lumbosacral Va Is Trying To Hoodwink Me

[lamontino]

Hi there I probably have one of the most complex case(well VA made it complex)ever. At the rip age of 14 I went to an doctors appointment to try to figure out why my legs was hurting, the doctor said that I was having pain in my back or that where i was getting the pain from, I told him that my back didnt hurt at all(which is documented in that report) just my legs. Instead the doctor did x rays on my back(which the films are not available and the doctor is decease as of this date) revealing that I had bilateral spondylolysis at the L5 and minimal Grade I anterior spondylolisthesis L5 S1 no acute injury or other abnormalities are recognized. I was give Mortin 800 and sent on my way in life under the understanding that I could do anything or be anything I wanted to be in life. I later went to job corp and recieved a state high school diploma. I went in the military in May of 1986, fresh out of job corps and eager to get started with my new potential found career in the military(11 Bravo 10th Mountain Div. I did the entry exam, medical exam etc.... to past and get accepted in the military at that time I also disclosed to the examing doctor that I had previous had a leg problem assoiciated with my back which I took mortin 800(which is documented in that report). The medical exam ask if my back or legs was still bothering me? I told him no. And than did a physical exam of my back etc......He cleared me to go in the army.

Two weeks into basic training I fell off a wall that had a bottom pedastel on the bottom(like a wall with a patform at the bottom, I went to sick call there I was exam dianoise as having tender points at L2 and L5. I was given meds(800mg of mortin)and a rectal exam and release back to basic training. A couple of days later I twisted my back out of place by repeating standing up and down at a rapid speed(just before that my unit was low crawling with backpack on and marching). I than went to sick call again where I was seen no through xray was done again and sent back out to basic training. As we where bidwacking in the field I became sick with pain now in my legs, back,and stomach. I went to sick call where they but me in the hospital for a two days. I was release again this time I got only a culture of my stomach which revealed that I had esophastis and gastrisis and given a appointment to see the otho doctor at army martin hospital and sent back out to basic training again.

At the doctors office, at army martin hospial I seen a otho doctor whom dianoise me as having "chronic mechincal low back pain and giving me a permanent L3 Profile with no running or lifting". Diagnosis of Lumbosacral spine with bilateral spondylolysis L5.

I got a honorable discharge with a reenlistment code of RE-3. I tried to fight from being discharge without getting some type of disability through the IG office and met with a person whom never got back with me on the issues that I was trying to address.

I continue to have severe back pain and proceeded to my local VA office for further care. I did disclose to the doctor at local VA hospital of the condition in the military and prior to me being in the military. There I was given a c&p exam. I was given an exam of my back which the radiologic report now says "No evidence of spondylolysis or spondylolisthesis apophyseal and sacroiliac joints are unremarkable no fracture or dislocation(basically alot of the paperwork on that date of exam which was a month later after i was discharge wasnt done).

During my life at that time I didnt have a place to stationary live my life so I was basically homeless. I never heard back from the rating peoples about how, what, and if I was going to recieve anything from this injury. Until years later when I requested documents of my complete file.

Which claim they wanted me to come in for a RHEUM EXAM(once I found out that i was wondering why would they schedule me for a rheumary arthisis exam if they didnt find anything on the radiologic report revealing anything inreference to my back).

I tried for years to get benefits from the VA but was denied each time because they say that I had a diease prior to service and that through my life as of today I had two previous auto accident(which in those reports I never had injuried my back which is well documented)and the new doctor exam says that his etiology say that it is the natural course of the diease as to why I still in pain.

I did apply for SSI and SSA which I did get approved(which social securtiy only pays for one year prior to your filing of your claim meaning they dont go back to the orgin of the time you was injury or permenantly disabled)but in those reports The ALJ for got to put in about the onset of the injury I got in the military. BUt I know for certain it was discuss at my finally hearing on that tape record statement of the onset, in reference to my back.

Through the years my back condition worsen developing to fibermyloa as well as other delvelopments including depression. As of today I about to go to a travel broad hearing. Wondering if I could get some advice on what is what. Thanks for your help

[lamontino]

In accord to what I was let out on says:

HISTORY OF EPTS CONDITION: This 17 year old mal was seen and evaluated and the patient is in the 3 week of training of initial enlistment and has the following condition:

17 year old male hurt back two years ago playing football. Now in third week of basic training.

