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]

Here you go! They called the spondylolysis congenital (based on the medical dictionary...hmmm) but noted that the spondylolysisthesis was a superimposed injury.

http://www.va.gov/vetapp03/Files/0316212.txt

Citation Nr: 0316212
Decision Date: 07/17/03 Archive Date: 07/22/03

DOCKET NO. 97-10 210 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida


THE ISSUE

Entitlement to service connection for a chronic low back
disorder.


REPRESENTATION

Appellant represented by: The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L.A. Howell, Counsel


INTRODUCTION

The veteran served on active duty for 23 years and retired in
March 1996.

This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida, which denied the claim on appeal.


FINDINGS OF FACT

1. VA has made all reasonable efforts to assist the veteran
in the development of the claim and has notified him of the
information and evidence necessary to substantiate his claim.

2. The veteran entered military service with a congenital
defect of the spine, spondylolysis.

3. He sustained multiple back injuries during 23 years of
active duty and was treated on several occasions for
lumbosacral strain. Radiology reports reflect diagnoses of
spondylolysis with grade I spondylolisthesis at L4-L5.

4. A post-service X-ray report shows spondylolisthesis with
probable spondylolysis at L4-L5.

5. A current back disability resulted from a pre-existing
defect of the back, which was subject to superimposed injury
during service.


CONCLUSION OF LAW

Resolving reasonable doubt in favor of the veteran, a chronic
low back disorder was incurred in or aggravated by military
service. 38 U.S.C.A. §§ 1110, 1111, 1113, 1131, 1153,
5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306
(2002); VAOPGCPREC 82-90 (July 18, 1990).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran contends, in essence, that he is entitled to
service connection for a low back disorder. At a personal
hearing in August 2000, he maintained that he had no problems
with his back prior to entering the military, that he injured
his back in July 1982, and that he has continued to
experience back pain since the time of the injury.

Relevant Law and Regulations. Under the relevant law and
regulations, service connection may be granted for a
disability resulting from disease or injury incurred in or
aggravated by active service. 38 U.S.C.A. §§ 1110, 1131
(West 2002). If a chronic disease is shown in service,
subsequent manifestations of the same chronic disease at any
later date, however remote, may be service connected, unless
clearly attributable to intercurrent causes. 38 C.F.R. §
3.303(b) (2002). However, continuity of symptoms is required
where the condition in service is not, in fact, chronic or
where diagnosis of chronicity may be legitimately questioned.
38 C.F.R. § 3.303(b) (2002).

Further, service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 U.S.C.A. § 1113(b) (West
2002); 38 C.F.R. § 3.303(d) (2002). The Board must determine
whether the evidence supports the claim or is in relative
equipoise, with the appellant prevailing in either case, or
whether the preponderance of the evidence is against the
claim, in which case, service connection must be denied.
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Moreover, a veteran is presumed to be in sound condition at
entrance to service except for disorders noted at entrance or
where clear and unmistakable evidence rebuts the presumption
of sound condition for disorders not noted at entrance.
History provided by the veteran of the pre-service existence
of conditions recorded at the time of the entrance
examination does not, in itself, constitute a notation of a
pre-existing condition. 38 U.S.C.A. § 1111 (West 2002); 38
C.F.R. § 3.304(b)(1) (2002); Paulson v. Brown, 7 Vet. App.
466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995).
A pre-existing injury or disease will be considered to have
been aggravated by service where there is an increase in the
disability during service, unless there is a specific finding
that the increase is due to the natural progression of the
disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306
(2002).

