free_spirit_etc

I would say if anyone ever feels like giving up -- they should go review Betty's claim. If anyone ever deserved an award for tenacity - it is Betty. She would NOT NOT NOT give up. She just kept on fighting when ALL odds were totally against her. She had to deal with the military destroying her records, the VA changing her diagnoses (When the C&P examiner correctly diagnosed her with anxiety disorder, they sent her to other doctors that would diagnose her with a personality disorder without so much as doing a psychological test), etc.etc. etc. When I first joined Hadit, Betty was in EVERY thread trying to get help in figuring out her claim. I think most of us thought she didn't have a chance. But she would NOT give up - She just kept fighting anyway. I think some of us finally started trying to help her, not because we thought she would win, but because she would not shut up, she would not be ignored, and she would not stop fighting for her right to veteran benefits. I kept thinking "OMG! Who IS this woman???" But once we really started listening to her story, we realized "Wow! Maybe she DOES have a claim." But she was still up against some horrifying odds in winning it. But she just kept fighting. She got a hold of an old military doctor who happened to keep a copy of her medical records (because he knew they were going to try to railroad her). She got an IMO that showed in no uncertain terms the VA examiners had misdiagnosed her with a personality disorder. In ALL her years of treatment the ONLY diagnose of PD was from those two doctors who didn't even do ONE test. So with her IMO and her newly discovered SMRs in hand - she was awarded retroactive benefits WAY back to when she first applied. Her strength and tenacity were amazing! And she will always be one of my favorite people here at Hadit. Betty not only fought hard for her claim - she was always so supportive of everyone else fighting for theirs. After a long absence from Hadit -- the FIRST thing I did when I logged back in was looked for Betty. She is that special.

By the way - have you looked at the rating schedules and seen what % of rating your disability would probably be?

63Sierra, This is a claim about another condition http://www.va.gov/vetapp13/Files2/1314707.txt - but it does discuss the differences between developmental disease and developmental defects in a way that helps clarify what the VA considers both of those to be. I am still thinking that you are supposed to be granted the presumption of soundness - where it is up to the VA to show that you were NOT sound upon entering the service. Since there are different causes for your condition, I don't think the RO merely stating it was congenital, without so much as a medical opinion indicating that it was to rise to the level of what the VA must do to rebut soundness. And again, I think if the military doctors who treated you thought you had a congenital condition that would make you prone to injury they would have been moving to get you out of the military as fast as they could. In most decisions involving congenital conditions noted in service you also see the terms Medical Board. It is interesting that they said "There were no medical records submitted to establish that the veteran had anything other than a congenital or developmental abnormality which means the veteran was either born with this condition or it developed naturally ." As you should have been presumed sound - it shouldn't be up to prove that you were sound. It is up to them to prove that you weren't sound. With that being said -- I think it would be in your best interest to continue to review BVA decisions on the condition to see what reasoning was used in both the claims that were denied and the claims that were granted - so you can make sure all the bases are covered in your evidence. Make a note of the reasoning used in the decisions so you can make sure those are covered in the IMO. I would recommend that you submit an IMO -- and not count on the VA to provide you with an exam that will result in a supporting opinion. But I wouldn't rush getting an IMO. I would make sure that you know what will be required to make sure your bases are covered on the reasons similar claims are denied. Hoppy posted a great post in here - and he is FAR more knowledgeable about these kinds of claims than I am. He has fought and won some very complex issues with the VA. And your case is such that though you have strong evidence, the type of condition you have is such that it can give the VA some wiggle room to get around it if you aren't prepared to plug up the holes they will use to wiggle out. And we certainly want to see you posting in the Success Stories thread!!! I am hoping that there will be a way to present it where this in-service diagnosis (that they said you didn't have) will help prove the claim in a way that you can go for an earlier effective date when granted. I would try to stay away from CUE if I could though.. since the burden of proof is more stringent. But hopefully you will be able to use the fact that there were service medical records that were missing from the file. I don't think I would push to argue that the VA had those records and ignored them. I think you might be better to just agree that they must not have been part of the record - and now that you have submitted them and they ARE part of the record - you should get an earlier effective date because they should have been part of the record when the claim was initially decided. I am not sure if it would be better to argue that case now -- that you aren't reopening the claim - you are asking that it be readjudicated now that the missing SMRs are of record -- or whether to wait and go for SC first and then go for an earlier effective date. I would be prone to say go for SC first. But there are people here who know a lot more about that stuff than I do.

I grew up on a dairy farm. We had REAL milk.

