

“Presumption of soundness. The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at  entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted.”

 

Military entrance exams specifically call for the symptoms of Raynaud’s to be noted.  My entrance exams show no Raynaud’s.  Likewise my medical records are absent mention of Raynaud’s until 2012.  In addition, since I did not have Raynaud’s prior to military service, there is no ‘clear and unmistakable’ evidence that I had Raynaud’s prior to military service. 

There is a gap of time between my entrance exams and when I reported to boot camp.  It is conceivable that I could have sustained a cold injury during this time, however my military medical records are silent for symptoms until 2012.

I am including witness statements from my parents to cover the time between my entrance exams and entrance into boot camp.  I lived with them and was on their medical insurance.  Given the symptoms of a cold injury, they certainly would have noticed and I would have sought medical attention. 

J’s statement concerning my symptoms is overly specific; that is my doing.  J is extremely smart and has an excellent memory, but not that good… Since I have had issues with the cold for so long I needed to be very specific concerning the symptoms.  He does remember me talking about the original cold injury symptoms and situation (MCT) and them being separate and distinct from my later symptoms.

 

#2: “The preponderance of the evidence does not show this is a cold weather injury. “

In accordance with Layno v. Brown, 6 Vet. App. 465, 470 (1994), I am competent to report the conditions I was exposed to during MCT and the symptoms I experienced. 

I have also submitted certified weather records from the National Climatic Data Center, which show precipitation and cold weather during the time I was in the field during MCT.

The acute symptoms of a cold injury are quite different than the later symptoms.  In addition, the acute symptoms are very similar to the effects of military training or any type of strenuous and varied physical activity: tenderness, swelling, temporary loss of feeling, itching, blisters, cracked skin, weakness… thus I disregarded them.

Until I had the C&P exam on 30 MAR 2013, I had no idea that my symptoms could be from a cold injury, in fact I had zero knowledge about non-freezing cold injuries.  This is why I failed to mention my cold exposure during MCT to any medical professional until after the 30 MAR 2013 exam; up to that point I still thought the problems I experienced during MCT were from the training, not cold injury. 

Dr. O explains in his report why the above is commonplace. 

Dr. O’s report details his diagnosis that I have sequelae of a cold injury and not Raynaud’s.  Seeing as he is the world’s expert in cold injuries, his medical opinion on my condition should be considered in preference to all others.  

Dr. A concurs with Dr. Oakley that my symptoms are indicative of a cold injury and not Raynaud’s.

In denying my claim for my disability to be rated as a cold injury, the VA has failed in it’s duty to assist me.  My claim is well grounded. 

If there is any doubt as to the validity of my claim, the VA has options for developing my claim, which I am unable to pursue due to cost.  Dr. O has offered his services to examine me, however he lives in the United Kingdom.  In his report he provided two options for diagnostic testing, one of which, the thermal threshold test, would be useful in discriminating between a cold injury and Raynaud’s.

In addition, the VA has the option of scheduling an exam with a cold injury expert.  As Dr. P detailed in his letter, he does not have the training and experience necessary to determine if my symptoms are due to Raynaud’s or a cold injury.  The two cold injury experts I have consulted with, Dr. H and Dr. O, and Dr. A, who provides treatment for my symptoms, all concur that my symptoms are consistent with a cold injury, not Raynaud’s. 

Dr. O has offered to perform an examination either at his facilities in the United Kingdom or in the United States.  Due to the cost, I am unable to utilize either option, however, the VA is urged to explore these options since cold injury experts are vanishingly rare and Dr. O is the world expert. 

Dr. H practices in Telluride, Colorado and is willing to perform an exam. 

 

[broncovet]

Unfortunately, the VA is often not that good at explaining in the reasons and bases that the reason for denial is that you lack one or more of the caluza elements, such as the nexus.  We often have to figure that out ourselves.  

Now that you have gone on hadit and figured it out, you can have an exam done from the doc you mentioned, and resubmit this exam as "new and material evidence" under 38 cfr 3.156 c (pending claim), and likely get benefits back to the date you applied, or the date the doctor says you were disabled, which ever is later.  

