Prepare For Bva Hearing

[paulcolrain]

2004 i was released from service. same year i claimed low back and bilateral hip strain. i had a c+p exam and doc said (diagnosed ) i had bilateral hip strain and lumbar strain. 2005 i was denied both the reason given was , no service treatment records could be found at all for my time in service if service treatment records are later found my claims will be re-open. i dint appeal this at the time i just waited for them to find the records.

december 2009 the VA found my records and granted me 10% for lumbar strain but, did nothing about my hips. 6 months later i sent a NOD stating that this is a claim that proceeded a denial because of service treatment records and because the records were later found then all my claims should have been re-open. they agreed but said we still are denying you for hips because your service treatment records didnt change our opinion about your hips. nothing in your record states anything about hips.. i got a copy of my c-file and yes there it was,,, service treatment records for my hips in fact in service doctors also stated that i had bilateral hip strain BUT said it existed prior to service.

i submitted this paper and they gave me a c+p exam. the doc stated nothing is wrong with my hips and that i had an existing history for a left hip diagnoses. during this time i was being seen at the VAMC and receiving treatment for my hips and lower back and radiculopathy. in fact , just 1 week after this c+p exam a vamc report shows my evaluation for my hips and range of motion to be with pain and a diagnoses of bilaterl hip strain. again i get denied because no doctor said it was do to service. then in 2011 i sent a primary care letter stating that i my bilateral hip pain could very well be related to service because of multiple rigors of life during service such as running and PT. Again this wasnt good enough, they stated i needed new evidence to re-open my claim and the doctor letter wasnt good enough because he didnt do a eval even though he was my primary also his letter didnt cite anything from my service records. i then got another letter from him after he read a few reports during service and he sent a new letter stating that he wishes to ammend the letter he already sent,,, it is now clear that the rigors of active duty are more likely than not created the issues with my current hip problems and stated the ortho reports from my service treatment records. so, i have a lot of records that rebut all the ro problems but they still deny and now i have a BVA hearing in D.C. on the 2nd week of may...

can anyone ask me some questions so that i can prepare for this hearing ,,,, questions that they would ask or some problems that you see i might face...

1) Injury in service, 2)injury now. 3) Nexus or IMO.

My 1 is (pain in hips and lower back during and after Physical Fitness Training

My 2 is (treatment records and diagnosis of bilateral hip pain on movement diagnosis hip strain.

My 3 is (service treatment records sating pain on movement diagnoses of hip strain. Also Dr. letter saying that the rigors of Physical Fitness during service such as running marching (multiple non-specific traumas to hips and back) more likely than not due to his service because of treatment records start with service and state pain with PT hips and back profile needed…

Edited March 20, 2015 by paulcolrain

[paulcolrain]

when you read these hope in order. think just of the right hip. note to yourself that i have never before service been diagnosed with any issues of my right hip....

[paulcolrain]

strange but im confused again : my claim is for bilateral hip condition hip pain. i was diagnosed with hip strain both hips.....ok they say that i had prior leg perthes disease of left hip.....but they do nothing to accept or deny for hip strain bilateral... they just keep coming back with diagnosed with prior left leg perthes disease....... they never mention the fact that i was diagnosed with a new problem since service called hip strain. no doctor has ever said that my hip strain is do to leg perthes so what gives..... i never claimed leg perthes for a contention....

[Vync]

Per the Merriam-Webster dictionary, "probably" means "very likely : almost certainly".

The VA needs to get a new dictionary. That definition is more clear "least as likely as not" and corresponds with the intent of "more likely than not". It's a shame the VA doesn't use more common sense.

[free_spirit_etc]

http://www.va.gov/vetapp15/Files1/1500522.txt

This case was remanded, but here is some reasoning:

"Initially, the Board notes that a Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Noted denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but will be considered together with all other material evidence in determining the question of when a disease or disability began.

38 C.F.R. § 3.304(b)(1) (2014).

Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. Once the presumption of soundness has attached, VA holds the burden of proving by clear and unmistakable evidence that both (1) the Veteran's disease or injury pre-existed service, and (2) that the disease or injury was not aggravated by service. 38 U.S.C.A. § 1111 (West 2014).

Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. Vanerson v. West, 12 Vet. App. 254 (1999) (clear and convincing burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Cotant v. West, 17 Vet. App. 116 (2003). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2014)."

[free_spirit_etc]

Paul,

I apologize if I am asking questions that were already answered. I am currently experiencing shingles (ouch) and so between the pain and pain meds, my brain is not running on all of its cylinders. But I am trying to do what I can to help.

Weren't you treated for the low back strain and hip strain in service at the same time? If so, it seems very odd that they gave you SC for the back strain, but denied SC for bilateral hip strain that occurred at the same time on the basis that ONE of your hips had a pre-existing condition - especially if the burden is on them to show by clear and unmistakable evidence that your hip condition was not aggravated by your service.

It would also be interesting to see the reasoning they used to grant SC for the back strain. Some of the same reasoning might apply to the hips.

[free_spirit_etc]

On the continuity of symptoms -

When were you discharged?

I am thinking your were discharged because they said the disability kept you from physically being unable to serve.

When did you first seek treatment for the condition after service?

What symptoms did you have between that time?

I know that it is symptoms, not treatment, that establishes whether the condition is ongoing. But I was thinking there was a fairly short interval between the two (as compared to some of the cases at the BVA where they were discharged in the 50's, 60's, and 70's and now have degenerative disease in the hips.)