free_spirit_etc

Social Security is considered an insurance. So you aren't guaranteed that you will get back what you paid in. You are guaranteed that you will will receive payments when you are retired or disabled (under their regulations) and that your dependents will receive benefits if you become disabled or die.

Thanks for the update Harleyman.

Interesting guide written by a VSO for presenting claims: http://www.iacvac.org/PP/ceu7.pdf

" I had my right kidney and adrenal gland removed. I found the information online and the DAV submitted it and I won it." It was granted just with information from a study?

I am not sure if you would have to go that far... but having it noted that it is acquired, rather than congenital, would probably help. http://www.icd10data.com/Search.aspx?search=spondylolysis&codebook=AllCodes OR, if the doctor would say it was congenital, then a statement that the inservice injuries were superimposed on it. But also -- it is interesting that the Court said just because it has defect in its name doesn't mean it is a defect in the legal sense, because they even said the Board had to request the doctor determine if it was a defect (would not improve or deteriorate) or disease (can improve or deteriorate).

I would pick up a copy of your exam first. That way, if the exam is in your favor, you can point out the exam clearly shows ____ when you ask them to readjudicate your claim. If it is not in your favor, and has some horrid errors, you will be able to point those out (and possibly ask for another exam).

There is an interesting case here: http://search.uscourts.cavc.gov/isysquery/32119468-1bd3-472d-8be0-cdab3d32e510/29/doc/ One interesting aspect is that the veteran died from ischemic cardiomyopathy and valvular heart disease while he was appealing the denial of an increase in rating for his valvular heart disease (which had been rated as noncompensable). Another interesting aspect is that the widow was initially denied DIC, though the veteran died as the result of a noncompensable SC condition in December 1995. (You would think dying would surely put the the condition into the realm of being a compensable rating). But also interesting was that when the widow was granted DIC, she did not seem to file a CUE, but filed for an earlier effective date because the veteran's condition should have been rated as compensable in 1958. At this point, the RO decided they had made a clear and unmistakable error in the June 1995 decision, and they paid her accrued benefits back to February 1995. She again appealed the effective date, claiming he should have been rated compensable in 1958, and the BVA granted accrued benefits back 2 years (to December 1993). In the current appeal, she is still appealing the effective date, but the Court has stated the law (at the time of the veteran's death) only allowed 2 years of accrued benefits, and the widow had already obtained that. What is interesting is that the widow never filed a CUE, but just kept appealing for an earlier effective date for the claim on the basis that it should have been granted earlier. And she did get the two years of accrued benefits. Perhaps this is a bit different because the claim was for increased rating, rather than service connection. But I did find the case interesting.

Now here is something interesting: http://search.uscourts.cavc.gov/isysquery/b4d554df-a5f0-4ff8-91cc-0966251ca3ba/8/doc/ On September 28, 1965, an X ray was taken that revealed spondylolysis of the par interarticularis but no spondylolisthesis. R. at 6. Spondylolysis is not the same disorder as spondylolisthesis. Spondylolysis is defined as a "dissolution of a vertebra; a condition marked by platyspondylis, aplasisa of the vertebral arch, and separation of the pars interarticularis." Dorland's at 1567. Platyspondylis is a "congenital [present at birth] flattening of the vertebral bodies," Id. at 111, and aplasia is a "lack of development of an organ or tissue, or of the cellular products from an organ or tissue." Id. at 1308. When you research spondylosis, there is a wealth of information that while it can be congenital, it most often has other causes. But the VA goes by Dorland's which says it is marked by platyspondylis - which is congenital (present at birth). BUT when you google the words platyspondylis and spondylolysis MOST of the sites that come up are BVA decisions. So it is like one person in the VA copied that from the medical dictionary and now the VA just copies it over and over and over again in their decisions. But it seems interesting that no medical sites come up when you search for those two terms; but tons of VA decisions do. Oh... and here is a very nice site about spondylosis and spondylosisthesis. http://www.chirogeek.com/005_Spondylolisthesis_main_final.htm

"So I wonder being im at 60 percent now, if they do approve my back claim for 30, would I get back pay of 30 percent schedule, or would they add the 30, to my 60 and pay me in VA FUZZY math at around 70?" I imagine it would be fuzzy math. What are your percentages for now?

