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Relevant Precedent Case Bva Cvac
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paulcolrain
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 paulcolrainLink to comment
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broncovet
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 suggeste
ketchup56
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 pr
free_spirit_etc
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
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