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

[Hoppy]

See No. 02-1317: Cook v. Principi. I cut and pasted some stuff below

In 1952, petitioner submitted a benefits claim to an RO, in which he asserted that he suffered from a "[n]ervous tomach" related to his military service. Pet. App. 28. Physical and neuropsychiatric examinations revealed a duodenal ulcer with a "psychic or emotional component." Ibid. The RO denied the claim on the ground that petitioner's condition was not connected to his military service. Ibid. Petitioner did not appeal. Id. at 29.In July 1989, petitioner sought to reopen his 1952 claim. Pet. App. 29. The BVA did so and denied the claim, but the United States Court of Appeals for Veterans Claims (Veterans Court) reversed and directed the BVA to determine petitioner's disability rating (i.e., the percentage of disability). Ibid. The RO subsequently awarded benefits to petitioner effective July 1989, the date on which he sought to reopen his claim. Ibid.

Petitioner appealed the RO's decision, contending that the effective date for benefits should have been 1952, the date of his original claim. Pet. App. 29. In his appeal to the BVA, petitioner argued that the VA had failed to provide him with a certain medical examination in connection with his original application, that the 1952 decision was therefore based on clear and unmistakable error, and that it was for that reason not final. Id. at 29-30. The BVA rejected petitioner's claim. Id. at 29.

In answering the second question, the court held that clear and unmistakable error must be "outcome determinative" and "based on the record that existed at the time of the original decision," and that those requirements make it impossible for a breach of the duty to assist to form the basis for a claim of clear and unmistakable error. Id. at 25. The en banc court therefore affirmed the decision of the Veterans Court. Id. at 30.

The court of appeals held that the requirement that a clear and unmistakable error be outcome-determinative and based on the existing record makes it "impossible for a breach of the duty to assist to form the basis for a ['clear and unmistakable error'] claim." Pet. App. 25. That holding was correct, because a breach of the duty to assist "necessarily implicates evidence that was not before the RO at the time of the original decision" (id. at 26) and "it cannot be said that an incomplete record is also an incorrect record" (id. at 25 (citation omitted)).

Edited June 12, 2007 by Hoppy

[lamontino]

Administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts in reference to an permanet/chronic of no running or lifting; In which Disability evaluations are/alleged to be determined by the

application of a schedule of ratings

which is based on the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155.total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote). The version of 38 C.F.R. § 4.16(a), the VA regulation in effect in June 1986 containing the criteria for TDIU provided as follows:

(a)A total rating for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more..

Reasonable minds could only conclude that the decision to not rate or assign TDIU rating but state only merely, "17 year old male hurt back two years ago playing football. Now in third week of basic training" (which Vet said than and now that there is no record prior to service of me hurting my back playing football) was fatally flawed because of the failure to consider applicable regulations. See Russell, 3 Vet. App. at 313-14. This is "the sort of error which, had it not been made, would have manifestly changed the outcome" of the decision. The Board's failure to apply the correct legal standard in evaluating this evidence as to see if vet had a football injury which VA was required to do as a matter of law.

(b)Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and [VA] regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history....Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.

Now watch how the law has change from 1986 until the present day(Last revised on May 2005)The law and regulations governing said cue change, in my eyes to further prove that at any stage in the induction or service there could be an injury or aggaravation it doesnt set limits as to if it was 1 day through 10 years. I was going to start on the year of 1945 which is the very first time a cue was exactly figured out. Those laws and regulation put in place for vets at that time base on vets that had servered in active for more than 3 years and 8 people or less that had servered less in 2 years. But I'm going to start in the year of 2002 because anything prior to this revised by the congress,legisture, and government strictens anything prior basically is obselete. so:

A prior Board decision is final and binding, but is

reversible, if there is clear and unmistakable error. 38

U.S.C.A. § 7111 (West 2002).

Reference memo VAOPGCPREC 3-2003

The provisions of 38 C.F.R. § 3.306(B) providing that aggravation may not be conceded unless the preexisting condition increased in severity during service, are not inconsistent with 38 U.S.C. § 1111. Section 3.306(B) properly implements 38 U.S.C. § 1153, which provides that a preexisting injury or disease will be presumed to have been aggravated in service in cases where there was an increase in disability during service. The requirement of an increase in disability in 38 C.F.R. § 3.306( applies only to determinations concerning the presumption of aggravation under 38 U.S.C. § 1153 and does not apply to determinations concerning the presumption of sound condition under 38 U.S.C. § 1111.

