63Sierra - New Member Looking For Guidance

[63SIERRA]

Troy I would like your opinion on a claim. I was in an on post car accident while on active duty. The civillian wife hit me in the rear with her car, into the back of my car at a redlight, she had break failure. her husband had did a not so good break job on thier car the day before. I was in alot of pain, and went on sick call. I was diagnosed initially with a fracture pars and spodylolysis and put in a back brace and put on a dead mans profile . I went back in a week, saw another doc, and he said back was broke, but not in accident. He put on the medical record . " old seat belt injury " with a question mark behind it. like he wasnt sure. So ok, I was on active duty for abt a year after that. with frequent visits to sick call with back pain complaints. all documented. So when my tour was up, I filed for several different contentions, with back condition as one of them. The va deny me in 1996 said the back condition know as pars defect, with sponylolisis is a congenital defect, and no related to millitary service. I didnt think to much of it at the time, burt recently started research. I looked thru my active duty medical records, and another doctor diagnosoed my back condition as spondylolysis thesis. I recently went to a chiropractor, and his diagnosis is L-5 spondylolisis thesis. He showed me the xrays and told me my back had been jacked up for a long time, and would take years to get results, and there basically were not alot of good options. He told me what happens is the pars bones, that hold the vertebre in thier proper alignment, can fracture from either blunt force inpact such as car accidents. or if they are weak for whatever reason. Then it lets the vertebre shift forward, out of alignment. Then u start getting nerves pinched an pain, such as I have now, and have been having since the accident while on active duty. So I sent the chiropractic diagnosis to the VA. I also sent a copy of the in service medical record where the doctor diagnosed me with spondylolysid thesis. Which is alot different that just spondylolysis. I had never had, nor complained of any back pain, or problems anytime before the on post car accident. I have had pain and problems with my back ever since the accident, and recieve pain meds from the va for it even now. So my questions are, being I filed for a back condition as a generic term, and the VA assigned the wrong diagnosis, and denied me on that wrong diagnosis,. do I have grounds for a CUE claim. ? if not, should I at least win my current appeal?

2. How can I find out, exactly what evidence the Va had at the time they adjudicated my claim , in other words, how can I find out if they had access to the medical slip where the doctor clearly wrote. " sponylolislis thesis. (I have sent the va a copy with my appeal, so they have it now, but I want to know if they had it then.

Edited September 16, 2013 by 63SIERRA

[63SIERRA]

So now.. how does this all come together, the army diagnosis is pars defect at L-4, Possible spine fracture at L-3, (CHRONIC), according to army doc, CONGENETAL, or DEVELOPMENTAL, , according to VA. and last but not least. civillian diag of L-5 grade 1 spondylolysis thesis. (sir your back has been jacked up for a long time) was chiropractors words. ,,

its enough to make my head spin. ,

[free_spirit_etc]

I am not sure it matters so much whether the car wreck caused it. Your records show you were in a car wreck and your back started hurting at the same time. Even if it was a coincidence - your record shows when your back started hurting you. It looks like they came up with chronic because the fracture showed on the xray, but not on the bone scan. From what I briefly read about bone scans, they show where the bone is trying to heal itself. So it looks like your bone was not trying to heal itself (i.e. older fracture). Again, from the BVA decisions I read - just saying the condition is congenital doesn't get the VA off the hook on the presumption of soundness issue. Even if they could show you had a predisposition for the disease,they have to prove that you did not aggravate the condition in service. It isn't like you walked onto base and complained of pain on day two of your military service. You had no problems for several years though you went through grueling training and had a job that required heavy lifting. And chronic doesn't necessarily mean congenital. It might just mean the fracture occurred before the wreck. But that seems to be one of the things about this condition. It looks like it is more common for it to fracture from repeated stress to the back, than from one direct blow. So no one can put their finger on precisely when the fracture occurred because it didn't occur all at once.

What I am wondering is - it seems like people can have the fracture without knowing it. So I am wondering if the fracture was there for quite some time (and possibly from some of the repeated stress on your back in the military) - and the car wreck caused the shift (which resulted in the chronic pain). That might be something to ask your doctor.