Clear and unmistakable evidence (obvious or manifest) is
required to rebut the presumption of aggravation where the
pre-service disability underwent an increase in severity
during service. This includes medical facts and principles
that may be considered to determine whether the increase is
due to the natural progression of the condition. Aggravation
may not be conceded where the disability underwent no
increase in severity during service on the basis of all the
evidence of record pertaining to the manifestations of the
disability prior to, during, and subsequent to service. 38
U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2002).
Moreover, "temporary or intermittent flare-ups of a pre-
existing injury or disease are not sufficient to be
considered aggravation in service unless the underlying
condition, as contrasted to symptoms, is worsened." Hunt v.
Derwinski, 1 Vet. App. 292, 297 (1991). However, the
increase need not be so severe as to warrant compensation.
Browder v. Derwinski, 1 Vet. App. 204, 207 (1991).
Nonetheless, silence of the record on this point may not be
taken as indication of no aggravation, an opinion must be
provided. See Verdon v. Brown, 8 Vet. App. 529 (1996); Wisch
v. Brown, 8 Vet. App. 139 (1995). Further, such medical
questions must be addressed by medical experts. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).

Next, congenital or developmental defects are not considered
diseases or injuries under the law. 38 C.F.R. § 3.303©.
Service connection may be granted for diseases (but not
defects) of congenital, developmental or familial origin if
the evidence as a whole shows that the manifestations of the
disease in service constituted "aggravation" of the disease
within the meaning of applicable VA regulations. VAOPGCPREC
82-90 (July 18, 1990); 38 C.F.R. §§ 3.303©, 3.306 (2002).
With regard to congenital or developmental defects, service
connection may not be granted for a defect, although service
connection may be granted for a disability which is shown by
the evidence to have resulted from a defect which was subject
to a superimposed disease or injury during service. See
VAOPGCPREC 82-90 (July 18, 1990). The Board must determine
whether the evidence supports the claim or is in relative
equipoise, with the veteran prevailing in either case, or
whether the preponderance of the evidence is against the
claim, in which case, service connection must be denied.
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

As an initial matter, the Board finds that no pre-service
medical records are associated with the claims file. The
veteran has testified that he had no problems with his back
prior to military service. Further, it is undisputed that
the veteran's March 1973 entrance examination did not mention
a pre-existing back disorder and the clinical evaluation of
his spine was normal. For that reason, he is entitled to the
presumption of soundness. Nonetheless, even finding that the
presumption of soundness attached at the time of induction,
the Board finds, by clear and unmistakable evidence, that the
veteran suffered from a pre-existing, congenital low back
disorder (spondylolysis) prior to his entry into military
service.

Specifically, at the time of his initial back injury in June
1982, he was diagnosed with "spondylolysis and first degree
spondylolisthesis at L4-L5." As a matter of judicial
notice, spondylolisthesis is defined as a "forward
displacement of one vertebra over another, usually the fifth
lumbar over the body of the sacrum, or the forth lumbar over
the fifth, usually due to a developmental defect in the pars
interarticularis." Dorland's Illustrated Medical Dictionary
1563 (28th ed. 1994). Spondylolysis is a defect of the pars
interarticularis, and it is the most common cause of
spondylolisthesis and is sometimes called isthmic
spondylolisthesis. Id.

While there is some debate about whether spondylolysis is a
congenital defect (present at birth) or whether it develops
in childhood from a stress fracture that never completely
heals, the disorder, by definition, occurs at birth or in
childhood and necessarily pre-existed military service.
Moreover, the treating military physician noted that the
veteran had an "incidental congenital laminar defect."
Under 38 C.F.R. § 3.303©, there are medical principles so
universally recognized as to constitute fact (clear and
unmistakable proof), and when in accordance with these
principles existence of a disability prior to service is
established, no additional or confirmatory evidence is
necessary. Accordingly, the Board concludes that there is
clear and unmistakable evidence that the veteran had a pre-
existing defect of the spine, namely spondylolysis, when he
entered service in 1973 and the presumption of soundness is
overcome.

