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

[Hoppy]

"I also have in service medical records that state I had pain shooting down the back of my legs, and back pain, .. as far as I know, nerves getting pinched because the spine is out of alignment . or other skeletal issues, that pinch the nerves, cause pain to shoot down the legs, not muscle strain. so that is another good piece of evidence I believe I have."

These are all symptoms consistent with spondylolisthesis.

The question arises whether or not it is a condition you were born with or due to trauma. Considering you were in a car accident the trauma must be considered as a possible cause. Did the in service records say it was something you were born with or due to trauma. It the condition was not specifically cited as a birth condition with full supporting logic then they really blew it if you were denied without a C&P. Also consider is it really possible to tell the difference between the condition (symptoms) a person is born with and the traumatic condition after the trauma might have occurred.

"I submitted an in service medical slip where a doctor wrote " sponsylolysis theses on the slip, indicating my back was worse than a muscle strain. "

It appears that the RO once again used the wrong evidence when they denied the claim. Spondylolisthesis can be diagnosed with just a xray. If it was diagnosed in service with an xray this would be very strong evidence. It can also be diagnosed based on subjective history when a car accident is involved. However, this is not as strong. It might be very easy for a doctor to write an opinion that given the history of the car accident and the symptoms noted in service and the xray confirmation at this time it is as likely as not your current condition is related to the car accident.

You have now told the VA you had a diagnosis of spondylolisthesis in service and now you have a post service diagnosis of spondylolisthesis. Those are two of three elements to get service connected. The third element is you must get a nexus statement.

The fact that you can show the existence of the exit exam may get you a C&P. They would address nexus in the C&P. However, I am familiar with a case in which the veteran had both an in service diagnosis and a post service diagnosis and evidence showing adjuducational errors and the VA refused to schedule a C&P for five years. In fact they never did schedule a C&P and the veteran got his on IMO. You cannot count on the VA as you have already been finding out. My suggestion is that you get together with your SO and work on an IMO addressing nexus statement from a qualified clinician. Then submit the nexus as new and material. Do not forget my comments on how back conditions are rated and go over the rating schedule to insure you are rated properly.

http://www.medicinenet.com/spondylolisthesis/page2.htm#what_are_the_symptoms_of_spondylolisthesis

1. Dysplastic spondylolisthesis: Dysplastic spondylolisthesis is caused by a defect in the formation of part of the vertebra called the facet that allows it to slip forward. This is a condition that a patient is born with (congenital).

2. Isthmic spondylolisthesis: In Isthmic spondylolisthesis, there is a defect in a portion of the vertebra called the pars interarticularis. If there is a defect without a slip, the patient has spondylolysis. Isthmic spondylolisthesis can be caused by repetitive trauma and is more common in athletes exposed to hyperextension motions including gymnasts, and football linemen.

3. Degenerative spondylolisthesis: Degenerative spondylolisthesis occurs due to arthritic changes in the joints of the vertebrae due tocartilage degeneration. Degenerative spondylolisthesis is more common in older patients.

4. Traumatic spondylolisthesis: Traumatic spondylolisthesis is due to direct trauma or injury to the vertebrae. This can be caused by afracture of the pedicle, lamina or facet joints that allows the front portion of the vertebra to slip forward with respect to the back portion of the vertebra.

5. Pathologic spondylolisthesis: Pathologic spondylolisthesis is caused by a defect in the bone caused by abnormal bone, such as from atumor.

What are the complications of spondylolisthesis?

Complications of spondylolisthesis include chronic pain in the lower back or legs, as well as numbness, tingling or weakness in the legs. Severe compression of the nerve can cause problems with bowel or bladder control, but this is very uncommon.

[free_spirit_etc]

I am not sure that the traumatic spondylolisthesis would be the way to go. If I recall correctly, the fracture showed up on the xray after the accident - but when they did the bone scan, it didn't show up - So the doctor said he had a fracture, but it didn't happen as the result of the car wreck. The fracture had already been there. But this condition can also result from a lot of repetitive strain - So you still have the fact that he was okay going into service - at some point his back was fractured - but he continued to do lots of heavy lifting with no problem - and after the car wreck he began having chronic pain. So maybe the car wreck was the last straw, so to speak.

[free_spirit_etc]

"I KNOW they had the exit exam in thier hands, because they had to have a copy, to copy the front page,..the dipshidts didnt copy the back of the ame document, that showed the ongoing back injury. so they had the document in thier hands, whehter they just neglected to copy the back, or threw the back away, i the question."

When I got my husband's c-file, they only gave me the first half of the doctor's opinion that was used to deny my claim. It took me forever to get the back page. Every time I asked for it - they kept telling me I had to give them the date it was written and the name of the doctor. I kept telling them I didn't have that information - as that was on the part of the opinion I didn't get. It seemed easy to me. You got a medical opinion. That opinion was used to deny my claim, I want a copy of THAT opinion. But we went round and round.

