Presumption Of Soundness

[RIVER RAT]

I had filed a claim for a sparined right ankle in 1990 shortly after my discahrge from active duty. I had 2 exams and for this the last one in 2002, I was denied service connection both times. This was even though the 2002 examiner diagnosed me with a right ankle spain. He had also said "examination reveals very marked (congenital) Pes Planus bilaterally and certainly that could be a cause of his discomfort." This was also used to deny my right knee claim. I went to get a IMO and had that faxed in to the VA, in the mean time I moved away and tried to have my claim follow me but, the denial became final. I see they said "Service connection is not granted for a congenital disabilty and your SMRs do not show aggrivation by service"

Here I am years later I have found that the doctors office where I got my IMO had missed spelled my name and the evidence in support of my claim went into someone elses file. I have had foot issues since my time in the service and the VA podiatrist supplies my custom orthotics. I looked over my SMR to see if Pes planus was ever noted and it was. I had been prescribed orthotics and a heel lift as part of a work up on my right knee. So with this information I submitted a claim for Pes Planus, which the VA turned into me re-opening and renaming my Right Ankle sprain claim(HOW DOES THAT WORK).I thought I was in good shape, I had my documentation SMR, have current diagnosis and treatment (moderate ecessive pronation of STJ in stance and gait, Mild abducted gait, mild genu varum), documentation of Pes Planus in my comp and Pen files along with their X-ray evidence, a letter from my pediatrician that stated she cared for me from birth until a month before my joining the service and she said that she never treated or diagnosed my with Pes Planus( = not congenital). My entry physical state feet as Normal.

I was on this site and noticed a refernce to Wagner v. Principi, §3.304, and Authority: 38 U.S.C. 1111. "(b) Presumption of soundness. The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. "

My question is should this apply to my case where it goes back to 1999 and 2002? If it does apply Do I need to bring this to their attention? I feel like me knee claim is also being held because of the"congenital" notation the examiner made in 2002.

Should my Pes planus been lumped into my Ankle claim or should it be its own claim?

Sorry so long but this has been an exhausting and confusing process with no end in sight.

[RIVER RAT]

Not sure how to file a CUE. Howmuch time would something like add to the process?

Yes, I do believe it would apply. They're reopening the claim(s) which sounds correct, w/the new evidence, however I believe you'd be better off to file a CUE claim based on the presumption of soundness error. I also believe the pes planus claim should be on it's own but perhaps also a CUE. jmo

pr

[RIVER RAT]

They mentioned the pediatiricans statement like and quoted it almost verbatim, but they used it against my claim stating that her statement "does not show any metion of treatment or complaint of this condition" Then they said this does not show that this condition was incurred or aggravated by military service. But the point I was trying to make was that I didn't have Pes Planus before the service. My pediatrician I thought would be the best person to state this since she treated me my whole life before the service. I even wrote a statement outling my logic for them but, it didnt seem to help. I also had my current Provider look at all of my claims folder and she wrote that she thought that more likely than not that the Pes Planus was incurred or aggravated by military service

How best do I use the Wagner decision?

I havent got an IMO for the Knee and Ankle secondary to the Feet. But I do have have an IMO in support of my right knee being service related from an orthopedic surgeon. But, That has not been mentioned yet and I have submitted it at least on two occassions. I have a copy of my claims folder and it in there. I am service connected for lower lumbar strain right side at 10%.

Did the VA acknowledge at all the IMO you had?

If they never mentioned it in any decision, submit it again as new evidence.

I have the same pronation problem-and I need to watch out for sprains so I would think the inservice pes planus aggravated and even caused the sprain.

By all means use Wagner against them.

Your knee problem is certainly quite possibly related to the pes planus.People with pronation can end up with knee,hip and/or back problems.I had a chronic low backache for decades.Nothing medically revealed it's etiology-until I got special orthonics.

I have not had a backache since -unless I do alot of heavy lifting.But many even with orthonics still can have considerable problems. There are plenty of cases at the BVA web site that reveal what I mean.

Years ago I posted here a TDIU award that started out with pes planus and affected the vet's knees, hips and back so much that he was awarded TDIU.

Have you considered getting an additional independent medical opinion to tie these all together?

[RIVER RAT]

Thank you.

Welcome to Hadit

[RIVER RAT]

Yes the comp and Pen examiner mentioned that I had very marked congenital pes planus and that was used to dent my right ankle sprain and right knee claim back in 1999 and 2002.

river rat -welcome aboard

you said, i feel like my knee claim is being held up because of the congenital notation, did the notation say you had a congenital (defect) or a disease ? because congenital defects are excluded usually.

[RIVER RAT]

Finally someone reviewed my file and actually read my evidence, I have won my BVA appeal for service connection for Bi-lateral Pes planus and right knee. Now I wait to see what percentage they decide to rate me. I overcame the one examiners "congenital" statement with evidence from three of my own doctors along with my entrance physical stating that I did not have flat feet before the mIlitary.

[handler]

Awesome River Rat. Way to go. Hopefully you'll get a great percentage rating. Never Give Up!