free_spirit_etc

"Also, I think the reconsideration is the same as an appeal, for the initial claim, but not too sure on that." Yes. A reconsideration is the same as an appeal. Most often, they are similar to the VA reviews, where the second reviewer pretty much restates what the first one said. If your wife is denied on the reconsideration, she can request a hearing. Below the hearing level, the SSA emloyees follow the POMS manual. So they better the disability fits into the neat little boxes, the more likely a claim will be granted prior to a hearing. Judges have more discretion, and base their decisions on the law, rather than POMS.

It generally goes back to one year before you filed, as long as you are disabled. So if she was disabled 11/11 and filed 11/12, they can go back one year for payments (minus the waiting months). They can actually go back longer, as far as determining disability - but they generally only go back one year as far as payments are concerned.

"looking back and reflecting on this whole situation, with the information the army docs had, Im starting to think that they should have recommened a medical discharge, for my back issues, rather than just let it ride, and let the injury worsen, as it surely has. Kind of like they just turned a blind eye." This might work in your favor. It seems like if the military doctors thought your condition was pre-existing, they would try to get you out pretty quickly before you aggravated the condition. Most of the BVA cases I read where they stood firm on the congenital part were ones where as soon as the person injured their back, they decided it was pre-existing and got them out of the military quickly. So, I would think the fact that they did not medically discharge you then would work in your favor.

"yes , I thin k if I had a foot amputated, they would say,,, theres no problem... one leg is just a little shorter than the other. ,, congenital defect." LOL I am learning something that asknod says in his book. That it is better to seek SC on a more general term - like back condition - than it is for a more specific diagnosis like " spondylolisthesis due to car wreck." Granted, you need to have a diagnosis for the condition to be SC, but when you ask for a SC for a specific condition from a specific cause - then they can get you caught up into arguing whether it is one condition, rather than the other, or whether it was caused by this or that - and lose site of the fact that no matter what you call it, and no matter what caused it - my back did not hurt when I went in and it did hurt when I went out. It is interesting looking at some of my husband's old claims. He said he had joint pain. There was no diagnosis. He said he was constantly tired, There was no diagnosis. He said he had headaches. There was no diagnosis. No diagnosed illness = no SC. When they changed the law to where you could get SC for Desert Storm for undiagnosed illnesses, he reopened his claim. Guess what! They were able to find a diagnoses for each and every thing that bothered him then. That time he was denied because all the illnesses were diagnosed. Geez... But they lost site of the fact that they were conditions he claimed when he retired, that now had diagnoses, so they may have been able to SC some of the conditions that way (except for, of course, that they weren't diagnosed in service). I am still looking into the idea of whether any of those can be claimed as unadjudicated pending claims, since they said they couldn't be SCed as undiagnosed illnesses (i.e. Desert Storm) without really looking to see if they could otherwise be connected to the military. Gads! As far as his headaches were concerned, the C&P doctor diagnosed them as having two causes, one chronic sinusitis, and the other cervicogenic headache secondary to hypertrophic degenerative osteoarthritis. My husband had frequent sinus infections in the service, and had been diagnosed with chronic sinusitis (with a pathology report), and he had claimed for a cervical strain when he retired, but they said there was no current disability. So the C&P examiner showed my husband had a chronic illness that was diagnosed as chronic while on AD (sinusitis) and that he now had degenerative changes in the cervical area that were to the level they were disabling. But they denied the condition because it was not an undiagnosed illness. So you always need to look past their reasoning and see if there is another way something can be SCed. (And if you ever need an illness diagnosed, just tell them you want to claim it for Desert Storm as an undiagnosed illness - and they will find a diagnoses real quick!) I love the line that states "We denied service connection for headaches as due to an undiagnosed illness because the headaches have been clinically diagnosed as headaches." Classic!

"There was a suggestion of compression fracture at L-3. A bone scan was done, in 12-93 showinf no spondylolisis or fracture, and was said to be within normal limits. The veteran was diagnosed with acute lumbar muscle stain due to the accident. In 12-94 he complained of low back pain following heavy physical activities, and was diagnosed with muscle spasms do to overuse. In 5-95 there was a full range of motion of lumbar spine with all test being normal. (I dont recall them ever checking or xraying my back in 5-95). No seperation examination is on record." They sure have a tendency to misplace the discharge physicals.

