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mymissie

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I posted earlier todad but my post is gone.

In Aug 30,2011, I filed a claim under 1151.

Now need to file a claim for A&A plus for increase in my disability . Would that slow down my 1151 Claim???

Also I have someone who filed a claim in 1997,for pes planus and was denied,becase the

that it was pre-exiting to his service.

He served over 4 years in the navy, but the constant up and down on those ladders has caused problems with his feet. He did not follow up on his claim.

What should he do? Refile? Was the law changed about pre-exiting condition???

Edited by mymissie
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  • HadIt.com Elder

Most of the time when you think a post is gone it is still here.

You can go to your profile page and look for your posts by topic and comment.

I am trying to help you out not criticize

Pete

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Most of the time when you think a post is gone it is still here.

You can go to your profile page and look for your posts by topic and comment.

I am trying to help you out not criticize

Pete

Thanks Pete. I was just wondering about my post. Always willing to learn. Thanks again.

Edited by mymissie
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I posted earlier todad but my post is gone.

In Aug 30,2011, I filed a claim under 1151.

Now need to file a claim for A&A plus for increase in my disability . Would that slow down my 1151 Claim???

Also I have someone who filed a claim in 1997,for pes planus and was denied,becase the

that it was pre-exiting to his service.

He served over 4 years in the navy, but the constant up and down on those ladders has caused problems with his feet. He did not follow up on his claim.

What should he do? Refile? Was the law changed about pre-exiting condition???

my,

Is the need for A&A a result of whatever the 1151 is in relationship to ?

Whether it is - or not - I would think since you just filed the 1151 on Aug 30, 2011

it couldn't slow any claim down by much - but then 1151's are supposed to be a claim like any

other claim - but it does take somewhat of a different path.

About your question on someone's foot problem.

It would be good to read the entire Rating Decision.

My question is that even if there were a pre-existing condition - was this condition

aggravated during the 4 year enlistment, the aggravation needs to be shown as not a mere

natural progression of the condition.

If the medical evidence of record showed a worsening of the condition, then I think the claim

should have been granted as SC'd, under the regulation for aggravation.

Even if they SC'd at zero, if medical evidence supports an increase at a later date, at least

the issue of SC would not have to be re-adjudicated.

This person would probably be best served in obtaining an IME/IMO from a specialist.

This specialist would need to review the entrance physical - (this probably notes the pre-existing

condition), any AD SMR's that pertain to feet, any medical records from them until current,

and in the IME/IMO relate it all together in an opinion stating something to the effect that the current condition

is related to the 4 years AD and not just a progression of the condition. They will need to support this

opinion fully with medical rationale stating WHY is is not merely a progression of the condition and how

the 4 years AD aggravated the condition.

Post the Reasons and Bases if you can.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=c05151ada629955297c3fbcd5e829176&rgn=div8&view=text&node=38:1.0.1.1.4.1.66.114&idno=38

§ 3.306 Aggravation of preservice disability.

(a) General. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service,

where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.

(Authority: 38 U.S.C. 1153)

(b) Wartime service; peacetime service after December 31, 1946. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.

(1) The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service.

(2) Due regard will be given the places, types, and circumstances of service and particular consideration will be accorded combat duty and other hardships of service. The development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy or following a status as a prisoner of war will establish aggravation of a disability.

(Authority: 38 U.S.C. 1154)

© Peacetime service prior to December 7, 1941. The specific finding requirement that an increase in disability is due to the natural progress of the condition will be met when the available evidence of a nature generally acceptable as competent shows that the increase in severity of a disease or injury or acceleration in progress was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. Consideration will be given to the circumstances, conditions, and hardships of service.

[26 FR 1580, Feb. 24, 1961, as amended at 57 FR 59296, Dec. 15, 1992]

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