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Relevant Precedent Case Bva Cvac


paulcolrain

Question

the relevant case im speaking of is HORN... in this Horn was represented by carpenter. he was diagnosed with legg calves perthes disease as a child. when he enlisted into service he didnt mention this diagnosis and a entrance exam found him fit for service. he later experienced pain in his hip and was released. the va found that his was a case of pre-existing and denied him service connection. BVA sis the same. later the CVAC stated that,

,,the VA routinely applies the wrong law to determine the second part of that equation - that the military service did not make the Vet's pre-existing condition worse. They have been using the law stated in 38 USC 1153 and 38 CFR 3.306, which require that a Veteran's injury that pre-existed service will be considered to have been aggravated by active service when there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.

The Court found, however, that 38 USC 1153 and 38 CFR 3.306 only apply if the Veteran's entrance exam clearly notes the pre-existing condition. If there is no such notation on the entrance physical, the law requires that the VA prove something different. Here is what the Court said:

"...the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Therefore, VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, VA must rely on affirmative evidence to prove that there was no aggravation. If the Secretary fails to produce clear and unmistakable evidence of lack of aggravation, the claimant is entitled to a finding of in-service aggravation of the preexisting condition."

in my claim i have pre-existing legg perthes disease was only found after i was released from service. furthermore, i had my entrance exam and totally found fit for service. another exam was done when i reached the 30 AG before heading down range for training and again fit for service with nothing mentioned in my report. But, i was denied because of my pre-existing condition didnt induce an increase and must have been natural progression because no high impact injury or trauma could be found in my file...

my claim is currently with the BVA and waiting on a VLG..

Shouldnt they just give me a win because this prior case is so relevant to my case.. this case is a mirror image im the legal sence and the diagnoses sence.

Edited by paulcolrain (see edit history)
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<<<<<<<<<<<<<<<<<<< he [Horn]later experienced pain in his hip and was released.>>>>>>>>>>>> 1) Injury in service, 2)injury now. 3) Nexus or IMO.

I (Paul Colrain) was denied because...no high impact injury or trauma could be found in my file...

I think Number 1 is your problem. J1Vo

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What is VA basing their presumption that you had a pre-existing dx of Legg Calves Perth on? Did you provide them pre-service records showing it ? Did VA excavate the civilian records? If you have a pre-existing disease/injury and fail to divulge it at enlistment, the Presumption of Soundness cannot attach. 3.105 covers that in "errors of omission". If you are going to hang your hat on 3.310 and say it got worse in service, that will be a controversy case. VA technically only has to prove there were no cases of aggravation during service to get past 3.306. It's easy to overcome VA rebuttal of Soundness if nothing is a matter of record. If there is bonafide evidence showing preexistence, the rules change. Then you have to prove it was exacerbated in service and not a case of natural progression. Horn is on point but only insofar:

It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The appellant must still demonstrate a current disability and a nexus between his current disability and the injury or disease in service. See Holton, 557 F.3d at 1367; Dye v. Mansfield, 504 F.3d 1289, 1292-93 (Fed. Cir. 2007) (affirming this Court's finding that the presumption of soundness does not eliminate the need to demonstrate a causal connection between a veteran's current condition and his in-service injury (Horn v. Shinseki 2012)

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While I agree, I still maintain the "absence of evidence" is not "evidence of absence". While I believe VA will try their best to pull off this logic error, there are many more possibilities suggested when evidence is absent, OTHER then "evidence of absence". In other words, there are many reasons why your file may NOT contain evidence of aggravation, which do NOT mean it never happened. Here are a partial list of why its possible, or even likely that you did have aggravation even tho there is no evidence in your cfile:

1. Most likely: Va lost said evidence.

2. You were in War, and you had aggravation, but it was never documented.

3. You had symptoms, your medic gave you pain pills but did not document same.

4. You lived with the pain, or took over the counter meds.

5. "Other" possible reasons: VA shredded your evidence. Va put your evidence in another Veterans file. Your evidence was illegible. You were forced to seek "outside" the military treatment, as no medical help was available with experience in your malady. The military may/may not have paid the bill, and may/may not have a record of it. Your records were fraudently altered by VA.

As you can see, "absence of evidence" is NOT necessarily the same thing as "evidence of absence". "Evidence of absence" would be if a doc stated that your current medical condition was not aggravated by a preexisting condition.

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thanks guys for all your input. i have posted another thread called prepare for bva hearing so please see my post there and ask me some questions if you dont mind like be the other side and lets see what i can produce as evidence...

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While I agree, I still maintain the "absence of evidence" is not "evidence of absence".

The legal decision you are grasping for is "Absence of evidence is not negative evidence". But here, neither is it positive evidence. A claim is built on an incidence in service (LOD) documented in the medrecs. Absent the evidence it ever happened, there is no argument for a claim. Vets are not allowed to supply their own version of medrecs recited from memory. VA calls that "history". Combat Vets are accorded more leeway under 38 USC 1154(b) but that in no way excuses them from having a nexus.

