Sc Via Aggravtion Of Nsc Condition

[Guest Berta]

Theo's post brought this subject up and we don't discuss this much-

If a SC condition aggravates a NSC condition, then the level of 'aggravation' can be service connected.

"Pursuant to

38 U.S.C.A. § 1110 and 38 C.F.R. § 3.310, when aggravation of

a veteran's non-service-connected condition is proximately

due to or the result of a service-connected condition, the

veteran shall be compensated for the degree of disability

(but only that degree) over and above the degree of

disability existing prior to the aggravation. Allen v.

Brown, 7 Vet. App. 439, 448 (1995) (en banc)."

From BVA http://www.va.gov/vetapp01/files01/0105415.txt

The veteran in ths case had 30% SC for bilateral pes planus.(foot disorder)

He claimed it aggravated his NSC degenrative disk disease with radiculopathy.

BVA agreed:

ORDER

Service connection for aggravation of degenerative and

discogenic disease of the lumbar spine with associated

bilateral leg radiculopathy, as secondary to service-

connected bilateral pes planus, is granted.

This case involves a reservist who was awarded aggravation due to service connection:

http://www.va.gov/vetapp05/files2/0508318.txt

In essense these are claims of secondary service connection but the aggravation approach might be more beneficial than a potential 1151 claim-in some situations - and easier to prove-

the subsequent comp rating-if you succeed -should be the same either way.

I think if a vet has a potential 1151 which could also be service connection by aggravation from a SC condition- they should file both types of claims.

The VA is supposed to consider every potential theory to determine SC but they don't.

The vet has to and it often pays to claim two separate avenues of approach to an SC claim.

Edited February 25, 2006 by Berta

[Guest Morgan]

Berta,

If I may add, my two cents worth, here's something to consider.

My husband won secondary SC for DM2 by aggravation proximately due to SC conditions. We used the rationale that his multiple and large-dose medications and adverse drug interactions complicates the management of his diabetes and peripheral neuropathy. Also his conditions preclude more than sedentary activity, but the medical community agrees that exercise is crucial in managing diabetes.

Pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.310, when aggravation of a veteran's non-service-connected condition is proximately due to or [watch for those "or" statements in regs] the result of a service-connected condition, the veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc)."

The wording is vitally important in secondary conditions that don't have an indisputable cause and effect related to a SC condition. Without such clear connection, a claim for a secondary condition needs to emphasize aggravation as "proximately due to."

Merriam-Websters says this about the word proximate:

1 : immediately preceding or following (as in a chain of events, causes, or effects) *proximate, rather than ultimate, goals — Reinhold Niebuhr* 2 a : very near : CLOSE b : soon forthcoming : IMMINENT

And this about the word result:

1 a : to proceed or arise as a consequence, effect, or conclusion *death resulted from the disease* b : to have an issue or result *the disease resulted in death.

My theory:

Proximately due to is harder to undo than as the result of. Proving as a result of (cause) takes a higher medical conclusion and leaves way too much to VA discretion than aggravation proximately due to (soon forthcoming or following). VA plays on words, so we must know how to be precise in our presentation of a claim for benefits for a secondary connection.

Carrie

[Guest Berta]

Carrie- this is a good point and I love the fact that you use dictionaries-

A good definition from a reliable dictionary can often help rebutt some dumb VA statement.

And you are right- I think some claims fail because they are not quite worded properly--

"The wording is vitally important in secondary conditions that don't have an indisputable cause and effect related to a SC condition. Without such clear connection, a claim for a secondary condition needs to emphasize aggravation as "proximately due to."

This is a great point.

Also VA doctors statements have to really be carefully assessed.

A vet called me from the local VA recently- he was pissed off at his C & P results-

He came over with the report and it was not anywhere near as bad as he thought it was.

Then again even a lousy C & P report could hold some key words to use in a rebuttal-

I got a VA medical report many years ago when I was trying to prove VA caused my husband's death.

The VA doctor said the veteran could have died from a fatal dose of cocaine.

WELL- I was then at full blown warfare with them---

The statement was horrible and had no real basis at all in fact.

After I calmed down-----that was not easy to do----

I realised that the VA doctors entire report was wrong because this statement showed he did not have the veteran's complete autopsy.

He didnt even know there had been an autopsy because the VA kept "losing" it-

I rebutted that with the autopsy-reminding VA that this was 6- 7th time I had sent it to them and also a copy of the Rochester Eye Bank Letter acknowledging they had used Rod's eyes, skin and long bones for

patients, as he had been an organ donor.

The Med Examiner did a complete autopsy ,required for organ donors, and certainly there was no evidence that the veteran was on cocaine.

I was able to demolish the entire report.

This poor doctor- they made him do another report-

it was awful too---yet his actual reports- the ones he prepared-

contained support for direct SC death-of course the VA never told me that-

Two years ago I called this doctor at the VA -he knew I had knocked his medical reports down twice but we had quite a talk-he sure remembered me.

He gave me definite support for my present claim yet feared the VA would not allow him to do another report

on the veteran.

I felt very bad for him- I apologosed for calling him up in 1996 and calling him an idiot-

he wasn't- they pressure these doctors- to get what they want---

that is where a lot of our problems lie- and they manipulate the reports to highlight anything negative and overlook the positive.

Sorry for long blah blah- always get a copy of the actual medical reports or C & P results-

in 1996 I never knew they would have released this stuff to me-I never asked for it until 2003 when I realised the doctor was reading from it when I called him up. He still has it. I used it to support one of my claims.

[Guest Morgan]

Berta,

You are so right. I have gone to war over my husband's claims, too, but first I had to calm down and, as someone here said, "fire for effect." What you say is NEVER blah, blah, blah to me. I draw so much help from your details. Every time you write a long post, I devour it! You cause me to dig. When I see your "careful assessment" then I know why veterans are not allowed legal representation.

I found a statement in the regs that says they are to collect all "procurable" evidence and then rate the claim. If an exam is against a doctor's advice, then to me that would mean it is not procurable. And the regs concerning "failure to report for an exam" mentions "without good cause, such as illness or hospitalization." He didn't fail to report, the 800# rep said he would need to cancel the exam. How could he fail to report for an exam when the exam was no longer scheduled? The regs say if a veteran declines further examination then their duty to assist is to explain how it would affect the decision. To me, this says it is allowable for a veteran to decline an exam. (Of course, a reexam for continuing benefits is different.) Do you think developing these points is building an air castle?

Making points as you did with the autopsy was a huge piece of rebuttal evidence, and I'm sure getting past the cocaine statement took great resolve to get your mind back on track to deal with war. It's just sad to me that many veterans have so little help with such points. Some just aren't analytical and others are too sick and disabled to deal with it. It certainly takes intense focus. I can only imagine how hard this claims process must be for those suffering from PTSD. It way too stressful for anyone. I was dealt a case of shingles last week, and the doctor said it was probably brought on by stress. If he only knew. Never had them before my tenure with the VA. LOL

Carrie