Need Help Hashing This Out.

[63SIERRA]

OK ive read this paragraph 5 times, and Im going to say what I believe it means. if others would chime in that would be great. many times we try to sway things we read to fit our own agendas and im trying to be sure I fully understand this 38 CFR.

§4.22 Rating of disabilities aggravated by active service.

In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, whether the particular condition was noted at the time of entrance into the active service, or it is determined upon the evidence of record to have existed at that time. It is necessary therefore, in all cases of this character to deduct from the present degree of disability the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule, except that if the disability is total (100 percent) no deduction will be made. The resulting difference will be recorded on the rating sheet. If the degree of disability at the time of entrance into the service is not ascertainable in terms of the schedule, no deduction will be made.

In laymans terms what Im getting is this. If an injury was documented upon entering service or found while you were on active duty and medically proven to have occured when you entered active duty , they will try to figure out how much it was aggravated and deduct your pre service injury severity from the severity after it was aggravated/. if they can.

OK NOW LISTEN UP./ So to me, that would mean ,that if they found an injury or illness lets say halfway thru you enlistment, and could not positively prove that it happened prior to the time you enlisted, they would have to consider it as having taken place while on active duty, and compensate you for the condition as it was found, when it was found.

Comments please?

Edited May 3, 2014 by 63SIERRA

[63SIERRA]

and how this relates to my case. I was a heavy truck mechanic in the army, and it was very hard physical work. , second, I was rear ended in a car accident on post, and put in a back brace. exrays were taken and I was told my back was broken. a week later, I had a bone scan done. doctor write on diagnosis . OLD SEAT BELT INJURY? just like it is written with the question mark. like he wasnt sure when it was broken. Ok I have pain shooting down my legs, many sick call appointments pertaining to my back, profile for 30 days, they physical therapy after that, then ongoing back pain that continues till this day with ongoing pain management.

va s angle to deny was to say it was a congenital or developmental defect. they denied that the pars was ever broken in my rating letter back in 96, when they had the same diagnosis that I had/ the va changed the diagnosis from pars fracture, old seat belt injury to, bone scan showed no bone fracture.

So keeping 38 cfr in mind, my angle on this is, I have proof that my pars in my back indeed was fractured. I just dont know when, and the active duty doctors didnt know when , and the va sure as hell didnt know when. so I think I should get approved under this regulation at the least, and possible CUE, because the VA disregarded evidence in thier initial denial by saying that the bone scan showed no fracture, when it certainly did/

[Philip Rogers]

It should be SC. You were found acceptable at the time of entry so it's SC.

pr

[63SIERRA]

thanks P you would be abt the 10th person who concurrs that It should be connected, including a CP examiner of 7 years.

[63SIERRA]

It should be SC. You were found acceptable at the time of entry so it's SC.

pr

not only was I found acceptable, I thrived. I made SGT in right at 3 years, was in top 5 PLDC in a class of over a 100, maxed a few PT tests, had a chest full of fruit salad, (ribbons), ,, you cant out perform your peers the way I did with a bad back. something happened, because it was all down hill after the car accident. It could have been a combination of things, as a heavy truck mech, we had to pull the sets of tires off of the Heavy Transport trucks with these big racks. We jacked the trucks up, then slid these special racks under the huge tires, took the big hub nut off and yanked, and yanked, until the rims came loose off the axles. everything to do with those big ragged trucks was physically hard, especially on your back. Lots of climbing up and down to get to different things and jumping off the steps to hard concrete floor. carry heavy impact wrenches around, just hard ass work. That is another thing that should have been considered, but evidenty wasnt. The CP examiner basically told me I got robbed, so it will be interesting to see how this turns out. I thank you all for your continued support and knowledge.

Edited May 3, 2014 by 63SIERRA

[john999]

If you are going to file a CUE you are entering a different world. You may be able to show that you are SC now, but to get EED I would run it by a VA lawyer to see if you have a chance. The VA can disregard evidence, and it will still not rise to the level of a CUE. I know because I just lost one on that basis. Get the back SC'ed and rated correctly now, and then worry about CUE.

[63SIERRA]

roger that.