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Va Is Trying To Hoodwink Me

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lamontino

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Hi there I probably have one of the most complex case(well VA made it complex)ever. At the rip age of 14 I went to an doctors appointment to try to figure out why my legs was hurting, the doctor said that I was having pain in my back or that where i was getting the pain from, I told him that my back didnt hurt at all(which is documented in that report) just my legs. Instead the doctor did x rays on my back(which the films are not available and the doctor is decease as of this date) revealing that I had bilateral spondylolysis at the L5 and minimal Grade I anterior spondylolisthesis L5 S1 no acute injury or other abnormalities are recognized. I was give Mortin 800 and sent on my way in life under the understanding that I could do anything or be anything I wanted to be in life. I later went to job corp and recieved a state high school diploma. I went in the military in May of 1986, fresh out of job corps and eager to get started with my new potential found career in the military(11 Bravo 10th Mountain Div. I did the entry exam, medical exam etc.... to past and get accepted in the military at that time I also disclosed to the examing doctor that I had previous had a leg problem assoiciated with my back which I took mortin 800(which is documented in that report). The medical exam ask if my back or legs was still bothering me? I told him no. And than did a physical exam of my back etc......He cleared me to go in the army.

Two weeks into basic training I fell off a wall that had a bottom pedastel on the bottom(like a wall with a patform at the bottom, I went to sick call there I was exam dianoise as having tender points at L2 and L5. I was given meds(800mg of mortin)and a rectal exam and release back to basic training. A couple of days later I twisted my back out of place by repeating standing up and down at a rapid speed(just before that my unit was low crawling with backpack on and marching). I than went to sick call again where I was seen no through xray was done again and sent back out to basic training. As we where bidwacking in the field I became sick with pain now in my legs, back,and stomach. I went to sick call where they but me in the hospital for a two days. I was release again this time I got only a culture of my stomach which revealed that I had esophastis and gastrisis and given a appointment to see the otho doctor at army martin hospital and sent back out to basic training again.

At the doctors office, at army martin hospial I seen a otho doctor whom dianoise me as having "chronic mechincal low back pain and giving me a permanent L3 Profile with no running or lifting". Diagnosis of Lumbosacral spine with bilateral spondylolysis L5.

I got a honorable discharge with a reenlistment code of RE-3. I tried to fight from being discharge without getting some type of disability through the IG office and met with a person whom never got back with me on the issues that I was trying to address.

I continue to have severe back pain and proceeded to my local VA office for further care. I did disclose to the doctor at local VA hospital of the condition in the military and prior to me being in the military. There I was given a c&p exam. I was given an exam of my back which the radiologic report now says "No evidence of spondylolysis or spondylolisthesis apophyseal and sacroiliac joints are unremarkable no fracture or dislocation(basically alot of the paperwork on that date of exam which was a month later after i was discharge wasnt done).

During my life at that time I didnt have a place to stationary live my life so I was basically homeless. I never heard back from the rating peoples about how, what, and if I was going to recieve anything from this injury. Until years later when I requested documents of my complete file.

Which claim they wanted me to come in for a RHEUM EXAM(once I found out that i was wondering why would they schedule me for a rheumary arthisis exam if they didnt find anything on the radiologic report revealing anything inreference to my back).

I tried for years to get benefits from the VA but was denied each time because they say that I had a diease prior to service and that through my life as of today I had two previous auto accident(which in those reports I never had injuried my back which is well documented)and the new doctor exam says that his etiology say that it is the natural course of the diease as to why I still in pain.

I did apply for SSI and SSA which I did get approved(which social securtiy only pays for one year prior to your filing of your claim meaning they dont go back to the orgin of the time you was injury or permenantly disabled)but in those reports The ALJ for got to put in about the onset of the injury I got in the military. BUt I know for certain it was discuss at my finally hearing on that tape record statement of the onset, in reference to my back.

Through the years my back condition worsen developing to fibermyloa as well as other delvelopments including depression. As of today I about to go to a travel broad hearing. Wondering if I could get some advice on what is what. Thanks for your help

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Hello goodmorning

It is my opinion that you get a better workup on appeal, be it a DRO or the BVA. I had a face to face conference with the DRO who awarded my claim. Medical evidence wins claims. I am not sure how much help the conferences really are.

When doing that foot work get a doctors statement that shows more likely than not to rebut the doctor who is on file. If you don't get this then the only way the claim will stay alive is if the BVA remands it for more medical opinions. Things go faster if you get strong medical evidence on you own rather than rely on BVA remands.

Get the statement from a VA doctor or an IMO. This will be complex because of the complexities of your claim. Ask your SO to help you get the report in the right format for the VA. It was a real hassel for me to get this type of report from VA doctors. They did not want to get involved.