I don't find a lot of support for this to be a primarily congenital condition. It seems that some people might be genetically predisposed. But that is different than congenital. Congenital is present at birth. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2200718/ "Spondylolytic defects of the pars interarticularis of the vertebral arch of lumbar vertebrae (LS) have been the subject of several studies [2, 3, 8]. Symptomatic adolescents or patients recruited at spine centres have been the natural focus of investigation, while the distribution of spondylolytic lesions in the general population has received far less attention [27]. The incidence of LS in the newborn is zero [12], while prevalences of LS have been found to be 4.5% in six-year-old school children, increasing to 6% in early adulthood." http://www.stvin.org/Spondylolysis-801 "The exact cause of spondylolysis is unknown. Some theories point to genetics as a factor, suggesting that those with thinner bones are more susceptible to breakage. Others propose that repetitive trauma to the lower back weakens the pars interarticularis. Spondylolysis also may be associated with conditions that cause instability of the spine, such as lumbar disc degeneration or narrowing of the area where the nerve roots exit the spinal column (the neural foramina)."

I don't see where they are able to get by with calling it congenital without a medical opinion stating that it is. (Except for the fact they are the VA). The condition can be congenital; but isn't always. You have back pain. You have a diagnosis. .

"Do they win every time. ?" No... You are going to win. Right now we are just studying the enemy...

There is some interesting stuff in this thread about congenital defects

"The BVA keeps their awards pretty concise..short and sweet." Yes. I have started to notice if I have to scroll down very far to see the result, it won't be good news. I guess I will look forward to getting the benefit of the doubt then.... But in some of those cases it just seems like the evidence is SO strong... and then they throw in the equipoise.

Betty, I know you are rooting for me! You always have and you always will! That gives me strength! Free

http://www.va.gov/vetapp03/Files/0306003.txt "As explained herein, by Congressional enactment, June 9, 1998, became the cut-off date for filing claims based upon the tobacco theory; tobacco-related claims filed after June 9, 1998, must be denied as a matter of law under 38 U.S.C.A. § 1103 and 38 C.F.R. § 3.300."

The tobacco addiction claims didn't last very long. They put a stop to those pretty quick - UNLESS they are secondary -- for instance having a SC mental condition that causes you to smoke. I am not sure, but I think it also affected some widow's DIC claims. Because when they stopped claims based on conditions caused by tobacco addiction - it applied to all NEW claims. So the veteran could be SCed for conditions caused by his smoking, but if he died from that condition, the widow's DIC claim was a NEW claim, and this she couldn't be granted DIC for that condition under the new law. I am not sure, but I think that was what I read. So again - I found it odd that the VSO started the hearing by asking me "Is it true that your husband started smoking before he entered the service?" Generally, it seems like if someone is asking you "Is it true that ___" they are trying to tell you how to answer. And he seemed aggravated when I said I didn't know. Puzzling. Or maybe, since we disagreed during the meeting - and he snapped at me in the hall going into the hearing room - he was just sabotaging my claim - and acting like he was representing me. I mean really - he didn't say a WORD about my IMOs -- and even when the judge asked if I had gotten the IMOs and looked happy when I said yes -- and told me they might provide the nexus - he looked over at my VSO and waited - and the VSO just sat there and didn't say a word. How in the world could he not say a word about the strongest evidence I had, and ask me questions about whether it is true my husband started smoking before he entered the military? Of course, he wants to prove boots on the ground. He doesn't really want to push in-service occurrence, or asbestos exposure. There is a slight inconvenience though... my husband wasn't in Vietnam.

I'm confused. If the claim is at a "Board", then it was denied or not ajudicated to the satisfaction of the claiment. So there must have been either evidence or doubt by the original rater, etc. Maybe in a perfect world. But it doesn't always work out that way. You must have a pretty good RO to stay that optimistic! Here is an example from my RO. VA Examiner gives diagnosis of Chronic ethmoid sinusitis with Agger Cells with obstruction, and points out my husband "underwent an x-ray of his sinuses on September 3, 1982 and the xray was shown ethmoid and maxillary inflammatory changes of the chronic type." RO states "A review of service medical records showed diagnosis of sinusitis in September 1982. A chronic disability associated with sinusitis is not shown by service medical records. " ??? He had many bouts of sinusitis in service. It was diagnosed as chronic by an x-ray showing changes of the chronic type in 1982. The VA examiner pointed that out. The RO twisted it and acted like he just had a sinus infection once. So - no - I am not convinced that there is always evidence against a claim when a claim is denied, or that the RO had a doubt. There are many times the RO knows dang good and well a claim should be granted, but they twist the evidence and deny. I think in these cases, equipoise is the balance between evidence "for or against" the claim. That would be equipoise, yes. But many times the claim -- at least by the time it is finished at the BVA is not in equipoise. The evidence for granting the claim is much stronger than the evidence against granting the claim. But you don't see decisions saying "The evidence for granting the claim is much stronger than the evidence against the claim." They will most generally say it is in equipoise, and resolving all doubt in the veteran's favor, etc. Granted - there are claims were there is a balance. But there can't be that many of them. Most of the claim I see granted always use the "benefit of the doubt." I dont see a claim not being approved if all of the evidence supported the claiment and there was no dought or evidence against. That is true. They will grant it (and say it is in equipoise, and they are resolving all doubt in favor of the veteran...) But then again, "equipoise" is a pretty big word for me and I can't or wouldn't use it in a sentence. I had to look it up. Fun with words. Hamslice