Having found that the veteran had a pre-existing, congenital
low back disorder prior to entering military service by clear
and unmistakable evidence, the Board notes that congenital or
developmental defects are generally not service-connected
because they are not injuries under VA law and regulations.
38 C.F.R. § 4.9 (2002). However, congenital or development
defects may be service-connected when a superimposed injury
occurs during, or as a result of, active service. VAOPGPREC
82-90 (July 18, 1990). In this case, the Board finds that
the veteran's in-service diagnosis of spondylolisthesis (an
acquired disorder) was superimposed on his congenital defect
(spondylolysis).

The Board concludes that, in the context of this particular
case, the lay evidence is sufficiently credible and probative
of a chronic back disability existing as a result of a pre-
existing back defect, which was subject to superimposed
injuries during service, so that the positive and negative
evidence are at least in equipoise, allowing the benefit of
the doubt to be granted in favor of the claimant. As noted
above, the evidence as a whole shows that the veteran entered
service with a pre-existing defect of the spine,
spondylolysis. As a result, his intrinsically weak lumbar
structure was a risk factor for the development of
superimposed lumbar strain and spondylolisthesis. See THE
MERCK MANUAL, § 5, Ch. 62, pp 504-505 (17th ed. 1999).

To that end, the Board notes that service medical records
show that the veteran was initially treated for back pain as
the result of a twisting injury beginning in 1982.
Thereafter, he sought treatment for chronic low back pain
periodically throughout his remaining military career.
Moreover, he submitted a statement from a fellow soldier
indicating that he injured his back while undergoing physical
conditioning in 1982. X-ray evidence at that time reflected
a diagnosis of spondylolysis and first degree
spondylolisthesis at L4-L5. An X-ray report dated in July
1995, shortly prior to discharge, showed a diagnosis of
spondylolysis and spondylolisthesis at L4-L5 with
degenerative disc disease and possible herniated nucleus
pulposus. Within months of service separation, a X-ray
report indicated a diagnosis of spondylolisthesis with
probable spondylolysis at L4-L5. Further, a November 1996
MRI report reflected a diagnosis of degenerative disc
disease, degenerative spondylolisthesis at L4-L5, and an
acquired L4 intervertebral foraminal stenosis.

Although the veteran had a congenital back disorder prior to
service at L4-L5 (spondylolysis), he sustained a back injury
at the level of L4-L5 during military service and was
diagnosed with spondylolisthesis (an acquired disorder).
Further, post-service medical evidence shows the presence of
degenerative changes at L4-L5 and indications of acquired
intervertebral foraminal stenosis. Accordingly, resolving
the benefit of the doubt in favor of the claimant, the Board
finds that service connection should be granted for a back
disability, which is shown by the evidence to have resulted
from a congenital defect, which was subject to superimposed
injury during service. VAOPGCPREC 82-90 (July 18, 1990).

Finally, during the pendency of this appeal, there was a
significant change in the law. Specifically, on November 9,
2000, the President signed into law the Veterans Claims
Assistance Act of 2000 (VCAA), which, among other things,
redefined the obligations of VA with respect to the duty to
assist and included an enhanced duty to notify a claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits. The law is applicable to all claims
filed before the date of enactment but not yet final as of
that date. See 38 U.S.C.A. § 5103A (West 2002).
Additionally, in August 2001, VA issued regulations
implementing the provisions of VCAA "to establish clear
guidelines consistent with the intent of Congress regarding
the timing and the scope of assistance VA will provide to a
claimant who files a substantially complete application for
VA benefits." See 66 Fed. Reg. 45620-45632 (Aug. 29, 2001).
Inasmuch as the Board is allowing the benefit sought on
appeal, the veteran will not be prejudiced by the Board's
decision even if the notice and duty to assist provisions
contained in the new law have not been completely satisfied.
Therefore, no further action is necessary under the mandate
of the VCAA.


ORDER

The claim for entitlement to service connection for a chronic
low back disorder is granted.




____________________________________________
BETTINA S. CALLAWAY
Veterans Law Judge, Board of Veterans' Appeals

[free_spirit_etc]

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.

