gen.coun. prec. 82-90

[mos1833]

quick question, if the ro denied my claim in 1985 and called my back injury a defect,with no doctors opinion.

just a interpretation from a x-ray..

which clearly chronic changes of my condition. would or should they have considered gen.coun.prec.82-90 or were they correct.

below are the records.i hope they open ok ???

 

 

 hadit 2.rtf hadit 2.rtf

 hadit 7 this is the one.rtf

hadit 7 this is the one.rtf

hadit 2.rtf

[ketchup56]

Superimposed. ....That's the magic  word . It Clearly states in the x-ray report that Superimposed Osteoarthritis was caused by the original CONGENITAL /ABNORMALITIES  therefore if osteoarthritis  is still present today (chronic ) it according to the CLEAR AND UNMISTAKABLE standard of rebuttal this should be a slam dunk for service  connection. .... I won a claim at bva based  on a pre existing back condition 26 years after service with absolutely NO service treatment records. Your path to a win is  AGGRAVATION  of a pre-existing CONGENITAL back condition superimposed  upon.       JMHO 

[mos1833]

thanks ketchup56

in my lay mind. ----i thought the r.o.could not make a medical judgement and the examiner didnt give an opinion as to a nexus opinion.

so after they interpretated the x-rays the said this.

(((((    therefore .to the extent the veteran claims  ( osteoarthritis ) of the lumbar spine,it appears to be related to a congenital deformity ,which cannot

be service connected 38 cfr 3.303(c)     ))))  

they clearly admit i had osteoarthritis ..

to me thats a superimposed condition that they that when read togather with other evidence such as two reports of a chronic injury in service.and 

one of them just 3 months before i seperated.    this is not me complaing about how they weight the evidence,its just a matter of law ,, if i can just prove it.

[ketchup56]

The proff is the x-ray's....Chronic osteoarthritis. ...If it's  documented as chronic in service and currently chronic  now it's service connected......However I argued my case as I said as AGGRAVATION  with 38cfr.3.303 (b) as an second  additional  theory for service connection. ....From what you have posted above the easiest path (JMHO) is to go the AGGRAVATION  route claiming the chronic provision as a second theory. ....The CLEAR AND UNMISTAKABLE  standard of evidence  that the  onus being on VA is VERY VERY  hard for vba to rebut  the presumption that'given to you...They already established by medical  evidence that your condition was pre-existing  and you have the medical evidence  of treatment in service via treatment, x-rays which establishes the AGGRAVATION  prong you must establish for them to rebut ,current  treatment of osteoarthritis there's nothing to rebut...Have you read 38cfr.3.306 ? Look like it Clearly  pertains to you....As stated above you would never win this going the      CUE route to service  connection.  CLEAR AND UNMISTAKABLE  EVIDENCE. ...... You have the evidence to make them TRY to rebut this at least. However  this never happen's at the regional  office  level of adjudication. They just don't  get it..lol...again  JMHO...

[FormerMember]

<<<to me thats a superimposed condition that they that when read togather with other evidence such as two reports of a chronic injury in service>>>

You need to get a doctor to say it (superimposed condition) for you. Always remember the Caluza/Hickson/Shedden triangle. (1) Disease/injury in service; (2)current chronic disease/ injury; (3) doctor's nexus letter linking the  two together. 

You cannot win with only 2 of 3. Unless you, yourself, are a medical doctor or have extensive training in  your disease/injury etiology, you cannot opine or assume anything medical about yourself.  At this stage, you can obtain that nexus and reopen your old claim to win. You cannot assail a denial in 1985 with a newer interpretation of what the medical evidence purports to show in 2015. See Russell v. Principi for the definitive example of CUE. Better yet, read this to grasp it in layman's terms:

 https://asknod.wordpress.com/2014/05/02/cue-the-quintessential-elements/

Many in the Veteran community don't fully understand the ramifications of CUE. Rearguing the old 1985 evidence in 2015 can never rise to the level of CUE. It has to be so glaring that even a chucklehead such as a rater can see it. 

Lastly, if you have any service medical records VA does not have (you mentioned 5 pages), you may be entitled to the 1985 date based on 38 CFR 3.156(c). That would be  much easier pathway. Best of luck. 

[mos1833]

Lastly, if you have any service medical records VA does not have (you mentioned 5 pages), you may be entitled to the 1985 date based on 38 CFR 3.156(c).

 

i sent the records i had to the v,a, when they said my condition was acute and not chronic in service, with a letter of disagreement.

they returned them to me , saying it was copies of what they already had ??? 

they said my seperation examination was normal with no complaints , i asked them to please show that document to me ,they never have replyed, because i never had one. and they still use that against me , but i cant stop them,but its the most of their evidence against my claim. along with not seeking medical help for 8 years after i got out.

in 1979 i had a saw a chiropractor a few times,and he wrote a letter , stating he had treated me for a back problem ,his diagnosis

was i had sprained my back, with secondary structural problems,because it was work related that ended that opinion,the v.a. jumped on that part  saying that it was all a work injury.they said it was the first mintion of any bone issues,and not related to the soft tissue injuries i had in the service,even though he said it was 

secondary .i dont care if its a cue or what ever, i just want to set the record straight. thanks all

[mos1833]

one more question about my smr;s

i dont have but the five pages showing the injurys BUT i do have the records that show where and when i was removed from duty.

it not medical , but it confirms my lay testimony, every injury was followed by a change of duty,and the dates i was returned to duty.

i plan on summiting them to support my creditable testimony, which they say i;am not ?