Cue Or Appeal

[ctbenja1015]

I got my "white" envelope, guess brown is out of style now. I was declined for DJD of Cervical spine(not service connected). Reasons were:

1. The evidence shows that cervical spine arthritis existed prior to service. There must be objective evidence of worsening of a pre-existing condition in order to establish service connection by aggravation. There is no evidence that the condition permanently worsened as a result of service.

2. VAMC exam conducted on August 18, 2014, notes that you were treated for and diagnosed with DJD of the cervical spine with radiculopathy on March 20, 2009, which was 5 months prior to your active duty service of August 4, 2009.

3. VA exam conducted August 4, 2014, notes that your cervical spine arthritis was not aggravated by your military service,

Facts

1. excerpt from C&P exam: 2. Medical history
------------------
Describe the history (including onset and course) of the Veteran's cervical spine (neck) condition (brief summary):
veteran had sustained a vehicle accident while on orders 5 months before he deployed in Iraq ,it was a rollover accident. he was stationed in
Wisconsin and he believe he had normal cervical spine X-ray they were reporeted normal, without a fracture and it's only during deployment in 2- 3 2010 that he complained of bad neck pain and numbness in hands in Monterey VA in 2014 they had X-rays of his shoulders and was told that
his issues were coming from his neck , he had neck arthritis ; he was sent to TMC while in Iraq and complaining of his neck and was told that neck was
ok to continue his duties and he did current symptoms are constant 6/10 pain , and if turns his neck shoots to a 8/10 and disrupts his sleep. Re his MOS he was in transportation with lots of driving heavy truck and as well a s lifting daily about 35- 50 lb. daily plus all they usual weight they had to carry on ther back.

TYPE OF MEDICAL OPINION REQUESTED: Direct service connection

OPINION : Direct service connection

Does the Veteran have a diagnosis of (a)neck condition that is at least as likely as not (50 percent or greater probability) incurred in or caused by
(the) long term wear of ACH and poor road conditions while serving in Iraq? Rationale must be provided in the appropriate section.

c. Rationale: REVIEW OF VISTA WEB 3/20/09 SHOWS EVIDENCE OF THE ROLL OVER ACCIDENT; C SPINE X-RAY WERE TAKEN AT THE TIME WITH EVIDENCE OF MILD DDD AS WELL AS EVIDENCE OF WHIPLASH INJURY AS TYPICAL REPORTED FINDINGS WHICH IS A
RISK FACTOR FOR CHRONIC NECK ISSUES AND DJD/ DDD WITH RADICULOPATHY

No exam notes in my record show it was not service connected, no exam on August 4, 2014

They were given my detailed record of retirement points to verify any active duty or drill dates.

**********************************************

Thoughts?

Edited September 22, 2014 by ctbenja1015 (see edit history)

[ctbenja1015]

Buddy Statement:

I served with SGT Benjamin during our deployment to COB Speicher, Tikrit, Iraq in 2009-2010. As the Communications NCO for the 724th Transportation Company, I spent time both at the headquarters and on the road maintaining the radios out on the convoys. During pre-deployment training we conducted convoy training in heavy body armor and helmets with heavy night vision attachments. This extra gear combined with the weapons carried across our shoulders, caused an undue amount of stress on our necks, upper backs, knees and other joints. During the deployment, our missions required us to drive M915A2 semi trucks with air ride seats. Even while wearing the seat belts, the seats never really worked well. They were consistently inoperable rendering them sitting flat against floor of the truck removing any injury prevention or comfort they previously provided. The constant bumping caused pain to shoot up and down the spine. The seats that did work, bounced us up so far it was a regular occurrence to hit our heads on the ceiling of the small truck cockpit. The worst were the highway checkpoints. We had to maintain a speed of 50-60 miles per hour to prevent the enemy from timing our movements and hitting the convoy with IEDs. This high speed of course led to even more jarring up and down movements in the vehicle causing irreparable mis-alignment of vertebrae for many and mild traumatic brain injuries for a few.
SGT Benjamin is suffering the scars from his service. This letter hopefully sheds some light on the difficulties of the duties we performed over seas. And the repercussions of performing those duties. I highly recommend SGT Benjamin receive his full benefits for service connected disability.

[Berta]

Are you saying the denial did not refer to the C & P of August 2014?

Did the VA have the buddy statement, but ignored it?

The rollover accident. ....did this pre -exist your service ? or is VA just saying that to try to deny the claim?

Is there proof of the rollover in your SMRs?

Or was your claim for' aggravation' of a pre service injury?

Can you scan and attach the decision here (The Reasons and Bases Part) and also the evidence list.

(Cover C File numberm name and address prior to scanning it)

[john999]

This is not a CUE. Your claim in not final. You want to appeal this. If your spine was hurt in roll over accident that is still service connected.

[ctbenja1015]

They did have copy of buddy letter and listed it as evidenve. I think they just read nexus and not history. Can see how someone could not understand if not reading complete file. Will post report tonight.

[ctbenja1015]

Hope this helps

VA Claims Decision 20140905.pdf

Cervical Neck C&P results.pdf

[Berta]

You did well on this award! Only one contention was denied!


" veteran had sustained a vehicle accident while on orders 5 months before
he deployed in Iraq ,it was a rollover accident. he was stationed in
Wisconsin and he believe "

By 'while on orders' does this mean you were in the reserves at time of this accident, but 'on orders' ?

I am a civilian so this is why I dont understand that part.

I assume you got some retro. Would you be willing to obtain an IMO if needed , to get this service connected.