[63SIERRA]

yes thats why they keep ignoring the thesis part of my diagnosis, it doesnt fit into thier little fabrication package. If it doesnt fit, we must omit. haha

[free_spirit_etc]

yes thats why they keep ignoring the thesis part of my diagnosis, it doesnt fit into thier little fabrication package. If it doesnt fit, we must omit. haha

They keep referring to Dorland's Medical Dictionary in these cases, and it seems like even the spondylolyisthesis has the word defect in the definition.

So the car wreck might come back into play here as the superimposed injury.

[63SIERRA]

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

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

I have not specifically but 30 percent comes to the forefront for some reason.

[free_spirit_etc]

DATE: 07-18-90

CITATION: VAOPGCPREC 82-90
Vet. Aff. Op. Gen. Couns. Prec. 82-90

TEXT:

Subject: Congenital/Developmental Conditions under 38 C.F.R. § 3.303©

(This, opinion, previously issued as General Counsel Opinion 1-85, dated March 5, 1985, is reissued as a Precedent Opinion pursuant to 38 C.F.R. §§ 2.6(e)(9) and 14.507. The text of the opinion remains unchanged from the original except for
certain format and clerical changes necessitated by the aforementioned regulatory provisions.)

QUESTION PRESENTED:

In view of the provisions of 38 C.F.R. § 3.303©, under what circumstances, if any, may
service-connection be granted for disorders of congenital or developmental origin?

COMMENTS:

The opinion was issued in response to a request from the Chairman, Board of Veterans Appeals, which request came against the backdrop of three disability-compensation claims which were on appeal to the Board. In two of the cases the issue presented was entitlement to service-connection for retinitis pigmentosa, and in the third the issue was entitlement to service- connection for polycystic renal disease. Both diseases are considered by medical authorities to be of familial (or hereditary) origin. In each of the three cases, the disease was first manifested and diagnosed during the individual's military service.

The regulation in question, 38 C.F.R.§ 3.303©, states in pertinent part as follows:

"... Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation."

In the Schedule for Rating Disabilities, at 38 C.F.R. § 4.9, the same principle is set forth but with some variation in language:

"Mere congenital or developmental defects, absent, displaced or supernumerary parts, refractive error of the eye, personality disorder and mental deficiency are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes."

The applicable basic legislation, 38 U.S.C. § 310, 331, essentially provides for the payment of compensation to (otherwise eligible) veterans,

(f)or disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of
duty, in the active military, naval or air service ...

The question thus becomes whether 38 C.F.R. § 3.303© has effectively removed from the scope of 38 U.S.C. §§ 310 and 331 familial conditions (like retinitis pigmentosa and polycystic renal disease) and, for that matter, all disabilities of congenital or developmental origin.

Initially, it is well to focus on the word "defects" in the phrase "congenital or developmental defects." In a medical context, a "defect" is an imperfection, failure or absence. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 351 (26th Ed.1974).
Because a human body afflicted with a disease could be said to have an imperfection by virtue thereof, one might well argue that the term "defects" includes, within its ambit, diseases; and hence, that any congenital or developmental disease is not a proper subject for service- connection under the law. But this line of argument cannot withstand close scrutiny for one cogent reason in particular. If so broad a meaning were assigned to the word "defects," the regulation would be at odds with 38 U.S.C. §§ 310 and 331, for nowhere in the statutory law governing VA disability compensation is the term "disease" qualified by definition or stated exceptions. Thus, the term must be given
its common meaning and must be deemed to encompass all diseases. See Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607 (1944); SUTHERLAND STATUTORY CONSTRUCTION § 47.28 (4th Ed.1974). It is axiomatic that in any case of conflict between a statute and an agency regulation, the provisions of the statute will
prevail. SUTHERLAND STATUTORY CONSTRUCTION, supra, at § 31.02.

