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]

“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,” This statement does not appear to be the reason for the denial. They do not state that there is any reason for this condition to be symptomatic.

There argument central to the denial is that your condition was not chronic in service based on your complaints of pain or based on other medical evidence.

Then at the end they say “ No seperation examination is on record”

Now you say .” Was parusing thru my in service medical records, and I found my exit physical report. Where the box says recuurent back pain, there is a check in the box, indicating I was having back pain at the time I exited the army.”

How did you get the exit physical exam? If they did not have it at the time of the denial or say it was not of record, then it can be submitted as new and material evidence.

What are you and the SO planning on submitting or have you already submitted as new and material evidence. Refer to the document you found stating ongoing back pain as showing a "significant factual error" on the original denial. Call it favorable evidence that was not considered due to their statement that no separation exam was of record, Also, call it new and material since it does not appear it was previously considered. However, this might not be sufficient to re-open. Make sure they understand that there was two years of pain between the accident and your discharge and that the pain has continued. Ongoing means ongoing and nothing else. At this point if this were my claim I would get a nexus statement. If they accept evidence as new and material then they might schedule a C&P to address the nexus issue. I take it you were denied without a C&P.

The personal injury attorney’s I worked with settled claims involving permanent disability awards for far less symptoms than what you have described. Also consider workman's comp attorneys. This is why I suggested that you get a personal injury attorney who does VA stuff. You were asking about a CUE, if you can show that the exam was in the c-file and they said it was not or if there was a requirement that they obtain the records of the exit exam and they did not, then you should point this out to your SO in consideration of the CUE

Allowing a claim to close may have put you in a position where you need to get a comprehensive independent medical opinion (IMO) to get it re-opened. I it were my claim, I would get such an IMO at this point just to pound them with evidence. Also, most service officers want you to bring documents to them rather than submit them directly to the VA. I think that the document you found is significant. However, that is just my opinion. The RO's play hardball with back claims. Many back claims are awarded by the BVA.

Edited September 25, 2013 by Hoppy

[Hoppy]

Here’s some things to think about. You obviously had some chronic pain issues while in the military. When they denied your claim they called your condition acute. Acute is usually used to define conditions than are expected to heal without residuals. It is unclear as to what diagnosis they attributed your symptoms to while in the military. The post service diagnosis or symptoms of a condition that is causing your chronic pain needs to be linkable to your symptoms in the military.

I do not think that there is a direct conversion from a military profile (deadman’s or otherwise) to a ratable condition on the VA’s rating schedule.

I do not think the VA even rates pain unless it causes range of motion issues or causes you to require bed rest that is specifically prescribed by a doctor. A profile is like light duty in the civilian world. I am not sure that the VA would even rate your back because you are on light duty.

The bed rest rating has been explained as being dependent on how many weeks a year bed rest is required. Veterans have posted that they asked VA primary doctors for a bed rest prescription and they refused. I do not think the primary doctors who refused to prescribe bed rest understand the difference between strict bed rest and bed rest. Even though my back is not service connected I personally use bed rest as a tactic to control pain and recover. I have had chronic back and neck issues as a result of several different diagnoses for over 30 years.

In addition to getting a nexus statement to link the chronic pain you identified on your exit exam to your current condition, focus on the specifics of rating schedule to insure you are properly rated

Edited September 26, 2013 by Hoppy

[63SIERRA]

"How did you get the exit physical exam? If they did not have it at the time of the denial or say it was not of record, then it can be submitted as new and material evidence."

The way I got the exit physical is I requested a copy of my c=file, and saw that the front page of the exit physical was in the c-file, but the back page, that had a box checked off, saying I had ongoing back pain was not in the c-file. so I looked thru thu briefcase, and found the document, I then copied the back of the page that they did not have and sent it to them.

[63SIERRA]

"What are you and the SO planning on submitting or have you already submitted as new and material evidence

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.

I also submitted civillian medical records where a doctor diagnoses Spondyloloyi this l5 with degenarative joint disease.

I Also submitted several other in service sick call slips where I hurt my back again, while bowling, running, ect. howing ongoing back pain /

[63SIERRA]

The actual diagnosis was pars defect l4 . and muscle strain. 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. Everything points to a spinal condition. and I recently went to a civillian doctor and he said, VA is full of crap, your back is jacked up, and has been for a long time, He showed me the xray, and explained how the vertrbre is pinching my nerves. it even causes irritable bowl, and I never knew it, he done 2 months of chiropractic care, but said there are no good options. surgery is not a good option for me. grin and bear it is what I must do.

Hoppy thanks very much for taking the time brother, I will keep yall posted on what happens, good, bad or ugly.

[63SIERRA]

quote

"The personal injury attorney’s I worked with settled claims involving permanent disability awards for far less symptoms than what you have described. Also consider workman's comp attorneys. This is why I suggested that you get a personal injury attorney who does VA stuff. You were asking about a CUE, if you can show that the exam was in the c-file and they said it was not or if there was a requirement that they obtain the records of the exit exam and they did not, then you should point this out to your SO in consideration of the cue"

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.

Edited September 30, 2013 by 63SIERRA