Sc Via Relative Equipoise

[Vync]

This case is very interesting...

http://www4.va.gov/vetapp09/files3/0917855.txt

Quick overview

1992-2003 - Active duty

1999 - Treatment records show Vet was injured after a fall

2002 - VA exam, no muscle spasm or radiation, normal x-ray

2003 - Lower back pain SC denied

2005 - Low back strain caused by picking up heavy object previous day

2009 - VA exam, normal x-ray, diagnosed with history of low back pain without pathology.

Based on this record, the Board finds the evidence to be in

relative equipoise in showing that the Veteran developed

chronic low back pain while on active duty that as likely as

not is due recurrent low back strain.

However, neither examiner's findings serve to rule out the

existence of chronic recurrent low back pain due to a strain-

type injury as noted shortly after service.

By extending the benefit of the doubt to the Veteran, service

connection is warranted.

Let's review that again...

- Injured during service.

- Injured two years after ETS

- Normal X-rays

- No indication of an IMO or nexus letter

- SC granted

Basically, this Veteran complained about pain and was granted SC "without any clinical evidence to warrant and diagnosis of any acute or chronic disorder or residuals thereof."

My x-rays and MRI's were not normal and I have a stack of back treatment records, but I got denied (see my topic).

Berta mentioned that a good IMO might help grant SC via relative equipoise.

If I appealed on the grounds of relative equipoise, without an IMO, what are the odds of me being as lucky as this guy?

Am I misreading something in this ruling?

[jbasser]

You have to look where your claim was deined. There are stages.

The area of denial of a claim can be many reasons. You have to tare them down to see what the denial was.

Basically is says we denied your claim for whatever. Then the reasons and basis will touch on the denial and give you the VA's version of their interpetation of the regs to substantiate the denial.

You then have to look at the claim and see where you can strengthen it . An IMO usually works.

Relative Equipose is the basis for the 50/50 rule. If the evidence is even, the Veteran gets the benefit of the doubt. ( Supposed to get the BOD)

That is not alwways the case and decisions like the one you posted show what has to be done to get it done. They often have to be reminded of their short commings by the BVA. as the BVA has to be reminded of its ways by the CAVC.

Hope this helps.

J

[Testvet]

This case is very interesting...

http://www4.va.gov/vetapp09/files3/0917855.txt

Quick overview

1992-2003 - Active duty

1999 - Treatment records show Vet was injured after a fall

2002 - VA exam, no muscle spasm or radiation, normal x-ray

2003 - Lower back pain SC denied

2005 - Low back strain caused by picking up heavy object previous day

2009 - VA exam, normal x-ray, diagnosed with history of low back pain without pathology.

Based on this record, the Board finds the evidence to be in

relative equipoise in showing that the Veteran developed

chronic low back pain while on active duty that as likely as

not is due recurrent low back strain.

However, neither examiner's findings serve to rule out the

existence of chronic recurrent low back pain due to a strain-

type injury as noted shortly after service.

By extending the benefit of the doubt to the Veteran, service

connection is warranted.

Let's review that again...

- Injured during service.

- Injured two years after ETS

- Normal X-rays

- No indication of an IMO or nexus letter

- SC granted

Basically, this Veteran complained about pain and was granted SC "without any clinical evidence to warrant and diagnosis of any acute or chronic disorder or residuals thereof."

My x-rays and MRI's were not normal and I have a stack of back treatment records, but I got denied (see my topic).

Berta mentioned that a good IMO might help grant SC via relative equipoise.

If I appealed on the grounds of relative equipoise, without an IMO, what are the odds of me being as lucky as this guy?

Am I misreading something in this ruling?

Maybe it was just this one BVA Judge that saw the "benefit of the doubt" another BVA Judge may say the damage was caused by the incident 2 years after service you just never know...... it's all a flip of the coin

[john999]

I would get the IMO if the case is even close. Waiting two years for a decision and then getting denied is a bummer. You want to just cream them. You want to crush them with evidence. You don't want any doubt. If the turnaround for a denied claim was 60 days until you got a new decision on new evidence it would be one thing, but you end up waiting another couple of years because you claim was weak. Why take a chance?

[sixthscents]

Yeah I'd go the IMO route, but I would mention this matter as well. In this case testvet is correct and often one judge will look at something completely different from another. It's a known issue, but that doesn't help you.

Get a really solid IMO. Then slam them. John is exactly right you dont want to wait 2 years on a "maybe", when the IMO would reasonably raise your chances. I personally think it would. I certainly would spend the money if it was my claim, and thats what I base my opinions on, and this is that, an opinion. However its one based upon many years of experience, and agrees with John who is also a very good and experienced advocate (IMHO - stolen from carlie).

Bob Smith

[Vync]

I really appreciate the feedback. I am waiting to get my c-file and VA treatment records. The challenge is finding a good doc who is willing to write me an IMO. If I have to pay for it, I will, but would rather try to find one who is willing to do it.

[john999]

VYNC

Do you expect doctors to work for free? If you have any kind of insurance it will pay something towards the IMO, usually. Just remember you need a copy of your C-File and your SMR's when you ask for the IMO doctor to look over your claim and do a report. He does not have to read it all, but you have to at least have the material, so he can say he "reviewed it". Now is not the time to be a penny pincher with an IMO. You don't need to spend $5000, but you need to spend the money to get a good IMO. You will be paid back the first year if your IMO puts you over the top.

If you depend on the VA to do your medical report it can go wrong for you, and it goes right into your record. You don't have control of what a VA doctor writes. Would you go to court with a lawyer who wanted to save money by not getting the best experts to help you? You are the lawyer, and the VA is your adversary.