Aggressive Case Development

To protect her privacy, we will call her Mrs. X. Mrs. X was married to a veteran of the Korean Conflict. The stress of the veteran’s service resulted in the development of a peptic ulcer. In the years following service his ulcer condition waxed and waned in severity. At times the condition was very severe, which caused the veteran a lot of problems. Fortunately, the veteran did obtain service connection for his ulcer. The ulcer did negatively impact his health and in the early 1990s he was no longer able to work due to the ulcer disability.

But his problems became much worse about 12 years ago when he was diagnosed with prostate cancer. Since he did not serve in Vietnam there was no realistic way to service connect the prostate cancer. His only service connected disability remained the ulcer.

Unfortunately, the prostate cancer metastasized. It began to spread to other parts of his body. The doctors began to treat the cancer aggressively with chemotherapy. However, the chemotherapy drugs aggravated the ulcer to such an extent that he became anemic. He was losing a lot of blood from the ulcer and it was impairing his ability to fight the cancer. Because of the excessive loss of blood from the ulcer the doctors had to discontinue the chemotherapy. Without the ability to utilize the most potent chemotherapy drugs, the cancer spread to his brain. This caused the veteran’s death.

Mrs. X filed for service-connection for the cause of her husband’s death. She asserted that the cause of death was due to the service-connected ulcer. The VA denied her repeatedly. She appealed to the U.S. Court of Appeals for Veterans Claims. The Court remanded the case back to the Board and the Board denied her again. This time, she hired our firm to represent her. We again got the case remanded back to the Board. However, this time we employed an aggressive strategy to prove her claim.

We enlisted the services of a professional medical expert who gave the opinion that the bleeding ulcer required the doctor’s to stop the chemotherapy, and without the chemotherapy the cancer spread to the brain and caused the veteran’s death. The Board was initially unwilling to accept our private expert. Instead, the Board referred the case for a VA advisory medical opinion.

Not surprisingly, the VA medical opinion stated that there was no connection between the veteran’s death and his service-connected ulcer. The VA gave us only 60 days to respond. We forwarded the case to an oncology/hematology specialist. The specialist was able to refute the VA doctor. The VA doctor had made some generalized conclusions to support a negative opinion. However, our private expert was able to give the opinion that in our particular case, stopping the chemotherapy was the cause of death. We submitted the additional expert report with additional argument. This time, after 8 long years of fighting, the Board finally granted Mrs. X’s claim.

This case represents a study in the effectiveness of the strategic use of medical experts. It is important to aggressively develop a veteran’s case with strong medical evidence.