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?

[vaf]

In fact, here's the last paragraph of the SOC:

"The evidence has clearly shown that the veteran had intercurrent injuries which have caused the current worsening of his condition. Therefore, entitlement to an increased evaluation is not warranted."

I have a list of his medications - muscle relaxers and pain pills. All provided by the local VA hospital.

[Berta]

"he told me the cervical spine disorder was the reason he was medically discharged after 15 years in various branches of the service"

Why would he be rated just at "0" if it caused his medical discharge?

Wouldn't they just give him Honorable or General under Honorable conditions?

Various branches of service?

Sorry-Vicki-I see four strikes against this claim already- those auto accidents--- and this above doesn't make sense to me-either- BUT you never know- don't go by what I say as it is only my opinion-

I would certainly see what the SMRs for each of the various branches say-you need a SF 180 for each separate branch- as well as the Medical discharge stuff--and his DD 214-

I mean-all of his DD 214s

[vaf]

I got vertigo just listening to the number of times he had breaks in service. I asked the veteran to e-mail me his entrance dates, his discharge dates, and what branch he served in during those times, so I can get it straight in my head. He was in the Marine Reserves, the National Guard, the Army, etc. However, he tells me he only has one DD 214, which has him discharged in 1992. He served on and off until his final discharge in 1998, which is why I need to get a handle on when he served and where. I'm waiting for the paperwork to confirm the dates of his military service, and which branch.

The cervical spine disorder caused the final medical discharge. However, he is rated for lower lumbar spine disorder at 0% service connected. He has no rating for the cervical spine disorder, something we'll pursue. He didn't get any briefing on VA issues when he left the military, he said. It was only when his lower back started getting really bad did he pursue his options at the VA, and a local SO filed the initial claims paperwork for him, just for the lower back disorder. When the denial came through, the veteran got an IMO and heard that my husband, who he works with, was fighting VA battles, too. Anyway, long story short, I was asked to see if I could help, since the veteran didn't have a lot of confidence in the SO.

I know the accidents are a big hurdle, just playing with the cards that were dealt me.

I'd really like to know more about SS 3.303 as it relates to intercurrent injuries. Whether it only pertains to disabilities not yet service connected, or also pertains to disabilities already service connected????

Edited August 13, 2006 by Vicki

[KennyJ]

I don't know as much as most of the talented people here but if he is on pain pills I would would also ask to evaluated for pain . Also if the joint has arthritis that should also be considered, possibly chronic depression from pain amd medications.

[vaf]

Good point Kenny, there's so many loose ends with his situation, I'm just beginning to scratch the surface. I still can't believe he went to an SO who only filed a claim for the lumbar spine condition, knowing it was the cervical spine condition that got the guy kicked out of the military.

[Hoppy]

The VA claims to have clear evidence of intercurrent injury. How did they get this evidence. Was he treated at VA hospitals for the car accidents or did he just tell an examiner that he had been in 4 car accidents.

If he went to VA hospitals or for some reason gave injury reports from those accidents to the RO then adjudication has the treatment notes and the examiner who made the report that he had old injuries would be required to see the reports of the post service injuries. It is entirely possible that when the RO threw out the IMO report it is because he had not seen the post service reoports. IMO reports that are not based on the entire record are open for the VA to disregard. I have seen this happen on numerous claims.

If he told the VA that he was in four accidents then the RO is out on a limb as to the issue as to whether or not the evidence is clear. It would not suprise me if this is all the evidence they have as to the four accidents. I have also read numerous BVA cases where th RO did in fact use a veterans subjective statements about pre service events to rebut the presumption of soundness. Which by the way also requires clear evidence to rebut.

It would be a good idea to see what medical reports were cited on the SOC as being used to determine intercurrent injury.