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]

I fully understand not wanting to wait for BVA.  However, the alternatives are worse:

1.  Getting another SCL denial and THEN go to the BVA, where it will take still longer.  

2.  Give up and never get benefits.  

     Once, I was working for a company who sold products for commercial use.and that included floor wax.  The representative  of the wax we sold came out to help me understand the products.  About that time a complaint came in from a customer who was unhappy with the wax they bought from us.  

     He went with me.  When he arrived, he asked, "How did you put this wax on?"  

The customer responded, "Well, I just poured some on the floor, took a mop and spread it around.".

Did you read the label? was his response.  

"Oh no, I didnt have time to read the label".  

    And his response stuck with me:

Quote

If you dont have time to do it right the first time, when will you have time to do it over?

     So, the customer had to strip all the new wax and old wax, and apply wax, 3 coats, buff it, and the results were great.  Skipping stripping the old wax does not work with any brand.  Its like painting on top of oil.  The paint wont stick.  

      HLR or SCL are not "shortcuts" to the BVA..they are the long way around.  

Edited June 18, 2020 by broncovet

[Berta]

As the decision states:

 "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."

Was your period of active duty comparable to this :

"(1) Service. The veteran must have served 90 days or more during a war period or after December 31, 1946. The requirement of 90 days' service means active, continuous service within or extending into or beyond a war period, or which began before and extended beyond December 31, 1946, or began after that date. Any period of service is sufficient for the purpose of establishing the presumptive service connection of a specified disease under the conditions listed in § 3.309(c) and (e). Any period of service is sufficient for the purpose of establishing the presumptive service connection of a specified disease under the conditions listed in § 3.309(f), as long as the period of service also satisfies the requirements to establish a presumption of exposure to contaminants in the water supply at Camp Lejeune under paragraph (a)(7)(iii) of this section."

https://www.law.cornell.edu/cfr/text/38/3.309#f   ( as referenced in 38 #.309 to  to 38 CFR 3.307)

If you had the 90 days of active service, then that was not the actual issue for denial.

If the MS manifested with 7 years of that 90 active duty-with documented proof =then the claim could succeed.

I feel you should attempt to get some buddy statements- because I do not feel the HLR will change this decision at all.

You stated this:

"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."

By the way BVA cases even if they appear to be exactly like yours, cannot be used as evidence.

The legal citations BVA cites  has- however can lead you to a full comprehension of the regulations that control these claims.

In the above quote what do you mean by HS? 

A Buddy statement is an eye witness account from a veteran who served in your unit, same time and same place, who would need to verify that you exhibited symptoms of MS,by stating you tripped alot had leg weakness,  bladder issues, fatigue etc etc etc etc - the symptoms of early manifestations of MS.

They could prepare this on a 21 -4138 form that includes an oath or simply in a letter, to VA ,giving VA their full contact info and by stating an oath ( like on the 21-4138) and also by getting their signature notarized. 

But I also believe you will need a very strong IMO/IME that could verify these symptoms from the buddy statement  ( or more than one from a different buddy,  are obvious medical manifestations of your MS within the active duty period of 90 days.

You said you had medical evidence and statements :

"with a time like from then to now"

When were you in Basic and when did you get a formal MS diagnosis?

 

Those statements ,from inservice buddys , ( more then one i always good to get)could bolster a nexus - which is missing from your claim, that a good IMO/IME doctor could use to establish the nexus.

Dr. Bash is an IMO/IME doctor and also has MS, and is a veteran as well as a former VA doctor.

But he is very expensive ( yet very  thorough).

I have 2 IMOs from him and know the cost would have been much higher but I did a lot of the medical work for that claim myself.I had to study Endocrinology to do that.

He did not need the veteran's SMRs, just his VA medical records, and some other info.Death Cert, autopsy, my FTCA /1151 award letters etc and copies of the two C & P exams that his IMOs completely knocked down.

With the buddy statements you might want to contact him or any other IMO/IME doctor with his level of expertise in MS.

Are you employed? or do you get SSDI and if so what is the SSDI for?

Every Unit  seems to have a web site.

Many have reunion rosters and contact info and there are other ways to try to find a Buddy you served with.

TogetherWeServed web site might help as well.

 

 

 

 

 

 

 

Edited June 18, 2020 by Berta
added more

[ozzyman81]

8 hours ago, Ddsr said:

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

Please see attached scan.

2 hours ago, Berta said:

When were you in Basic and when did you get a formal MS diagnosis?

Basic in 2003 Diagnosed in 2015

2 hours ago, Berta said:

In the above quote what do you mean by HS? 

High School. Statements from a good friend from high school who knew me well before I joined to now. Also is a US Army vet.

I have attempted to get statements from folks that I went to basic with. It seems there is nowhere to find a list of names. I sent a FOIA to Lackland and the reply was that those lists no longer exist. I am still searching around to see what I can find in the way of names.

It is starting to look like I should just go straight to the board. If so, should I opt for a hearing so I can explain everything directly to the judge?

DBQ-History.pdf

[Berta]

The DBQ is no help-it still lacks proof of a nexus.

I am a civilian and don't know the answer to this, but maybe someone here will know:

When my deceased husband was discharged from USMC, ( 1968) he showed me (I still have it) a book of the pictures and names of those he either graduated with from boot camp or from his unit when he got discharged,. I think my daughter got one too when she was discharged from BT  or from the Air Force 13 years ago. 

But Maybe not- as I went to the graduation at Lackland for my daughter and they gave all of us parents a video tape showing our kids going through the steps of Basic training. One part was when she qualified with the M 16 *and when she had to swing on a rope over water.

It was the first integrated squadron in USAF and they all did very well- by integrated -they meant male and female all took the same training ,bivouac etc etc.

Did you  ever get any type of book like that went you graduated from Basic or when you were formally discharged from the Reserves?

* my daughter saw the video about a year later when she was home here on leave and  and was shocked at how different some of the airmen looked before they had the initial haircuts!

Also when the video showed her at the M 16 range she told me the M 16 choked up and didn't fire correctly, at first, ...  just like her dad's did, decades before in Boot camp, Camp- LeJeune.

I told her maybe it was the same M 16!

 

 

 

 

Edited June 18, 2020 by Berta

[Ddsr]

3 hours ago, ozzyman81 said:

Please see attached scan.

Basic in 2003 Diagnosed in 2015

High School. Statements from a good friend from high school who knew me well before I joined to now. Also is a US Army vet.

I have attempted to get statements from folks that I went to basic with. It seems there is nowhere to find a list of names. I sent a FOIA to Lackland and the reply was that those lists no longer exist. I am still searching around to see what I can find in the way of names.

It is starting to look like I should just go straight to the board. If so, should I opt for a hearing so I can explain everything directly to the judge?

DBQ-History.pdf 282.31 kB · 3 downloads

Not a nexus letter. The physician MUST state that he or she reviewed the Veteran's Service Treatment Records or their C-File. This may be new but it is not relevant so it cannot be used with a Supplemental Claim. This is a verification of the condition but not a nexus to his service. All based on his own recollections while in the military.

[ozzyman81]

I appreciate both of you answering. I think that this is where either I am wrong, or the problem with my claim lies. Perhaps the va is only looking at the standard nexus as it looks like you are from the replies:

“In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.“

I am attempting to use the alternate method:

”Alternatively, the claimant may establish service connection by continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. 38 C.F.R. § 3.303(b)”

“If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).”

In this case the nexus is just that my current disease symptoms match the post service symptoms in my medical records from the time of service to now. That is what my Dr was trying to say.

Please let me know if I am interpreting this wrong.