Finally, Berta posted an email for a group that serves as advocates or something for survivors. I emailed them. They forwarded the request - and within a few DAYS I got another copy of the C-file (which did have the whole opinion). They also informed me if I requested any more copies of the C-file I would be charged. Uhmmm I didn't request another copy of the whole file. I requested the back page of one opinion.

If they did not use the back page of your exit exam - you can always see about going for an earlier effective date, based on service records that were missing from your file when they made the initial decision.

[Hoppy]

Free and 63sierra

This is a really long thread and I am not sure where you are finding the statement that the doctor said it was not caused by the car accident. However, whether or not it was caused by the car accident is not the real issue. This issue would be was it a condition he was born with or otherwise predated service. The presumption of soundness is hard to rebut. Saying it was not caused by the car accident is not the same as saying it predated service. If it is a condition of unknown cause or unclear cause and he was diagnosed in the military then they are stuck with it. If it is a traumatic condition and they cannot prove the trauma predated service then they are stuck with it.

I would not trust a military doctor on an issue of cause when it comes to a back condition a systemic disease or a mental condition. The military doctors have their own agenda to reduce the govt’s. liability. I was told that my angioedema predated service and it could not be service connected by a military doctor. It states it on my discharge exam. However, this was a bare conclusion unsupported by any known evidence or medical principals. It took me 25 years to figure out they lied. My IMO stated that my angioedema was of unknown etiology. The doctor who wrote the IMO was the head of immunology at a VA hospital for 25 years. He elaborated that at the time of discharge no tests confirmed any known etiology. Thus, the determination that the condition predated service was speculation. If that same immunologist had been the guy writing my discharge exam I would have been SC’d at discharge.

If it were me I would definitely get an IMO that addresses the etiology of the spondylolisthesis.

[Hoppy]

Another thought. Doctors will advance an opinion without telling you the foundation to their opinion. Many times it is just theory. So the doctor says the xray showed the condition and the bone scan did not. The doctors conclusion is that the problem was not caused by the car accident. This sounds like supporting logic. However, it is just one deeper layer of theory. Is the doctors conclusion supported by medical research? Is it supported by clinical trials?

[free_spirit_etc]

Hoppy,

I think the doctor's opinion was initially that the pars was fractured. But then he said that it was not fractured then. The SOC said the bone scan didn't show the fracture. I did a tiny bit of research and it looks like when the fracture shows up on the xray, but not on the bone scan, that means it is an older fracture. The bone scan shows fractures that are healing. If it isn't showing up, it shows the fracture was already healed.

I definitely agree this should be a SC case -- but I just think hanging his hat on the idea that the car wreck caused the fracture might not help, because the VA doctor could easily refute that.

From what I read, most of these kinds of fractures are caused by compression fractures. It is not one blunt trauma - but a serious of tiny little repetitive traumas over time. I think he has an excellent case for the presumption of soundness. He served several years and had a job handling lots of heavy equipment with no back pain what-so-ever. So it would be hard to say the fracture predated service. I don't think they know when the fracture occurred, but they did say it was not from the car wreck - because the tests showed it was already healed. But it is common for this condition for a bunch of fractures to occur over time without the person knowing it. I think it would be hard for the VA to refute the presumption of soundness, because he did a lot of heavy duty stuff for several years with no problem.

The only BVA claims I saw where they denied the claim based on pre-service condition was one where the person was only on active duty for a few weeks before having a problem, and another where when they looked at the veteran's older medical records they clearly showed the veteran had been injured in a car wreck and diagnosed with the condition as a child.

The facts of the case are in the veterans favor. He had no back pain even while doing lots of heavy work until the car wreck. He has had chronic back pain since that time. Even if the VA would continue to try to say the condition was congenital, he could still show it was aggravated in service - especially since it caused him no problems until the car wreck. Several of the BVA claims I read (which were granted) the doctors had stated that it is not just a congenital defect. It takes both the predisposition AND the repetitive injuries to cause it. If the repetitive injuries occurred in service - that should be aggravation - if not outright cause.

I totally believe he has a great case. I just worry about counting on the car wreck being the cause.

BUT -- there are really two conditions - spondylolis and spondylolisthesis. Spondylolisthesis is when the vertebrae have shifted. He was already diagnosed with that in service - and that is one of his disagreements is that the VA said he was only diagnosed with spondylolis.

I am wondering if that is where the car wreck might very well come into play. If he already had the fracture from the spondylolis, would the trauma from the car wreck have possibly caused the already weakened vertebrae to shift, creating the spondylolisthesis.

I am not a doctor - but it sure seems like that might explain why he started experiencing the chronic pain after the car wreck.

But I agree, the bottom line is that his back didn't hurt when he entered the military. His back didn't hurt through most of his military service, despite heavy lifting and physically demanding work. His back started hurting while he was in the military. He had a medical condition diagnosed while he was in the military that diagnosed what was causing his back pain. And his back has continued to hurt since that time. Sounds like SC to me.