[broncovet]

The DBQ I read is "lacking" the required nexus.  Until/unless you have a doctor statement that the Veteran's (cold injury is at least as likely as not due to Reynauds' contracted in the service).  

I dont know if "Dr. H's" statement is probative or not.  To repeat, you need documentation of a diagnosis, an in service event, and a nexus.  

If you read your file and find all three of the Caluza elements, defined above, then you should win benefits eventually.  

[jlrith]

51 minutes ago, broncovet said:

The DBQ I read is "lacking" the required nexus.  Until/unless you have a doctor statement that the Veteran's (cold injury is at least as likely as not due to Reynauds' contracted in the service).  

I dont know if "Dr. H's" statement is probative or not.  To repeat, you need documentation of a diagnosis, an in service event, and a nexus.  

If you read your file and find all three of the Caluza elements, defined above, then you should win benefits eventually.  

Hello broncovet,

You are correct that neither C&P exam provided a Nexus on the cold injury.  Dr P, the first examiner declined to opine on it citing that such an opinion was outside the bounds of the exam (even though the VA specifically asked him to do so) and that he wasn't my regular physician and didn't have experience in cold injuries.

The Nexus is really continuity of disability though; I've had symptoms since the being in the military and diagnoses of Raynaud's.

Plus the VA service connected me for Raynaud's, chilblains, cold sensitivity, color changes and hyperhidrosis.  They are just refusing to either 1- acknowledge that a cold injury underlies my disabilities and evaluate then as such or 2- properly evaluate my disabilities as is under DC 7122.

[broncovet]

If you expect VA to award benefits absent a nexus, you are virtually certain to be disappointed.  The nexus statement is required in all cases except the "presumptives", and neither of these are presumptive.  

The VA wont accept a "continuity of symptoms" as a nexus.  You have 2 choices:

1.  Get a valid nexus, and continue your appeals and eventually win benefits.  

2.  Continue frustrating yourself without the required nexus.  

     Alex has spoke of Vets represented by a VSO who have gone through multiple appeals with no valid nexus.  The VSO should catch this, they often do not.  Its up to you to ensure you have the Caluza elements or your claim will not likely be awarded.  

     With a secondary condition, you need not "reprove" the original in service event.  So, you need only 2 Caluza elements for secondary condition.  

1.  Current diagnosis. 

2.  Nexus, or statement from doc, that your (secondary condition) is at least as likely as not related to the (primary condition, to which you are already service connected.  

[jlrith]

The lack of a proper Nexus is a good point, which I will be remedying.

I have one from Dr Oakley, but they VA completely disregarded it.  I'm going to ask my Rheumatologist for one. He previously wrote one, but it didn't specify the 'in service' portion, it just said that a cold injury is the appropriate primary diagnosis behind my symptoms.  Since my symptoms started while in service, I thought it sufficient.

Any thoughts on how to better prove the in-service cold injury?  I have no medical records showing one, only the Raynaud's diagnosis later, while still in service.  And no buddy statements to corroborate my statement since it was sorry training and I was there with people I didn't know.

Any thoughts on getting a cold injury rating without using the inn service cold injury?  I am already service connected for Raynaud's, chilblains, cold sensitivity, color changes and hyperhidrosis, the VA simply chose to evaluate it all under the Raynaud's DC.

 

[broncovet]

The "winner winner chicken dinner nexus will have:

1.  It will state that the Veterans records (medical) have been reviewed.  

2.  It will state that the nexus is "at least as likely as not" format.  It will fail if it says" maybe, could be, or other "speculative" statements.  

3.  If its an IMO/IME, then include the doctors CV, that is, his traiing and expertise in this field.  A Phd from a doctor in Social work, wont help you with your nexus.  

4.  He needs to state his medical rationale as to why he offered said professional opinion. Something like, "The AMA issued a statement in 2015 that linked Raynauds and exposure to cold" for example.