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

 

 

[pacmanx1]

IMHO, you will still need more evidence.  From 2003 to 2015 is a serious gap in treatment time.  Continuity of symptoms mean that you have multiple evidence that proves your MS began in service. Keep in mind that there are more multiple early signs of MS and any and all medical records can prove this. You can search your records to see if any of the following applies.  These symptoms for treatment could be new evidence that shed a different insight in your claim.

Multiple Sclerosis Symptoms: 10 Early Warning Signs of MS

1. Fatigue – Up to 80% of people with multiple sclerosis will find that fatigue inhibits their ability to perform at work or home. This is also the most prominent symptom for those who have few activity limitations.
2. Numbness – One of the first signs of multiple sclerosis is numbness or tingling in the body, face, or arms and legs. For those diagnosed with the disease, this is often the very first symptom they have. Bell’s palsy and ms may be related if one side of the face’s nerves are targeted.
3. Difficulty Walking – This can be due to lack of balance, weakness in the leg muscles, or even fatigue. This is one symptom that can be helped with physical therapy.
4. Vision Issues – Blurred vision can be one of the first symptoms of multiple sclerosis. This can come with pain during eye movement, poor contrast, or poor color vision. If a loved one experiences this symptom, they should see a doctor as soon as possible.
5. Bladder Issues – The vast majority of people with MS will experience bladder issues. However, with proper diet and medications, this can be managed.
6. Pain – Pain is a common symptom of multiple sclerosis with up to 55% of patients experiencing significant pain at one time or another. In addition, about half of those with MS report chronic pain.
7. Dizziness – With MS comes dizziness or vertigo. It is common to feel off balance or even lightheaded. For a smaller percent, they may experience a feeling that they are spinning or that the room is spinning.
8. Tremors – While less common, those with MS can experience tremors in parts of their body. This is due to nerve damage to the pathways which are responsible for movement of those areas.
9. Speech Issues – Up to about 40% of those that suffer from multiple sclerosis will notice speech issues such as slurring or a decrease in volume. This typically occurs in later stages of the disease.
10. Bowel Issues – Along with bladder issues, MS sufferers can experience bowel issues with constipation being the most likely. Also, those diagnosed with MS may find that they have lost control of their bowel function as well. These issues can be managed through diet and doctor prescribed medications.

 

Edited June 19, 2020 by pacmanx1

[LightofSolitude]

2 hours ago, ozzyman81 said:

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.

A Board Certified Specialist needs to link your current symptoms to “the established in-service event / injury” NOT to your post service symptoms. This is where the problem lies. An HLR will most likely confirm the denial again and you cannot submit new and relevant evidence with this option. The nexus in the “DBQ history” that you uploaded is poorly worded and has an insufficient rationale to support it. If you submitted this evidence as is, the VA will most likely say something like this:

Service Connection for Multiple Sclerosis is denied because the doctor’s rationale is based on your verbal testimony which does not establish a link to your active military service.

Your service medical records have to be reviewed with a fine tooth comb by your doctor and he/she must state this when rendering the medical opinion.

Did you go to sick call at any time during your active duty for training period(s) to complain or report about anything at all? Pacmanx1 gave great advice when he posted the symptoms of MS. If you have ANY of these symptoms documented in your “service medical records” that will aid in establishing your “in-service event / injury.” Then you can give these records to a doctor so he/she can formulate an effective and probative Independent Medical Opinion for you.

Side Note: The verbiage for “Continuity of Symptomatology” as you mentioned in your post is a little misleading. In My Humble Opinion, this is “supplementary evidence.” It does NOT eliminate any of the core elements for service connection (which you must have and prove in order to be service connected). These core elements for service connection are as follows:

1. Current Diagnosis (without this, there can be no valid claim)

2. In-Service Event or Injury (a documented occurrence in your SMR’s to which your current disability can be attributed to by a specialist)

3. Medical Nexus Opinion (with a sufficient rationale which links your current disability to your established in-service event from your active duty for training period(s))

The absence of any one of the above elements = a denial of benefits. You must have all three.

Don’t be discouraged. Please continue to keep us posted and let us know how things work out.

[ozzyman81]

Thank you again for the information. It is actually quite helpful for me to pseudo-argue my case here, because I have a good idea what to expect from folks unbiased perspective.  I should have mentioned that I do have a fair amount of medical information in my file from 2003-2015 with almost all of the symptoms listed. I have to stress, these are records from my personal doctors, not STR. There is a LONG list of evidence from doctors.

I was trying my best to NOT be discharged and didn't want to bring up any issues in service. It was a very odd decade with odd symptoms popping up here and there and I would find an excuse to brush them off.

I do have one entry in my STR because I started taking meds for anxiety/depression and informed the AMDS. However, the VA is also discounting that because "I" told them I was taking the medication. It was not diagnosed by the doctors there. I was placed on medical profile that day until I submitted info from my doctor. This is listed in one of my VA decisions. *Note depression/anxiety are early symptoms of MS.

"Although your reserve service treatment records do note one complaint of depression, there is no evidence to show that this condition resulted in the line of duty or would otherwise satisfy the general requirements for service connection based on the overall evidence. (38 CFR 3.301)"

This I have to disagree with:

36 minutes ago, LightofSolitude said:

Side Note: The verbiage for “Continuity of Symptomatology” as you mentioned in your post is a little misleading. In My Humble Opinion, this is “supplementary evidence.” It does NOT eliminate any of the core elements for service connection (which you must have and prove in order to be service connected).

As far as I have read the Continuity of Symptomatology does replace the 2nd and 3rd elements. I've pulled this from a similar case:

"Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 
Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a 
nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)."