DISPOSITION: It is recommended that the patient be separated. The soldier does not meet medical fitness standards for enlistment UP of Paragraph 2-10d(3) chapter 2, AR 40-501

EPTS: Yes. Service aggravated: No. Soldier does meet retention standards Up chapter 3, AR 40-501. It is recommended that he be separated from the military service UP Par 5-11. AR 635-200

Enlistment Physical:

ENCL: CY of SF 88 and 93.

STATE PROFILE AND ASSIGNMENT LIMITATIONS

Permanent L3 Profile. No running or lifing.

The statutes and regulatory of said alleged things mention above different in parts and as a whole. Moreover VA failed to be specfic in its findings or evalutioni in accord to below:

2–10. Lower extremities

d. General.

(1) Current deformities, disease, or chronic joint pain of pelvic region, thigh (719.45), lower leg (719.46), ankle and/or foot (719.47) that have interfered with function to such a degree as to prevent the individual from following a

physically active vocation in civilian life, or that would interfere with walking, running, weight bearing, or the satisfactory completion of training or military duty, are disqualifying (there no 3# as induce on the DA form 4707 Disposition dated June 2, 1986 inreference to Vet separation).

Chapter 3

Medical Fitness Standards for Retention and Separation, Including Retirement

3–1. General

This chapter gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals in paragraph 3–2 below.

5–11. Separation of personnel who did not meet procurement medical fitness standards a. Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on AD or ADT for initial entry training, may be separated. Such conditions must be discovered during the first 6 months of AD. Such findings will result in an entrance physical standards board. This board, which must be convened within the soldier’s first 6 months

of AD, takes the place of the notification procedure (para 2–2) required for separation under this chapter. b. Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by

an appropriate military medical authority within 6 months of the soldier’s initial entrance on AD for RA or during ADT for initial entry training for ARNGUS and USAR that—

(1) Would have permanently or temporarily disqualified the soldier for entry into the military service or entry on AD or ADT for initial entry training had it been detected at that time.

(2) Does not disqualify the soldier for retention in the military service per AR 40–501, chapter 3. As an exception, soldiers with existed prior to service (EPTS) conditions of pregnancy or HIV infection (AR 600–110) will be separated. c. A soldier who is found after entry on active duty not to have been qualified under procurement medical fitness standards at the time of enlistment may request to be retained on active duty subject to the conditions listed below. Approval or disapproval of requests for retention under this paragraph is delegated to the separation authority cited in paragraph 1–19d. No soldier has a right to be retained under this paragraph. Soldiers not retained will be processed for separation. Soldiers will not be retained under this paragraph unless both conditions below are met:

(1) The separation authority cited in paragraph 1–19d determines, after considering the proceedings of an Entrance Physical Standards Board (see AR 40–400), that the soldier’s disqualifying condition will not prevent the soldier from performing satisfactorily throughout his/her period of enlistment in the MOS for which he/she is being trained or in another MOS based on the soldier’s medical condition.

(2) The soldier, after being counseled and given the opportunity to obtain legal advice, signs a statement requesting to complete the period of service for which enlisted.

d. The criteria in chapter 1, section VII, will govern whether the soldier will be released from AD, with transfer to the IRR, or discharged.

(1) In the case of an ARNGUS or USAR soldier found to be pregnant upon entry on IADT, the soldier will be released from active duty and returned to her ARNGUS or USAR unit for disposition in accordance with AR 135–91,

paragraph 4–23.

(2) The soldier will be separated within 72 hours following approval by the separation authority. (See para 1–19. See para 1–11 for additional instructions on ARNGUS or USAR personnel.)

e. Soldiers who do not meet the medical fitness standards for retention will be processed per AR 635–40.

f. This paragraph is not to be used in personality disorders cases, which will be processed per paragraph 5–13.

g. For characterization of service or description of separation, see paragraph

Futhermore,

3–3. Disposition

Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB as defined in AR 40–400 and will be referred to a PEB as defined in AR 635–40 with the following caveats: a. USAR or ARNG/ARNGUS Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 and chapter 10 of this regulation.

3–4. General policy

Possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the Service. Physicians are responsible for referring Soldiers with conditions listed below to an MEB. It is critical

that MEBs are complete and reflect all of the Soldier’s medical problems and physical limitations. The PEB will make the determination of fitness or unfitness. The PEB, under the authority of the U.S. Army

Physical Disability Agency,

will consider the results of the MEB, as well as the requirements of the Soldier’s MOS, in determining fitness. (See chapter 9 and chapter 10 of this regulation for processing of RC Soldiers.)

