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Relevant Precedent Case Bva Cvac

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paulcolrain

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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
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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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