"The condition identified as pars defect L4 with spondylolysis is considered congenital or developmental defect which is unrelated to millitary service and not subject to service connection." Did they even get you a C&P for this? It seems like the fact that there are various types of spondylolysis, with only one of them being congenital, they would have to have a doctor say it was congenital before they could deny on this basis.

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1681553/ article on seat belt fractures. Ironically, these are called Chance type seat belt fractures, even if they are not caused by seat belts. It is a rare kind of fracture that was discovered by a doctor named Chance - and they are most common in people who were wearing a lap type seat belt only. But even if the fracture is caused by a fall, they still refer to it as a Chance fracture, or seat belt fracture because of the type of fracture it is, more than what the cause was. So the doctor probably noted that it your chart because he thought there was a possibility of it (hence the question mark), but he later diagnosed you with something else. I think it will be helpful for you to get your current doctor to write you a nexus letter on this one - and connect all the dots for them. He should be able to point out whether it was caused by military service, or aggravated by military service. Without a nexus letter, they might try to wiggle out again and just call it congenital (and overlook the fact that your were not only presumed sound when you entered the military, you also did a lot of work that put a lot of strain on your lower back for several years.).

"24 yo c/o LBP X 7 D s/p mvc. Plain films show selerotic Pars defect L4 and poss l3 spine fracture.Please eval for chronic vs acute." Older injury http://www.va.gov/vetapp12/Files5/1230755.txt "Further, there appeared to be evidence of an "old" sclerotic pars defect at the L5 pars region in the lower lumbar region, with facet joint arthropathy. The examiner then opined:"

I am not sure it matters so much whether the car wreck caused it. Your records show you were in a car wreck and your back started hurting at the same time. Even if it was a coincidence - your record shows when your back started hurting you. It looks like they came up with chronic because the fracture showed on the xray, but not on the bone scan. From what I briefly read about bone scans, they show where the bone is trying to heal itself. So it looks like your bone was not trying to heal itself (i.e. older fracture). Again, from the BVA decisions I read - just saying the condition is congenital doesn't get the VA off the hook on the presumption of soundness issue. Even if they could show you had a predisposition for the disease,they have to prove that you did not aggravate the condition in service. It isn't like you walked onto base and complained of pain on day two of your military service. You had no problems for several years though you went through grueling training and had a job that required heavy lifting. And chronic doesn't necessarily mean congenital. It might just mean the fracture occurred before the wreck. But that seems to be one of the things about this condition. It looks like it is more common for it to fracture from repeated stress to the back, than from one direct blow. So no one can put their finger on precisely when the fracture occurred because it didn't occur all at once. What I am wondering is - it seems like people can have the fracture without knowing it. So I am wondering if the fracture was there for quite some time (and possibly from some of the repeated stress on your back in the military) - and the car wreck caused the shift (which resulted in the chronic pain). That might be something to ask your doctor.

"OK, so here is the curious question and the reason I listed CUE in the header. If a determination is made against the claimant, based on the statement i sited above from the VA Doc, should I have received some statement from VA stating why they diosregarded the Doctors statement above? I am not aware of any medical evidence (none of the notes in my file state anything that would suggest onset before or after my service) which would go against me, and they still have not sent me for a C&P appointment. Is the fact that they obviously ruled against me after having a doctors statement which shows (albeit rough) that there is at least as likely as not evidence." I am not sure this would rise to the level of a CUE because it seems like his opinion was pretty weak. Much would depend on what they said in the SSOC and how they said it. But it does seem like they should have scheduled you for a C&P exam.... But I can't state that definitively ;) And there are many people here on hadit who know much more than I do. But I am sending you positive thoughts for much luck on your claim.

"Pulled up the record, the exact words, from the VA ENT Doctor, were as follows, "Note: It is unclear when this patient's Meniere's disease started. It is at least as likely as not that it started during the time in service, although that cannot be stated definitively." " I don't like the wording he used here. At least as likely as not is by its very nature kind of non-definitive. But to tag it on after a "at least as likely than not" makes it sound like he isn't even sure if it is at least as likely than not. If he said something like "It is unclear when this patient's Meniere's disease started, and thus I cannot state definitively that it started in service. However, it is my medical opinion that it is at least as likely as not that the patient's disease started in service" - and then gave a medical rational as to why - that would be much stronger. I guess what I am saying is that if he said he couldn't state definitively exactly when it started, but that it was at least as likely than not (and gave a reason for the opinion) - that could be pretty good. But when he says it is unclear, then says it is at least as likely than not, and then tags on the definitive part - it makes it sound like he can't even be sure if it is at least as likely than not. To me, that puts the opinion in the realm of the ones that say may, possibly, it is plausible, etc. Of course, the rationale he used, if supportive, might help the opinion be a bit more sure and supportive.

