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?

[Hoppy]

Vicki,

I do not know about the forms and clock question. Maybe someone who files this stuff regularly would know. I have not filed a claim in years.

As far as medical evidence goes, it would be interesting to see if any of the four car accidents were litigated in civil court or workers comp court. If so, the doctors will make remarks like the condition is expected to be disabling indefinately, etc. If these types of comments are in the reports the VA already has, then I can see why they are citing intercurrent injury.

If the doctor who treated the car accidents made no remarks about continuing disability, it could also work to go back to him and tell him the VA has interpreted his reports in such a manner that the veteran had suffered permanent disability as a result of the accidents and ask that doctor to address the issue. After all it appears that it is the car accident doctor’s report the VA is giving weight to at this time.

If there is no mention of ongoing permanent disability in the reports from the car accident doctor you could argue that the RO should have applied the benefit of the doubt rule. That is there is evidence of an in-service injury and there is evidence of post service injuries. However, neither injuries dominant the diagnostic picture thus the benefit of the doubt would apply. This could backfire then you would have to seek the IMO reports. Thus, I would do this only if you cannot get new reports from the doctors involved.

I had one disability that was ruled the result of post service events even though I had been diagnosed with the condition in the military. I made the same argument that the post service reports were invalid and the DRO agreed with me and applied the benefit of the doubt rule.

I had another condition that was service connected and then had surgery on the same knee as the result of a post service car accident. The reports after the surgery indicated that I would have no ongoing disability as a result of the car accident. Wouldn't you know it my knee continued to give me more problems than before. The accident was litigated and the insurance company argued in court that my continuing symptoms were the result of my service connected condition. I actually submitted these filings with the VA to show that my car accident was not an issue. The civil action for the car accident was settled out of court thus there was no final court determination for the VA to use against me.

Final decisions in court are public information. If this guy settled any civil or workers comp actions and they were litigated in court any evidence filed prior to the trial is public information and the court records are public if the court makes a ruling on the case. The VA has attorneys who know how to get these records. I used to do insurance investigations and pulled this type of information from court records. Anybody can do it if you know how. Make sure this guy is being honest with you and get any court records that are available for any of these car accidents.

[vaf]

Hoppy (and everyone), thanks so much. I have some direction, now. I'll know if the veteran is being honest with me by his response about the court records related to his accidents. If he is at all reluctant to get this information, I'll drop it.