http://search.uscourts.cavc.gov/isysquery/4fd47d42-ed47-4302-a5a6-9835835f7faf/4/doc/ Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-4643 ROBERT A. MONTCLAIR, III, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before HAGEL, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. HAGEL, Judge: Robert A. Montclair, III, appeals through counsel a November 30, 2009, Board of Veterans' Appeals (Board) decision denying entitlement to VA benefits for a low back disabilityand for a right hip disability, including as secondaryto his low back disability. Record(R.) at 3-13. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the November 2009 Board decision. Because the Board failed to provide an adequate statement of reasons or bases for its decision, the Court will vacate the November 30, 2009, Board decision and remand the matter for further development and readjudication consistent with this decision. I. FACTS Mr. Montclair served on active duty in the U.S. Marine Corps from June 1987 to December 1988.Prior to entering service, in September 1983, Mr. Montclair was diagnosed with spina bifida and sought treatment on numerous occasions for low back pain resulting from sports injuries. Spina bifida is "a developmental anomaly that is a kind of neural tube defect, characterized by defective closure of the vertebral arch, through which the spinal cord and meninges may protrude." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1773 (31st ed. 2007) [hereinafter DORLAND'S]. However, upon entrance into the military, Mr. Montclair's spine was evaluated as normal and he reported no history of recurrent back pain. Mr. Montclair's subsequent service treatment records reflect numerous complaints of low back pain, which he attributed to a football injury sustained before service. In September 1988, a military medical board diagnosed Mr. Montclair with mechanical low back pain and spondylolysis and recommended that he be medically discharged. Following his discharge from service, Mr. Montclair filed a claim for VA benefits for a low back disability. In February 1989, Mr. Montclair sought treatment for chronic low back pain and reported that he had "some defect he was born with" that "was missed on initial entrance exam[ination]." R. at 226. He also stated that he developed "constant, dull, burning" pain in his lower back shortly after he jumped off a cliff in service and landed on a rock. Id. The VA physician diagnosed Mr. Montclair with spondylolysis and a probable congenital defect of the spine. In May 1989, a VA regional office denied his claim for benefits because it found that his low back condition was a congenital defect. In December 1990, the Board issued a decision denying his claim. Mr. Montclair did not appeal that decision and it became final. In August 2000, Mr. Montclair was granted a work release from his job in a coal mine after injuring his back operating a piece of heavy machinery. In August 2002, he requested that VA reopen his claim for benefits for a low back disability, but the regional office declined to do sobecause it found that he had not submitted any new and material evidence. Mr. Montclair filed a timely Notice of Disagreement with that decision, arguing that his low back disability was aggravated in service. In November 2003, the regional office reopened Mr. Montclair's claim because it determined that he had submitted new and material evidence " with respect to the prospect that [his] previously existing condition may have permanently advanced beyond its natural progression as the result of [his] military service." R. at 335. However, after considering that evidence, the regional office continued to deny his claim and Mr. Montclair subsequently appealed that decision. In March 2007, the Board issued a decision remanding his claim for a VA medical opinion regarding the nature and etiology of his low back disability. In the meantime, Mr. Montclair was hospitalized in July 2005 for back pain resulting from a motor vehicle accident. He also sought further treatment for his low back disability in March 2008 and a magnetic resonance image revealed mild narrowing and moderate degenerative changes of the last vertebral disc in his lumbar spine. In February 2009, Mr. Montclair underwent spinal fusion surgery with a laminectomy. Following the procedure, he was diagnosed with congenital spondylolysis and congenital spondylolisthesis. In June 2009, Mr. Montclair underwent a VA medical examination pursuant to the Board's March 2007 remand order. The examiner noted that Mr. Montclair injured his lower back in 1984 while playing high school football and a private physician diagnosed him at that time with spina bifida. The examiner also acknowledged that Mr. Montclair "fell down an embankment" in servicein May 1988 and that a bone scan performed in August 1988 was normal. R. at 79. The examiner then addressed the question of whether Mr. Montclair's low back disability was a congenital or developmental defect or represented acquired pathology: Based upon the fact that a bone scan [three months] after the [in-service-] injury of May 1988 was normal, this would be a congenital/developmental defect. Had the spondylolysis been an acute fracture, the bone scan would have been positive. In addition, this defect was probably noticed in 1984, but called a spina bifida occulta. R. at 80. Based on the results of that VA medical examination, the Board issued the November 2009 decision currently on appeal, which denied Mr. Montclair's