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

[vaf]

Good point john, we've got so much stuff pending that was denied prior to June 2007, I sometimes forget to mention that anyone with a denial at the VARO after that date can get an attorney (we can't, the law wasn't grandfathered), which is especially a good idea in a CUE. But, if he can get the VARO to CUE itself, that would keep things simple.

Also, make sure the attorney isn't a newbie at this, especially with CUE's, although, again, handled well, you might be able to convince the VARO to back off and CUE itself before things get really drawn out and ugly.

[nanaeris]

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.

[nanaeris]

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.

[nanaeris]

I use to live in Southern California, I basically couldn't get a clear answer about the Chondromalacia form the Regional Office in LA. I now live in Texas so I asked the Region Office in Waco for a answer. They stated that that bilateral chondromalacia and moderate to severe traumatic arthritis have been considered with your service-connect Osgood Schalatter's disease. They also stated chondromalacia, was also included in consideration of previous rating. If this is so shouldn't have been considered in my initial rating which denied me service connection because they stated I had Osgood Schalatter's disease before the Military and it was aggravated by my military service, but their was no mention of this condition on my military entrance exam. The first time I heard about this condition was after going to the doctor after I hurt my knees during training and having fluid drawn of my knee and given shoot.

[nanaeris]

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.

[nanaeris]

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.