Presumption Of Soundness

[RIVER RAT]

I had filed a claim for a sparined right ankle in 1990 shortly after my discahrge from active duty. I had 2 exams and for this the last one in 2002, I was denied service connection both times. This was even though the 2002 examiner diagnosed me with a right ankle spain. He had also said "examination reveals very marked (congenital) Pes Planus bilaterally and certainly that could be a cause of his discomfort." This was also used to deny my right knee claim. I went to get a IMO and had that faxed in to the VA, in the mean time I moved away and tried to have my claim follow me but, the denial became final. I see they said "Service connection is not granted for a congenital disabilty and your SMRs do not show aggrivation by service"

Here I am years later I have found that the doctors office where I got my IMO had missed spelled my name and the evidence in support of my claim went into someone elses file. I have had foot issues since my time in the service and the VA podiatrist supplies my custom orthotics. I looked over my SMR to see if Pes planus was ever noted and it was. I had been prescribed orthotics and a heel lift as part of a work up on my right knee. So with this information I submitted a claim for Pes Planus, which the VA turned into me re-opening and renaming my Right Ankle sprain claim(HOW DOES THAT WORK).I thought I was in good shape, I had my documentation SMR, have current diagnosis and treatment (moderate ecessive pronation of STJ in stance and gait, Mild abducted gait, mild genu varum), documentation of Pes Planus in my comp and Pen files along with their X-ray evidence, a letter from my pediatrician that stated she cared for me from birth until a month before my joining the service and she said that she never treated or diagnosed my with Pes Planus( = not congenital). My entry physical state feet as Normal.

I was on this site and noticed a refernce to Wagner v. Principi, §3.304, and Authority: 38 U.S.C. 1111. "(b) 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. "

My question is should this apply to my case where it goes back to 1999 and 2002? If it does apply Do I need to bring this to their attention? I feel like me knee claim is also being held because of the"congenital" notation the examiner made in 2002.

Should my Pes planus been lumped into my Ankle claim or should it be its own claim?

Sorry so long but this has been an exhausting and confusing process with no end in sight.

[Philip Rogers]

Yes, I do believe it would apply. They're reopening the claim(s) which sounds correct, w/the new evidence, however I believe you'd be better off to file a CUE claim based on the presumption of soundness error. I also believe the pes planus claim should be on it's own but perhaps also a CUE. jmo

pr

[Berta]

Did the VA acknowledge at all the IMO you had?

If they never mentioned it in any decision, submit it again as new evidence.

I have the same pronation problem-and I need to watch out for sprains so I would think the inservice pes planus aggravated and even caused the sprain.

By all means use Wagner against them.

Your knee problem is certainly quite possibly related to the pes planus.People with pronation can end up with knee,hip and/or back problems.I had a chronic low backache for decades.Nothing medically revealed it's etiology-until I got special orthonics.

I have not had a backache since -unless I do alot of heavy lifting.But many even with orthonics still can have considerable problems. There are plenty of cases at the BVA web site that reveal what I mean.

Years ago I posted here a TDIU award that started out with pes planus and affected the vet's knees, hips and back so much that he was awarded TDIU.

Have you considered getting an additional independent medical opinion to tie these all together?

Edited August 1, 2010 by Berta

[Pete53]

Welcome to Hadit

[john999]

Here is a side bar on a so-called congenital issue that the military and VA use to deny benefits which is the concept of personality disorder. If a personality disorder is not noted in your induction exam and three years later the military kicks you out as a PD where is the presumption of soundness? You were presumbed to be OK when inducted and suddenly you develop a PD. How can that be?

[LarryJ]

Here is a side bar on a so-called congenital issue that the military and VA use to deny benefits which is the concept of personality disorder. If a personality disorder is not noted in your induction exam and three years later the military kicks you out as a PD where is the presumption of soundness? You were presumbed to be OK when inducted and suddenly you develop a PD. How can that be?

They will say: You had a Personality Disorder that did not show up until some Drill Instructor started applying psychological pressure at which time the personality disorder that you had had ever since your mother stopped bottle feeding you too early in your childhood...........yada, yada, yada!

Edited August 1, 2010 by LarryJ

[mos1833]

river rat -welcome aboard

you said, i feel like my knee claim is being held up because of the congenital notation, did the notation say you had a congenital (defect) or a disease ? because congenital defects are excluded usually.