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]

Hoppy, I can't seem to get clear on the question of SS 3.303 b, though. Does it just pertain to establishing service-connection for a disability not already service connected? Because the VA is applying it to a disability that had already been granted service connection.

The VA received some records from a civilian physician not affiliated with the military or VA system. These records discussed the automobile accidents, as this doctor (since retired) treated the veteran for all four of them (12/10/95, 5/21/98, 11/2/98 & 11/22/98). These accidents all occurred during periods when the veteran was not active duty. There was no discussion in the SOC of whether the veteran was admitted to the hospital during any of these incidents. The veteran has also received treatment for his back at the VAMC here as evidenced from records covering the period 7/04 through 7/06. He also receives his pain medication and muscle relaxers from the VAMC. I don't yet have a copy of his C & P exam, conducted over two years ago, I'm waiting for that along with all his other records - records of care under civilian doctors, his SMR's, his VA records, and his claims file.

So the accidents are a matter of record, not just from statements by the veteran.

Also, the VA speculated that the accidents caused the extent of his current problems, without offering any evidence that it was more likely than not caused by the accidents. It's just conjecture, and nothing was offered as evidence to refute the IMO that said the compression fracture happened 20 to 25 years ago, before the accidents even occurred. Also, I'm wondering if the C & P exam, having taking place in June 2004, is timely enough to be considered valid for a decision the veteran received this month.

This type of disability would have naturally progressed as time goes by, so what the VA is saying is that the normal deterioration process involved with spine conditions will never be considered as a reason to raise his disability rating because he was involved in these auto accidents. I'm also wondering if it were possible he would not have been injured to the extent he was (whatever that was) had he not had pre-existing service connected back problems to begin with.

[Hoppy]

Vicki,

It is my understanding that the VA can take away a previously rated condition based on inter-current injury. I could be wrong but the example I have heard is that if you lose a finger in the service and after discharge lose the entire arm in an accident they will take away the rating for the finger. Maybe somebody else will back me up on this or shot it down. I go by a big collection of data that is stored in my head from research I did long ago. I had every type of issue in my previous claims and researched about every angle the VA has. The problem is that I only help on hadit and my memory could throw me some curves.

The types of treatments and length of treatment would probably be the only valid info the VA could use for the determination of inter-current injury.

If it was my claim I would make sure the IMO was aware of and read the same doctor’s reports as adjudication had when determining inter-current injury. If the IMO still thinks that his current condition is the result of the in-service condition then it becomes a situation where the IMO has rebutted the "discretion" the adjudicators used when giving weigh to the post service accidents as explained by the doctor who treated him. It sounds like the doctor who treated him post service made no assessment of the relationship of his post service injuries to his service connected condition. Thus, adjudication weighed the evidence.

Getting the IMO to read everything and state he still thinks that his current condition is the result of service in view of the post service car accidents would be the minimum I would do.

[vaf]

You're right about the IMO, Hoppy. It needs to be redone. I've already asked the veteran to make an appointment with the surgeon, and I've offered to go with him to explain the way the IMO should be structured, that is, if the surgeon agrees to do it.

I also told the veteran that we need to ask the surgeon to review the rating criteria for the spine, and find out where the veteran is on it, not only regarding the lumbar condition, but also the cervical spine condition that forced his medical discharge.

I haven't seen any records yet regarding the extent of injuries or treatment after each accident, information I need to get my hands on.

Can we submit the I-9 for a Board hearing, and then furnish these records with comments afterwards? As I said before, I don't want the clock to run out on the guy. He's had enough bad advice from people who should have known better. I don't want to cause him anymore problems.

Thank you for taking the time to help me.

[LarryJ]

Vicki,

Here is a thought (from a devious mind, or so I've been told).

If these four accidents could have possibly been incurred, in any way, by the medication that he is taking for his SC................................heh-heh....? Do ya see where I'm going with this?

[Berta]

Interesting- Longrider ---and not beyond the realm of possibility-

do the hospital records or any EMT report show that he was medicated for the SC condition at time of these accidents and that the medication could have contributed to these accidents?

Then again- hate to sound negative but I would not touch this claim without seeing any police reports of the actual circumstances of those accidents first-

[vaf]

Yes, all good suggestions. I am waiting for all the records right now. It's probable he was on medication for the service connected back injury, the timeline would be right. I will ask him about it.

So, by all this, is the answer to my question about 38 CFR, Part 3, SS 3.303 b that when it comes to the statement about intercurrent injuries, it includes disabilities that have already been service connected?