gen.coun. prec. 82-90

[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

[Berta]

Just to add, there have been many OGCs Pres Ops on this issue, some are mentioned in this BVA decision:

http://www.va.gov/vetapp14/Files4/1424799.txt

 

[mos1833]

 hadit 3.rtf hadit 3.rtf

above is the x-ray that they used in 1985.

the point i tried to make is it should support a superimposed disease.

oh' thanks berta for the link

hadit 3.rtf

[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), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Consequently with notation or discovery during service of such residual conditions (scars; fibrosis of the lungs; atrophies following disease of the central or peripheral nervous system; healed fractures; absent, displaced or resected parts of organs; supernumerary parts; congenital malformations or hemorrhoidal tags or tabs, etc.) with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they preexisted service. Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof. Conditions of an infectious nature are to be considered with regard to the circumstances of the infection and if manifested in less than the respective incubation periods after reporting for duty, they will be held to have preexisted service. In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation.

Keeping that in mind, the mere use of the word "congenital" dooms the claim absent proven further aggravation in service. The CAVC recently ruled on this and uses the philosophy of dividing it into two camps. Either it's a disease or it's a defect/malady that runs in the family. If you're born with spina bifida, it's a congenital abnormality, not a disease. 

I share your angst on this one but wishing six was nine in 1985 (VAOPGCPREC 82-90) is a moot argument. As for CUE, read the following:

§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.

(b) Record to be reviewed—

(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.

(2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record. (This accounts for the holding in Bell v. Derwinski 1991 re "constructive possession" of pertinent, probative evidence.)

(c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.

(d) Examples of situations that are not clear and unmistakable error—

(1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.

(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

(e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.

(Authority: 38 U.S.C. 501(a), 7111)

That is the mountain you have to climb to prevail. I fervently hope you can but trying to wish GC 82-90 was written in 1985, even if it essentially encompasses the same tenets, still falls into the primary CUE requirement that the regulation or statute be in existence prior to the advent of your claim. I wished I'd filed for Hepatitis when I got out in 72---but I didn't. 

Edited October 8, 2015 by asknod

[Berta]

Maybe this will help anyone who has a similar issue.

I only found one claim granted at the BVA for a superimposed disability:

http://www.va.gov/vetapp01/files03/0121797.txt

There might be a few more but this is what I found:

In Part:

Entitlement to an effective date of April 5, 1993, is granted 
for service connection for chronic muscular strain, of the 
left trapezius and scapular muscle, superimposed on 
congenital instability with chronic rotator cuff impingement 
and tendonitis.

Entitlement to an initial 30 percent evaluation for chronic 
muscular strain, of the right trapezius and scapular muscle, 
superimposed on congenital instability with chronic rotator 
cuff impingement and tendonitis (major), is granted for the 
entire rating period, subject to the law and regulations 
governing the payment of monetary benefits.

The "superimposed injury or disease" must have occurred during military servic

 

The claim was for a better EED ,and the award for the chronic muscular strain, which had been superimposed on the congenital instability  (chronic rotator cuff impingement and tendonitis) has already been granted.

The BVA awarded a better EED and remanded to see if the veteran fell into the IVDS regulations and/or if his fibromyalgia or any other disability was affecting these SC disabilities.

Denials of this type of claim reveal that if there is no level of aggravation of a pre existing condition under the above regulation Asknod posted ,

due to service, that would cause the denial , as well:

http://www.va.gov/vetapp00/files2/0014474.txt

 

 

 

 

 

 

 

[mos1833]

berta , and asknod

thanks again.

i only have a few of my SMR's ( five pages ) both front and back sides. which would be about ( three  )pages .

out of those ( five ) pages, my condition is listed as chronic on ( 2 ) pages , which include instructions to see a medical officer for evaluation 

on the same pages that call my condition chronic.    heres the point ,in there decision after they saw the x-rays and gave the opinion that i had a defect

that ended the process, then they said my condition was not showed to be chronic in service. i dont think they even looked at my  SMR"S

any way there was no mention of pre-existing, because that law states once a defect is discovered that the end of the process.

no aggravation no nothing, sorry guys i get all shook-up.

 

 

Denials of this type of claim reveal that if there is no level of aggravation of a pre existing condition under the above regulation Asknod posted ,

due to service, that would cause the denial , 

[Berta]

I misspoke on this:

"and/or if his fibromyalgia or any other disability was affecting these SC disabilities."

The vet was not a Gulf War vet from what I could tell.... the remand was for evaluation under the IVDs  ratings and to see if the fibro was the cause of some of his problems...

That is what I get for reading this stuff too fast....when I am pressed for time.....shame on me...

It is quite an involved decision and if these disabilities that the veteran was awarded were 'aggravating'; the NSC fibro, then that too would have to be determined on remand.