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Using the 1154 combat route is the best way in aggravation claims if not documented in str's. There is a presumption right off the bat.Once you establish that va has an onerous burden to rebut that presumption. I just beat va on an aggravation claim with absolutely no medical records. I used my ex wife to corroborate my lay statements and va could not muster the clear and unmistakable evidence hurdle. You must be extremely careful not to get caught in the credibility area because once va catches you there you're toast. Was your pre existing condition noted? If so 1154 probably the best way to go. Here is my bva docket no.12-04 464 Decision date 05/22/2014. If used correctly clear and unmistakable evidence standard is really onerous on va's part to rebut. JMHO Good Luck.

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See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (stating that the Board erred in relying on a medical examiner who “ultimately relies not on the objective medical evidence, but rather the absence of such in reaching her opinion”)

Since you were granted benefits for the lower back, did the VA doctor give reasons why he concluded the trauma your lower back experienced somehow bypassed your hips and only affected your back? Those are body parts that generally work together. (<<my lay opinion).

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here a great question for this argument.....childhood Dr. stated that he hadnt seen me for the childhood disease in 25 years but at that time i had a slight disability. doesnt say anything about pain nor does he state he prescribed anything... in service i had a lot of pain when doing PFT and when to sick call a lot... so hence does treatment and resulting of a prescribed pain medication for the pre existing condition score for an absolute increase.

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here a great question for this argument.....childhood Dr. stated that he hadnt seen me for the childhood disease in 25 years but at that time i had a slight disability.

So are you saying you were actually diagnosed with this as a child?

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yeah lol your so right..... to answer your first question,,, you have a great point, in fact my vamc doc wanted to wright a letter describing how my hips could be secondary because they are all weight bearing joints. i (because i wanted direct) said no. not sure why i did that but.... kinda just wanted the ro to eat the bullshit and give me direct not secondary. i was released from service because id be to expensive to fix and in the long run id end up with a hip replacement. i was no good to them. my pride wants them to say increase on left it happen in service and right hip is absolute

in service ...

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perthes is a childhood disease. NOT A LIFE TIME DISEASE..... when the growing is done the disease is over...and if treated at a young age it can be overcome...SO it was never on my mind because it never caused pain or discomfort or anything.. kinda like having chicken pox.. at 4.... treated then done

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That sounds interesting. You doctor could possibly strengthen his opinion by citing information that because of the young age of diagnosis, and the fact that you didn't have problems for years, it is not likely that you would have had hip problems in later life, unless the condition was aggravated in some way.

http://www.mayoclinic.org/diseases-conditions/legg-calve-perthes-disease/basics/complications/con-20035572

In general, children who are diagnosed with Legg-Calve-Perthes after age 6 are more likely to develop hip problems later in life. The younger the child is, the better the chances for the hip joint healing in a normal, round shape.

I think you need something stronger than just the doctor saying it is more likely than not. He will probably have to educate them a bit about Perthes.

Edited by free_spirit_etc (see edit history)
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perthes is a childhood disease. NOT A LIFE TIME DISEASE..... when the growing is done the disease is over...and if treated at a young age it can be overcome...SO it was never on my mind because it never caused pain or discomfort or anything.. kinda like having chicken pox.. at 4.... treated then done

So, your basic argument would be that it is a direct in-service injury, rather than an aggravated pre-existing condition.

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words from a letter to the va from my childhood doctor state " AS AN INFANT I TREATED HIM FOR LEGG PERTHES"............. mayo clinic says i have a great chance to have a normal recovery... but then adds if i do running or jumping ...???? hmmm

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It seems they are denying based on aggravation of injury.

If you are saying service connection should be direct by injury, you need a medical statement from a specialist saying the issue had subsided by your enlistment.

Therefore the hurdle for preexisting injury is refuted and they can judge the issue aS direct service connection by injury.

Only a specialist (bone or orthopedic) specialist should write the IMO.

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Horn suggests that, absent the evidence to the contrary, the Vet gets the presumption here. Asknod is correct that the Vet gets the presumptive on only one "leg" of the 3 requirement VA system: 1. In service event, 2 Current diagnosis, and 3. Nexus (or similar 4 door luxury sedan capable of carrying VA execs to get away from pesky Vets) Of course, we can expect the VA to argue that this presumptive does not, somehow, apply here. While we know that "benefit of the doubt", "claimant friendly", "non adversarial", or even "presumption favoring the Vet", are all "lost" except when the politicians are doing their dance for the American voters, it's true SOMETIMES, that judges will enforce such Veteran friendly regulations. This "Veteran friendly" attitude, has even been known to infect a select few VA employees, and, as soon as the VA discovers this incongruity, that "Vet friendly" employee is soon relegated to a position where it wont make any difference, such as sweeping the floors of VA employee lunchrooms. However, Senior Carpenter, for example, may well argue that this Vet deserves the presumptive, absent evidence to the contrary as in Horn.

Edited by broncovet (see edit history)
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