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 I wonder being im at 60 percent now, if they do approve my back claim for 30, would I get back pay of 30 percent schedule, or would they add the 30, to my 60 and pay me in VA FUZZY math at around 70? Also if I were to win a CUE back to 95 how would it work I wonder. Because that is what I think is going to happen based on what im reading.

The va did not have the evidence to call my condition CONGENITAL. They intentionally omitted the diagnosis of THESIS, in order to fit thier non compensatable label. The evidence was there, and they chose to take the low road, and not the high road.

Either that, or everybody and thier brother is wrong abt my case except them. The RO are not medical experts, and are not supposed to make diagnosis, they are supposed to weigh and process evidence. They made a diagnosis by saying I had a congenital defect, when nobody else did . WTH?

Edited October 3, 2013 by 63SIERRA

[free_spirit_etc]

http://search.uscourts.cavc.gov/isysquery/4fd47d42-ed47-4302-a5a6-9835835f7faf/4/doc/

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4643
ROBERT A. MONTCLAIR, III, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Robert A. Montclair, III, appeals through counsel a November 30, 2009, Board of Veterans' Appeals (Board) decision denying entitlement to VA
benefits for a low back disabilityand for a right hip disability, including as secondaryto his low back disability. Record(R.) at 3-13. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the November 2009 Board decision. Because the Board failed to provide an adequate statement of
reasons or bases for its decision, the Court will vacate the November 30, 2009, Board decision and remand the matter for further development and readjudication consistent with this decision.
I. FACTS
Mr. Montclair served on active duty in the U.S. Marine Corps from June 1987 to December 1988.Prior to entering service, in September 1983, Mr. Montclair was diagnosed with spina bifida and sought treatment on numerous occasions for low back pain resulting from sports injuries. Spina bifida is "a developmental anomaly that is a kind of neural tube defect, characterized by defective closure of the vertebral arch, through which the spinal cord and meninges may protrude." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1773 (31st ed. 2007) [hereinafter DORLAND'S]. However, upon entrance into the military, Mr. Montclair's spine was evaluated as normal and he reported no history of recurrent back pain. Mr. Montclair's subsequent service treatment records reflect numerous complaints of low back pain, which he attributed to a football injury sustained before service. In September 1988, a military medical board diagnosed Mr.
Montclair with mechanical low back pain and spondylolysis and recommended that he be medically discharged. Following his discharge from service, Mr. Montclair filed a claim for VA benefits for a low back disability. In February 1989, Mr. Montclair sought treatment for chronic low back pain and reported that he had "some defect he was born with" that "was missed on initial entrance exam[ination]." R. at 226. He also stated that he developed "constant, dull, burning" pain in his
lower back shortly after he jumped off a cliff in service and landed on a rock. Id. The VA physician diagnosed Mr. Montclair with spondylolysis and a probable congenital defect of the spine. In May 1989, a VA regional office denied his claim for benefits because it found that his low back condition was a congenital defect. In December 1990, the Board issued a decision denying his claim. Mr. Montclair did not appeal that decision and it became final.

In August 2000, Mr. Montclair was granted a work release from his job in a coal mine after injuring his back operating a piece of heavy machinery. In August 2002, he requested that VA reopen his claim for benefits for a low back disability, but the regional office declined to do sobecause it found that he had not submitted any new and material evidence. Mr. Montclair filed a timely Notice of Disagreement with that decision, arguing that his low
back disability was aggravated in service. In November 2003, the regional office reopened Mr. Montclair's claim because it determined that he had submitted new and material evidence " with respect to the prospect that [his] previously existing condition may have permanently advanced beyond its natural progression as the result of [his] military service." R. at 335. However, after considering that evidence, the regional office continued to deny his claim and Mr. Montclair subsequently appealed that decision. In March 2007, the Board issued a decision remanding his claim for a VA medical opinion regarding the nature and etiology of his low back disability.

