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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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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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