That is more or less the entire basis of my argument to the VA thus far. I have stated that "x" symptoms started in basic. I then provided years of private treatment records that show the same exact symptoms all the way to diagnosis. In a way that's why I filed my claim to begin with. I had no idea what the heck was going on with me until I was diagnosed. Then the light bulb went off and I though "oh, it all makes sense now." I am starting to feel like maybe this connection is less known because none of my denials have mentioned this connection as even a possibility. Many of my decisions show in the favorable findings "private treatment records from "Dr" noting/diagnosing "MS symptom" from various years all through the gap. The odd thing is the next denial with say something completely different and say "no evidence of "x."

I don't mean to write a book, it's just frustrating and really makes you just want to give up sometimes. haha

 

[kanewnut]

1 hour ago, ozzyman81 said:

really makes you just want to give up sometimes

Sometimes it feels like that is exactly what they want you to do. Don't give up. Sounds like you are doing a good job figuring this out. I find some of the denials they give me comical. You just have to keep pushing forward.

[LightofSolitude]

6 hours ago, ozzyman81 said:

I do have one entry in my STR because I started taking meds for anxiety/depression and informed the AMDS. However, the VA is also discounting that because "I" told them I was taking the medication. It was not diagnosed by the doctors there. I was placed on medical profile that day until I submitted info from my doctor. This is listed in one of my VA decisions. *Note depression/anxiety are early symptoms of MS.

You stated that you only have “one entry” in your service treatment records of an in-service event or injury. This is a starting point. You also stated that you started taking meds for anxiety / depression. Yes, anxiety and depression are early symptoms of MS. However, anxiety and depression are also early symptoms of Post Traumatic Stress Disorder and a whole heap of other mental health disorders. This is why it is imperative that you have a “medical specialist” make the connection for you.

In regards to Continuity of Symptomatology, pay close attention to the bolded (pertinent part) of the regulation:

“Continuity of Symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a 
nexus between the present disability and the post-service symptomatology.”

A “Line of Duty Determination” is generated whenever a service member incurs an injury during a qualifying period of active service. In your specific circumstance (this part is important) since your only period of active duty is active duty for training, the document you need is called a “Standard Form 600” which is also known as a “Chronological Record of Medical Care.”

This is what you need to show the VA in order to establish the second element for service connection. The Line of Duty Determination is a “federal record.” It does not matter if you have 1000+ pages of private medical evidence. The fact of the matter is no amount of private medical evidence is going to establish a federal military record. This is what the VA is saying is lacking from your claim.

Moreover, in regards to the medical nexus opinion, as I stated in my previous reply and will state here again is “poorly worded and has an insufficient rationale to support it.” Mrs. Berta (someone with far more extensive knowledge than myself) has stated that “the DBQ is no help-it still lacks proof of a nexus” and I agree with her 100%.

Here is the crux of the issue: If your “in-service event / injury” is not shown by “federal service medical records,” any private medical opinion you seek to obtain will have no probative value or credibility whatsoever because the medical specialist has to be able to link the first two elements. He/she cannot do this if either element is missing / not established. Therefore, the “Continuity of Symptomatology” as per 38 CFR 3.303(b) specifically, will not apply to your claim as you have failed to demonstrate (the first prong of that regulation) that a condition was “noted” during active duty for training (by means of a Line of Duty Determination stated above).

You stated that you went to basic training in 2003. Multiple Sclerosis has a seven year presumptive period. “The starting period for this legal presumption is seven years from the date of discharge from your active duty for training period specifically.” This is not necessarily the date you left the military entirely, which is an important note. You might want to double check your discharge date(s) to see whether or not this window has passed.

Forgive me if I seem a bit argumentative, I am only trying to help you. Stay safe and good luck.

[pacmanx1]

Here is the thing, I know some may not agree but it is your claim and you have to do what you feel you have to do.  We can only post a response on the information you give and our knowledge and experience.  So here is my two cents.  We don't see the evidence/information in your file and in all truth we will not be the ones that will actually make the decision about service connection or not.  At this point the thing to do is to allow your claim to go to BVA.  According to you, you have more positive evidence/information that VA has not or did not consider. VA is very famous to ignore relevant evidence.  In that case, if you do and if it is at least as equal to the negative evidence then you will win at the BVA. Of course you know if it does not equal then you will lose but you will be given a chance to submit more evidence when your claim goes to the BVA. 

Many years ago I filed a claim and it was denied. I did file a timely NOD and even later reopened my claim and it was denied again and I filed a NOD again and it was denied by VA and the DRO.  When my claim went to BVA they remanded it and the local VARO continued to deny my claim and sent it back to BVA where the BVA judge denied my claim. My VSO at the time informed me not to appeal because I did not have enough evidence.  I fired him and got a lawyer.  When my claim went to CAVC it was remanded and then the BVA granted my claim, this took fifteen (15) years.  That means that the evidence was always in my file but VA and BVA kept denying my claim.  It took another five (5) years and going back to BVA again before BVA to finally grant my original effective date. I/we know what you are going through but you have to have the right evidence and VA not considering it will only cause delays but you have the time to get it. Just keep in mind that there will be times that VA will force a veteran to file an appeal. MS is one of those disabilities that could result in multiple secondary disabilities. So again do whatever you feel you have to do and keep us informed.  Your situation may help other veterans. 

I underlined that my evidence was always in my file but it took VA/BVA/CAVC a total of twenty (20) years to realized that the evidence in my records warranted not only service connection but the correct effective date. Yes, in this situation I also had to get VA to correct my rating percentage.  It can be done, never give up.