claims for benefits for a low back disabilityand a right hip disability, claimed as secondaryto his low back disability. Specifically, the Board explained that because no low back disability was noted upon his entrance into service, Mr. Montclair was entitled to the presumption of sound condition. However, the Board determined that the presumption of soundness was "rebutted" because "there indeed is clear and unmistakable evidence that [Mr. Montclair's] chronic back disability pre-existed [his] service," including pre-service x-rays showing spina bifida and the June 2009 VA medical opinion explaining that his currently diagnosed spondylolysis was a congenital or developmental defect. R. at 11. The Board alsofound that there was clear and unmistakable evidence that service did not aggravate his low back disability because the evidence of record "reflected an acute exacerbation, and not a chronic increase in disability." R. at 12. In addition, because the Board denied Mr. Montclair's claim for benefits fora low back disability, it also determined that he was not entitled to benefits for his right hip disability, claimed as secondary to his low back disability. II. ANALYSIS A. Low Back Disability 1. Congenital Disease or Defect Mr. Montclair first argues that the Board's statement of reasons or bases for its decision is inadequate because it failed to consider whether his low back disability was a congenital disease as opposed to a congenital defect. Appellant's Brief (Br). at 6-7. The Court agrees."[C]ongenital diseases, but not defects, may be service connected." Quirin v. Shinseki, 22 Vet.App. 390, 394 (2009); see also Winn v. Brown, 8 Vet.App. 510, 516 (1996) (holding that"non-disease or non-injury entities such as congenital defects" are not " disabilities" within the meaning of 38 U.S.C. § 1110, which outlines basic entitlement to VA disability compensation); 38 C.F.R. § 3.303© (2011) (stating that congenital or developmental defects "are not diseases or injuries" for VA disability compensation purposes). In Quirin, the Court explained that "a defect differs from a disease in that the former is 'more or less stationary in nature' while the latter is 'capable of improving or deteriorating,'" and stated that "any worsening–any change at all–might demonstrate that the condition is a disease." 22 Vet.App. at 394-395 ( quoting VA Gen. Coun. Prec. 82-90 (July 18, 1990) [hereinafter G.C. Prec. 82-90]). In rendering its decision, the Board is required to provide a written statement of the reasons or bases for its "findings and conclusions[] on all material issues of fact and law presented on the record." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Board may commit error requiring remand when it fails to provide an adequate statement of its reasons or bases. See Gilbert, 1 Vet.App. at 57. In the instant case, the Board did not acknowledge or explain the "important difference" between a congenital disease and defect and did not consider whether Mr. Montclair's low back condition was mutable or static. Quirin, 22 Vet.App. at 394. Rather, the Board determined, without explanation, that Mr. Montclair's low back disability was a congenital defect, despite evidence that his back condition substantially deteriorated over the years.For example, medical records indicate that Mr. Montclair's low back disability, which was asymptomatic upon entry into the military, worsened throughout service to the point that he was recommended for a medical discharge and eventually led to spinal fusion surgery with a laminectomy. The Board's failure to address this potentially favorable evidence, as well as its failure to otherwise explain its determination that Mr. Montclair's low back disability was a congenital defect, frustrates judicial review and therefore renders its statement of reasons or bases inadequate. See Caluza, 7 Vet. App. at 506; Gilbert, 1 Vet.App. at 57. In such a situation, vacatur and remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (stating that remand is the appropriate remedy where the Board failed to provide an adequate statement of reasons or bases). In addition, Mr. Montclair asserts that the June 2009 VA medial opinion " did not attempt to distinguish between the two medical concepts [of a congenital disease and defect], nor was [the examiner] asked to do so by VA." Appellant's Br. at 6. The Court agrees. The March 2009 VA examination request instructed the examiner to "opine whether[Mr. Montclair's low backdisability] is a congenital/developmental defect or represents acquired pathology." R. at 81. This request, by its very terms, directed the examiner to select one of two mutually exclusive alternatives, neither of which included a congenital disease. In other words, VA instructed the examiner to classify Mr. Montclair's low back disability as a congenital defect if it was determined to be congenital, or as an acquired condition if it was not. Unsurprisingly, the examiner, operating within this improperly limited framework, determined that Mr. Montclair's low back disability was a congenital defect because a bone scan following his injury in service did not reveal an acute fracture–i.e., evidence of an acquired condition–and because "this defect was probably noticed in 1984"–i.e., evidence of a congenital condition. R. at 80. Because this examination request precluded the examiner from finding that Mr. Montclair's low back disability was a congenital disease, the Court concludes that the Board erred in relying on the June 