"do I have grounds for a CUE claim. ? if not, should I at least win my current appeal?" What level of appeal? Have you filed your NOD? What reasons did you give for appealing? You might want to start reading some of the BVA cases for your condition. I have seen a couple of them denied, but that was because the veteran had a pre-existing condition. In one case, the veteran was only in the military for 52 days before he was discharged because of his back. He filed a claim 50 years later. In another case, the veteran stated he had no back problems when he entered the military, but the records showed that he had diagnosed back problems since the age of 12. But on some cases, the BVA still granted SC even when a doctor opined it was congenital. And actually several doctors have opined that though some people have a predisposition for the condition, it requires trauma (either acute trauma, or repetitive stress) to make the condition disabling. I wouldn't think the doctors who treated you while you were in the service thought it was pre-existing or congenital, because if they had, they would be trying to discharge you pretty quickly, to make sure you didn't aggravate it in service. It would seem that since your job required heavy lifting (which caused you no problems), they couldn't fall back on the "it wasn't aggravated beyond the natural progression of the disease" excuse. I am not sure if the argument is even the exact terms the doctors used to describe the injury are so important. No matter what they called it, your back didn't hurt when you entered the service. Your back did hurt while you were in the service, immediately after you experienced a trauma to your back. Your back still hurt when you left the service. But then again, on second thought, the exact terms used could be VERY important, because the condition you have now was actually diagnosed in service. So it would be hard for them to argue that you have a different spondylolysis and a different spondylolylisthesis now than you had then. I wonder about the notation about old seat belt injury the second doctor made (even though he put a question mark after it). Do you remember if he asked if you had been in any other accidents? Because it seems like you were saying the second doctor indicated your back had been broken, but not in that accident. Even then, it would seem like if they thought at that point that you had a pre-existing condition that might be further aggravated, they would have been wanting to get you out before you injured your back again.

Most likely, if the car wreck had occurred after you were out of the service, the RO would agree the car wreck caused your back pain.

"I just want to go Puke, after seeing how bad theyve screwd me for 18 years." (((Hugs))) Yeah. I know. I have had the same feeling looking over some of my husband's files and seeing how even when the doctors wrote things that should have supported my husband's claims, the VA cherry-picked certain statements, and twisted and turned others in order to deny the claims. So you definitely want to get copies of all the medical records, and C&P reports and so you can see what the doctors actually said (vs what the VA told you they said). It would be interesting to see if the C&P doctor actually stated the pars defect was congenital, or if the RO just assumed that it was. From what I have read - some pars defects are congenital in nature, but many aren't. And even if it was, there would still be the issue of aggravation in service. I would think that as you went from being able to do heavy work with no problems, to having recurring back pain - that issue would have to be addressed. On the brighter side - it does look like you have a strong case going - and the fortitude to carry out the claim and so they get it right this time. Hopefully, you will also be able to build a claim for an earlier effective date.