Hi Josephine!! I have been wondering about you and hoping you were doing okay. It is SO good to see you! (BIG BIG Hug!)

Hang in there Sierra! Hoppy is one smart guy! And he really knows his stuff about the VA and what it takes to win...despite all the games!

Hoppy, I think the doctor's opinion was initially that the pars was fractured. But then he said that it was not fractured then. The SOC said the bone scan didn't show the fracture. I did a tiny bit of research and it looks like when the fracture shows up on the xray, but not on the bone scan, that means it is an older fracture. The bone scan shows fractures that are healing. If it isn't showing up, it shows the fracture was already healed. I definitely agree this should be a SC case -- but I just think hanging his hat on the idea that the car wreck caused the fracture might not help, because the VA doctor could easily refute that. From what I read, most of these kinds of fractures are caused by compression fractures. It is not one blunt trauma - but a serious of tiny little repetitive traumas over time. I think he has an excellent case for the presumption of soundness. He served several years and had a job handling lots of heavy equipment with no back pain what-so-ever. So it would be hard to say the fracture predated service. I don't think they know when the fracture occurred, but they did say it was not from the car wreck - because the tests showed it was already healed. But it is common for this condition for a bunch of fractures to occur over time without the person knowing it. I think it would be hard for the VA to refute the presumption of soundness, because he did a lot of heavy duty stuff for several years with no problem. The only BVA claims I saw where they denied the claim based on pre-service condition was one where the person was only on active duty for a few weeks before having a problem, and another where when they looked at the veteran's older medical records they clearly showed the veteran had been injured in a car wreck and diagnosed with the condition as a child. The facts of the case are in the veterans favor. He had no back pain even while doing lots of heavy work until the car wreck. He has had chronic back pain since that time. Even if the VA would continue to try to say the condition was congenital, he could still show it was aggravated in service - especially since it caused him no problems until the car wreck. Several of the BVA claims I read (which were granted) the doctors had stated that it is not just a congenital defect. It takes both the predisposition AND the repetitive injuries to cause it. If the repetitive injuries occurred in service - that should be aggravation - if not outright cause. I totally believe he has a great case. I just worry about counting on the car wreck being the cause. BUT -- there are really two conditions - spondylolis and spondylolisthesis. Spondylolisthesis is when the vertebrae have shifted. He was already diagnosed with that in service - and that is one of his disagreements is that the VA said he was only diagnosed with spondylolis. I am wondering if that is where the car wreck might very well come into play. If he already had the fracture from the spondylolis, would the trauma from the car wreck have possibly caused the already weakened vertebrae to shift, creating the spondylolisthesis. I am not a doctor - but it sure seems like that might explain why he started experiencing the chronic pain after the car wreck. But I agree, the bottom line is that his back didn't hurt when he entered the military. His back didn't hurt through most of his military service, despite heavy lifting and physically demanding work. His back started hurting while he was in the military. He had a medical condition diagnosed while he was in the military that diagnosed what was causing his back pain. And his back has continued to hurt since that time. Sounds like SC to me.

What is somewhat frustrating in reading a lot of BVA cases is that if even if they grant the claim - they always throw in equipoise and benefit of the doubt. I swear, someone can have something diagnosed in service, have opinions from both their private doctors and VA examiners that support the claim, and no evidence against the claim - and the Board will still say they are giving the veteran the "benefit of the doubt" because the claim is in "equipoise."

