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Should I Appeal This Claim Or Should I Make A New One?

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vistagirl81

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my husband has been denied for back pain, due to the fact that they said that pain is not compensatable.... his SMR states"AD 24 yr old male with chronic BP.PT has TTP AT APPR L4 Level At Spinous Process.POS SPASM AT RT Paraspinals. Denies B/B No reported trauma. .. My Question is , is that a diagnosis and should i file a new claim for muscle spasms? Would it matter that he was only seem 4 times in 2005 none in 2006 ,once in 2007(they though he had menningitis so they punctured his back 8 times ) since then his spasms have gotten worse and he has been seen 3 times in 2008. When he got out of the military in Dec 08 he has been seen 4 times +...

Also he has been deined for Knee pain. he was assessed with having patellofemoral pain syndrome while in the service but not out.. should we wait and appeal or file a new claim or should we wait until he has been diagnosed by the VA? thank you

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They did not do an exam on his Back, did one on his knee, said it was 0 to 100.. he has a constant limp and wears a brace most of the time,,, the Examiner was a liar, said that he wore his brace to the exam, which he did not, said he did not have a limp which he did, said that he had no expression of pain, which is always on his face.

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They did not do an exam on his Back, did one on his knee, said it was 0 to 100.. he has a constant limp and wears a brace most of the time,,, the Examiner was a liar, said that he wore his brace to the exam, which he did not, said he did not have a limp which he did, said that he had no expression of pain, which is always on his face.

That is where a good IMO comes in handy with the nexus letter. Basically have a well respected highly credentialed doctor do the exam and have them write a nexus letter for the VA. Make sure you keep the original and send them a signed copy. This has happened to me, and they did not dispute the Nexus letter in both cases. This is just a little game. They just want him to go away, stick with it.

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I though that he was denied because of "back pain" but know i see that is is because when he got out they did not diagnose him with anything.. while is was in service he was diagnosed with muscle spasms.. i will appeal both of the claims and highlight the evidence ... and we are going to go to the ER so they can diagnose him with something..

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vistagirl,

I borrowed this information from elsewhere.

Maybe it will help explain how the VA decision makers come to certain evaluations.

Hope this helps a vet.

carlie

"Can you please provide the regulations that dictates "Three things are required for service connection:

1) an in-service event (illness, injury, etc),

2) a current disability, and

3) a nexus, or link, between 1 and 2.

I think that all three are not required. Is it not an either or? Either #1 or #2 & #3?"

-------

This has always been the common sense interpretation of the previously cited regs; however, the specific language I used has been developed and refined by the Court.

I think it was first addressed in the Morton case (sorry I don't have the citation) and although much of that case has since been changed by subsequent Court decisions, the basic components of service connection remain the same.

Here's how it is applied. Let's say you sprain your ankle in service. That is the in-service event, #1.

Now let's say that you have been out of service for a few years, begin having ankle pain, and the doc says you have arthritis. That is the current disability, #3.

Now all that is missing is #2, the nexus or link between the sprain in service and the current arthritis. Remember, I said that it must be medical because a non-medical person is not qualified to say that the current arthritis was caused by the injury in service.

If the doc says that it is as least as likely as not that the arthritis is related to the ankle sprain and there is no evidence to the contrary, all of the parts of the puzzle are there and the claim is likely to be granted.

Usually the claim fails because #1 or #2 is not present or is present but is rebuted by other evidence. For instance in our example, lets say that #2 and #3 are present, but there is no evidence of #1, the claimed ankle sprain in service.

Remember, I said that this is the one part of the puzzle that doesn't have to be medical. This means that any evidence that you can find to support your contention that you injured your ankle in service can be considered. It may not be accepted, but it can be considered.

Now lets say that your records do show a sprain in service, #1, and you do now have arthritis, #2; but no doc has said that they are related. The claim fails.

Or lets say that the doc says that they are related but he bases this on your story to him that you suffered a severe sprain and was on crutches for a month when in reality the medical records show only a mild sprain and that you were on limited duty for three days and then returned to full duty.

In this case VA would not be required to accept the doc's opinion to fulfill #3 because we could say that it was based on a faulty history of the injury that is not supported by the known facts. In other words, if the doc knew the true nature of the original injury he might not have had the same opinion. This is where many claims fail because people embelish their stories to the doc to the point that his opinion gets thrown out."

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