Appeal Question

[ozzyman81]

Hello All,

I am having extreme difficulty with my MS claim. I should first mention that I was in the reserves so my periods of active duty were for training. However, I can trace my initial symptoms all the way back to basic training. I recently filed a supplemental claim with an opinion from one of the best centers for MS in the county. The Dr. examined all of my records and medical history and said, yes, it is "more likely than not" that it started with my first clinical relapse in basic. Here's the problem. They closed the claim and said that was not new evidence! I am at a loss at what to do. This was my 5th supplemental and I've had 1 HLR already. I've given medical reports, lay statements, medical opinions. They have not so much as given me a single c&p exam. They just keep hitting me with the "Service treatment records do not document complaints of.." yadda yadda. Here is the last denial letter. It seems offensive that they continue to state no evidence. Opinions please.

<<<Start Letter>>>

A claimant may file a supplemental claim by submitting or identifying new and relevant evidence.

Relevant evidence means evidence that tends to prove or disprove a matter at issue in a claim, (38 CFR 3.2501) The evidence from Dr. XXXXX and the Mellon Center for MS submitted in connection with the current claim does not constitute relevant evidence because it does not prove or disprove a matter at issue within your claim. 

There remains no evidence of this condition during active duty for training. Service treatment records do not document complaints of or treatment for any symptoms consistent with early manifestations of multiple sclerosis. Service connection cannot be established on a presumptive basis as there remains no evidence that the condition manifested to a compensable degree within seven years of a qualifying period of active duty. While records show a current diagnosis, there remains no evidence relating this condition to a period of active duty service. (38 CFR 3.1, 38 CFR 3,6i 38 CFR 3,7, 38 CFR 3.303, 38 CPR 3.304, 38 CFR 3.307, 38 CFR 3.309, 38 CFR 4.6) 

Favorable Findings identified in this decision; 
You have been diagnosed with a disability. Private treatment records from XXXXX dated XXXXX, diagnosing multiple sclerosis, 

The claimed disability is a chronic disease which may be preemptively linked to a qualifying period of military service. Multiple sclerosis is a chronic disability under 38 CFR 3.309(a), 

Your claimed issue became manifest to a degree of 10 percent or more following service. 

<<<End Letter>>>

Thanks,

Brian

 

 

[broncovet]

You have to have documentation of an "in service event", which the VA indicates is lacking.  Its Caluza element 2. 

Element 1 is current diagnosis and element 3 is nexus.  You must have all 3.  

My advice is to review your complete cfile, and see if its documented.  Then, file a NOD to the BVA as your VARO has made it clear they wont award you that.  

A buddy letter may suffice to document an in service event, since we may/or may not seek treatment for everything.  NOTE:  "In service diagnosis" isnt required, but an in service event that a doctor says caused your current diagnosis is required.  

A doctor can not provide you with an in service event.  He can not testify about your in service history, unless he served there with you.  Lacking an in service event means that a nexus will never fly, because it relates the in service event to your current diagnosis.  

[GBArmy]

I agree with Bronc on this; your best course of action is to the BVA with new additional evidence. If you can get a buddy letter from someone you were in basic with or your reserve unit right after basic that could talk to how you started to exhibit symptoms, that would really help your position. Same with buddy letters from  your wife or other family member. Don't forget your own statement in support of the claim too. If you are willing to foot the bill, it might be worth the expense to get another supporting IMO from a specialist that can also back up with a strong nexus. The reason I say this is it is going to go to the BVA, and after several attempts, you want to get it right this time. If denied, it really is going to be difficult to start over. Just consider what you have and if it doesn't seem strong enough, check another source out IMHO.

[Berta]

This fairly recent BVA grant might help you.

The veteran proved, with his SMRs , that he had exhibited the early manifestations of MS.

Also an MRI report revealed significant findings.

https://www.va.gov/vetapp18/files12/18157953.txt

Did the Doctor you mentioned have your SMRs and any MRI results?

 

This article might help, as well.

https://www.hillandponton.com/multiple-sclerosis-va-service-connection-issues/

Edited June 17, 2020 by Berta

[ozzyman81]

Thank you for the replies. There really wouldn’t be an in service “event” because MS does not really start that way. Our goal was to connect the 2nd and 3rd elements through continuity of symptomotology 38 CFR 3.303(b). I have submitted statements from myself, my wife, and others who knew my from HS to current who saw the changes. I also have submitted records from my private MD from the time as well as chiropractor and neurologist with a time like from then to now. The only evidence that they really have that it “didn’t” start then is my lack of reporting it during that duty. I keep thinking they would understand no one would willingly admit they lost control of their bowels especially during basic... I really didn’t want to wait for the BVA. Does anyone think a HLR would understand, or is it just too complex.

Thanks,

Brian

[kanewnut]

2 hours ago, ozzyman81 said:

Does anyone think a HLR would understand

In my opinion no. They only look at the the evidence that is already there. If you are in the AMA it hopefully won't take that long to get to the BVA. 

[Ddsr]

16 hours ago, ozzyman81 said:

Hello All,

I am having extreme difficulty with my MS claim. I should first mention that I was in the reserves so my periods of active duty were for training. However, I can trace my initial symptoms all the way back to basic training. I recently filed a supplemental claim with an opinion from one of the best centers for MS in the county. The Dr. examined all of my records and medical history and said, yes, it is "more likely than not" that it started with my first clinical relapse in basic. Here's the problem. They closed the claim and said that was not new evidence! I am at a loss at what to do. This was my 5th supplemental and I've had 1 HLR already. I've given medical reports, lay statements, medical opinions. They have not so much as given me a single c&p exam. They just keep hitting me with the "Service treatment records do not document complaints of.." yadda yadda. Here is the last denial letter. It seems offensive that they continue to state no evidence. Opinions please.

<<<Start Letter>>>

A claimant may file a supplemental claim by submitting or identifying new and relevant evidence.

Relevant evidence means evidence that tends to prove or disprove a matter at issue in a claim, (38 CFR 3.2501) The evidence from Dr. XXXXX and the Mellon Center for MS submitted in connection with the current claim does not constitute relevant evidence because it does not prove or disprove a matter at issue within your claim. 

There remains no evidence of this condition during active duty for training. Service treatment records do not document complaints of or treatment for any symptoms consistent with early manifestations of multiple sclerosis. Service connection cannot be established on a presumptive basis as there remains no evidence that the condition manifested to a compensable degree within seven years of a qualifying period of active duty. While records show a current diagnosis, there remains no evidence relating this condition to a period of active duty service. (38 CFR 3.1, 38 CFR 3,6i 38 CFR 3,7, 38 CFR 3.303, 38 CPR 3.304, 38 CFR 3.307, 38 CFR 3.309, 38 CFR 4.6) 

Favorable Findings identified in this decision; 
You have been diagnosed with a disability. Private treatment records from XXXXX dated XXXXX, diagnosing multiple sclerosis, 

The claimed disability is a chronic disease which may be preemptively linked to a qualifying period of military service. Multiple sclerosis is a chronic disability under 38 CFR 3.309(a), 

Your claimed issue became manifest to a degree of 10 percent or more following service. 

<<<End Letter>>>

Thanks,

Brian

 

 

Show me a picture or scan of the nexus letter. I can tell you if it is relevant.