Very New Cue, Newbie Plz Help

[cryingbear]

deleted

Edited April 7, 2014 by cryingbear

[cryingbear]

deleted

Edited April 7, 2014 by cryingbear

[cryingbear]

Good explanation of the presumption of soundness in this case. Gilbert v. Shinseki

A. The Presumption of Soundness

Grateful for their service, our Nation provides veterans compensation for disabilities “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury . . . or disease . . . in line of duty.” 38 U.S.C. § 1110; Holton, 557 F.3d at 1366; Wagner, 370 F.3d at 1093; see also Forshey v. Principi, 284 F.3d 1335, 1360 (Fed. Cir. 2002)(noting our nation’s gratitude to a “‘special class of citizens, those who risked harm to serve and defend their country’” (quoting Bailey v. West, 160 F.3d 1360, 1370 (Fed. Cir. 1998)). To receive such compensation, the evidence generally must show (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the current disability and disease or injury incurred or aggravated during service. Holton, 557 F.3d at 1366; Horn, 25 Vet.App. at 236. When assessing whether a disease or injury was incurred in service, however, there are “situation where a question arises whether a veteran’s medical problems that arose during service existed before he joined the armed forces and, therefore, were not incurred ‘in line of duty”‘ for purposes of disability compensation under section 1110. Dye v. Mansfield, 504 F.3d 1289, 1293(Fed. Cir. 2007). Section 1111′s presumption of soundness addresses that situation, by mandating that veterans are presumed to have been in sound condition upon entry into service, except as to disabilities noted at that time. 3 38 U.S.C. § 1111; Dye, supra; see also Holton, 557 F.3d at 1367 (noting that the “presumption of soundness relates to the second element [of service connection] . . . , the showing of in-service incurrence or aggravation of a disease or injury”).

B. Proper Application of the Presumption of Soundness

Thus, to help a veteran combat any contention that his disease or injury preexisted service, the presumption of soundness serves as a shield against any assertion by the Secretary that a veteran’s in-service disability that was not noted upon entry to service preexisted service. See Dye, supra; Wagner, 370 F.3d at 1095 (noting that the presumption of soundness was strengthened in 1943 in part based on concerns at that time that veterans would be denied benefits “on the theory that they were disabled before they were ever taken into the service” (quoting 89 Cong. Rec. 7,386 (1943)(statement of Rep. Rankin))). On the other hand, the presumption of soundness is not a sword for the veteran to fulfill the second element of service connection without any evidence of the manifestation of an in-service disability. Otherwise stated, before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service. See Holton, 557 F.3d at 1367 (the presumption of soundness does not “relieve the veteran of the burden of showing that [he] suffered from a disease

or injury while in service”); Horn, 25 Vet.App. at 236 (“In order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service.”); see also Dye, 504 F.3d at 1293 (presumption of soundness involves question of preexistence of “medical problems that arose during service”); Wagner, 370 F.3d at 1093 (disability compensation requires “‘personal injury suffered or disease contracted in line of duty’” (quoting 38 U.S.C. § 1110)).43 As noted previously, this presumption may be rebutted “where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.” 38 U.S.C. § 1111; see Horn, 25 Vet.App. at 235.

4 Board findings regarding whether a claimant suffered from an injury or disease in service, and whether that in-service disease or injury is related to a current disability or one that preexisted service, are questions of fact to be reviewed by the Court under the “clearly erroneous” standard. McLendon v. Nicholson, 20 Vet.App. 79, 82 (2006) (Board’s finding that a veteran suffered an in-service event, injury, or disease is reviewed under the “clearly erroneous” standard); Coghill v. Brown, 8 Vet.App. 352, 345 (1995) (holding that Board’s finding of no relationship between any in-service injury and a current disability was “not clearly erroneous”); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990)(“‘A finding is “clearly erroneous” when . . . the reviewing court on the entire evidence is left with the definite and firm

6

Once the presumption of soundness is applied, if the Secretary is unable to rebut the presumption, the disease or injury that manifested in service is deemed incurred in service, such that the second element of service connection is established. See Horn, 25 Vet.App. at 236 (“When VA fails to carry its burden as to either preexistence or lack of aggravation,” the veteran’s entitlement to compensation is “determined upon the assumption that the [disease or] injury was incurred during service.” (quoting Wagner, 370 F.3d at 1094)); see also Wagner, 370 F.3d at 1096 (“f the government fails to rebut the presumption of soundness . . . , the veteran’s claim is one for service connection [based on in-service incurrence]. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded.”). Moreover, contrary to Mr. Gilbert’s first argument, because the failure to rebut the presumption of soundness results in an injury or disease being deemed service incurred, there is no presumption of aggravation following application of the presumption of soundness. See Horn, 25 Vet.App. at 234 (noting that the presumption of aggravation only involves disabilities noted upon entry to service); see also 38 U.S.C. § 1153; Wagner, 370 F.3d at 1094 (“t is clear that Congress intended . . . to effectively convert aggravation claims into ones for service connection [based on in-service incurrence] when the government fails to overcome the presumption of soundness.”).

[FormerMember]

Put 38 USC aside. You will win this (or lose ) on 38 CFR 3.303( c) :

© Preservice disabilities noted in service. There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Consequently with notation or discovery during service of such residual conditions (scars; fibrosis of the lungs; atrophies following disease of the central or peripheral nervous system; healed fractures; absent, displaced or resected parts of organs; supernumerary parts; congenital malformations or hemorrhoidal tags or tabs, etc.) with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they preexisted service. Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof. Conditions of an infectious nature are to be considered with regard to the circumstances of the infection and if manifested in less than the respective incubation periods after reporting for duty, they will be held to have preexisted service. In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation.

