Denying Contentions Due To Age (Natural) Progression Of Disease

[rootbeer22]

Folks:

I'm concerned about VBA denying some of my claims contentions based upon what they are calling the "natural progression" of the disease? I could see maybe the same for requesting for an increase of a contention maybe being denied due to this. However, if the SMRs clearly showed that the injury happened in service and was treated in service numerous times in the first place then why deny it sc now? Based upon this logic, Vets would need to out claims right when they are injured and that does not consider injuries that get worst over time? Anyway, I was told that there was a reg that prevented the VBA using "age" against a Veteran in these cases. So, if anyone can tell me the regulations that cover this and the strategy to fight this kind of thing? rootbeer22...

[Berta]

I have not found that specific regulation, maybe others know where it is---

And perhaps BVA cited it , in these 2 fairly recent cases.

This veteran had many C & Ps ,one favorable, but this one seemed to cause his denial:

"Further, the VA examiner said that imaging studies of the Veteran's lumbar spine were reported as demonstrating age-related degenerative changes with expected progression through the years."

This examiner found nothing in the veteran's SMRs to reveal back injury in 1969.

Also SSA records revealed he had hurt his back in 1991, many years after service in a post service occupation.

"In sum, the Veteran has contended that service connection should be granted for a lumbar spine disorder. Although the evidence shows that the Veteran currently has lumbar spondylosis, no competent medical evidence has been submitted to show that this disability is related to service or any incident thereof.

The record reflects that, while the Veteran was treated for back pain in service, his spine was normal on separation from service and the first post-service evidence of record of a lumbar spine disorder is from 1990, nearly 20 years after the Veteran's separation from service. More significantly, in fact, in December 2010, a VA examiner opined that the Veteran's lower back disorder was not caused by or a result of an in-service illness, injury, or event. The VA examiner was unable to identify any service treatment records in the file that documented the evaluation/management of a neck/lower back condition. The VA examiner also said that the Veteran's examination provided insufficient objective evidence to warrant a diagnosis of a service-connected acute or chronic lower back disorder. Further, the December 2010 VA examiner said that imaging studies of the Veteran's lumbar spine were reported as demonstrating age-related degenerative changes with expected progression through the years."

All 7 of the veteran;s contentions were denied.

http://www.va.gov/vetapp15/Files2/1516506.txt

However there are many other claims there that popped up the search I did.

I used these words:

find these words: Natural Progression
this exact word or phrase: due to age

and the search had 1097 hits.

http://www.index.va.gov/search/va/bva_search.jsp?QT=natural+progression&EW=due+to+age&AT=&ET=&RPP=10&DB=2015&DB=2014&DB=2013&DB=2012&DB=2011&DB=2010&DB=2009&DB=2008&DB=2007&DB=2006&DB=2005&DB=2004&DB=2003&DB=2002&DB=2001&DB=2000&DB=1999&DB=1998&DB=1997&DB=1996&DB=1995&DB=1994&DB=1993&DB=1992

In this case however, the veteran was SC for :his back injury

"The issue of entitlement to an increased disability rating for service connected ununited fracture of the distal end of the left clavicle under Diagnostic Code 5203 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

"Additionally, the examiner stated that it was not medically possible to state what, if any, of the degenerative disc/joint disease of the lumbosacral spine manifested on plain radiographs in 2010 and minimally changed in 2014, was due to natural progression of the in-service injuries versus that solely attributable to normal aging, other than to say that the current radiographic findings were typical of normal age related degenerative spine disease, a portion of which was incurred during the Veteran's 21 years of military service. Further, the examiner stated that as this service period represented less than 50 percent of the Veteran's adult life, the absence of advanced degenerative disease argues against the present findings being primarily (more than 50 percent) due to military service and more likely due to the normal effects of aging. However, the examiner stated that it was NOT medically possible to state that some specific portion of the Veteran's loss of spine excursion was solely attributable to the natural progression of any specific or particular service incurred event(s) versus age related degenerative disease."

http://www.va.gov/vetapp15/Files1/1501967.txt

These type of medical opinions ,however, would be dependent of the actual medical diagnosis and if age actually caused natural degenerative changes in the disability.

It always pays to use the BVA web site decisions, to assess how they weigh evidence and accept or reject medical opinions,for specific disabilities .

The BVA is a lot smarter than the ROs and are usually the first VA entity ,for many , to actually give the SMRs and med recs a thorough review.

I have not found any age related regulation yet. but it could be cited within these 2 decision above.

[georgiapapa]

rootbeer,

The only claims I have heard of where the VA tried to use "natural progression of the disease" against a veteran's claim was in claims where a veteran filed a claim for aggravation of disease or injury that existed prior to the veteran's military service. In these cases, the VA tried to say the veteran's disease or injury became worse due to "natural progression of the disease or injury" and was not due to the disease or injury being aggravated by the veteran's military service. I can not cite you a VA policy or a law covering this subject. JMO

GP

[ArNG11]

So curiosity then, don't chew my head off for this one. What medical evidence and argument is the VA using to claim this. Are they saying that military service did not aggravate a previously existing injury? Injury, specifically traumatic injuries to bones and cartilage will cause these components and material to wear and erode at a much faster pace than that of normal progression of old age. I can attest to this and so can many of us.

If you had a previous injury or not it has to be noted on your entrance examination, clean bill of health? No problems good to go. If not good to go and there is a previous injury and it is annotated there has to be a clear definable base line and reference point as well a strong medical opinion to state that the further damage is due to age and/or not due natural progression of an existing injury.

That's impossible. How can any doctor or specialist for that matter state the an injury got worse or not just because of progression, compared to what aging would happen to the body part had there been no trauma and no injury to begin with.

Here's a comparison start a fire, fire represents a previous injury, now add exposure, repetitive stress that would not normally be there by another accident or a documented injury, you just added fuel to that fire, fire accelerates and burns at a faster pace, how can you possibly come to a conclusion that the additional fuel, in this example, military service and injury, not increase a previously existing condition? BS there's no way.

[ArNG11]

"§4.19 Age in service-connected claims.

Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. Age, as such, is a factor only in evaluations of disability not resulting from service, i.e., for the purposes of pension.

[29 FR 6718, May 22, 1964, as amended at 43 FR 45349, Oct. 2, 1978]"

"§4.22 Rating of disabilities aggravated by active service.

In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, whether the particular condition was noted at the time of entrance into the active service, or it is determined upon the evidence of record to have existed at that time. It is necessary therefore, in all cases of this character to deduct from the present degree of disability the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule, except that if the disability is total (100 percent) no deduction will be made. The resulting difference will be recorded on the rating sheet. If the degree of disability at the time of entrance into the service is not ascertainable in terms of the schedule, no deduction will be made."

Am I reading this wrong? Sorry just trying to help.

[Fat]

I might visit a specialist whom refutes the notion of "natural wear and tear".

Fight their physicians opinion with your own expert physician opinion.

Create "benefit of the doubt".

[Berta]

THANKS! You are reading it as I assume we all are.

But as you can see in the fairly recent BVA decisions I posted above , a C & P doctor can manipulate what that regulation says.....with their medical opinion as to the affects of age on a disability.

But if that were the case, VA could deny just about any claim for a higher rating?????

I am interested in what others think about this.....

I would think that almost all modern day medical care is ostensibly to subvert 'natural progression.'in many cases ,of disability.

Isn't that what VA docs are supposed to do?

heck we are all in a state of 'natural progression'..

Fat is right too, if the VA denies on that basis, get an IMO.