The medical opinion saying the current condition is more likely than not related to the military is necessary for the claim to be awarded. From what you are saying it sounds like the pre-service condition being called chronic will be over-ruled. The burden of proving you have a preservice condition is on the VA. The burden of proving more likely than not that the current condition is related to service is on you. The VA C&P process and remand does not always work. Getiing a treating physician or IMO to write a nexus letter and having it submitted in the right format is the best way to go in my opinion. Talk to your So about this.

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  • In Memoriam

To be pre-existing you will have to produce medical records that show the pre-existing condition.

No. friend. You hava a presumption of soundness if you are accepted into service without a disability being noted, and VA has the burden to show the opposite by clear and unmistakable evidence.

Upon entry into the service they said you were ok. You have to prove that also.

Again, no: VR must prove with clear and uinmistakbele evidence that you entered service with a defect or disano;ty.

Upon exiting the service you were given a diagnosis that covered the back pain, you have to prove that you complained of back pain and received medication for it while in training.

Sledge -- Wrong again: it is om the VA to show, by clear and unmistable evidene, that there was no aggravation; and, if aggravation existed, it was mpt beyond the natural process of the disease.

Get an outside ortho doc to pull it all together for you.

Tom -- You should listen to your attorbey Ken Carpenter more carefully. Have you given him his "gift" yet?

Alex

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Alex,

In my case the VA got one of their hit men to invent that I had a pre-service medical condition. Mr. Carpenter cleared that up, 14 years after the fact, with the presumption of soundness because there are no medical records to back up the fictitious, pulled out of his butt, prior to service, disease that they used to deny my claim.

In this case the veteran is claiming a pre-service medical condition that was aggravated by service.

This veteran does have medical records to back up his claim, even though the presumption of soundness was also available.

This could take decades to resolve.

(Upon entry into the service they said you were ok. You have to prove that also.

Again, no: VR must prove with clear and uinmistakbele evidence that you entered service with a defect or disano;ty.)

I was speaking of the paper trail and the presumption of soundness.

In this case, the veteran told the entry examiner about his prior condition and he was cleared to enter basic training. If that turns out to be a wrong move by the entry examiner, the veteran should be able to prove aggravation by putting all of the medical records together in chronological order with the cleared entry examination in the right place. If he came out of the service with a medical condition that was not observed by the entry examiner, the presumption of soundness should apply. He has to prove that he was not hiding anything from the entry examiner or some clerk in the VA is going to holler fraud using any pre-service records as the evidence.

(Upon exiting the service you were given a diagnosis that covered the back pain, you have to prove that you complained of back pain and received medication for it while in training.

Sledge -- Wrong again: it is om the VA to show, by clear and unmistable evidene, that there was no aggravation; and, if aggravation existed, it was mpt beyond the natural process of the disease.)

Alex, the basis of the claim is the current medical diagnosis and the fact that they used the current medical condition 'claimed' to give him the boot.

He has to prove his claim using his pre-service, presumed to be sound, cleared for duty, entrance examination, his in-service medical records, the exit examination that identifies his medical condition and a recent examination, within one year of discharge, to have everything covered in proving service connection.

In my opinion, the presumption of soundness should eliminate any worries about a pre-existing condition, committing some kind of illegal act by the veteran when joining up.

The presumption of soundness negates any argument of 'aggravation' or 'natural progression' because there presumably was no medical condition present that could be aggravated or naturally progressed when he signed up.

However, since he has mentioned an episode of a prior medical condition, somebody at the VA is going to see this case as a golden opportunity to make an example out of a lazy, cheating, worthless, scummy sponge that has concocted a scheme to defraud Uncle Sam. Nip it in the bud.

Therefore, he should get copies of everything, to cover his own ass because, as I see it, the evidence that the RO 'chooses' to rely on to make a decision (low-balled rating or denial) will, most likely, not quite represent the whole picture.

Regulations and procedures are all well and good when they are followed by the VA, don't you agree?

Gift? You can call it that.

Although it took place several years ago and I'm going to forget that you asked.

sledge

Edited by SLEDGE
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  • HadIt.com Elder

I do not see any reason they would award prior to the re-opened claim date. You have a good understanding of the issues for the back claim. You really need to get a report that the current condition is more likely than not related to the symptoms noted in the military. The BVA could remand your case for this type of report. If you can get your SO to figure out a way to get this report earlier I would suggest you get it as soon as you can.

You might want to try and get a better understanding of the other conditions you were treated for in the military. Especially if you have chronic symptoms today that meet the rating schedules requirements for a rating. Even though they determined it was acute at some point in time a deeper analysis by a doctor could change the outcome based on the entire medical history as it stands to this date.

