Trying To Help A Veteran With A Claim

[vaf]

I'm trying to help a veteran with a claim for a lumbar spine condition. He was service connected a couple of years ago at 0%, filed an NOD for an increase, got a DRO review, the DRO concurred with the VARO's original decision, and now he's got the BVA filing paperwork. Here's the problem. The VARO denied his claim for an increase because he was involved in four vehicle accidents between the time he was discharged and the time he filed for an increase (incredible as it sounds, he was not at fault or cited for any of them). The VARO is regarding these accidents as the cause for intercurrent injuries that worsened his service-connected back condition, without providing any proof, just conjecture and say-so. The SOC he received last week is based on a C & P that took place over two years ago.

He submitted a March 2006 IMO from a board-certified orthopedic surgeon who stated that a compression fracture exists that looks to be 20-25 years old, and thus is service-connected in the surgeon's opinion and deserves a higher rating. The veteran's got military medical records that show hospital visits for back sprains and such during exercise activities while he was active duty. The VA summarily dismissed the surgeon's opinion without addressing the fact that the age of this fracture put the veteran squarely in the military at that time, before the accidents occurred.

I'm going to suggest that he ask the surgeon to specifically address the subject of the auto accidents, as well as review the rating criteria for lumbar spine conditions in 38 CFR and note the code and the rating in a follow-up letter. I've shown him how to request the rest of his SMR's, his SPR's, and his VA medical records so I can take a look at them.

Is there anything else you would suggest we do?

[Vike17]

Vicki,

If the veteran is already service-connected, then the IMO from the doctor where he opined that the compression fractures are 20-25 years old is irrelavent to the VA. When a veteran applies for an increase ect.. the only thing that matters is the current disabling affects of the disability. You also stated that the veteran has ervice medical records that note hospital vistis for back sprains while in the service. Again this is irrelavent if he is already service-connected. These evidence would surely be helpful if he wasn't service-connected and was trying to prove that, but as you state he already is.

Now, when the VA states that the four vehicle accidents are the cause of his back getting worse, that shouldn't make a difference either. It doesn't matter what causes a service-connected disability to worsen. the VA must rate the current disabling affects regardless of what caused the disability to get worse!

Vike 17

[Berta]

Vicki-

Before you spend any more time on this vet's claim:

"I've shown him how to request the rest of his SMR's, his SPR's, and his VA medical records so I can take a look at them"

I would wait until you see all of his records-

Based on:

"The VARO denied his claim for an increase because he was involved in four vehicle accidents between the time he was discharged and the time he filed for an increase (incredible as it sounds, he was not at fault or cited for any of them). The VARO is regarding these accidents as the cause for intercurrent injuries that worsened his service-connected back condition, without providing any proof, just conjecture and say-so"

I believe -with what you have told us here- that this VA decision is correct-and it makes complete sense-at this point-based on what you told us -and I would not pursue this -even though you want to help him-without seeing those SMRs, his VA med records, and his subsequent medical records regarding the accidents-

Just my opinion-

[vaf]

In reading a little more of the SOC, I see another statement by the VA:

"It is not possible to determine the severity of the low back strain that was incurred in service from the intercurrent injuries sustained to the lower back from the subsequent four motor vehicle accidents."

I'm going to ask the veteran to consult the orthopedic surgeon who wrote the IMO to see if he can address separating the two issues, to see whether it is or isn't possible to do so. The sheer age of the fracture should have done that, but perhaps we need more detail from the surgeon.

Yes Berta, good point, I'm anxious to see those records too. Can we send in his I-9 with the intention of submitting additional evidence in the interim period before the BVA hearing? I don't want the clock to run out on him, and I don't know how long it will take to receive all his records.

I'm also wondering if the extent of the injuries this veteran suffered in these accidents was impacted by the pre-existing service-connected back condition, that is, if the pre-existing condition exacerbated what otherwise might not have hurt him to the extent it did. Kind of like a person with a service-connected amputation of one leg slipping on the ice, falling, and breaking a hip (it could be argued that had he had his other leg, he would have been better able to balance himself and possibly not fall in such a way as to break a hip). I don't know if this is a valid analogy, but it occurred to me.

Vike, I'm very interested in your statement, "It doesn't matter what causes a service-connected disability to worsen. the VA must rate the current disabling affects regardless of what caused the disability to get worse." Also, this not a case where the veteran engaged in risky or illegal behaviour that worsened his condition. I want to use this information in the veteran's defense, can you give me a citation or regulation in the CFR, USC or M21-1 to back this up?

Terry, we're heavily leaning on the surgeon's statement about the age of the fracture, but can you point me in the direction of finding the court case(s) you discussed regarding IMO's?

I'm probably fighting an uphill battle, but what the heck, it's not the first time. And I see holes in the VA's argument already, without all the records. I'm hoping once I get my hands on them, we'll have the information we need to fight back.

[vaf]

OK, 38 CFR, Part 3, § 3.303 b states the following:

"Chronicity and continuity. With chronic disease shown as such in service (or within the presumptive period under §3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes."

I'm assuming this is the basis of the VA's denial. I don't think they've proven anything remotely close to this disability being "clearly" attributable to intercurrent causes, they're just making the assumption and dismissing the claim.

I think the IMO from the doctor stating this condition is due to a compressed fracture 20-25 years old should take the steam out of the word "clearly" as the VA has used it, since the first accident of the four happened in 1995.

I also noticed the IMO discusses cervical disc disease, and when I asked the veteran about it, he told me the cervical spine disorder was the reason he was medically discharged after 15 years in various branches of the service. So, we'll pursue service connection for that as well. I'm wondering what that lends, if anything, to the lumbar spine disorder, as they both developed simultaneously while he was in the military.

[Vike17]

Vicki,

You stated that the veteran's back was already service-connected, correct? If this is the case, the regulation you posted pertains to establishing service-conection for a disability not already service-connected!

If the veteran's condition is already service-connected and he applies for an increase, the only thing the VA wants to see is how disability is currently doing.

Vike 17

Edited August 13, 2006 by Vike17

[vaf]

Fabulous, Vike, that's great news! Yes, the lumbar spine condition is already service connected at 0%.

But it looks like they're applying 3.303 to the condition that's already service connected, so do I argue this is a misapplication of the reg? Or is there another reg that would be better for me to cite as to the correct rating process for a condition that is already service-connected that worsens, despite the cause?