In the meantime, Mr. Montclair was hospitalized in July 2005 for back pain resulting from a motor vehicle accident. He also sought further treatment for his low
back disability in March 2008 and a magnetic resonance image revealed mild narrowing and moderate degenerative changes of the last vertebral disc in his lumbar spine. In February 2009, Mr. Montclair underwent spinal fusion surgery with a laminectomy. Following the procedure, he was diagnosed with congenital
spondylolysis and congenital spondylolisthesis. In June 2009, Mr. Montclair underwent a VA medical examination pursuant to the Board's March 2007 remand order. The examiner noted that Mr. Montclair injured his lower back in 1984 while playing high school football and a private physician diagnosed him at that time with spina bifida. The examiner also acknowledged that Mr. Montclair "fell down an embankment" in servicein May 1988 and that a bone scan performed in August 1988 was normal. R. at 79. The examiner then addressed the question of whether Mr. Montclair's low back disability was a congenital or developmental defect or represented acquired pathology: Based upon the fact that a bone scan [three months] after the [in-service-] injury of May 1988 was normal, this would be a congenital/developmental defect. Had the spondylolysis been an acute fracture, the bone scan would have been positive. In addition, this defect was probably noticed in 1984, but called a spina bifida occulta. R. at 80.

Based on the results of that VA medical examination, the Board issued the November 2009 decision currently on appeal, which denied Mr. Montclair's claims for
benefits for a low back disabilityand a right hip disability, claimed as secondaryto his low back disability. Specifically, the Board explained that because no low back disability was noted upon his entrance into service, Mr. Montclair was entitled to the presumption of sound condition. However, the Board determined that the presumption of soundness was "rebutted" because "there indeed is clear and unmistakable evidence that [Mr. Montclair's] chronic back disability pre-existed [his] service," including pre-service x-rays showing spina bifida and the June 2009 VA medical opinion explaining that his currently diagnosed spondylolysis was a congenital or developmental defect. R. at 11. The Board alsofound that there was clear and unmistakable evidence that service did not aggravate his low back
disability because the evidence of record "reflected an acute exacerbation, and not a chronic increase in disability." R. at 12. In addition, because the Board denied Mr. Montclair's claim for benefits fora low back disability, it also determined that he was not entitled to benefits for his right hip disability, claimed as secondary to his low back disability.

II. ANALYSIS
A. Low Back Disability
1. Congenital Disease or Defect
Mr. Montclair first argues that the Board's statement of reasons or bases for its decision is inadequate because it failed to consider whether his low back disability was a congenital disease as opposed to a congenital defect. Appellant's Brief (Br). at 6-7. The Court agrees."[C]ongenital diseases, but not defects, may be service connected." Quirin v. Shinseki, 22 Vet.App. 390, 394 (2009); see also Winn v. Brown, 8 Vet.App. 510, 516 (1996) (holding that"non-disease or non-injury entities such as congenital defects" are not " disabilities" within the meaning of 38 U.S.C. § 1110, which outlines basic entitlement to VA disability compensation);
38 C.F.R. § 3.303© (2011) (stating that congenital or developmental defects "are not diseases or injuries" for VA disability compensation purposes). In Quirin, the Court explained that "a defect differs from a disease in that the former is 'more or less stationary in nature' while the latter is 'capable of improving or deteriorating,'" and stated that "any worsening–any change at all–might demonstrate that the condition is a disease." 22 Vet.App. at 394-395 ( quoting VA Gen. Coun. Prec. 82-90 (July 18, 1990) [hereinafter G.C. Prec. 82-90]). In rendering its decision, the Board is required to provide a written statement of the reasons or bases for its "findings and conclusions[] on all material issues of fact and law presented on the record." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Board may commit error requiring remand when it fails to provide an adequate statement of its reasons or bases. See Gilbert, 1 Vet.App. at 57.

In the instant case, the Board did not acknowledge or explain the "important difference" between a congenital disease and defect and did not consider whether Mr. Montclair's low back condition was mutable or static. Quirin, 22 Vet.App. at 394. Rather, the Board determined, without explanation, that Mr. Montclair's low back disability was a congenital defect, despite evidence that his back condition substantially deteriorated over the years.For example, medical records indicate that Mr. Montclair's low back disability, which was asymptomatic upon entry into the military, worsened throughout service to the point that he was recommended for a medical discharge and eventually led to spinal fusion surgery with a laminectomy. The Board's failure to address this potentially favorable evidence, as well as its failure to otherwise explain its determination that Mr. Montclair's low back disability was a congenital defect, frustrates judicial review and therefore renders its statement of reasons or bases inadequate. See Caluza, 7 Vet. App. at 506; Gilbert, 1 Vet.App. at 57. In such a situation, vacatur and remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (stating that remand is the appropriate remedy where the Board failed to provide an adequate statement of reasons or bases).

