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...

[Buck52]

e-CFR data is current as of June 11, 2015

Title 38 → Chapter I → Part 4 → Subpart A → §4.19

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Title 38: Pensions, Bonuses, and Veterans' Relief

PART 4—SCHEDULE FOR RATING DISABILITIES

Subpart A—General Policy in Rating

§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]

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

[Buck52]

I would file cue on them if the use your age to be denied!

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

[rootbeer22]

Everyone:

As always, it's so nice to have access to the expertise that all of you provide to Hadit.com and your contributions to the disability claims process are very helpful. You've answered the questions that I had and the logic holds to what I expected it to be. My SMRs evidence is rock solid and I have almost 125 SMR records that supports the in service injuries and actually surgery in service for the same particular contentions. This was not something that neither happended before or after my military career but within my first year of active duty which is why there are so many SMRs. As a matter of fact, at the 18 year mark I got a new doctor who said that I should have in (his opinion) probably been medically boarded during my career for my extensive injuries. However, as long as I was able to pass the Army Physical Fitness Test, I was allowed to stay in. The Doc said, "with all of the steel rods and screws your spine, the pain must have been terrible" when you took the PT test? I said, I had to gear myself up for the test 2 times a year and when I retired, it was like winning the lottery, because I knew that I did not have to go thru that PT ordeal anymore. Frankly, I now have one of the best Pain Doctor's in the country that treats me so I'm fortunate from that standpoint. Anyway, I heard a strong well-worded IMO will help my case in the event that I get to that point. Anyway, as I reported earlier, 2 of my DBQ's expired and I have to them again over the next two weeks and I'll know for sure how my claim turns out very soon. Thanks again to all of you for your contributions and I greatly apprecaite your help on this complicated issue....rootbeer22

[deltaj]

I am pretty sure that I did read a case awhile back where a veteran won his appeal on a clear and unmistakable error when V.A. used age in evaluating a veteran's claim for compensation.

[Carl the Engineer]

I was SC'd for arthritis of the shoulder. I was seconaried twice, neck and elbow, to the shoulder for arthritis. And after that I filed and won a increase for shoulder. All was for ROM. You get 10 for the x-rays and then more for ROM.

Then, because I found arthitis in a old x-ray reading (they took a picture of my heart for HBP?), I submitted for arthritis of the lower spine and got that at 20% because or ROM

I was 48 when SC'd. Now 54. I was diagnosed on active duty with arthritis of shoulder.

I cant believe it is going to get better as I get older, only worse.

Here's a thought;

Lets say one is SC'd for incontenance, but when you turn 100 the VA stops that because most people are incontenant at 100. Just saying Sh*t happens when you get old..

Thanks,

Hamslice

[rootbeer22]

Folks:

It appears that my fears were not well founded as they did not use "age" against me on any of my contentions. The CP write-ups addressed it directly which is why I thought that I had a problem. But appraently the rater was careful not to use it.... Anyway, 80% disability sc for my first FDC worked out well. I also have 7 defered contentions and a lot of 0% sc, so there is still more work to be done....