63Sierra - New Member Looking For Guidance

[63SIERRA]

Troy I would like your opinion on a claim. I was in an on post car accident while on active duty. The civillian wife hit me in the rear with her car, into the back of my car at a redlight, she had break failure. her husband had did a not so good break job on thier car the day before. I was in alot of pain, and went on sick call. I was diagnosed initially with a fracture pars and spodylolysis and put in a back brace and put on a dead mans profile . I went back in a week, saw another doc, and he said back was broke, but not in accident. He put on the medical record . " old seat belt injury " with a question mark behind it. like he wasnt sure. So ok, I was on active duty for abt a year after that. with frequent visits to sick call with back pain complaints. all documented. So when my tour was up, I filed for several different contentions, with back condition as one of them. The va deny me in 1996 said the back condition know as pars defect, with sponylolisis is a congenital defect, and no related to millitary service. I didnt think to much of it at the time, burt recently started research. I looked thru my active duty medical records, and another doctor diagnosoed my back condition as spondylolysis thesis. I recently went to a chiropractor, and his diagnosis is L-5 spondylolisis thesis. He showed me the xrays and told me my back had been jacked up for a long time, and would take years to get results, and there basically were not alot of good options. He told me what happens is the pars bones, that hold the vertebre in thier proper alignment, can fracture from either blunt force inpact such as car accidents. or if they are weak for whatever reason. Then it lets the vertebre shift forward, out of alignment. Then u start getting nerves pinched an pain, such as I have now, and have been having since the accident while on active duty. So I sent the chiropractic diagnosis to the VA. I also sent a copy of the in service medical record where the doctor diagnosed me with spondylolysid thesis. Which is alot different that just spondylolysis. I had never had, nor complained of any back pain, or problems anytime before the on post car accident. I have had pain and problems with my back ever since the accident, and recieve pain meds from the va for it even now. So my questions are, being I filed for a back condition as a generic term, and the VA assigned the wrong diagnosis, and denied me on that wrong diagnosis,. do I have grounds for a CUE claim. ? if not, should I at least win my current appeal?

2. How can I find out, exactly what evidence the Va had at the time they adjudicated my claim , in other words, how can I find out if they had access to the medical slip where the doctor clearly wrote. " sponylolislis thesis. (I have sent the va a copy with my appeal, so they have it now, but I want to know if they had it then.

Edited September 16, 2013 by 63SIERRA

[carlie]

Welcome.

I split your post off from the OP's and made it-

it's own topic and moved it to a more appropriate forum.

[broncovet]

If you have gotten your RO decision within the past year, you need to file a NOD and dispute the findings with evidence. If it has been more than a year since your decision, you need to reopen your claim, due to New and Material evidence as in 38 CFR 3.156 C.

When you got into the service, you had a physical. Are there back problems listed on that physical?? You see, if there were no problems upon entering the service noted on your physical, then you have a "presumption of soundness" prior to the military.

Based on what you posted, you should prevail upon appeal but you will need to do fairly close to what I suggested, above.

Edited September 14, 2013 by broncovet

[free_spirit_etc]

I agree with bronco on this. Even if the car wreck didn't cause the injury, it looks like it occurred, or was aggravated, in service. Especially if you had no complaints of back pain until the last year of service, and then frequently complained of back pain after that time.

If it started hurting right after the car wreck, it sure would seem like that would have been what started it. But even if it didn't, going from not having back pain to having frequent back pain occurred while you were on active duty.

If the doctor diagnosed it in service, then it should be in your SMRs. Did the RO get a medical opinion stating that it did not start in service? Did you get a C&P at that time? You will want to get a copy of your C-file and see what the medical opinions said. If you got a C&P at a local facility, you should be able to get copies of your C&Ps from them.

I was surprised at the difference between what some of the C&Ps actually said, and what the RO said they said when going over my husband's file. There was one condition that the C&P examiner clearly pointed out started in service - that had been diagnosed in service, that the RO denied without mentioning that the examiner noted it started in service.

It would be hard to know if there is a CUE without seeing what evidence the VA had, and what they decided on the evidence. But you really need to work on getting it service connected, and then you can ask for an earlier effective date if there was a CUE.

Edited September 15, 2013 by free_spirit_etc

[Hoppy]

If the VA continues to deny this claim you might want to find an attorney who now does VA claims with a background in personal injury. Back injuries due to car accidents are well researched and a PI attorney would have all that data.

[free_spirit_etc]

Listen to Hoppy!

(I have been reading over many of his older posts and I still find them very helpful!)

[broncovet]

Hoppy and Free Spirt are correct. It wont really matter that it was caused by the accident in service, you need only demonstrate that you did not have it prior to service, and you did after service. If your entrance physical is negative for back problems, and you had the problem after service, then service caused it. It wont matter if it was from carrying too heavy of backpacks for too long, or if it was from the accident, or both, only that it originated or was aggravated in service.