"When I read BVA cases I found that the BVA will award service condition for chronic conditions in the military unless there is medical evidence that the in service condition resolved."

You have been doing your homework. I have told several veterans before about the BVA making these awards. I cited them in my claim. I also found some cases where the BVA waived the nexus requirement. If you can still get the nexus that "more likely than not" this would be stronger than relying on the BVA to cite the fact that there was no evidence of resolution or waiver of nexus ruling in your claim.

I would think you need to get the IMO to address the issue of the L2, L3 as being a condition that is different and unrelated to the previous back condition if you want to bring it up as unadjudicated.

I usually do not give advise on CUE's. The rulings have been changing to fast for me to keep up with them. I usually concentrate on issues of service connection. These are the CUE questions that should be answered to focus your attack.

If the L2 and L3 were diagnosed in service is the VA obligated to adjudicate it if the medical reports did not associate any chronic symptoms nor stated that such symptoms were shown to be chronic in service? Would you have been required to file a separate claim with evidence of post service continuity of treatment to establish a claim? Thus, was there really a non adjudicated issue?

If the doctor failed to run tests, make diagnoses etc does this not result in the quality of the reports being flawed rather than the quality of the adjudicators logic? I think you answered this one.

Is there not a requirement that CUE is not only a failure to apply the law but must also be accompanied by a condition that was ratable based on the evidence in the file at the time the law was not applied?

[KennyJ]

This is very similar to my situation. I was releases from Marines in 1984 with a medical discharge from knee degeneration. I filed for benefits in 2003. They said the condition was preexisting because I told a doctor on the Medical board that I had been having trouble with my leg since I was about 12. On the Appeal I sent in copies of the Presumption of Soundness. I was a field radio man and I noted that if it was pre existing surely being in infantry unit for 2 years had to make it worse. Well in 2004 they gave me 20% which I appealed. I also filed for depression and ankle degeration , well they granted me 70% for anxiety disorder from the years of pain and meds. Which got me to TDIU. With an imo and the regs they will grant you benefits.

[john999]

KennyJ

That's the way to do it. If you suffer chronic pain and disability from your injury or meds you have another claim. Many of us with disabilities and chronic pain suffer from depression. My pain meds, themselves, depress me not to mention sleep deprivation and ruining my quality of life.

[lamontino]

Once again I must say in order for any vet to win his cue claim regardless if the VA changes things a million times doesnt change the 'plain meaning of a CUE claim" Clear and unmistakable error is an administrative failure to apply the correct statutory(statutory law - the body of laws created by legislative/authority statutes) and regulatory(regulatory-restricting according to rules or principles) provisions to the correct and relevant facts.

For example this is how it say done "vet goes to hospital for a series for repeated sick-call visits in a period of 3 weeks 1.first falling of a 8foot training Wall etc.... and tells of several parts on his body is hurting, x-rays are not done at this time. The doctor visionally looks at x-ray and by touch vet finds problem and palpulation tender point as well as palupaltion spasms between L2 thru L4. But his finally dianosis is "chronic Low Back pain"(making a simple error of not adding specfics of his dianosis is not concider an good CUE).

Than that same doctor refer vet(without full completely the regulatory that controls the Army protocol statute merely just stating an AR number is not comprising to fulfill want the law requires) out to otho doctor and that doctor dicates no medical gonometer, no standing straight up with his his at the lateral position which is call oblique viewing, no mentioning of how he came to a conclusion of now "mechancial low back".

Than assigning a "permanent profile of L3 no running or lifting" with further dicatated a limitation (an percentage%)as to what pounds, distance or anything to further come to an "'COMPLETE RATING" which will have or had to be done being that it would effect my civil life

The decision of the Board in June 2, 1986 would have been manifestly different had the Board considered and applied 38 C.F.R. §§ 3.343 and 3.344 which provide criteria that must be met when a disability rating, to include a TDIU rating, is reduced or terminated.

This is very similar to my situation. I was releases from Marines in 1984 with a medical discharge from knee degeneration. I filed for benefits in 2003. They said the condition was preexisting because I told a doctor on the Medical board that I had been having trouble with my leg since I was about 12. On the Appeal I sent in copies of the Presumption of Soundness. I was a field radio man and I noted that if it was pre existing surely being in infantry unit for 2 years had to make it worse. Well in 2004 they gave me 20% which I appealed. I also filed for depression and ankle degeration , well they granted me 70% for anxiety disorder from the years of pain and meds. Which got me to TDIU. With an imo and the regs they will grant you benefits.

