Assumption Of Soundness

[nanaeris]

I was diagnosed with Osgood-Schlatter Disease after injuring my knees in a training exercise by a General practioner. Although I was 20 years old. I had fluid drained off my knee and given cortizone shoots. My job was a Air Force Security Policeman. It took the Air Force over 2 years to get me to an orthropedic doctor. The Orthropedic doctor diagonosed me with Chondromalacia with clicking and granding. The Air Force MED Board released me from the military, and stated my condition was not caused or aggravated by military service although the Orthopedic doctor stated I had Chondromalacia which was caused by my military service. They stated I had Osgood-Schlatter Disease which was a pre-teen condition . When I filed a claim with the VA they denied my claim. They stated exactly what the MED Board reported. I have asked over the last 15 years why Chondromalacia was not considered in their decision since it was on my military medical records. I also asked the VA why the "Assumption of Soundness" policy was not addressed in their decision. I explained that every Orthropedic doctor, privated and VA have stated that I had Chrondromalacia and not Osgood-Schlatter disease. They finally rated me at 40% service-connected disability. Do I have any recourse about the VA not using "Assumption of Soundness" or all the information in my military medical records.

Thank you,

NaNaEris

[sharon]

TITLE 38 - PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I - DEPARTMENT OF VETERANS AFFAIRS

PART 3 - ADJUDICATION

subpart a - PENSION, COMPENSATION, AND DEPENDENCY AND INDEMNITY COMPENSATION

3.304 - Direct service connection; wartime and peacetime.

(a) General. The basic considerations relating to service connection are stated in 3.303. The criteria in this section apply only to disabilities which may have resulted from service in a period of war or service rendered on or after January 1, 1947.

( Presumption of soundness. The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted.

(Authority: 38 U.S.C. 1111) (1) History of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease. They should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof.

(2) History conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles in relation to value consistent with accepted medical evidence relating to incurrence, symptoms and course of the injury or disease, including official and other records made prior to, during or subsequent to service, together with all other lay and medical evidence concerning the inception, development and manifestations of the particular condition will be taken into full account.

(3) Signed statements of veterans relating to the origin, or incurrence of any disease or injury made in service if against his or her own interest is of no force and effect if other data do not establish the fact. Other evidence will be considered as though such statement were not of record. (Authority: 10 U.S.C. 1219) © Development. The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination. In initially rating disability of record at the time of discharge, the records of the service department, including the reports of examination at enlistment and the clinical records during service, will ordinarily suffice. Rating of combat injuries or other conditions which obviously had their inception in service may be accomplished pending receipt of copy of the examination at enlistment and all other service records.

(d) Combat. Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. (Authority: 38 U.S.C. 1154(B)) (e) Prisoners of war. Where disability compensation is claimed by a former prisoner of war, omission of history or findings from clinical records made upon repatriation is not determinative of service connection, particularly if evidence of comrades in support of the incurrence of the disability during confinement is available. Special attention will be given to any disability first reported after discharge, especially if poorly defined and not obviously of intercurrent origin. The circumstances attendant upon the individual veteran's confinement and the duration thereof will be associated with pertinent medical principles in determining whether disability manifested subsequent to service is etiologically related to the prisoner of war experience.

(f) Post-traumatic stress disorder. Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. Although service connection may be established based on other in-service stressors, the following provisions apply for specified in-service stressors as set forth below: (1) If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.

(2) If the evidence establishes that the veteran was a prisoner-of-war under the provisions of 3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.

(3) If a post-traumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident.

Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. (Authority: 38 U.S.C. 501(a), 1154) [26 FR 1580, Feb. 24, 1961, as amended at 31 FR 4680, Mar. 19, 1966; 39 FR 34530, Sept. 26, 1974; 58 FR 29110, May 19, 1993; 64 FR 32808, June 18, 1999; 67 FR 10332, Mar. 7, 2002; 70 FR 23029, May 4, 2005]

[broncovet]

NaNa

Unfortunately, there is no accountability for the VA..they can do anything they want, to as many Veterans as they want, for as long as they want and still award themselves bonuses, and that is why they do exactly that..because they can.

If your decision awarding you 40% was within the past 12 months, you can file a Notice of Disagreement, based on the fact you feel entilted to an Earlier Effective DAte. That is, you can ask them for "back pay" through all this time.

If you have not already filed a NOD, then make sure you do it before the one year expires, because, after that, you have to meet a higher standard, Clear Unmistakable Error. It is in your best interest to file a NOD within the one year time frame.

You will also want to weigh wether a lawyer, VSO, or neither would be in your best interest.

[Meddac]

Do I have any recourse about the VA not using "Assumption of Soundness" or all the information in my military medical records.

Thank you,

NaNaEris

You can file an NOD like bronco says... OR... You could simply file for an increase of your s/c condition. This will get you a C&P (provided you haven't had one in the past 6 months or so). You could end up with a higher rating off of the exam alone. Then if you aren't happy you could file an NOD and ask for a DRO review or a hearing with a DRO.

[Hoppy]

nanaeris,

What are you rated for? Chondromalacia or osgoods? Are you trying to get back pay? Chondromalacia is a progressive disease. They do not rate the early stages of the disease. To get back pay you would have to show that the symptoms were ratable at a higher rating at the time of the previous decisions in addition to any other legal error they made.

I am rated for Chondromalacia and I have Osgoods slaters. I had a 0% rating for 10 years for Chondromalacia then it was upgraded. The VA did not assign 0% ratings depending on when you were dischaged. I have had a 10% rating for 30 years for Chondromalacia. They classify Chondromalacia in five different degrees of severity in the medical books. The presumption of soundness might not apply to Chondromalacia. They did not say you had Chondromalacia prior to service.

[vaf]

You surely DO have recourse! Did they backdate the 40% to initial date of claim, or when you started pressing the issue more recently? I would ask for a reconsideration, pursue the initial date of claim as the effective date, and ask that the VA CUE itself based on its violation of 3.304 and the Presumption of Soundness Statute.

Unless you read about a condition as an exception in your enlistment physical, it did not exist upon date of entry into the military. The only exception to this is if the VA can prove outright fraud or deception. I'm working with a vet right now who suffers from a deviated septum, and secondary rhinitus, sinusitis and sleep apnea. The veteran served in both the Army and the USAF; the Army entrance and separation physicals make no mention of the condition. The USAF enlistment physical makes no mention of the condition, however, subsequent secondary physicals mention it (therefore it was caused by trauma/"acquired" and was not congenital). The veteran receives medical care at an area USAF base clinic, and even they list it as acquired, and not congenital. The VA is insisting that the condition is congenital, and therefore that, and the secondary conditions it causes are not service connected.

CUE must be based on the VA not following proper legal procedures or logic, and not an argument regarding medical diagnoses or opinions.

[john999]

If you pursue the CUE get a lawyer.