[free_spirit_etc]

"24 yo c/o LBP X 7 D s/p mvc. Plain films show selerotic Pars defect L4 and poss l3 spine fracture.Please eval for chronic vs acute."

Older injury

http://www.va.gov/vetapp12/Files5/1230755.txt

"Further, there appeared to be evidence of an "old" sclerotic pars defect at the L5 pars region in the lower lumbar region, with facet joint arthropathy. The examiner then opined:"

[carlie]

ok, heres the notes on the sick call report that the doctor wrote as his diagnosis.

under specific reasons for request

24 yo c/o LBP X 7 D s/p mvc. Plain films show selerotic Pars defect L4 and poss l3 spine fracture.Please eval for chronic vs acute.

ok now the radioligy report.

Limited bone scan dated dec 1993

after IV admin of 26 mci of ppm technetium, MDP, delayed images of the lumbsar spine and obliques of the anterior and posterior pelvis are obtained. These images demonstrate normal tracer uptake throughout the lumbar spine and anterior and posterior pelvis. no abnormal uptake suggestive of acute spondylolysis or of an acute L-3 vertebral compression fracture is seen.

Impression : Normal limited bone scan of the lumbar spine and anterior and posterior pelvis. This would suggest that the abnormalities seen on the patients radiograph is chronic rather than acute.

now this is confusing to me. I know what chronic means,. and I know what acute means. The way that the report reads to me, is that first he says everything is normal, then he says, that there are abnormalacies,found on xrays, but they are ongoing, and not a sudden incedent. how can it be both? To me thats like saying, sir, I find nothing wrong with you, but, your back conditon has been ongoing, not recent one time injury.. WTH???.

63,

The case below deals with hearing loss, I know that's not your issue but it explains quite

a bit on what chronic and chronicity means, for VBA purposes.

http://www.va.gov/vetapp13/Files1/1308473.txt

Laws and Regulations

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity.

A continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b).

Service connection may also be granted for bilateral hearing loss if manifested to a compensable degree within one year of separation from service provided the rebuttable presumption provisions of § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Evidence which may be considered in rebuttal of service incurrence of a disease listed in 38 C.F.R. § 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease. 38 C.F.R. § 3.309(d).

Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992).

A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307©; Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991).

Impaired hearing will be considered to be a disability for VA compensation purposes only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155 (1993).

Recently, in Walker v. Shinseki, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). While the issue addressed in Walker was entitlement to service connection for hearing loss, and the Federal Circuit denied the application of continuity of symptomatology as a method to support service connection for issues not recognized as "chronic" by 38 C.F.R. § 3.309(a), it has been the position of the VA that "sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)." M21-1MR III.iv.4.B.12.a. Thus, when chronicity of a condition noted in service is not adequately supported, the Veteran may support a service connection claim for sensorineural hearing loss by providing competent and credible evidence of continuity of symptomatology after discharge. Here, there are few in-service treatment records, and those available do not include notations regarding hearing loss.

[free_spirit_etc]

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1681553/

article on seat belt fractures. Ironically, these are called Chance type seat belt fractures, even if they are not caused by seat belts. It is a rare kind of fracture that was discovered by a doctor named Chance - and they are most common in people who were wearing a lap type seat belt only. But even if the fracture is caused by a fall, they still refer to it as a Chance fracture, or seat belt fracture because of the type of fracture it is, more than what the cause was.

So the doctor probably noted that it your chart because he thought there was a possibility of it (hence the question mark), but he later diagnosed you with something else.

I think it will be helpful for you to get your current doctor to write you a nexus letter on this one - and connect all the dots for them. He should be able to point out whether it was caused by military service, or aggravated by military service. Without a nexus letter, they might try to wiggle out again and just call it congenital (and overlook the fact that your were not only presumed sound when you entered the military, you also did a lot of work that put a lot of strain on your lower back for several years.).

[free_spirit_etc]

"The condition identified as pars defect L4 with spondylolysis is considered congenital or developmental defect which is unrelated to millitary service and not subject to service connection."

Did they even get you a C&P for this? It seems like the fact that there are various types of spondylolysis, with only one of them being congenital, they would have to have a doctor say it was congenital before they could deny on this basis.