[lamontino]

In Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)), the Court stated that for clear and unmistakable error to exist, (1) "rither the correct facts, as they were known at that

time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated), or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made which also includes aggravations

KennyJ

That's the way to do it. If you suffer chronic pain and disability from your injury or meds you have another claim. Many of us with disabilities and chronic pain suffer from depression. My pain meds, themselves, depress me not to mention sleep deprivation and ruining my quality of life.

[Hoppy]

lamontino,

There are a lot more cases on cues that are much more definitave. I suggest that you do BVA searches on CUES.

The cases I am familiar with involve medical reports that existed at the time the case was adjudicated and were somehow missed by adjudication. These reports were sufficient to have caused a different outcome had the adjudicator had them. They do not involve cases where the medical facts were not present because the doctor failed to perform tests or otherwise make a diagnosis. In fact there are old cases such as this where CUE was denied.

The fact that you told a doctor that you injured your back playing football is not sufficient to rebut the presumption of soundness in my opinion. I have seen many BVA cases where they use statements like this to determine a condition pre dated service. I always thought that a persons statement without actual pre service doctors reports is basically not a pre existing condition. kennyj did the right thing and he eventually won.

keep in mind that kennyj did not give us much of a description as to what was in his treatment record during that two year period in the military. Your case is much different just from the time frame. However, an eight foot fall could have been all it would take to cause a permanent disability . What is amazing is that all the stuff you went through in the military happened to me after my discharge including the 8 foot fall.

One of the problems that I have is that by all the assessments made at the time of your discharge and at the time of the first adjudication in 1986 that you have posted indicate levels of symptoms that appear to me to be minor and or transitory. Have you found a rating for a diagnsis of chronic pain or strain. I think that in 1986 there might have been a 10% assignment for chronic pain. However, I am not sure. The military was very cautious to not make a diagnosis that would cause them a liability. Even if you were to win a CUE claim to 1986 what is to keep them awarding a rating of "10%" or less until such time you provided them with evidence that would allow a higher level. The CUE would be rated on the medical evidence in the file. Not evidence that you provide at a later date.

Keep in mind that you think the doctors made mistakes by not doing tests etc. The older case law I am familiar with does not presume that the doctors errored and that there could have been reasons they did not feel the tests were necessary. I take it you walked into the doctors office as opposed to being brought in by an ambulance. You might have been able to stand up from a chair etc. What I am saying is that the treating doctors did not run these tests. The examiners who do discharge exams and C&P exams rely heavily on the treatment notes. They can just say the treatment notes did not justify any additional exams or tests. The strongest evidence in a disability claim is the treatment notes, not the C&P. A C&P is a one time exam. Even if you showed the inability to bend at a C&P exam this is only a single event. What you really needed is X-rays for the C&P examiner to look at. If the treating physicians did not think it was necessary to do x-rays then why would the C&P examiner need to do them? The C&P examiner could have only felt he was required to review the treatment notes and then decide what test he wanted to run. When the military doctors fail to run tests the VA usually does not go looking for the doctors to ask them why they did not do the tests. There have been some exceptions and a couple of people on the board were able to find the military doctors and get reports from them.

If you do some more research you will find that adjudication does not have to consider a condition chronic just because a doctor uses the word chronic in his report. This rule is probably in the M-21 adjudication manual. In your case they mention a three week period. The military uses the word "permanent profile" yet the VA will be looking at the medical facts more than the terminology used by the military. Three weeks is not a very long time. I was not aware the record only indicated a three week period or I would have mentioned this earlier.

Basically, what I am saying is that you might have an uphill battle. You really need to get all the post service treatment records that were done by any doctors and argue that there was continuity of treatment and symptoms. The best way to battle them is to get them the best evidence you can and submit it a soon as possible. If you keep reading BVA cases you will find that when a condition is not shown to be chronic in the military evidence of post service treatmet and continuity of symptoms is required. If you did not submit any evidence of post service treatment at the time of the 86 adjudication this could be a weekness in any claim you have for a ratable CUE on the 86 decision if the VA decides to fight it as not shown as chronic in the military .