2009 VA medical examination to determine that Mr. Montclair's low back disability was a congenital defect. See Austin v. Brown, 6 Vet.App. 547, 551- 52 (invalidating a VA medical examination because it was not "procured by [ VA] in an impartial, unbiased,and neutral manner,"in that the examination request suggested a predetermined outcome). Accordingly, on remand the Board must provide Mr. Montclair with a medical opinion to determine whether his low back disability is a congenital disease or a defect. See Quirin, 22 Vet.App. at 395 (explaining that an examiner's determination of whether a condition is a congenital disease or defect "must be supported by 'guidance from medical authorities regarding the proper classification of [the] medical condition at issue.'" (quoting G.C. Prec. 82-90)). In its examination request, the Board must explain the distinction between a congenital disease and congenital defect as stated above. 2. Presumption of Soundness Although Mr. Montclair also argues that the Board's statement of reasons or bases is inadequate because the Board "has not pointed to clear and unmistakable medical evidence that [his low back disability] was not aggravated by service," the Court need not address this argument because the Board will necessarily provide a new statement of reasons or bases for its decision when it readjudicates his claim on remand. Appellant's Br. at 8-9. However, because the Board improperly applied the presumption of soundness to Mr. Montclair's claim for benefits for a low back disability, which it determined was a congenital defect, the Court feels compelled to clarify the presumption's application to congenital conditions. Notably,the "presumption of soundness does not . . . apply to congenital defects because such defects 'are not diseases or injuries' within the meaning of 38 U.S.C. §§ 1110 and 1111." Quirin, 22 Vet.App. at\ 397; see also Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003); Winn, 8 Vet.App. at 516. Therefore, if the Board determines on remand tha tMr. Montclair's low back disability is a congenital defect, the presumption of soundness would not apply and the Board must instead consider whether he suffered from any superimposed pathology for which service connection may be awarded. See G.C. Prec. 82-90. The Court notes that the Board previously determined that "an injury in service caused an acute exacerbation of low back symptoms in service," but found that "no evaluation [in service], or since, has identified any low back pathology that was superimposed on the pre-existing low back disability during service." R. at 11. If, on the other hand, the Board determines that Mr. Montclair's low back disability is a congenital disease, the presumption of soundness would apply unless rebutted by clear and unmistakable evidence that his low back disability preexisted service and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Monroe v. Brown, 4 Vet.App. 513, 515 (1993). In other words, in the case of a congenital disease, the presumption of soundness applies as it would for any acquired condition. See Quirin, 22 Vet.App. at 396-97. B. Right Hip Disability Because the Court is remanding Mr. Montclair's claim for benefits for a low back disability, the Court concludes that remand is also warranted for his claim for benefits for a right hip disability, claimed as secondary to his low back disability, because the two claims are inextricably intertwined. See Smith v. Gober,236F.3d1370,1372(Fed.Cir. 2001) (explaining that where the facts underlying separate claims are"intimately connected," interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); 38 C.F.R. § 3.310(a) (2011) (stating that secondary service connection is awarded when a disability "is proximately due to or the result of a service-connected disease or injury"). III. CONCLUSION Upon consideration of the foregoing, the November 30, 2009, Board decision is VACATED and the matter is REMANDED for further development and readjudication consistent with this decision. DATED: July 13, 2011 Copies to: Peter J. Meadows, Esq. VA General Counsel (027) The Court acknowledges that spina bifida is defined in at least one medical dictionary as a "neural tube defect." DORLAND'S at 1773 (emphasis added). That medical dictionary defines "defect" as "an imperfection, failure, or absence."Id. at 484. Such a broad definition of "defect" is incompatible with the specific meaning of that term of art as it is used for VA disability compensation purposes, as explained above, and the Court concludes that it is not dispositive of the issue at hand. See Winn, 8 Vet.App. at 516 (rejecting a similarly broad dictionary definition of "defect" as incompatible with the statutory scheme for awarding VA benefits); cf. Sullivan v. Stroop, 496 U.S. 478, 483 (1990) ("[W]here a phrase in a statute appears to have become a term of art, . . . any attempt to break down the term into its constituent words is not apt to illuminate its meaning."). The Court also notes that the June 2009 VA medical opinion casts doubts on the propriety of the initial diagnosis of spina bifida. See R. at 80 ("[spondylolysis] was probably noticed in 1984, but calleda spina bifida occulta."). A laminectomy is "excision of the posterior arch of a vertebra." DORLAND'S at 1017. Spondylolisthesis is "forward displacement . . . of one vertebra over another, . . . usually due to a developmental defect. . . ." DORLAND'S at 1779. Spondylolysis is "dissolution of a vertebra." DORLAND'S at 1780.