As most here will tell you, VA doesn't fight fair. You are busy trying to nail down the presumption while they are busy undermining it by using info you freely supplied to them. VA is not allowed to develop negative evidence. They can only view evidence in the military record, your STRs and anything post service you submit as evidence. Somewhere along the line they picked up :

1) Post service VA treatment records noted your treatment for complaints of depression and anxiety that notes indicated date back to your childhood. Notes indicated that your father was diagnosed with schizophrenia and was abusive. Notes indicated that you were physically and mentally abused by your father and that you also witnessed your father beat your mother into a coma. Diagnosis was social anxiety, major depression, and alcohol dependence in early remission.

2) Prior to conducting the examination, the VA examiner reviewed your entire VA claims folder. The examiner notes the statement provided by your friend that makes it clear that you had serious mental health problems prior to joining the military. You reported a tumultuous childhood with clear signs of bipolar disorder. You were suspended from high school for poor attendance and not doing homework. You were charged with assault and shoplifting as a teenager and did community service; and abused alcohol as a teenager. The examiner noted that your bipolar symptoms are mostly in remission with medication; and you have recovered from alcohol abuse.

The clinical findings of your recent VA examination reveal you to be casually dressed and appropriately groomed. You had poor eye contact and showed a wide range of affect. You answered all of the questions during the evaluation in an appropriate manner. You are oriented to person, place and time. No delusions, hallucinations, or obsessive/ritualistic behaviors are noted. You denied suicidal or homicidal thoughts, plans or intent. You report that you do not experience panic attacks Your rate and flow of your speech are normal. The examiner noted mild depression and anxiety with sleep impairment controlled by medication.

The examiner provided a diagnosis of bipolar disorder and noted that symptoms are mostly in remission. Based on your friend's statement that shows you had a mood disorder as a teenager; and your admission that your sister is diagnosed with bipolar disorder, points to a genetic reason for your condition. The examiner provided the opinion that you had bipolar disorder before entering the military and the fact that you were depressed even in basic training is indicative of a problem that pre-existed your enlistment.

So much for presumption of soundness. You may be able to salvage it on Wilson (Lawrence) v. Derwinski (90-673) "Symptoms, not treatment, are the essence of continuity of symptomatology." You case hangs entirely on 3.303(a) and ( c). Unless and until you rebut the negative evidence above, you cannot prevail. Letting the claim die for lack of appeal made it infinitely more difficult to correct via CUE. I attach Wilson for your perusal. Since Walker v. Shinseki (Fed. Cir. 2013)screwed up 3.303(b), revert to (a).

Somehow, they have obtained all that is needed to assemble the ingredients to prove their case. If you only use VA doctors or Psychiatrists, they will use the evidence privately divulged to hang you. We've had Vets who discovered that innocuous group therapy sessions were used to obtain admissions of drug usage which were in turn used to prove willful misconduct. Bingo. Claim denied. Remember, at the VA, anything you say may be used in a claim against you and they do not need to Mirandize you first. Murphy's sixth law says you have the right to remain stupid. VA would make you think they have your best interests at heart when they're doing it. It all seems so...right, I guess, at the time. Using VA for your medical and MH needs can be lethal to your claims, unfortunately. This is why we tell you to develop your claims independently of their system.

You need the three Caluza elements ( Shedden, Hickson, etc.) to win a claim. Without them you cannot prevail. Inspect your DBQs for the slot to insert a nexus in. USB Hickey said in testimony last year at the HVAC to Bob Filner that they had overlooked it and were in the process of changing them to incorporate a place. I have seen nothing yet.

Edited November 22, 2013 by asknod

[cryingbear]

Thanks asknod for the information, it will be helpful but bipolar disorder is not a personality disorder.

You are right about being treated at VA as being lethal to a claim. I was diagnosed with borderline personality disorder by the VA clinic, it is a personality disorder and I would have received no benefits. They ruled out bipolar disorder after a manic episode and prescribing me medication for bipolar disorder.

The VA clinic tried to screw me by giving me a borderline personality disorder diagnosis and ruling out bipolar disorder.

Since my manic episode, 6 doctors, the State Air Surgeon and the SSA diagnosed me with bipolar disorder with no personality disorder, the SSA ignored all diagnoses by the VA clinic during determination.

Only the first C&P examiner opined my condition was pre-existing and he is a quack. Please read C&P exam link Berta posted above.

[carlie]

There is no CUE here and the presumption of soundness will not

be anything to hang your hat on with the evidence they have of record.

Also, in regards to your opening post in this topic:

"I am requesting the Department of Veterans’ Affairs to properly weigh and assess the nature of my claim

for bipolar disorder on for the following reasons and call CUE on yourselves."

The sentence above already shoots your submission of CUE into the garbage can.

You have a hard road ahead of you to advance this claim issue.

You will need an IMO from a proper pedigree in MH to TRY and overcome

these denials as VA has pretty much shut you down.

The IMO will also need to:

1) clearly state they have reviewed your SMR's,

and refer to evidence showing aggravation to a compensable level,

contained in the SMR's to support their opinion with full medical rationale.

2) clearly state what their CURRENT diagnosis is now, how it relates to active duty

medical evidence - and how this diagnosis effects you CURRENTLY.

JMHO

[cryingbear]

deleted

Edited April 7, 2014 by cryingbear