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Found 3 results

  1. Disproving a discharge for a physical disability existing prior to entry determined by a medical board. Facts. Entered the United States Marine Corps November 7th 1990, discharge date May 20th 1991 for a total of 6 months 14 days. In Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that, when no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry and then the burden falls on the government to rebut the presumption of soundness. The Federal Circuit held in Wagner that the correct standard for rebutting the presumption of soundness under 38 U.S.C.A. § 1111 (West 2002) requires that VA shows by clear and unmistakable evidence that (1) the Veteran's disability existed prior to service, and, (2) that the preexisting disability was not aggravated during service. When I entered active service in Detroit MEPS no waivers were signed As I had no disabilities including flat feet or bunions Etc. I was 100% healthy, passed my background check for top secret clearance and signed a five-year enlistment with a $10,000 bonus, MOS 0231. While in Marine Corps boot camp, during the third phase or last part of training until graduation, I went to sick call for the first time complaining of lower leg and foot pain, that they were numb painful feel like knives are in them and hurts to walk or march. I was put on light duty no marching running PT and ordered to wear go fasters or sneakers. I did miss the final last long march with the platoon at the very end of boot camp because of being on light duty, but I did graduate with my platoon (01Feb91). (Stating this now as there should be evidence of it somewhere in San Diego MCRD of me going to sick call, Proving the beginning of my foot problems and leg problems happened in boot camp). Went home for boot camp leave ,returned 10 days later for MCT Marine combat training, put in a guard platoon until a position opened up for me in the combat training class. The first week there while pulling guard Duty, (Reported back 11 February 91)- 19Feb91, and doing various Marine guard Duty tasks, the same problem occurred that happened in boot camp, shooting pains numbness etc etc. This time they took x-rays the first time 19Feb91, I came back in two days, 21Feb91, for another series of x-rays and that was it for my medical services at Camp Pendleton, and apparently that was the whole of my Medical Board in terms of talking to me or even having any contact with me upon making a final decision 29 April 91 Medical Board. The Veteran was not shown to have any foot disability when examined for entry into service and the Veteran asserts that he had no foot disability prior to service. The Board, however, finds that there is clear and unmistakable evidence that the Veteran had bilateral foot disability prior to service. This is shown by the inservice medical findings that the bilateral foot disability existed prior to service. Nonetheless, in order to rebut the presumption of soundness, the evidence must also show, clearly and unmistakably, that the Veteran's bilateral foot disability was not aggravated by service. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups of the preexisting condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994). 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 C.F.R. § 3.306(b). (this is my conjecture of extrapolating recorded VA cases and actual notes with my facts in my case) Although the April 29th 1991 medical board report states that the veterans physical disability had not been aggravated by service, But in almost every instance of cases I've been studying, like this, the VA court case inspected disagrees and Rules in favor of the veteran. It usually will sound like this. “ in this case the service treatment record clearly shows that the veterans bilateral foot disability increased in severity during service. the veteran went from having no foot complaints to having extreme foot pain and difficulty walking. even after going on light duty and 10 days bootcamp leave and refraining from marching and wearing boots after all that he still had the same symptoms and pain as in boot camp the pes planus flat feet. Despite the medical board, the evidence does not clearly and unmistakably show that the foot disability did not worsen in service. Because the veteran bilateral PES planus did increase in severity during service and because there is no clear and unmistakable evidence that the veterans pre-existing bilateral foot disability was not aggravated during service, the board finds that the veterans pre-existing bilateral pes planus was permanently aggravated by service. Because the presumption of soundness has not been rebutted, service connection for bilateral PES planus is warranted. !!!! That is the outcome that I see coming from the facts of this case unless I am wrong. I want to add the rest of the information to complete the Nexus. I am including in this the x-rays and doctors prognosis of those x-rays which are the originals from 1991. this was given to me by the nurse who told me I was getting screwed over that clearly my injuries occurred in service in that they're doing this so I don't get any disability she was a Vietnam vet nurse very angry gave me all the records that I took pictures of below and told me to hold them until I was ready for disability I never forgot that and kept them in the safe place for 30 years that is why I have this evidence. The discharge papers and the board paperwork I have included, does state a physical disability existing prior to entry determined by a medical board as the narrative reason for separation.The medical board consisted of going to sick call twice and getting x-rays. Two different times I went for x-rays as you can see I was diagnosed the first time February 19th with possible stress fractures of the proximal tibia of both the right and left leg as well as the right foot hallux valgus deformity otherwise within normal limits my left foot degenerative changes in the MP joints. Then on the February 21st prognosis was of bilateral mild pes plannus. And the most important part of the case, I believe is, my father has been my primary doctor my entire life and he was a licensed chiropractor who retired in 2005. He did have all my records and notes for all my years, he did keep them the required seven years when he retired in 2005 and burn them along with all his patients in 2012. But he is willing and ready to go on record for me from memory. Again this was one of the factors I never attempted this because I have no doctor except my dad, and I didn't know they allowed Chiropractic doctors and gave the same weight of evidence as medical doctors.