Grounds For Cue That Never Seem To Come Up.

[63SIERRA]

rarely if ever, do I hear of or read of claims where the va has even considered aggravation of an existing illlness or injury. clearly its part of the 38 regs, but they seem to just skip right over it, and dont even acknowledge it. in all of my claims, not one time is aggravation of any conditions ever mentioned. This is a issue I thing we need to press the va on, when fighting back, and trying to win our claims. It may even result in CUE claims in many instances, especially those early claims where they simple state, that the condition was a congenital or developmental defect and they never consider the aggravation aspect.

[NavyWife]

yes, I have noticed that as well...

[mos1833]

63sierra, you said

It may even result in CUE claims in many instances, especially those early claims where they simple state, that the condition was a

congenital or developmental defect and they never consider the aggravation aspect.

=======

in the early claims they didnt even have to list what evidence they used to decide the claim.

in 1985 they said my back condition was a congenital defect.and never considered it disease

because of the law,it was droped by the va ,and i didnt appeal,the law changed in 1990 i think

but still no help,

[63SIERRA]

they congenitaled me in 95, so im not sure what the law was, but the cold hard facts were., that my back never bothered me AT ALL before the in service car accident on post, and it had bothered me ever since/ they have to know something was damaged ., something was aggravated. They DID NOT oficially consider that aspect. So to me, that in itself should be grounds for CUE because the did not follow the law and consider aggravation of a disease or injury.

Edited May 1, 2014 by 63SIERRA

[john999]

I lost a CUE that happened before 1990 because since the VA had no obligation to list evidence I could not prove they considered, or did not consider an IME I had in my records. They never mentioned it one time in the rating decision, and even admitted they did not consider it, and yet at CAVC I lost. My IME said I could not work and their evidence from a ward clerk said I seemed to be OK. I lost because they said my claim for a higher rating was not undebatable. These CUE's from the way back are hard to win. The scales of injustice are all on the side of the VA.

John

[mos1833]

in my case they never ever talked about any chance of my condition had gottin worse,they even said i could not

say it had any thing to do with my injury, so all my lay evidence was out,that hurts

========================

according to the Court's caselaw, "congenital
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)(holdingthat"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 395 (quoting VA Gen. Coun. Prec.
82-90).
In this case, the Board did not acknowledge or explain the "important
difference" between
a congenital disease and defect and did not consider whether Mr. Baugh's
condition was mutable or
static. See Quirin, 22 Vet.App. at 394

[63SIERRA]

well no matter what you have, they will try to say its congenital or developmental. I had a break in the pars. that is not congenital, or developmental, that is an injury. blunt force trauma, or repeated impact causes the pars to fracture, and then the vertebre slips forward, pinching the nerve. They flat out deny that the pars was brokenm, when it says plain as day in my medical records that there was a fracture/ they just were not sure when it occured, and seemed to think by the images of the bone scan, that it was an old fracture.. So lets give them the beneift of the doubt and say it was an old fracture, WHICH IS AN OLD INJURY. Clearly it was aggravated because I started having pain. Ongoing, chronic pain, numbness in my legs, and stiffness in my back. It is still painful today. The VA just wants to make it cut and dry, so they can deny the claim. Im not going to let them do it anymore. Im going to emphasize on the aggravation of an injury, whether it happened at the time of the car accident, or before the accident, it does not matter, they took me as whole and sound and they will have to pay.