DATE: 07-18-90 CITATION: VAOPGCPREC 82-90 Vet. Aff. Op. Gen. Couns. Prec. 82-90 TEXT: Subject: Congenital/Developmental Conditions under 38 C.F.R. § 3.303© (This, opinion, previously issued as General Counsel Opinion 1-85, dated March 5, 1985, is reissued as a Precedent Opinion pursuant to 38 C.F.R. §§ 2.6(e)(9) and 14.507. The text of the opinion remains unchanged from the original except for certain format and clerical changes necessitated by the aforementioned regulatory provisions.) QUESTION PRESENTED: In view of the provisions of 38 C.F.R. § 3.303©, under what circumstances, if any, may service-connection be granted for disorders of congenital or developmental origin? COMMENTS: The opinion was issued in response to a request from the Chairman, Board of Veterans Appeals, which request came against the backdrop of three disability-compensation claims which were on appeal to the Board. In two of the cases the issue presented was entitlement to service-connection for retinitis pigmentosa, and in the third the issue was entitlement to service- connection for polycystic renal disease. Both diseases are considered by medical authorities to be of familial (or hereditary) origin. In each of the three cases, the disease was first manifested and diagnosed during the individual's military service. The regulation in question, 38 C.F.R.§ 3.303©, states in pertinent part as follows: "... 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." In the Schedule for Rating Disabilities, at 38 C.F.R. § 4.9, the same principle is set forth but with some variation in language: "Mere congenital or developmental defects, absent, displaced or supernumerary parts, refractive error of the eye, personality disorder and mental deficiency are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes." The applicable basic legislation, 38 U.S.C. § 310, 331, essentially provides for the payment of compensation to (otherwise eligible) veterans, (f)or disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval or air service ... The question thus becomes whether 38 C.F.R. § 3.303© has effectively removed from the scope of 38 U.S.C. §§ 310 and 331 familial conditions (like retinitis pigmentosa and polycystic renal disease) and, for that matter, all disabilities of congenital or developmental origin. Initially, it is well to focus on the word "defects" in the phrase "congenital or developmental defects." In a medical context, a "defect" is an imperfection, failure or absence. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 351 (26th Ed.1974). Because a human body afflicted with a disease could be said to have an imperfection by virtue thereof, one might well argue that the term "defects" includes, within its ambit, diseases; and hence, that any congenital or developmental disease is not a proper subject for service- connection under the law. But this line of argument cannot withstand close scrutiny for one cogent reason in particular. If so broad a meaning were assigned to the word "defects," the regulation would be at odds with 38 U.S.C. §§ 310 and 331, for nowhere in the statutory law governing VA disability compensation is the term "disease" qualified by definition or stated exceptions. Thus, the term must be given its common meaning and must be deemed to encompass all diseases. See Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607 (1944); SUTHERLAND STATUTORY CONSTRUCTION § 47.28 (4th Ed.1974). It is axiomatic that in any case of conflict between a statute and an agency regulation, the provisions of the statute will prevail. SUTHERLAND STATUTORY CONSTRUCTION, supra, at § 31.02. By reason of logic and necessity, the term "disease" in 38 U.S.C. §§ 310, 331, and the term "defects" in 38 C.F.R. § 3.303© must be interpreted as being mutually exclusive. Each has reference to a particular category of medical conditions. "Disease" has been broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 385 (26th Ed.1974). In case law, the word has been variously defined as (for example) a morbid condition of the body or of some organ or part; an illness; a sickness. 12A WORDS AND PHRASES Disease, at 388 et seq. (1954). On the other hand, the term "defects," viewed in the context of 38 C.F.R. § 3.303©, would be definable as structural or inherent abnormalities or conditions which are more or less stationary in nature. Interestingly, one influential Federal court, in drawing a distinction between "disease" and "defect," indicated that the former referred to a condition considered capable of improving or deteriorating, whereas the latter referred to a condition not considered capable of improving or deteriorating. Durham v. United States, 214 F.2d 862, 875 (D.C.Cir.1954); see also United States v. Shorter, 343 A.2d 569, 572 (D.C.1975). While we would characterize as a generalization a statement that "defects" are incapable of any improvement or deterioration, we believe the contrast drawn by the court is essentially valid and helps to clarify the difference between these terms. Obviously, in the adjudication of claims for service-connection for conditions of congenital or developmental origin, close attention must be paid to the question of whether the condition is a disease process or is simply a defect or abnormality. In many instances, it may be necessary for VA adjudicators to seek guidance from medical authorities regarding the proper classification of a medical condition at issue. Most diseases are considered acquired in nature. Others are recognized to be congenital, developmental or familial in origin. When any of the latter becomes the basis for a claim for service-connection of a disability, VA adjudicators ordinarily are justified in finding that such disease, by its very nature, preexisted the claimant's military service. (In the case of some diseases, notably those first becoming manifest during service, guidance from medical authorities may be necessary regarding the actual time of inception.) Typically in these cases, entitlement to service-connection should turn on the question of whether manifestations of the disease in service constituted "aggravation" of the condition. That question must be resolved by applying the same stringent legal standards which are applicable in cases involving acquired disabilities. 38 U.S.C. § 353; 38 C.F.R. § 3.306. Various provisions in current VA regulations lend support to our position that service-connection may be granted for congenital, developmental, and familial diseases. For example, at 38 C.F.R. § 4.57, it is indicated that under certain circumstances service-connection by aggravation is warranted for pes cavus, which is "a typically congenital or juvenile disease." The regulation 38 C.F.R. § 3.380 stands for the proposition that diseases of allergic etiology may not be disposed of (for compensation purposes) as constitutional or developmental abnormalities, but rather that service- connection must be determined based on the entire evidentiary picture. Significantly too, in the Schedule for Rating Disabilities (38 C.F.R. Part 4) two familial diseases, sickle cell anemia and Huntington's chorea, are included for rating purposes under Diagnostic Codes 7714 and 8106, respectively. It is clear that congenital or developmental defects may not be service- connected because they are not diseases or injuries under the law. See, e.g., Thompson v. United States, 405 F.2d 1239 (Ct.Cl.1969). We must caution, however, that many such defects can be subject to superimposed disease or injury. If, during an individual's military service, superimposed disease or injury does occur, service-connection may indeed be warranted for the resultant disability. HELD: Service-connection may be granted for diseases (but not defects) of congenital, developmental or familial origin. In the instant cases, service connection is warranted if the evidence as a whole establishes that the familial conditions in question were incurred or aggravated during service within the meaning of VA law and regulations. VETERANS ADMINISTRATION GENERAL COUNSEL Vet. Aff. Op. Gen. Couns. Prec. 82-90 Here's the important part: "Federal court, in drawing a distinction between "disease" and "defect,"indicated that the former referred to a condition considered capable of improving or deteriorating, whereas the latter referred to a condition not considered capable of improving or deteriorating. Durham v. United States, 214 F.2d 862, 875 (D.C.Cir.1954)" It sounds like yours deteriorated. ;)

