tdiu 4.19 Age In Service-Connected Claims.

[elcamino_77us]

Looking back at some of my previous C&P's, I noticed that the Doctor made statements that the degeneration in my spine or the condition of my knee would be normal for someone my age. Is this a violation of 4.19??? Or does 4.19 only apply to TDIU???

Thanks

Bill

[john999]

Yes, age is not supposed to be a factor in SC, except when VA attempts to use it to show you are not SC but just victim of normal aging process. Get an IMO/IME. You cannot depend on a VA exam for SC.

[broncovet]

Since a C and P examiner does not adjudicate your claim, the applicability of the age degeneration is unlikely to be relevant, or even positive in your favor. It is certainly ok for the Doc to opine that your health is consistent with someone your age.

You wont be compensated for conditions that are showing an "age (related) degeneration".

If you are trying to show an injury/illness in service, led to, say, arthritis, then it is still possible to do so. To do this, your doc would need to say something close to:

The Veterans degenerative arthritis is at least as likely as not due to a fracture he recieved in military service.

If your doc did not say something close to this, then you will need an IMO/IME if you wish to establish service connection. Beyond the establishment of Service connection, the Va rates things like arthritis by their severity, if service connected. Things like frequency of pain, limits on motion, how many joints affected, etc.

[elcamino_77us]

Thanks,

Instead of relying on my VSO as I have in the past, I decided to learn the ins and outs. After six months of research and finally getting copies of my reports, I'm amazed at what my old VSO missed and the VA's refusal to follow the laws and decide cases however they want. Then again should I really be that suprised at the VA.

Bill

[JT24usn]

Kind of pertains to topic. Just an FYI.

http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5&node=38:1.0.1.1.4#38:1.0.1.1.4.1.66.134

38 cfr 3.327

(iv) In cases of veterans over 55 years of age, except under unusual circumstances;

Edited June 13, 2013 by T8r

[john999]

90% of a VA claim is just medical evidence. If you have evidence and nexus you are usually there.

[elcamino_77us]

Thanks Broncvet,

In 2003, the VA doctor stated that the DDD of my Spine was normal for someone my age. However, that didn't take into consideration that three months after I was discharged in 95, I was diagnosed with DDD of the Spine. Until my Decision in 2008, my pain was never mesured or even taken into consideration. Instead, the VA doctors used the term "signicant subjective complaints" and ignored the impact of the pain. They also ignored that fact that I had x-rays while still in the military showing degenitive arthritis which should have resulted in a 10% rating even though my ROM was at a innoncompensable rate.

It is my understanding that 38 CFR 4.40, 4.45, and 4.59 should have been firmly in place by the time my first C&P was decided in 2003.

Bill