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Hypothetical Case Of A Accident Caused By A Disability

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tk3000

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Consider a sc veteran that has chronic pain in his hips. The veteran is riding his motorcycle, there is a bump and the motorcycle has small loss of stability for a second and concomitantly the bump causes the veteran a very sharp pain in his hip which then makes the veteran to complete loose control and to fall from his motorcycle and ended up involved in a serious accident: and the veteran has a serious fracture in his arm (needing surgery, etc).

How hard is for the veteran to prove that the accident and its consequences (injury) is related to his hip disability (pain)?. And how hard is it for the VA to prove that it is not related to his hip disability?

tk

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Benefit of doubt rule? Whoever evaluates this claim will be looking for the usual "more likely than not" well what does he have to loose? We all have put in claims with IMO/IME and have been denied. It does not always mean how well reasearched or documented a claim is, but who is the rater. Also what may factor in to the analysis is how much are they after their "bonus!"

Pain is immaterial, and there is no reliable way to measure pain. If you say that you have pain in function of a particular disability (especially if it is known that a proportion people who have such disability have chronic pain) the VA simply have to accept what you say as true. For instance when you have C&P exam and the examiner ask about your pain level in a scale of 0 to 10, they have to accept whatever you say as true and fact.

There is no way that in a fraction of second when you were riding a bike (or any other machinery for that matter) and had a flare up (especially considering you have a hip disability and a history of pain already) in function of a bump which eventually makes you lose your control and get involved in an accident that anybody but you could say if it was related to pain or not. And the VA can not make the assumption that you are lying especially you have liability in function of a disability and a history of pain. So on the occasion of your C&P exam, most likely (especially considering the "Benefit of Doubt"), the C&P examiner (not the rater) would write down that "it is as likely as not that the accident was caused by a flare up" and the C&P examiner would then indicate that the broken arm is secondary to the hip disability. The rater would only have to apply whatever disability code is applicable to the arm injury/disability.

All the assumptions that I make above are based on the idea the system works (the C&P know your file, know the rules, etc). I agree with you that it really depends on who the rater is as well. I have had that type of experience with my GERD claim where the rater basically ignored almost all my medical records and even ignored (or maybe did not understand the terminology: pyrosis = heartburn, for instace) the C&P examiner findings. So on my NOD I did make sure that I state things as the following: "…as is indicated and stated by Dr. X on page #3 of my medical records as follows: "the patient has intermittent epigastric pressure and pain" it is seems clear that…".

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By-the-way, that picture of me, the one up there in the upper left corner, yeah, that one. I'm sittin on my FLHTCU (my GEEZER-GLIDE).

I can't ride anymore....that picture was taken by my son just before I left on my last ride. It was hard giving it up. I'd had a motorcycle of some shape or another since 1962. I figure I've got around 700,000 miles on one, probably more, lots more.

Ride 'em like ya stole 'em!

A FLHTCU is a great and big bike! I have two bikes that I used to get around in town, they have low displacement and thus don't reach high speed. One is a 2-stroke 50cc (2 stroke turbo with minarelli based engine; it is a big one for a scooter); the other one is a 4-stroke 150cc (Honda engine, since it is over 50cc it is classified as a motorcycle) and its max speed is around 65mph. So they are not the type of bikes that one would use in highway. I definitely hate the weather here in MI, it is so cold and the ice conditions on the rode mean I can not ride them for almost half of the year.

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I have seen a VA case of a veteran who lost one arm. The veteran was performing some task that did require both arms....... In that particular case the absence of one arm........ and the fact that the veteran acted as if he had both arms when performing that particular task (don't remember the task now) the veteran got involved in a serious accident and broke his leg. I believe that the veteran was granted service connected at the BVA level.

Edited by poolguy11550
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