In addition, Mr. Montclair asserts that the June 2009 VA medial opinion " did not attempt to distinguish between the two medical concepts [of a congenital disease and defect], nor was [the examiner] asked to do so by VA." Appellant's Br. at 6. The Court agrees. The March 2009 VA examination request instructed the examiner to "opine whether[Mr. Montclair's low backdisability] is a congenital/developmental defect or represents acquired pathology." R. at 81. This request, by

its very terms, directed the examiner to select one of two mutually exclusive alternatives, neither of which included a congenital disease. In other words, VA instructed the examiner to classify Mr. Montclair's low back disability as a congenital defect if it was determined to be congenital, or as an acquired condition if it was not. Unsurprisingly, the examiner, operating within this improperly limited framework, determined that Mr. Montclair's low back disability was a congenital defect because a bone scan following his injury in service did not reveal an acute fracture–i.e., evidence of an acquired condition–and because "this defect was probably noticed in 1984"–i.e., evidence of a congenital condition. R. at 80. Because this examination request precluded the examiner from finding that Mr. Montclair's low back disability was a congenital disease, the Court concludes that the Board erred in relying on the June 2009 VA medical examination to determine that Mr. Montclair's low back disability was a congenital defect. See Austin v. Brown, 6 Vet.App. 547, 551-
52 (invalidating a VA medical examination because it was not "procured by [ VA] in an impartial, unbiased,and neutral manner,"in that the examination request
suggested a predetermined outcome).

Accordingly, on remand the Board must provide Mr. Montclair with a medical opinion to determine whether his low back disability is a congenital disease or a defect. See Quirin, 22 Vet.App. at 395 (explaining that an examiner's determination of whether a condition is a congenital disease or defect "must be supported by 'guidance from medical authorities regarding the proper classification of [the] medical condition at issue.'" (quoting G.C. Prec. 82-90)). In its examination request, the Board must explain the distinction between a congenital disease and congenital defect as stated above.

2. Presumption of Soundness
Although Mr. Montclair also argues that the Board's statement of reasons or bases is inadequate because the Board "has not pointed to clear and unmistakable
medical evidence that [his low back disability] was not aggravated by service," the Court need not address this argument because the Board will necessarily provide a new statement of reasons or bases for its decision when it readjudicates his claim on remand. Appellant's Br. at 8-9. However, because the Board improperly applied the presumption of soundness to Mr. Montclair's claim for benefits for a low back disability, which it determined was a congenital defect,
the Court feels compelled to clarify the presumption's application to congenital conditions. Notably,the "presumption of soundness does not . . . 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 also Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003); Winn, 8 Vet.App. at 516. Therefore, if the Board determines on remand tha tMr. Montclair's low back disability is a congenital defect, the presumption of soundness would not apply and the Board must instead consider whether he suffered from any superimposed pathology for which service connection may be awarded. See G.C. Prec. 82-90. The Court notes that the Board previously determined that "an injury in service caused an acute exacerbation of low back symptoms in service," but found that "no evaluation [in service], or since, has identified any low back pathology that was superimposed on the pre-existing low back disability during service." R. at 11.
If, on the other hand, the Board determines that Mr. Montclair's low back disability is a congenital disease, the presumption of soundness would apply unless rebutted by clear and unmistakable evidence that his low back disability preexisted service and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Monroe v. Brown, 4 Vet.App. 513, 515 (1993). In other words, in the case of a congenital disease, the presumption of soundness applies as it would for any acquired condition. See Quirin, 22 Vet.App. at 396-97.

B. Right Hip Disability

Because the Court is remanding Mr. Montclair's claim for benefits for a low back disability, the Court concludes that remand is also warranted for his claim for benefits for a right hip disability, claimed as secondary to his low back disability, because the two claims are inextricably intertwined.
See Smith v. Gober,236F.3d1370,1372(Fed.Cir. 2001) (explaining that where the facts underlying separate claims are"intimately connected," interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); 38 C.F.R. § 3.310(a) (2011) (stating that secondary service connection is awarded when a disability "is proximately due to or the result of a service-connected disease or injury").