And I hope others here opine on this C & P statement:

"TYPE OF MEDICAL OPINION REQUESTED: Direct service connection

OPINION : Direct service connection

Does the Veteran have a diagnosis of (a)neck condition that is at least as likely as not (50 percent or greater probability) incurred in or caused by
(the) long term wear of ACH and poor road conditions while serving in Iraq? Rationale must be provided in the appropriate section.



c. Rationale: REVIEW OF VISTA WEB 3/20/09 SHOWS EVIDENCE OF THE ROLL OVER ACCIDENT; C SPINE X-RAY WERE TAKEN AT THE TIME WITH EVIDENCE OF MILD DDD AS WELL AS EVIDENCE OF WHIPLASH INJURY AS TYPICAL REPORTED FINDINGS WHICH IS A
RISK FACTOR FOR CHRONIC NECK ISSUES AND DJD/ DDD WITH RADICULOPATHY"

To me that seems to favor the "aggravation" theory .Others will chime in here as well.

[ctbenja1015]

A reservist has 48 drill dates, theses are our normal monthly drills they are known as UTA's or MUTA's, Unit Training Assembly or Multi-Unit Training Assemblies. Each UTA/MUTA is equal to one day of Active Duty Pay, with each full day worth 2 UTA/MUTA. All additional training will have either Individual our Group Active Duty Orders. These orders are the same as active duty, however unless they run more than 30 consecutive days they are for pay only, no additional benefits (insurance, TSP, etc.). I was at a Movement Officers School at Ft. McCoy, WI when the accident happened. She was explaining that due to this accident, which was LOD, the progression of the DJD and Radiculopathy was to be expected after having mild DDD and whiplash. Yes, I am willing to get an IMO, or due whatever is necessary. I also have a Medical Evaluation and Statement of Status, which is signed by my commander and an MD for COB Speicher stating that my shoulders and Neck were LOD and expected to need further treatment and cost to the Military.

[FormerMember]

VA is giving him the bum's rush on one and only one facet. The accident occurred during reserve training-not ACDUTRA. If he had been on Uncle Sam's dime, it would be service connected. That it occurred during training with his local unit in cheese head country absolves them of governmental responsibility. VA is not questioning the legitimateness of the claim-just the actual status of the person when it occurred. Big difference between between a training accident and one that occurred during deployment. If it didn't occur during ACDUTRA, then it cannot be SC even if it got progressively worse while deployed. That's how the regulations read currently. An interesting case for the CAVC or CAFC to ponder. I say he should appeal it and get a really good law doggie. One thing it most definitely isn''t is CUE. Wrong Forum.

Clear Prop

[Berta]

So, this isn't the same situation as Andref here:?

"Yes, I am willing to get an IMO, or due whatever is necessary. I also have a Medical Evaluation and Statement of Status, which is signed by my commander and an MD for COB Speicher stating that my shoulders and Neck were LOD and expected to need further treatment and cost to the Military. "

I thought LOD meant Line of Duty,regardless of type....?

Our IMO forum here has the info that a solid IMO needs. But why if VA still questions when the accident occurred, as to AD status?

I would sure fight this if I were you!

Edited September 23, 2014 by Berta (see edit history)

[FormerMember]

Berta-

Remember the CAVC case (1991-92?)of the New Mexico Guardsman called up to do duty somewhere during a forest fire in N.M? He was injured while on state guardsman duty-not on ACDUTRA. He won initially but lost at the CAFC when it was determined he was called up by the NM Governor and not the US Government. Thus his injury was not SC via VA. I think this is what they are hanging him on. An old Traffic song comes to mind with a slight change of wording- "Make your own noose up if you want to/Any old noose that you think will do."

Win or Die.

Found it. See attached. Screwed up the facts but got the gist of the decision. Brain death is a terrible thing to waste. That's why I share it whenever possible.

Allen.Key.issued.pdf

Edited September 23, 2014 by asknod (see edit history)

[ctbenja1015]

Asknod, thanks for the input. In my case as a reservist whether it is Battle Assembly(drill), Active Duty for Training or Active Duty we are covered the same, as we are always under the Federal Government. For example my plantar fasciitis started from a drill weekend at a best warrior competition. I just believe they only read the nexus that is not as descripted as the history where it states I was on Active duty when the accident occurred. Also they state that I was diagnosed as having DJD with radiculopathy on 3/20/2009, however it actual states that I had mild DDD and whiplash which caused it to develop into DJD and Radiculopathy. I just wasn't sure, as I am new to the system, whether it would be CUE or just an appeal since I actually don't have new evidence, just need them to read the material more carefully.

Edited September 23, 2014 by ctbenja1015 (see edit history)

[FormerMember]

Roger that. VA tries so hard to adjudicate the wrong thing and ignore the obvious as you may or may not have learned yet. I've had them take Porphyria (from AO in SEA in 70) and turn it around to say I wasn't there (in Vietnam). Same for the HCV. I never had it in service. What I filed for was Porphyria secondary to HCV or, and great big OR, it was due to Agent Orange. After finally admitting proof of being there, they immediately said it had no bearing on their denial. They never adjudicated it on a direct basis (Combee v. Brown)This is the convoluted logic that will dog you all the way to the CAVC. Once there, they all say "Man. What are we doing here? Let's do a Joint Motion for Remand back down to your VARO where we can start all over on a brand new denial."

Build your case and pack all that evidence in there now. Drive it home again and again. It pays off but takes time.

Clear prop