A decision of the Board that revises a prior Board decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision. 38 C.F.R. § 20.1406 (2005).

In the implementing regulation, CUE is defined as a very specific and rare kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. 38 C.F.R. § 20.1403(a) (2005).

For the foregoing reasons, The United States Court of Veteran appeals conclude that section 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition.

In May of 2005 the VA revising its interpretation of section 1111 to provide that,if a condition is not noted at entry into service, the presumption of sound condition can be rebutted only if clear and unmistakable evidence shows both that the condition existed prior to service and that the condition was not aggravated by service. If the evidence fails to support either of those findings, the presumption of sound condition is not rebutted.

Based on the foregoing authorities of May of 2005, VA is revising its regulations at 38 CFR 3.304( to provide that, in order to rebut the presumption of sound condition, VA must establish by clear and convincing evidence both that the disability existed prior to service and that it was not aggravated by service. To accomplish this, VA is amending Sec. 3.304(B) by adding, at the end of the first sentence, and was not aggravated by such service.

Meaning; If a disability was not noted at entry into service, VA will apply the presumption of sound condition under 38 U.S.C. 1111. In such cases, the presumption of aggravation in 38 U.S.C. 1153 will not apply because VA will presume that the veteran entered service in sound condition.

This as a whole is the main ingredients one will have to prove before he or she even thinks about a cue because cue and rating rides side by side when the cue sats by itself, as to wonder why its mate "rating" wasn't done when there is clearly medical notes concerning the L2,L3, and L4 those in it self needs to ride right alongside of the L5(which that is what they are using only)the L2, L3 and L4 are "new" finding and merely changing seem to just say "chronic low back pain" is not as the regulations or laws governing scshedules and exams state(please refer to above and my statements made just prior to this reply)

This can not be done in no case, maybe back in the 1945 -2002 case in which both 1111 and 38 1153 conflict.

Im not relying on diasonsis , or simple errors. Im relying on the fact that a rating was probably adjudicated in the separtion. The law reads that they must assigned a rating if a condition is permanent or chronic. ANd than the laws and regulations further states they have to rate it if vet is being seprated from the military as to what or how it will effect his or her livelyhood. WHich meaning that also VA failed to assistant vet to file(even if its temporary permanent the law states about that to which I also put in this topic)a TDIU which was in place back in 1986

Once again VA clearly errored in the june 86 separation because they in their selves, as adminstaror of the law and regulation didnt properly apply the laws that sets a disanosis code, they gave a permanent profile of L3 with no running or lifting than in reference to this didnt assigned a rational percentage in itself tells in laymind person that 100, failed to properly list the correct AR to apply to vets case, had it not been made, would have manifestly changed the outcome" of the decision

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity

Compensation

0

1. The authority citation for part 3, subpart A continues to read as

follows:

Authority: 38 U.S.C. 501(a), unless otherwise noted.

Sec. 3.304 [Amended]

0

2. In Sec. 3.304, paragraph (B) introductory text, remove ``thereto.''

and add, in its place, ``thereto and was not aggravated by such

service.''

[FR Doc. 05-8899 Filed 5-3-05; 8:45 am]

[Hoppy]

"But I'm going to start in the year of 2002 because anything prior to this revised by the congress,legisture, and government strictens anything prior basically is obselete. so:"

I am not sure what you mean by starting in 2002. If you are implying that you will apply the law in 2002 to the adjudication procedures in 1986 I would think the law in 2002 would need to contain provisions for retroactive application or some other law that allows retroactive application would need to be in effect.

Just my opinion. In any event you have plenty of resources available to you at this time. I have done the best I can in providing you with Cook v Principi.

I have seen Cook V principi cited in quite a few cases. You might want to research recent claims to see if the BVA still sites Cook.

There is no guarantee what the VA will site it in your claim. It is really hard to say what they will do. I really think that if you have a good history of post service treatment you will be service connected. It is just a question as to the effective date of the claim.

I commend you on the amount of work you are putting into understanding your battle with the VA. Keep up the good work. I am going to be traveling until after the 4th of July and will have only limited internet access. I will try to check in at least once a week.

Edited June 13, 2007 by Hoppy

[Pete53]

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.

The VA depresses me.

[rthomass]

AMEN

[lamontino]

Now, Im face with a bill from the Ime that I cant pay and they will not release report without payment. ;/

AMEN