III. CONCLUSION
Upon consideration of the foregoing, the November 30, 2009, Board decision
is VACATED
and the matter is REMANDED for further development and readjudication
consistent with this
decision.
DATED: July 13, 2011
Copies to:
Peter J. Meadows, Esq.
VA General Counsel (027)

The Court acknowledges that spina bifida is defined in at least one medical dictionary as a "neural tube defect." DORLAND'S at 1773 (emphasis added). That medical dictionary defines "defect" as "an imperfection, failure, or absence."Id. at 484. Such a broad definition of "defect" is incompatible with the specific meaning of that term of art as it is used for VA disability compensation purposes, as explained above, and the Court concludes that it is not dispositive of the issue at hand. See Winn, 8 Vet.App. at 516 (rejecting a similarly broad dictionary definition of "defect" as incompatible with the statutory scheme for awarding VA benefits); cf. Sullivan v. Stroop, 496 U.S. 478, 483 (1990) ("[W]here a phrase in a statute appears to have become a term of art, . . . any attempt to break down the term into its constituent words is not apt to illuminate its meaning."). The Court also notes that the June 2009 VA medical opinion casts doubts on the propriety of the initial diagnosis of spina bifida. See R. at 80 ("[spondylolysis] was probably noticed in 1984, but calleda spina bifida occulta.").

A laminectomy is "excision of the posterior arch of a vertebra." DORLAND'S at 1017.

Spondylolisthesis is "forward displacement . . . of one vertebra over another, . . . usually due to a developmental defect. . . ." DORLAND'S at 1779.

Spondylolysis is "dissolution of a vertebra." DORLAND'S at 1780.

[free_spirit_etc]

"So I wonder being im at 60 percent now, if they do approve my back claim for 30, would I get back pay of 30 percent schedule, or would they add the 30, to my 60 and pay me in VA FUZZY math at around 70?"

I imagine it would be fuzzy math. What are your percentages for now?

[63SIERRA]

Have you looked at asknod's book? http://www.amazon.com/Veterans-Administration-Claims-What-Successful/dp/1477139516

I wish I would have read it LONG before I got to the BVA level.

just bought the book for kindle for pc, going to read it a few times.

[free_spirit_etc]

Now here is something interesting:

http://search.uscourts.cavc.gov/isysquery/b4d554df-a5f0-4ff8-91cc-0966251ca3ba/8/doc/

On September 28, 1965, an X ray was taken that revealed spondylolysis of the par interarticularis but no spondylolisthesis. R. at 6. Spondylolysis is not the same disorder as spondylolisthesis. Spondylolysis is defined as a "dissolution of a vertebra; a condition marked by platyspondylis, aplasisa of the vertebral arch, and separation of the pars interarticularis." Dorland's at 1567. Platyspondylis is a "congenital [present at birth] flattening of the vertebral bodies," Id. at 111, and aplasia is a "lack of development of an organ or tissue, or of the cellular products from an organ or tissue." Id. at 1308.

When you research spondylosis, there is a wealth of information that while it can be congenital, it most often has other causes. But the VA goes by Dorland's which says it is marked by platyspondylis - which is congenital (present at birth).

BUT when you google the words platyspondylis and spondylolysis MOST of the sites that come up are BVA decisions. So it is like one person in the VA copied that from the medical dictionary and now the VA just copies it over and over and over again in their decisions.

But it seems interesting that no medical sites come up when you search for those two terms; but tons of VA decisions do.

Oh... and here is a very nice site about spondylosis and spondylosisthesis. http://www.chirogeek.com/005_Spondylolisthesis_main_final.htm

[63SIERRA]

"So I wonder being im at 60 percent now, if they do approve my back claim for 30, would I get back pay of 30 percent schedule, or would they add the 30, to my 60 and pay me in VA FUZZY math at around 70?"

I imagine it would be fuzzy math. What are your percentages for now?

I get 40 percent for resids of hep c, and 30 for kidney cancer due to hep c. there was intense study done by a medical university, that shows a person who had hepc, has a tremendously higher chance of developing kidney cancer. I had my right kidney and adrenal gland removed. I found the information online and the DAV submitted it and I won it. The DAV knew nothing of the connection between kidney cancer and hep. They jumped on it like a badger on a field mouse though.