3 Ways To Grant But Which One Should I Go For ?

[paulcolrain]

i do have another post titled prepair for bva but this is a question that is specific and i hope someone can point out some things.

i see after scanning many different previous BVA decisions that i have 3 different ways to gain service connection but im not sure of the easiest for me or do i just overwhelm my self with all 3

I believe that my claim should be granted

I believe that my claim falls into 3 different ways to achieve a grant of service connection

1. Presumption of soundness….. induction exam passed me with flying colors and so did the 30^th AG reception. The VA can rebut the presumption of soundness, but they have to prove 2 things to do it. First, they have to produce clear and unmistakeable evidence that the entrance physical is incorrect - and that the Veteran's condition pre-existed service. Second, the VA has to prove - by clear and unmistakeable evidence - that the condition was NOT aggravated by military service before they move on to The presumption of aggravation type of claim because this is a wholly different presumption and, in those cases, 38 USC 1153 and 38 CFR 3.306 would clearly apply.

(a) In my service treatment records I have phules that show an increase in the stated L of 1 then goes to a 4 then to a 3 but permanent. Also I was prescribed medication.

(b) The EPSB/MEB is the only person in service that said that there was no aggravation but didn’t express why there wasn’t. they put no narrative and no explanation.

© A c+p exam held 6 months after discharge diagnosed me with bilateral hip strain and stated that my childhood disease was apparently cured. Though the va said he didn’t have my service treatment records

(d) A second c+p exam was done and he stated that it had to be natural progression because absence of anything in record that shows specific trauma and injury. ( courts have always said this isn’t good enough )

(e) I have a primary care dr opin that states it is of course possible the rigors of service contributed to my degree of disability and after viewing certain records that show pain in hips after running and jumping and physical fitness that it is more likely than not do to my time in service.

2) Direct Service connection… diagnoses of bilateral hip strain in service, diagnosis after service within 7 months of discharge. Present diagnosis of bilateral hip strain.//// medical nexus is the effects of military training on my weight barring joints ( hips ) has created this strain.

A) 3 different reports to sick call, 3 different profiles written up stating the PT is what did this, 1 evaluation showing pain on movement and diagnosis for bilateral hip strain

B) current diagnosis from C+P exams and a SS exam. Evaluations from ss exam and varius vamc showing issues…

c) I never had a bilateral problem before I joined service it was only a 1 hip issue and nothing in the records shows this to be anything different. Also child hood disease is a fixable one if treated before age 6 and mine was. Hip strain is a new issue not an issue about leg perthes.

D) varius articles, my own statement, medical definitions sports injuries , Dr. letter, Director of nursing letter all show my nexus.

3 Secondary service… 3 issues came to light in the service. Lumbar djd and bilateral hip strain. All 3 happened at the same time. I have beed granted service connection for my lumbar djd and all 3 issues are major weight bearing joints. It is im sure possible to a medical logic that the lower back issue created some of the issues im experiencing with my hips. The same medical nexus would be that the running and jumping that was affecting my lower back then led to my other weight bearing joints the hips that are so closely related in the body.

[Fat]

_{I like your mind set.}

_{You are cognizant of several different ways to obtain service connection and are contemplating the best route of oral argument.}

_{I personally think option one is the best.}

_{The VA has to prove you had a injury before service and that military activity (running, jumping, road marches, PT, etc) wasn't the main cause of proliferating the injury.}

_{They have a high burden if you consider the facts.}

[paulcolrain]

THANK YOU FAT FOR YOUR OPINION BECAUSE YES THAT IS EXACTLY WHAT IM TRYING TO DO. THINK OF ALL THE WAYS AND ALL THE POSSABLE REBUTTLES THEY COULD MUSTER UP. ALSO YES MY BRAIN IS TELLING ME THAT THE OPTION 1 IS THE FASTEST BEST TESTED AVENUE ESPECIALLY AFTER HORN CASE CVAC SLAPPED THE VA FOR DOING THIS WRONGLY AND ITS EXACTLY WHAT THEY DID TO ME. THEY PUT ME DIRECTLY INTO AGGRAVATION CLAIM BACCK IN 2005 INSTEAD OF PROVING BOTH PRONGS OF PRESUMPTION OF SOUNDNESS CLAIM.

[broncovet]

My humble opinion is you appeal on ALL of these, and let the judge sort out which one(s) he wants to award. Its called "theory of entitlement".

The bottom line is this:

If you appeal on ALL, then you can withdraw, or BVA will deny, entitlement on some of these.

However, if you "pick one" and they deny, you can not go back later and try option B.

At the CAVC level, you can not present them a "new" theory of entitlement that you did not raise at the BVA level.

More theories of entitlement increases your chances since you dont know which one the Board will like, and, even if they dont like it, you can still appeal to the CAVC. Again, however, you can not appeal to the CAVC issues not raised on appeal at the Board level.

[Buck52]

I Agree with broncovet I was gonna say file all three or more!

...................................Buck

Edited April 5, 2015 by Buck52

[71M10]

The three different paths you have described make sense, the decision on what path to take will be determined by the actual medical statements in the record. Do you have affirmative nexus statements (from physicians) for the direct (2nd path) and secondary (third path)? I ask this because we often times see connections and because it is common sense think the VA will connect the dots. Your primary care physician saying something is possible doesn't do much for you.

I don't think you will loose at the BVA but I suspect you will get a remand unless there is some medical opinion that beats down the negatives and reinforces the positives and provides the why where other opinions did not address it.