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quick question, if the ro denied my claim in 1985 and called my back injury a defect,with no doctors opinion.
just a interpretation from a x-ray..
which clearly chronic changes of my condition. would or should they have considered gen.coun.prec.82-90 or were they correct.
below are the records.i hope they open ok ???
hadit 2.rtf hadit 2.rtf
hadit 7 this is the one.rtf
hadit 7 this is the one.rtf
The full Pres Op is here
Since the denial, has any doctor described the condition as not congenital?
Although this OGC opinion was rendered in 1990, it does reflect an opinion they rendered in 1985 with no basic changes I can see in it.
If you have consistent medical treatment records for this condition and an independent opinion that this never was a congenital 'defect' and that it is still at a ratable condition and if you garner SC (I assume you have a new claim pending with continuous treatment records), with an award you could attempt CUE on the 1985 decision as it was binding on the VA at that time. (That is the 1985 Pres Op was)..if it was at a ratable level at that time (1985)
Did the VA give it a NSC percentage on the rating sheet?
I feel the X ray narrative was a medical opinion. Have you had any C & P exams since then?
Has any doctor who treated you changed the diagnosis that appears in the X ray narrative?
This is one of many posts you have here that relate to your case:
Have you ever gotten an IMO that can reveal that the post service 1979 back injury had nothing to do with the congenital defect injury?
It looked to me that your claim went to CAVC and then to the Federal Court?
Unfortunately claims like that would definitely have to be re-opened with New and material evidence, which would have to be a VERY strong IMO that not only rules out the post service injury as cause of the back problems, but also to rule out anything 'congenital' as causing it.
I dont even know if the VA would re open a case that was lost at the Federal Court level.
Have you been seen by any non VA doctors other then chiropractors?
if 82-90 had been cosidered in 1985 i would have been sc for my back which they gave the dc-code 5299=5295.
on the x-ray report it clearly states ( x-ray report showed a congenital transitional vertebra with changes on the left related to the anomaly )
the anomaly was osteoarthritic changes.
couns.prec.82-90 concludes .. ( that a defect differs from a disease in that the former is " more or less stationary in nature " )
( while the latter is capable of improving or deteriorating,)
see what i'am saying,the x-rays shows changes due to osteoarthritic anomaly, so i think thats a mistake.
If you reopen it with an accusation of CUE , VA will eat you for breakfast before you're awake. CUE would have to ignore that " congenital" word. A changed diagnosis in 2014 is not CUE either. Most radiologists are MDs who read the x-rays. They don't allow the technician to prognosticate. You can always find the gottcha in a VA decision. Congenital was the word that punched the hole in your claim boat. See Rizzo and Sickels for the presumption of regularity re VA C&P doctors.
the word congenital according to 82-90 if correctly applied ,does not rule out a grant of sc. so there is no need to ignore it.
the opinion said congenital,----deformative-- and said it could not be sc by law because defects are not sc.
a clear reading of 82-90 says to me that any change in a defect makes it a disease,capable of improving or deteriorating.
my x-rays says changes related to the anomaly.
"[A] defect differs from a disease in that the former is 'more or less stationaryin nature' whilethe latter is 'capable of improving or deteriorating,'" and "any worsening-any change at all-mightdemonstrate that the condition is a disease." Quirin, 22 Vet.App. at 394-95 (quoting VA Gen. Coun.Prec. 82-90 (July 18, 1990)). In addition, VA recognizes that service connection may be availablefor a disease or injury superimposed upon a defect. VA Gen. Coun. Prec. 82-90 (July 18, 1990); seeCarpenter v. Brown, 8 Vet.App. 240, 245 (1995).
I think this is your remand:
Correct me if I am wrong.
"if 82-90 had been cosidered in 1985 i would have been sc for my back which they gave the dc-code 5299=5295."
The 5299 was an analogous DC and, as you know the VA does not use 5295 anymore due to the IVDs ratings.
If there was no percentage in the denial (,meaning "0" NSC) there was no CUE.
Also if the VA obtained the Workman's comp records, if that is the remand, that too would rule out CUE basis ,in my opinion.
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