Jayco, When did you get your notice on your claim? You have one year from that date to file a NOD (Notice of Disagreement). I would suggest you disagree with the denial of the sleep apnea. Though you said you didn't claim for it as a SC condition - they must have treated it as an implied claim. You don't have to disagree immediately, but you do need to file your NOD within one year of receiving the notice. If there is a possibility of getting it SCed, you would want to explore that. You might be able to show it stated in service, that you had symptoms in service, etc. Or you might be able to get it connected as it could be related to you diabetes. If you disagree, and it is later granted - you will get paid all the way back to when it was initially claimed. If you don't disagree - and then later try to get it SCed, they will only pay back to the date you re-opened the claim. So I would advise you to go ahead and appeal the decision within the time-frame - and you will still have time to explore the different ways it might be service connected. Thank you for your service! And bless your friend that let you know that as a Vietnam Vet you could get SC for your diabetes and heart disease!

"Anyways a long story short within 18months of being discharged, OTH with Personality Disorder, I lost my marriage and my relationship with my son ended up on a 72hr psychiatric hold got hooked on heroin, clean for 11 or so years now I honestly don't keep track, and went to prison for almost a year trying to steal to support my habit." LongTooth, Can you get statements from family members about the change in your behavior and when they noticed the change? Possibly a statement from your ex-wife?

"so I went and saw a new psychiatrist today... basically I got told that my problems are all in my head and I should just suck it up because I don't really have a claim so I should just go find work and put it all behind me... ???" A psychiatrist telling you all your problems are in your head???

"It isnt an unusual question......the rep was looking to see if there was potential to claim, since the cigs were possibly Gov issued and in his C rats, that he began smoking in the Mil." I thought that claims based on tobacco use were no longer covered. I know for a time, they did cover them on the basis that the veteran's tobacco dependence started in the military. But they don't cover that anymore (unless another service connected condition, like PTSD, causes you to smoke.) I guess it was okay that he asked the question. It just surprised me it was the first thing he asked in the hearing. That is so touching - your story about the Vet. I remember when I was doing training for massage therapy, one of my clients in clinicals was a man in his 90's. He always told me not to massage him like an old man - to really give him some PRESSURE! He had some significant back pain - poor guy. But I remember he was gone for a couple weeks. His wife and him went to Hawaii. When he returned - I asked if he had seen Pearl Harbor. "Seen it???" He said, "Hell! I was there when they BOMBED it!!!"

"I KNOW they had the exit exam in thier hands, because they had to have a copy, to copy the front page,..the dipshidts didnt copy the back of the ame document, that showed the ongoing back injury. so they had the document in thier hands, whehter they just neglected to copy the back, or threw the back away, i the question." When I got my husband's c-file, they only gave me the first half of the doctor's opinion that was used to deny my claim. It took me forever to get the back page. Every time I asked for it - they kept telling me I had to give them the date it was written and the name of the doctor. I kept telling them I didn't have that information - as that was on the part of the opinion I didn't get. It seemed easy to me. You got a medical opinion. That opinion was used to deny my claim, I want a copy of THAT opinion. But we went round and round. Finally, Berta posted an email for a group that serves as advocates or something for survivors. I emailed them. They forwarded the request - and within a few DAYS I got another copy of the C-file (which did have the whole opinion). They also informed me if I requested any more copies of the C-file I would be charged. Uhmmm I didn't request another copy of the whole file. I requested the back page of one opinion. If they did not use the back page of your exit exam - you can always see about going for an earlier effective date, based on service records that were missing from your file when they made the initial decision.

I am not sure that the traumatic spondylolisthesis would be the way to go. If I recall correctly, the fracture showed up on the xray after the accident - but when they did the bone scan, it didn't show up - So the doctor said he had a fracture, but it didn't happen as the result of the car wreck. The fracture had already been there. But this condition can also result from a lot of repetitive strain - So you still have the fact that he was okay going into service - at some point his back was fractured - but he continued to do lots of heavy lifting with no problem - and after the car wreck he began having chronic pain. So maybe the car wreck was the last straw, so to speak.

"If you have submitted 2 additional independent medical opinions, since the SSOC was issued, that fully conform to the IMO criteria in our IMO forum, and if these opinions support your claim with a full medical rationale for SC death (which of course would support the accrued benefits claim for the same disability) than you should succeed." This was the part I had been puzzled about because the IMOs were not in the record on the date of death. So I didn't know IMOs could be submitted for accrued benefits. But then I started noticing the BVA sought medical opinions for accrued benefits claims. So I guess that means I can't submit more medical records, etc. - but since medical opinions are needed to actually decide the claim - then medical opinions that are written based on the evidence that was in the file would count.

Something very interesting is reading some of the decisions for the brief period of time that the VA covered smoking related illnesses and the veterans had to prove it was more likely than not that smoking caused their COPD, cancer, etc. The VA examiners were pulling all kinds of reasoning out of their hats to explain that they didn't know for sure that smoking caused anything.