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Injury Not Documented In Smr


free_spirit_etc

Question

How important is it to actually have documentation of a specific incident in your SMR in order to get SC granted.

I was wondering because once I get done with all this lung cancer stuff (which will probably take forever) I want to start on some of the other things I found in my husband's file.

He claimed SC for right shoulder problems - which he said occured when playing softball on team for the Air Force.

The exam DID show problems with his right shoulder.

However, they said SC was denied because his service medical records did not note any specific complaint of problems with his right shoulder.

BUT he filed the claim PRIOR to his retirement.

He entered the Air Force in 1970 with NO shoulder problems.

He filed his claim for Compensation in 1997 - (while he was STILL IN the service) indicating that he was having trouble with his right shoulder.

He retired in 1998.

So can a case be made that the shoulder disorder (which was medically supported) that was NOT in existence when he entered the military in 1970 was more likely than not INCURRED DURING service - if it was reported PRIOR to his retirement (even if there is no specific incident documented in his medical recorded that would show EXACTLY when it first occured?)

Free

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  • HadIt.com Elder

The service assumes you are perfectly healthy when you enter unless there is some evidence to the contrary. I think you could get this SC'ed since it is in his records. It is when nothing is in the records that it is very hard. If your husband had waited five years after he retired to go to a doctor about his shoulder then he would have no chance if it was not in the SMR's. I got screwed on a TMJ claim because the dentist did not write down a diagnosis when he examined me. He did it on purpose I am sure since I was on a levy for Vietnam.

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Thanks to both of you. I was thinking the same thing - but not sure. I thought if he claimed it prior to discharge it should be obvious that it bothered him before he left the service. We haven't been able to get a copy of his discharge physical. Tried in June and was told by the records center that the VA has his records. Requested from VA August 10 -- but just gettting delay letters from them so far.

But I still thought that making the claim PRIOR to the discharge should kind of set a date for it as during service..especially with 28 years in. And they did confirm the injury -- just said that it was not documented in the SMRs.

I keep wondering if I should wait to send the CUES in though.

We have the shoulder injury.

We also have cervical strain - which he also claimed upon his discharge. Was documented in his SMR - but the VA could find no current injury -- except for Some slight something or the other at a certain location on his cervical spine.

But later - when they did the exam for Gulf War illnes -- they denied service connection for his headaches because they said they were caused by his cervical disorder which was at the ExACTSAME location that they found the exact same insignificant whatever when he tried to CLAIM cervical strain.

I think they should award this back to the date they actually found something that confirmed the chronicity of the injury at the cervical region that was documented in the SMRS.

He also claimed for dental TREATMENT -- but was denied - though the regs clearly state that Gulf War vets who did not recieve dental treatment within six months of discharge are allowed one time dental treatment for each tooth / condition.

I think we have possible CUES on all of these (plus maybe more) but I am concerned that if we file it now before the lung cancer claim goes all the way through.... that will slow down the claim for the 100 percent for the lung cancer -- and i don't want to do that.

Free

Sounds like a Possible Cue to me.
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Free Spirit

I think I would go for the lung cancer and wait til you get that service connected. Lung cancer is very serious and is the kind of claim that puts everything else aside. The VA will hold up your lung cancer claim if there are lots of other claims in the works, and they will get them mixed up. Get the 100% and worry about the others later. No time limits for the CUE's. Your spouse deserves SC as soon as possible for the lung cancer, and so do you for DIC. You want that ten year clock to start ticking once he gets 100%.

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Thanks. Since claims can take so long I didn't know which would be the best approach.

Free

Free Spirit

I think I would go for the lung cancer and wait til you get that service connected. Lung cancer is very serious and is the kind of claim that puts everything else aside. The VA will hold up your lung cancer claim if there are lots of other claims in the works, and they will get them mixed up. Get the 100% and worry about the others later. No time limits for the CUE's. Your spouse deserves SC as soon as possible for the lung cancer, and so do you for DIC. You want that ten year clock to start ticking once he gets 100%.

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Good idea. Especially since he was in for 28 years. It would be pretty hard for them to rebut that -- so actually not having anything in the SMRs might work in his favor there. If he wasn't getting treatment for it for years -- it probably did NOT occur prior to service.

Free

I would also try using the Presumption of Soundness Rule it helped in my claim in which they said my condition was pre-existing even though I had medical reports in my SMRs.
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  • HadIt.com Elder

Damn right! The military presumes you are perfectly healthy when you are inducted unless their is evidence to support some disability or illness. Free Spirit, I think you can win those claims but go for the money first and keep the 100% in the crosshairs. If that is a pretty good bet I would not complicate that rating since that will provide plenty extra money and mean DIC. JMO

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