They keep referring to Dorland's Medical Dictionary in these cases, and it seems like even the spondylolyisthesis has the word defect in the definition. So the car wreck might come back into play here as the superimposed injury.

Okay. That is good that you went. You should have no problem reopening the claim then. In fact, I don't think it should really have to be reopened since new information was submitted while you are still officially in your appeal period - It is my understanding that as long as you are still within one year of that decision, the claim is still open. They will just need to readjudicate it. You might want to send them something in writing, informing them that the C&P exam had been re-scheduled, that you reported to the exam as scheduled, and you want them to readjudicate the claim based on the new evidence. You might as well pick up a copy of the C&P exam and point out how it is in your favor (if it is) - or point out any errors (if there are any). Sometimes, I think if you let the VA know that you know -- they have to kick their game up a notch. If they can count on the veteran not getting a copy of, or reading, the C&P exam -- they might have a tendency to interpret the wording a bit differently.

Hmmm - So something as simple as saying that the preponderance of the evidence is in support of a veteran's claim is saying something bad about the VA. Kind of makes you wonder....

71M10, I hope they grant you equipoise.

I think I need to order a copy for the VSO I had at my hearing.

Have you looked at asknod's book? http://www.amazon.com/Veterans-Administration-Claims-What-Successful/dp/1477139516 I wish I would have read it LONG before I got to the BVA level.

Did you go to the appointment? The rescheduled one?

Well dang... It looks like from this case you do have to show that the tainted evidence had a prejudicial effect on your claim. http://search.uscourts.cavc.gov/isysquery/2792ea20-64b7-44f1-a645-e39b2bbbe912/40/doc/ "These documents certainly contain discrepancies; however, the differences between the documents do not appear to be such that they would have any impact on the evaluation of his claim. Consequently, unlike the case of Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009), where the alteration in a claims file document spoke directly to the question at issue (namely, the appellant's employability), and the altered document clearly tainted proceedings, in this case, the Court cannot identify any prejudicial error arising from the presence of the differing versions of the documents cited." But then again -- I might find another decision that says something different... ;)