By reason of logic and necessity, the term "disease" in 38 U.S.C. §§ 310, 331, and the term "defects" in 38 C.F.R. § 3.303© must be interpreted as being mutually exclusive. Each has reference to a particular category of medical conditions. "Disease" has been broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 385 (26th Ed.1974). In case law, the word has been variously defined as (for example) a morbid condition of the body or of some organ or part; an illness; a sickness. 12A WORDS AND PHRASES Disease, at 388 et seq. (1954). On the other hand, the term "defects," viewed in the context of 38 C.F.R. § 3.303©, would be definable as structural or inherent abnormalities or conditions which are more or less stationary in nature. Interestingly, one influential Federal court, in drawing a distinction between "disease" and "defect,"
indicated that the former referred to a condition considered capable of improving or deteriorating, whereas the latter referred to a condition not considered capable of improving or deteriorating. Durham v. United States, 214 F.2d 862, 875 (D.C.Cir.1954); see also United States v. Shorter, 343 A.2d 569, 572 (D.C.1975). While we would characterize as a generalization a statement that "defects" are incapable of any improvement or deterioration, we believe the contrast drawn by the court is essentially valid and helps to clarify the difference between these terms.

Obviously, in the adjudication of claims for service-connection for conditions of congenital or developmental origin, close attention must be paid to the question of whether the condition is a disease process or is simply a defect or abnormality. In
many instances, it may be necessary for VA adjudicators to seek guidance from medical authorities regarding the proper classification of a medical condition at issue.

Most diseases are considered acquired in nature. Others are recognized to be congenital, developmental or familial in origin. When any of the latter becomes the basis for a claim for service-connection of a disability, VA adjudicators ordinarily are justified in finding that such disease, by its very nature, preexisted the claimant's military service. (In the case of some diseases, notably those first becoming manifest during service,
guidance from medical authorities may be necessary regarding the actual time of inception.) Typically in these cases, entitlement to service-connection should turn on the question of whether manifestations of the disease in service constituted "aggravation" of the condition. That question must be resolved by applying the same stringent legal standards which are applicable in cases involving acquired disabilities. 38 U.S.C. §
353; 38 C.F.R. § 3.306.

Various provisions in current VA regulations lend support to our position that service-connection may be granted for congenital, developmental, and familial diseases. For example, at 38 C.F.R. § 4.57, it is indicated that under certain circumstances service-connection by aggravation is warranted for pes cavus, which is "a typically congenital or juvenile disease." The regulation 38 C.F.R. § 3.380 stands for the proposition that
diseases of allergic etiology may not be disposed of (for compensation purposes) as constitutional or developmental abnormalities, but rather that service- connection must be determined based on the entire evidentiary picture. Significantly too, in the Schedule for Rating Disabilities (38 C.F.R. Part 4) two familial diseases, sickle cell anemia and Huntington's chorea, are included for rating purposes under Diagnostic Codes 7714 and 8106, respectively.

It is clear that congenital or developmental defects may not be service- connected because they are not diseases or injuries under the law. See, e.g., Thompson v. United States, 405 F.2d 1239 (Ct.Cl.1969). We must caution, however, that many such defects can be subject to superimposed disease or injury. If, during an individual's military service, superimposed disease or injury does occur, service-connection may indeed be warranted for the resultant disability.

HELD:

Service-connection may be granted for diseases (but not defects) of congenital, developmental or familial origin. In the instant cases, service connection is warranted if the evidence as a whole establishes that the familial conditions in question were
incurred or aggravated during service within the meaning of VA law and regulations.

VETERANS ADMINISTRATION GENERAL COUNSEL
Vet. Aff. Op. Gen. Couns. Prec. 82-90

Here's the important part:

"Federal court, in drawing a distinction between "disease" and "defect,"indicated that the former referred to a condition considered capable of improving or deteriorating, whereas the latter referred to a condition not considered capable of improving or deteriorating. Durham v. United States, 214 F.2d 862, 875 (D.C.Cir.1954)"

It sounds like yours deteriorated. ;)