"I also sent proof of when the millitary doc diagnosed me with spodylolysis thesis, while I was still on active duty. and not just spondylolysis. so im hoping thats enough." From what I am reading spondylolysis (pars fracture) is the most common cause of spondylolylisthesis (the fractured bone slips on top of the bone below it) . So even if you were only diagnosed with spondylolysis in service, there could be a definite nexus there. Congenital spondylolysis is only one type of spondylolysis, and it not really all that common. Spondylolysis is more common in young athletes because of the repetitive stress put on their backs. So it seems like all the push ups, carrying heavy tools, repetitive stress of working on the heavy trucks, etc. might also come into play. I am wondering that because you said the military doctor said your back was fractured, but it was not from the accident. So there might have been evidence of an older fracture on the x-ray. That doesn't necessarily mean the fracture occurred before service. It could have been a stress fracture from the work you did in the service and the car accident was enough to jolt it and push it over the edge. It would seem that the doctor putting a question mark after "old seat belt injury" would mean that he was guessing (in VA terms - speculating) about that. But something you might want to watch out for is letting the VA get caught up in whether the car accident was actually the cause of it, because if there is a doubt that the car accident was the initial "cause" they might try to keep the focus on that, and say it isn't an SC condition because the car accident didn't cause it. You might want to make sure the primary focus is on WHEN it occurred. (And granted, it occurred at the same time you had the car accident.) But regardless of whether it occurred from blunt trauma or repetitive stress - you were diagnosed with a pars fracture, you went from having no back pain to having back pain, and it started in the service. http://emedicine.medscape.com/article/95848-overview#a0106 Spondylolysis is derived from the Greek word spondylo, which means vertebrae, and lysis, which means fracture. Spondylolysis is defined as a defect in the pars interarticularis of the vertebral arch. Often, it is described in association with spondylolisthesis, which can be found concurrently with spondylolysis. Spondylolisthesis is defined as the anterior or posterior displacement of a vertebral body on the one below it. These conditions are generally described according to the following classification of Wiltse, Newman, and Macnab[19] : Type I (dysplastic): Congenital abnormalities of L5 or the upper sacrum allow anterior displacement of L5 on the sacrum, which can occur with the pars interarticularis remaining intact. Type II (isthmic): A lesion in the pars interarticularis occurs. This type of spondylolysis is subclassified as a fatigue fracture (IIA), elongation (IIB), or acute fracture (IIC). Type III (degenerative): This type of spondylolysis is associated with long-standing segmental instability and alterations in the articular processes with associated remodeling of the articular process. Type IV (traumatic): Acute fractures of the vertebral arch occur in areas other than the pars. Type V (pathologic): This type of spondylolysis is due to generalized or focal bone disease affecting the vertebral arch.

"Seems this is the treatment for acne. Not what I went there for." 10 years is a long time to have the same pimple... ...Actually, even 5 years.... Your were treated in 03 and had the SAME bump in 08, and they thought it was acne?

Yes. I got quite a bit from reading the book. I thought it had lots of good pointers. What are they going to whack down with sleep apnea?

"Now keepinng that in mind, VA does have some very good treating physicians in their hospitals, and once in a while they may be asked to provide an expert opinion, but NOT very often. The VA tends to stick with those doctors they have hired to do nothing but exams." That is comforting to know. It is nice to know that the doctors treating veterans are not the same ones who write those opinions.

I think the doctors do need to be clear on their reports though. In my husband's cancer claim, there was an opinion by a VA doctor written as an examination. But the doctor never examined him. He states in the report that he was asked to offer an opinion after a review of the records. If he only reviewed the records, it should have not been written on a form that said examination report. The doctor even wrote my husband had no apparent residuals from his cancer and noted my husband had no shortness of breath... without so much as seeing him. Oddly enough, the pulmonary function tests the VA did on my husband the same day stated he had dyspnea on hills and stairs, frequent wheezing, FVC 73% predicted, FEV-1 69% predicted, and his most recent DLCO (which was in the file) was 51%. He had one lobe of his lung removed. He had an 11 inch scar from the surgery. And the doctor wrote he had no apparent residuals, without even bothering to read the results of his pulmonary function tests. He had no business calling that an exam.

" If your entrance physical is negative for back problems, and you had the problem after service, then service caused it. It wont matter if it was from carrying too heavy of backpacks for too long, or if it was from the accident, or both, only that it originated or was aggravated in service. " Yes. I read that these kind of fractures are often stress fractures. So they can happen over time, instead of just from one blow. The only thing I can see that the VA might use is that the doctor at the time of the wreck wrote "Old seat belt injury?" But, with the presumption of soundness, I would think anything a doctor wrote that he followed with a question mark is not strong enough to overcome the presumption of soundness. If you are in the service for awhile, and then start complaining of back pain, and continue to complain of back pain it should be pretty easy to determine when it "started." And even if it had been an old injury - again if it goes from pain free to constant pain - I would say that it was aggravated. (Of course, I am just a lay person who is not qualified to know that when people start complaining about pain they might be injured...) It will be interesting to see what the C&P says.

Congrats!

Thanks for sharing all your wonderful news!

Great work Troy! Reading your success story was very encouraging!

Good luck pr!

I see what you are saying on it would make a difference in how the claim is adjudicated. But I don't think a change in the M21 would be considered a change in law. Laws have to be changed by Congress. But, can you reopen a claim based on a change in VA policies?