Here you go! They called the spondylolysis congenital (based on the medical dictionary...hmmm) but noted that the spondylolysisthesis was a superimposed injury. http://www.va.gov/vetapp03/Files/0316212.txt Citation Nr: 0316212 Decision Date: 07/17/03 Archive Date: 07/22/03 DOCKET NO. 97-10 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a chronic low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.A. Howell, Counsel INTRODUCTION The veteran served on active duty for 23 years and retired in March 1996. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the claim on appeal. FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the veteran in the development of the claim and has notified him of the information and evidence necessary to substantiate his claim. 2. The veteran entered military service with a congenital defect of the spine, spondylolysis. 3. He sustained multiple back injuries during 23 years of active duty and was treated on several occasions for lumbosacral strain. Radiology reports reflect diagnoses of spondylolysis with grade I spondylolisthesis at L4-L5. 4. A post-service X-ray report shows spondylolisthesis with probable spondylolysis at L4-L5. 5. A current back disability resulted from a pre-existing defect of the back, which was subject to superimposed injury during service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the veteran, a chronic low back disorder was incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1111, 1113, 1131, 1153, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2002); VAOPGCPREC 82-90 (July 18, 1990). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends, in essence, that he is entitled to service connection for a low back disorder. At a personal hearing in August 2000, he maintained that he had no problems with his back prior to entering the military, that he injured his back in July 1982, and that he has continued to experience back pain since the time of the injury. Relevant Law and Regulations. Under the relevant law and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2002). However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2002). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2002). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Moreover, a veteran is presumed to be in sound condition at entrance to service except for disorders noted at entrance or where clear and unmistakable evidence rebuts the presumption of sound condition for disorders not noted at entrance. History provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a pre-existing condition. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b)(1) (2002); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). A pre-existing injury or disease will be considered to have been aggravated by service where there is an increase in the disability during service, unless there is a specific finding that the increase is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2002). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progression of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2002). Moreover, "temporary or intermittent flare-ups of a pre- existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Nonetheless, silence of the record on this point may not be taken as indication of no aggravation, an opinion must be provided. See Verdon v. Brown, 8 Vet. App. 529 (1996); Wisch v. Brown, 8 Vet. App. 139 (1995). Further, such medical questions must be addressed by medical experts. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Next, congenital or developmental defects are not considered diseases or injuries under the law. 38 C.F.R. § 3.303©. Service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303©, 3.306 (2002). With regard to congenital or developmental defects, service connection may not be granted for a defect, although service connection may be granted for a disability which is shown by the evidence to have resulted from a defect which was subject to a superimposed disease or injury during service. See VAOPGCPREC 82-90 (July 18, 1990). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As an initial matter, the Board finds that no pre-service medical records are associated with the claims file. The veteran has testified that he had no problems with his back prior to military service. Further, it is undisputed that the veteran's March 1973 entrance examination did not mention a pre-existing back disorder and the clinical evaluation of his spine was normal. For that reason, he is entitled to the presumption of soundness. Nonetheless, even finding that the presumption of soundness attached at the time of induction, the Board finds, by clear and unmistakable evidence, that the veteran suffered from a pre-existing, congenital low back disorder (spondylolysis) prior to his entry into military service. Specifically, at the time of his initial back injury in June 1982, he was diagnosed with "spondylolysis and first degree spondylolisthesis at L4-L5." As a matter of judicial notice, spondylolisthesis is defined as a "forward displacement of one vertebra over another, usually the fifth lumbar over the body of the sacrum, or the forth lumbar over the fifth, usually due to a developmental defect in the pars interarticularis." Dorland's Illustrated Medical Dictionary 1563 (28th ed. 1994). Spondylolysis is a defect of the pars interarticularis, and it is the most common cause of spondylolisthesis and is sometimes called isthmic spondylolisthesis. Id. While there is some debate about whether spondylolysis is a congenital defect (present at birth) or whether it develops in childhood from a stress fracture that never completely heals, the disorder, by definition, occurs at birth or in childhood and necessarily pre-existed military service. Moreover, the treating military physician noted that the veteran had an "incidental congenital laminar defect." Under 38 C.F.R. § 3.303©, 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. Accordingly, the Board concludes that there is clear and unmistakable evidence that the veteran had a pre- existing defect of the spine, namely spondylolysis, when he entered service in 1973 and the presumption of soundness is overcome. Having found that the veteran had a pre-existing, congenital low back disorder prior to entering military service by clear and unmistakable evidence, the Board notes that congenital or developmental defects are generally not service-connected because they are not injuries under VA law and regulations. 38 C.F.R. § 4.9 (2002). However, congenital or development defects may be service-connected when a superimposed injury occurs during, or as a result of, active service. VAOPGPREC 82-90 (July 18, 1990). In this case, the Board finds that the veteran's in-service diagnosis of spondylolisthesis (an acquired disorder) was superimposed on his congenital defect (spondylolysis). The Board concludes that, in the context of this particular case, the lay evidence is sufficiently credible and probative of a chronic back disability existing as a result of a pre- existing back defect, which was subject to superimposed injuries during service, so that the positive and negative evidence are at least in equipoise, allowing the benefit of the doubt to be granted in favor of the claimant. As noted above, the evidence as a whole shows that the veteran entered service with a pre-existing defect of the spine, spondylolysis. As a result, his intrinsically weak lumbar structure was a risk factor for the development of superimposed lumbar strain and spondylolisthesis. See THE MERCK MANUAL, § 5, Ch. 62, pp 504-505 (17th ed. 1999). To that end, the Board notes that service medical records show that the veteran was initially treated for back pain as the result of a twisting injury beginning in 1982. Thereafter, he sought treatment for chronic low back pain periodically throughout his remaining military career. Moreover, he submitted a statement from a fellow soldier indicating that he injured his back while undergoing physical conditioning in 1982. X-ray evidence at that time reflected a diagnosis of spondylolysis and first degree spondylolisthesis at L4-L5. An X-ray report dated in July 1995, shortly prior to discharge, showed a diagnosis of spondylolysis and spondylolisthesis at L4-L5 with degenerative disc disease and possible herniated nucleus pulposus. Within months of service separation, a X-ray report indicated a diagnosis of spondylolisthesis with probable spondylolysis at L4-L5. Further, a November 1996 MRI report reflected a diagnosis of degenerative disc disease, degenerative spondylolisthesis at L4-L5, and an acquired L4 intervertebral foraminal stenosis. Although the veteran had a congenital back disorder prior to service at L4-L5 (spondylolysis), he sustained a back injury at the level of L4-L5 during military service and was diagnosed with spondylolisthesis (an acquired disorder). Further, post-service medical evidence shows the presence of degenerative changes at L4-L5 and indications of acquired intervertebral foraminal stenosis. Accordingly, resolving the benefit of the doubt in favor of the claimant, the Board finds that service connection should be granted for a back disability, which is shown by the evidence to have resulted from a congenital defect, which was subject to superimposed injury during service. VAOPGCPREC 82-90 (July 18, 1990). Finally, during the pendency of this appeal, there was a significant change in the law. Specifically, on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which, among other things, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The law is applicable to all claims filed before the date of enactment but not yet final as of that date. See 38 U.S.C.A. § 5103A (West 2002). Additionally, in August 2001, VA issued regulations implementing the provisions of VCAA "to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits." See 66 Fed. Reg. 45620-45632 (Aug. 29, 2001). Inasmuch as the Board is allowing the benefit sought on appeal, the veteran will not be prejudiced by the Board's decision even if the notice and duty to assist provisions contained in the new law have not been completely satisfied. Therefore, no further action is necessary under the mandate of the VCAA. ORDER The claim for entitlement to service connection for a chronic low back disorder is granted. ____________________________________________ BETTINA S. CALLAWAY Veterans Law Judge, Board of Veterans' Appeals

You really need to get past the congenital defect aspect: http://veteranclaims.wordpress.com/2011/03/21/single-judge-application-c-f-r-3-63-presumption-of-soundness-clear-and-unmistakeable-evidence/ The presumption of soundness applies to congenital diseases that are not noted at entry. Monroe v. Brown, 4 Vet.App. 513, 515 (1993). “The presumption of soundness does not, however, apply to congenital defects, because such defects ‘are not diseases or injuries’ within the meaning of 38 U.S.C. §§ 1110 and 1111.” Quirin, 22 Vet.App. at 397; see 38 C.F.R. § 3.303© (2009); see also Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects). Yep! An IMO will really help!

