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

[free_spirit_etc]

" 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. "

Yes. I read that these kind of fractures are often stress fractures. So they can happen over time, instead of just from one blow. The only thing I can see that the VA might use is that the doctor at the time of the wreck wrote "Old seat belt injury?" But, with the presumption of soundness, I would think anything a doctor wrote that he followed with a question mark is not strong enough to overcome the presumption of soundness. If you are in the service for awhile, and then start complaining of back pain, and continue to complain of back pain it should be pretty easy to determine when it "started." And even if it had been an old injury - again if it goes from pain free to constant pain - I would say that it was aggravated. (Of course, I am just a lay person who is not qualified to know that when people start complaining about pain they might be injured...)

It will be interesting to see what the C&P says.

[63SIERRA]

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.

my descision was in may of this year., I talked with my service officer, and he said He re opened the back injury, and 2 others, my 13 inch kindney surgery scar, and a resids of corneal abrasion. Since then, they hired a new service officer, assigned him to me, , and I just started talking with him. I asked him, if I was awarded my back condition claim, would they retro me back to when it was opened 2.5 years ago,( they originally denied me back in 1995) and he said, no , just from when they just reopened it, in may. Strange thing is, I signed and sent a notice of disagreement to my service officer, thinking they would start the official appeal, but its not showing up as being on appeal on e bennies, and I called the va, and they said its not on appeal. It like its somewhat in limbo. I think the reason may be, that they handled a lot of claims recently trying to clear the backlog, and they know they made alot of mistakes, .so instead officially putting the claims that they screwed up on appeal like mine, they are just keeping them in limbo, so they dont get to the bean counters desk.

also there were no physical problems on my service physical I was sound as a tennesee stud when I joined the army in 1990

Edited September 16, 2013 by 63SIERRA

[63SIERRA]

Also I think that the fact that the doctor put a question mark after " old seat belt injury" could go in my favor, because it could be taken as the doctor wasnt sure if it was old or recent. I recall seeing the exrays, and seeing where the pars was broken. I have never had a bad accident or any type of back pain, nor complained of any type of back pain before that accident, but since that accident, ive had ongoing pain, thats gotten progressively worse. So with all of that being said, if they are supposed to give me the benifit of they doubt, I just cant see how they even denied me back in 1995. So I have the service officer checking into a CUE claim. I believe that the VA either used the wrong evidence to decide my claim, or applied the wrong case law to decide my claim. The evidence was there. Hard black and white, in service, medical records. So we shall see, if they do the right thing.

Basically the wording that the va used to deny the back injury claim this time around ,was very generic, stating that there was no new evidence . { well what else am I supposed to submit, if the original evidence was more than enough Im thinking)???.. So I went to an independent doctor, a chiropractor,.... who knows bones and backs better than them.? He said, I has spondylolysis thesis .He said he has seen time and time again, where the army and the VA misdiagnose, and ignore back problems. (I live near ft. hood, the largest millitary base in the free world)., So I sent that diagnosis as new evidence in my most recent reopen. hoping that they will reopen the case because that is new evidence. I also sent proof of when the millitary doc diagnosed me with spodylolysis thesis, while I was still on active duty. and not just spondylolysis. so im hoping thats enough.

Edited September 16, 2013 by 63SIERRA

[63SIERRA]

thanks to all of you for the advice, I really need the help. I APPRECIATE yall. .

[63SIERRA]

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.

thanks Carlie.

[63SIERRA]

If they deny me again, I will tell them I did about 10,000 push ups and sit ups at ft. jackson,, no back pain.

slept on a hard cot with my rifle pokin me in the ares in desert storm for 6 months, no back pain.

worked on the biggest trucks the army has, for 4 years, carrying the biggest tools and removing the biggest tires. no back pain.

Marched 100 miles at the nijnemegan peace marches in holland. no back pain.

walked up and down the stairs to the 3rd floor of the barracks i lived in in germany for 32 months . no back pain.

last year in service, got rear ended at stop light,, Now have back pain. ME THINKS DAT DID IT.