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

[free_spirit_etc]

I grew up on a dairy farm. We had REAL milk.

[63SIERRA]

here is an interesting case

http://www.va.gov/vetapp03/files/0302472.txt

[63SIERRA]

so in a nutshell. it looks like according to veterans law, all that has to take place is the reasonable belief, that advancement of the condition of spondylolysis or spondylolysis thesis occured while on active duty.., whether it was pre existing or not, does not seem to matter. Its almost like the law says.. If you take a human being, who has no obvious conditions, that can be documented, and put him or her into service, .. if anything gets worse in that humans health,other than natural progression .. you must compensate.

[free_spirit_etc]

63Sierra,

This is a claim about another condition http://www.va.gov/vetapp13/Files2/1314707.txt - but it does discuss the differences between developmental disease and developmental defects in a way that helps clarify what the VA considers both of those to be.

I am still thinking that you are supposed to be granted the presumption of soundness - where it is up to the VA to show that you were NOT sound upon entering the service. Since there are different causes for your condition, I don't think the RO merely stating it was congenital, without so much as a medical opinion indicating that it was to rise to the level of what the VA must do to rebut soundness. And again, I think if the military doctors who treated you thought you had a congenital condition that would make you prone to injury they would have been moving to get you out of the military as fast as they could. In most decisions involving congenital conditions noted in service you also see the terms Medical Board.

It is interesting that they said "There were no medical records submitted to establish that the veteran had anything other than a congenital or developmental abnormality which means the veteran was either born with this condition or it developed naturally ."

As you should have been presumed sound - it shouldn't be up to prove that you were sound. It is up to them to prove that you weren't sound.

With that being said -- I think it would be in your best interest to continue to review BVA decisions on the condition to see what reasoning was used in both the claims that were denied and the claims that were granted - so you can make sure all the bases are covered in your evidence. Make a note of the reasoning used in the decisions so you can make sure those are covered in the IMO.

I would recommend that you submit an IMO -- and not count on the VA to provide you with an exam that will result in a supporting opinion.

But I wouldn't rush getting an IMO. I would make sure that you know what will be required to make sure your bases are covered on the reasons similar claims are denied.

Hoppy posted a great post in here - and he is FAR more knowledgeable about these kinds of claims than I am. He has fought and won some very complex issues with the VA. And your case is such that though you have strong evidence, the type of condition you have is such that it can give the VA some wiggle room to get around it if you aren't prepared to plug up the holes they will use to wiggle out.

And we certainly want to see you posting in the Success Stories thread!!!

I am hoping that there will be a way to present it where this in-service diagnosis (that they said you didn't have) will help prove the claim in a way that you can go for an earlier effective date when granted.

I would try to stay away from CUE if I could though.. since the burden of proof is more stringent. But hopefully you will be able to use the fact that there were service medical records that were missing from the file.

I don't think I would push to argue that the VA had those records and ignored them. I think you might be better to just agree that they must not have been part of the record - and now that you have submitted them and they ARE part of the record - you should get an earlier effective date because they should have been part of the record when the claim was initially decided.

I am not sure if it would be better to argue that case now -- that you aren't reopening the claim - you are asking that it be readjudicated now that the missing SMRs are of record -- or whether to wait and go for SC first and then go for an earlier effective date. I would be prone to say go for SC first. But there are people here who know a lot more about that stuff than I do.

[free_spirit_etc]

By the way - have you looked at the rating schedules and seen what % of rating your disability would probably be?

[free_spirit_etc]

You really need to get past the congenital defect aspect:

http://veteranclaims.wordpress.com/2011/03/21/single-judge-application-c-f-r-3-63-presumption-of-soundness-clear-and-unmistakeable-evidence/

The presumption of soundness applies to congenital diseases that are not noted at entry. Monroe v. Brown, 4 Vet.App. 513, 515 (1993). “The presumption of soundness does not, however, apply to congenital defects, because such defects ‘are not diseases or injuries’ within the meaning of 38 U.S.C. §§ 1110 and 1111.” Quirin, 22 Vet.App. at 397; see 38 C.F.R. § 3.303© (2009); see also Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects).

Yep! An IMO will really help!

Edited October 2, 2013 by free_spirit_etc