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My IMO will be done on this coming monday morning. But I not only filed for a rating I filed a cue claim I filed the cue claim because on-its-face, there was clear evidence on the 1986 report that I had a New injury of the L2 and L3 but never was adjudicated and I found out something else while I was view my paperwork. That the in service diasnosis of the bilaterl spondlolysis now concerning both left and rightside. but prior to service the doctors said my rightside. So does that mean that new?

ome other elements besides judgment by a decision maker that also aren’t a basis for CUE are, exam protocol and accuracy of the medical reports or completeness of the medical reports (A CUE is based on the accuracy of the decision made by the decision maker on the basis of whatever evidence is in front of him/her, not the accuracy of the content of that evidence, a doctor's opinion or statement), failure in the “Duty to Assist” except in the most extraordinary cases (where evidence available at the time of the decision were clearly shown that there was no doubt in any ones mind that the claim would have been decided differently if it had not been for the failure of the “Duty to Assist”), and changes in diagnosis (meaning a new medical diagnosis that “corrects” an earlier diagnosis), An example of a claim that would demonstrate a CUE; A veteran is awarded service-connection for IVDS and is awarded a 20% evaluation based on forward flexion of 20 degrees. The C&P exam and the whole medical record are silent for any duration of incapacitating episodes and any other measurements for range of motion. This would be a CUE because the rating criteria specifically states “forward flexion of the thoracolumbar spine 30 degrees or less” would be assigned a 40% evaluation.

A decision by the Board is subject to revision on The grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.

There is also certain language the physician needs to use when opining whether or not the disability(ies) at hand is/are related to the veteran’s service. The following phrases are from the Department of Veterans Affairs “Clinician’s Guide for Disability Examination;”

"Is due to" (100% sure)

"More likely than not" (greater than 50%)

"At least as likely as not" (equal to or greater than 50%)

"Not at least as likely as not" (less than 50%)

"Is not due to" (0%)

So in this example I was at least given or was suppose to get something even though the examintor failed to say MOre likely than not.

When I read BVA cases I found that the BVA will award service condition for chronic conditions in the military unless there is medical evidence that the in service condition resolved. In my case there isn’t any evidence to prove that my chronic service condition resolved at any point while in service furthermore, I am arguing that a permanent profile is indicative of a chronic condition and there is no evidence the in-service condition resolved or after I was let out of the service.

Additionally, the condition should have been rated which should have included the L2, L3, the Left bilateral and any other test deemed to be conducted that was clearly written in the in-service clinical notes and was not rated because the C&P examiner did not do the proper tests to establish the specifics that meet the requirements of the rating schedule.

For the purposes of authorizing benefits a rating or other adjudicative decision of the Board that constitutes a reversal or revision of a prior decision of the Board on the grounds of clear -and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.

RO had committed CUE because it had failed to apply 38 C.F.R. § 3.303(B), which governs determinations of service connection relating to chronic diseases, and 38 C.F.R. § 3.304(B), which provides for the presumption that a claimant was sound before entering the service.

The VA didn’t properly diagnosis me in 1986 visit to sick call center by doing any type of x-rays or gonometer measurement until a 2 weeks later after going to the otho doctor.

VA failed to do any type of gonemeter testing’s as to how the concluded of my injury nor did they use any ct scan, bone scan, mri to further figure out any new injuries.

VA failed to address the L2 and L3 bones which is written so clearly on the May 1986 report.

I do not see any reason they would award prior to the re-opened claim date. You have a good understanding of the issues for the back claim. You really need to get a report that the current condition is more likely than not related to the symptoms noted in the military. The BVA could remand your case for this type of report. If you can get your SO to figure out a way to get this report earlier I would suggest you get it as soon as you can.

You might want to try and get a better understanding of the other conditions you were treated for in the military. Especially if you have chronic symptoms today that meet the rating schedules requirements for a rating. Even though they determined it was acute at some point in time a deeper analysis by a doctor could change the outcome based on the entire medical history as it stands to this date.

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  • HadIt.com Elder

"When I read BVA cases I found that the BVA will award service condition for chronic conditions in the military unless there is medical evidence that the in service condition resolved."

You have been doing your homework. I have told several veterans before about the BVA making these awards. I cited them in my claim. I also found some cases where the BVA waived the nexus requirement. If you can still get the nexus that "more likely than not" this would be stronger than relying on the BVA to cite the fact that there was no evidence of resolution or waiver of nexus ruling in your claim.

I would think you need to get the IMO to address the issue of the L2, L3 as being a condition that is different and unrelated to the previous back condition if you want to bring it up as unadjudicated.

I usually do not give advise on CUE's. The rulings have been changing to fast for me to keep up with them. I usually concentrate on issues of service connection. These are the CUE questions that should be answered to focus your attack.

If the L2 and L3 were diagnosed in service is the VA obligated to adjudicate it if the medical reports did not associate any chronic symptoms nor stated that such symptoms were shown to be chronic in service? Would you have been required to file a separate claim with evidence of post service continuity of treatment to establish a claim? Thus, was there really a non adjudicated issue?

If the doctor failed to run tests, make diagnoses etc does this not result in the quality of the reports being flawed rather than the quality of the adjudicators logic? I think you answered this one.

Is there not a requirement that CUE is not only a failure to apply the law but must also be accompanied by a condition that was ratable based on the evidence in the file at the time the law was not applied?

Edited by Hoppy
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