(I found out starting in 2004 so I guess I'm 16 years too late) I was always told the opposite so I felt I never could do anything about this unjustice that has been done to me all these years. When I was discharged I was Furious because I was perfectly healthy and they claimed that it existed prior when it actually happened in boot camp because they didn't want to pay disability to me. Now it doesn't matter per se proving I didn't have it previously if they failed the presumption of soundness test but my father will testify to the fact that I never had flat feet or fallen arches are any problems with my feet until I returned from the service and that is when he did his own X-rays of me and can testify that, yes they(USMC) had permanently injured Me by causing the flat feet tibia stress fractures hallux valgus and degenerative changes in the MP joints. Again all the files have been burned as per law but he will testify that he gave me physicals every year and noted the declining health of my feet and how it has caused back damage, lower back damage. He noted this all through my life while treating me, giving me adjustments Giving me arch support to try in my shoes as well as Orthopedic inserts and shoes all to no avail as they did not help my feet just got worse as well as the Nexus needed from my father to associate my lower back pain specifically the MRI that I included with the information about the disc herniation with severe Central stenosis and sacral nerve root impingement. Will the VA take into account my Father being a chiropractor as well as being my father and having an intimate knowledge and relationship of my health my entire life would they give his testimony the same weight as a medical doctor or more? He will testify that more so than not it is likely probable that my flat feet conditions led to the secondary conditions of the lower back where it is evident with the MRI from 2017 how bad my back truly is. As a matter of fact I'm waiting for a decision for Social Security disabilityI just sent in one month ago. I fit the listing for sacral nerve root Central stenosis lower back listing And have not been able to work since August 2019 where I had a bicycle accident and broke my right scapula resulting in the secondary hurting my back which was already end herniation and sacral nerve impingement. Now in terms of what to claim disability wise, I still need to speak with someone and I mailed in my intent to file a claim today and would like some advice?? I was going to use the Disabled American Veterans as my VSO the one in Tampa Florida Does anyone recommend them in Central Florida or have a better vso recommendation?. Again I am waiting for my SSI disability which I just put in 2 weeks ago and how will that ruling affect my VA ratings at all if any? And should my father the chiropractor be putting in his prognosis such as my pes planus is either pronounced or severe Etc should he be making prognosis on my feet and back because he is a professional in that needs to give his professional opinion? Any info would be great I guess I'm fairly confident that I finally have the facts straight that even if they claim it existed prior to enlistment they have to then prove it wasn't made worse in service and as I pointed out that's very high bar, but again connecting the Hallux valgus, stress fractures, pes planus as Service-connected so that the secondary connection to my documented lower back issues that he, my father the chiropractor, has made the Nexus Link to the primary and it definitely happened at the direct result from my flat feet in it problems that happened to me while in service in the Marine Corps. United States claim Any info would help should he be putting in a rating for my back there are many codes should he be trying to figure out all these codes and ratings or is that something my vso should help me with as I said my father is in my corner and knows that this was all caused by my in-service primary and secondary and will do whatever he has to to back that up.
  2. I had infant asthma with all signs and symptoms of asthma gone by the time I was 9 or 10 years old. On my pre-enlistment questionnaire, I marked I that I had had asthma (question says do you have or have you had) I had it as a kid and it was gone. I enlisted in the Navy in 1979 and based upon all the research I have been able to find, with any history of asthma, I don't think I should have been allowed to enlist. I have my service records and they are silent of any respiratory testing to enlist. The best I understand is they accepted me with a presumption of soundness. I had not had any sort asthma symptoms for at least 8-10 years prior to service. During rigorous running and physical training in boot camp, I had an asthma attack and had to go to the dispensary. I filed a claim recently for service connection for asthma because it was aggravated in service and I was treated for an attack in service. I also have a 40% rating for a knee condition and have not been able to do much to be active over the years. At my most recent yearly VA physical, my cholesterol and weight were both going up so I figured I needed to do something to get some exercise. Swimming laps is something suggested to me so I tried that and after about 20 minutes of laps I had to quit because I was having asthma breathing problems. I told my VA doctor who treated me with a daily inhaler and a rescue inhaler. Both have helped improve symptoms. The VA denied my claim for asthma saying it was preexisting. I had been asthma free for almost a decade prior to service. If regulations at the time I enlisted say I should have been disqualified for service, but they let me in with a presumption of soundness, what steps do I take in my appeal? My mother has written a lay statement of the chronology of my childhood asthma and when symptoms were gone. How do I show aggravation v exacerbation? What should a doctors IMO say? Thank you.
  3. Given this situation: Entrance exam . Decision letter text: Rating criteria This recent BVA CUE win stated the denial was based on verbal statements instead of the presumption of soundness and criteria for aggravation was incorrectly used instead of direct SC. http://www.va.gov/vetapp14/Files3/1422654.txt Question 1 Could the same CUE logic be applied if subjective statements in STRs by the veteran are given more weight than the presumption of soundness and the claim was treated as aggravation instead of direct SC? Question 2 If the VA states "the difference between disability evaluations before and after military service determines the degree of disability subject to SC", did the VA correctly reduce by 10% or should 0% have been used because the entrance exam failed to meet 10% criteria? Thanks
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