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Court Wins

CCK Argues Service Connection for Cause of Death Related to Multiple Sclerosis

Michael Lostritto

January 3, 2022

Updated: June 20, 2024

CCK Oral Argument

Case Summary

The Veteran served on active duty in the United States Navy from June 1978 to June 1984.  He began having symptoms associated with multiple sclerosis (MS) while in service and was officially diagnosed with the illness in 1994.

In 2008, the Veteran filed a claim for disability benefits from the U.S. Department of Veterans Affairs (VA) for multiple sclerosis.  VA denied him service connection, stating that he did not meet the criteria for presumptive service connection for MS as he was diagnosed 10 years following his discharge.

The Veteran passed away on February 28, 2017.  His initial death certificate noted pancreatic cancer as the primary cause of death, but a supplemental report listed MS as well.

On May 31, 2017, the surviving spouse of the Veteran filed for a claim for Dependency and Indemnity Compensation (DIC), Survivors Pension, and accrued benefits.  VA issued a rating decision on July 27, 2017, denying service connection for the cause of death.

Board Denies Service Connection for Veteran’s Cause of Death

The spouse filed a Notice of Disagreement with the Board of Veterans’ Appeals (Board) on January 12, 2018.  On August 21, 2019, the Board determined that the Veteran’s cause of death was not connected to his service, as his MS did not develop within the relevant presumptive period following separation from service.

With the assistance of Chisholm Chisholm & Kilpatrick LTD, the spouse appealed the decision to the U.S Court of Appeals for Veterans Claims (Court).  In June 2020, the Court remanded the case back to the Board for readjudication.

CCK Argues Service Connection for MS

CCK argued that the Board provided inadequate reasons for denying service connection.  The Board incorrectly focused on the date of diagnosis of the MS and did not consider the evidence suggesting an onset of symptoms within the presumptive period.  Post-service records indicated that in 1985, 1987, and 1989 several medical professionals determined an onset of MS—all within the seven-year presumptive period.

CCK offered a private medical opinion as evidence, in which the medical professional explained that MS patients are often not diagnosed until years after the disease develops, as MS is hard to identify in its early stages.

Based on CCK’s arguments, on April 15, 2021, the Board granted service connection for the cause of the Veteran’s death.

VA Grants Surviving Spouse DIC

On April 20, 2021, VA issued a rating decision granting Dependency and Indemnity Compensation for the surviving spouse, dating back to the Veteran’s death.  The spouse also received burial compensation and Dependents’ Educational Assistance benefits.

About the Author

Bio photo of Michael Lostritto

Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Michael