mos1833 Posted October 7, 2015 Share Posted October 7, 2015 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 hadit 2.rtf Link to comment Share on other sites More sharing options...
0 ketchup56 Posted October 9, 2015 Share Posted October 9, 2015 Superimposed. ....That's the magic word . It Clearly states in the x-ray report that Superimposed Osteoarthritis was caused by the original CONGENITAL /ABNORMALITIES therefore if osteoarthritis is still present today (chronic ) it according to the CLEAR AND UNMISTAKABLE standard of rebuttal this should be a slam dunk for service connection. .... I won a claim at bva based on a pre existing back condition 26 years after service with absolutely NO service treatment records. Your path to a win is AGGRAVATION of a pre-existing CONGENITAL back condition superimposed upon. JMHO 63Charlie 1 Link to comment Share on other sites More sharing options...
0 mos1833 Posted October 9, 2015 Author Share Posted October 9, 2015 thanks ketchup56in my lay mind. ----i thought the r.o.could not make a medical judgement and the examiner didnt give an opinion as to a nexus opinion.so after they interpretated the x-rays the said this.((((( therefore .to the extent the veteran claims ( osteoarthritis ) of the lumbar spine,it appears to be related to a congenital deformity ,which cannotbe service connected 38 cfr 3.303(c) )))) they clearly admit i had osteoarthritis ..to me thats a superimposed condition that they that when read togather with other evidence such as two reports of a chronic injury in service.and one of them just 3 months before i seperated. this is not me complaing about how they weight the evidence,its just a matter of law ,, if i can just prove it. Link to comment Share on other sites More sharing options...
0 ketchup56 Posted October 9, 2015 Share Posted October 9, 2015 The proff is the x-ray's....Chronic osteoarthritis. ...If it's documented as chronic in service and currently chronic now it's service connected......However I argued my case as I said as AGGRAVATION with 38cfr.3.303 (b) as an second additional theory for service connection. ....From what you have posted above the easiest path (JMHO) is to go the AGGRAVATION route claiming the chronic provision as a second theory. ....The CLEAR AND UNMISTAKABLE standard of evidence that the onus being on VA is VERY VERY hard for vba to rebut the presumption that'given to you...They already established by medical evidence that your condition was pre-existing and you have the medical evidence of treatment in service via treatment, x-rays which establishes the AGGRAVATION prong you must establish for them to rebut ,current treatment of osteoarthritis there's nothing to rebut...Have you read 38cfr.3.306 ? Look like it Clearly pertains to you....As stated above you would never win this going the CUE route to service connection. CLEAR AND UNMISTAKABLE EVIDENCE. ...... You have the evidence to make them TRY to rebut this at least. However this never happen's at the regional office level of adjudication. They just don't get it..lol...again JMHO... Link to comment Share on other sites More sharing options...
0 FormerMember Posted October 10, 2015 Share Posted October 10, 2015 <<<to me thats a superimposed condition that they that when read togather with other evidence such as two reports of a chronic injury in service>>>You need to get a doctor to say it (superimposed condition) for you. Always remember the Caluza/Hickson/Shedden triangle. (1) Disease/injury in service; (2)current chronic disease/ injury; (3) doctor's nexus letter linking the two together. You cannot win with only 2 of 3. Unless you, yourself, are a medical doctor or have extensive training in your disease/injury etiology, you cannot opine or assume anything medical about yourself. At this stage, you can obtain that nexus and reopen your old claim to win. You cannot assail a denial in 1985 with a newer interpretation of what the medical evidence purports to show in 2015. See Russell v. Principi for the definitive example of CUE. Better yet, read this to grasp it in layman's terms: https://asknod.wordpress.com/2014/05/02/cue-the-quintessential-elements/Many in the Veteran community don't fully understand the ramifications of CUE. Rearguing the old 1985 evidence in 2015 can never rise to the level of CUE. It has to be so glaring that even a chucklehead such as a rater can see it. Lastly, if you have any service medical records VA does not have (you mentioned 5 pages), you may be entitled to the 1985 date based on 38 CFR 3.156(c). That would be much easier pathway. Best of luck. Link to comment Share on other sites More sharing options...
0 mos1833 Posted October 11, 2015 Author Share Posted October 11, 2015 Lastly, if you have any service medical records VA does not have (you mentioned 5 pages), you may be entitled to the 1985 date based on 38 CFR 3.156(c). i sent the records i had to the v,a, when they said my condition was acute and not chronic in service, with a letter of disagreement.they returned them to me , saying it was copies of what they already had ??? they said my seperation examination was normal with no complaints , i asked them to please show that document to me ,they never have replyed, because i never had one. and they still use that against me , but i cant stop them,but its the most of their evidence against my claim. along with not seeking medical help for 8 years after i got out.in 1979 i had a saw a chiropractor a few times,and he wrote a letter , stating he had treated me for a back problem ,his diagnosiswas i had sprained my back, with secondary structural problems,because it was work related that ended that opinion,the v.a. jumped on that part saying that it was all a work injury.they said it was the first mintion of any bone issues,and not related to the soft tissue injuries i had in the service,even though he said it was secondary .i dont care if its a cue or what ever, i just want to set the record straight. thanks all Link to comment Share on other sites More sharing options...
0 mos1833 Posted October 14, 2015 Author Share Posted October 14, 2015 one more question about my smr;si dont have but the five pages showing the injurys BUT i do have the records that show where and when i was removed from duty.it not medical , but it confirms my lay testimony, every injury was followed by a change of duty,and the dates i was returned to duty.i plan on summiting them to support my creditable testimony, which they say i;am not ? Link to comment Share on other sites More sharing options...
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mos1833
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
hadit 2.rtf
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FormerMember
VA is constrained to look at 38 CFR 3.303(c): (c) Preservice disabilities noted in service. There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof),
ketchup56
Superimposed. ....That's the magic word . It Clearly states in the x-ray report that Superimposed Osteoarthritis was caused by the original CONGENITAL /ABNORMALITIES therefore if osteoarthritis is
FormerMember
One thing I try to impress on you claimants is that the VARO is invariably wrong. They are always in a rush and top sheet everything. If they do not see it in the top three or four pages, for all inte
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