I wish I would have known that we could push them on the C-file. My RO told me from the beginning it would be over 6 months to get a copy of the file. I even wrote later and asked for an extension of one year to submit evidence in support of my claim as it took them forever to send the C-file. Of course, they never answered. Oddly enough, when I kept asking for the second page of the medical opinion that was used to deny my claim, they kept telling me I had to provide them with the date of the opinion and the name of the doctor who wrote it. I kept telling them I didn't know the name or date because that information was on the page they didn't send me. Then they had me send a copy of the part of the report I had, to assist them in searching. Of course, that got me nowhere. But really, how hard is it to search. You sought a medical opinion. That opinion was used to deny my claim. I want a complete copy of THAT opinion. BUT - when Berta posted an email of a branch within the agency that is supposed to help with survivor benefits and I emailed them and asked for assistance in getting a complete copy of the medical opinion - they forwarded my email - and I got a copy of the entire C-file several days later (along with an admonishment that let me know this was my SECOND copy and that I would be charged if I requested any more). But it did have the second page of the medical opinion I was seeking included.

"Anytime your c-file contains the records of another Vet, any claims decisions with the records in place are tainted. Raters have been known to confuse the evidence and deny based on the other Vet's records. The Court has held that in these cases, the repair order is to remand for a decontamination and a new (de novo) readjudication at the RO that does not take into account the tainted evidence." I found that case very interesting. I was interested in this because there are records of another vet in my husband's C-file. (I even informed the VA of this and asked them to please look in those vet's records for my husband's missing discharge physical). But to claim the file was tainted, I would probably have to show the other veteran's records most likely affected the decisions, right? I couldn't ask for the records to be removed and all the claims readjudicated just on the basis that there were some other vet's records in the file. I certainly will look over the decisions concerning the knee disabilities - since there are records of other veteran's knees in my husband's C-file. But it seems like I wouldn't have a basis to get claims on other issues readjudicated. I don't know. I am interested. But from the case I read so far, it still looks like you would have to show that those records had some affect (or the potential to have some affect) on the decision that was made.

I do want to point out Section §3.300 (a) states, “For claims received by VA after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service…” However, Section §3.300 (b) states,” The provisions of paragraph (a) of this section do not prohibit service connection if: (1) The disability or death resulted from a disease or injury that is otherwise shown to have been incurred or aggravated during service. For purposes of this section, “otherwise shown” means that the disability or death can be service-connected on some basis other than the veteran's use of tobacco products during service, or that the disability became manifest or death occurred during service; or (2) The disability or death resulted from a disease or injury that appeared to the required degree of disability within any applicable presumptive period under §§3.307, 3.309, 3.313, or 3.316. An excerpt from the DEPARTMENT OF VETERANS AFFAIRS, 38 CFR Part 3, RIN 2900-AJ59 Claims Based on the Effects of Tobacco Products - Final rule. (Federal Register, April 6, 2001 (Volume 66, Number 67) - Rules and Regulations - Page 18195-18198, Department of Veterans Affairs, Effective Dates: June 10, 1998) states: Disability Becoming Manifest During Active Duty “One commenter stated that Congress intended that the term ``otherwise shown'' in section 1103(b) include any disability or death from a disease or injury which became manifest or was aggravated during service, or manifest during a presumptive period, even if it resulted from tobacco use. The commenter recommended that VA's regulation be amended to specify this. The commenter suggested that, unless the term ``otherwise shown'' is clearly defined by the regulation, VA regional office adjudicators may misinterpret and misapply it. Regarding the definition of ``otherwise shown,'' we believe it was intended to convey that 38 U.S.C. 1103 generally precludes establishment of service connection for a disability or death on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products. However, a review of the legislative history reveals an additional purpose behind 38 U.S.C. 1103(b): To permit claims where the disability manifests while on active duty, even if they are based on tobacco use. In our view, 38 U.S.C. 1103 was not intended to affect a veteran's ability to establish service connection on the basis of any legal presumption, including both statutory and regulatory presumptions. Therefore, section 3.300(b) in the proposed regulations provided that section 3.300(a) does not prohibit service connection for a disability or death if it resulted from a disease or injury otherwise shown to have been incurred or aggravated during service, or that became manifest to the required degree of disability within a period that establishes eligibility for a presumption of service connection under 38 CFR 3.307, 3.309, 3.313, or 3.316, or that may be service-connected under Sec. 3.310(b). We agree, however, that clarification would be helpful and have therefore amended proposed section 3.300(b)(1) to state that, ``[f]or purposes of this section, `otherwise shown' means that the disability or death can be service-connected on some basis other than the veteran's use of tobacco products during service, or that the disability became manifest or death occurred during service.''

"I shall admit and plead guilty to all you said. I would not shut up. I was the biggest nuisance on Hadit." Okay! We will give you the most tenacious and biggest nuisance award! ;) (((Big Hug))) Oh.. I remember the trip you took to Washington and how scary that was for you. I think you were stressing about having to cross a bridge. But all your fighting made you brave enough to cross that bridge if you had to.