Relevant Precedent Case Bva Cvac

[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 March 17, 2015 by paulcolrain

[paulcolrain]

yes, when i was 4.. treated and never had to see the doctor again and never had another issue with it.... it was never in my mind my whole life. then war broke out and i joined then all this shit came up...

[paulcolrain]

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

[free_spirit_etc]

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 March 20, 2015 by free_spirit_etc

[free_spirit_etc]

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.

[paulcolrain]

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

[paulcolrain]

im loving this question,,,,,,, running and jumping increase damage to a weakened bone,,,,,, WOW !!!!!! its giving me info