MAKE SURE OF THE WORDING OF REOPENED CLAIMS

[paulcolrain]

LETS SAY THE VETERAN SUBMITS A CLAIM FOR A LEG PROBLEM. NOW LETS ASSUME THAT THE VA DENIES THE CLAIM BECAUSE THE VETERAN SAID I ALWAYS HAD A LEG PROBLEM. LETS ASSUME THAT ASSUME THAT THE SICK CALL DOC.S TOOK THIS AS AN ADMITAL TO A PRE-EXIZTING PROBLEM. THEN THE VA DENY CLAIM BECAUSE PRE-EXSTING/ BUT, VETERAN HAS PROOF OF ONGOING PROBLEMS IN SERVICE AND HAS PROOF THAT IT WAS NEVER NOTED!!! WELL, THE VA TURNS AROUND AND EXCEPTS VETERANS CLAIM AND GIVES MONEY. THEN THE VETERAN ASKS FOR A CUE CLAIM BECAUSE 10 YEARS AGO THEY DENIED SAYING ,, IT PRE-EXISTED SERVICE,, BUT THEN ULTIMALTELY GRANTED. WELL YOU LOSE BECAUSE THE VA ONLY HAS TO PROVE THAT EITHER IT DID OR DINT PRE-EXIST. IF IT DIDNT THAND THE BURDEN OF PROOF SHIFT IS ON VETERAN FOR A NEXUS LETTER AS OF SERTVICE NOT MANY YEARS LATER.

 

[paulcolrain]

IF THEY SAY IT PRE-EXISTED THAN THEY OPEN THEMSELVES UP FOR THE SECOND PRONG OF SHOW IT DIDNT GET AGGRAVATED. IF THEY AGREE IT WAS SERVICE CONNECTED AND NOT PRE-EXISTING THEN , THE BURDEN OF PROOF AND CUE STOPS!!!!!!!!
 

[Fat]

Thanks....................

[MarkInTexas]

Paul,

So let me get this straight.  It's "better" if the VA says that a condition existed prior to service?  So what happens if the VA has the wrong records and alleges that a condition pre-existed service, when actually it did not?  I had this happen on a couple of conditions, and am still swimming upstream.  I now wonder if I shouldn't have shouted about the records being wrong, and just laid back and coasted along the stream.

The VA has yet to acknowledge that the records are not mine, so now I'm just wondering if I should have just kept my mouth shut and alleged that the conditions were "worsened" by military service.  Sigh.

Mark

 

[Vync]

How about CUE? This BVA decision is fascinating because the veteran won a pre-existing reversal via unique use of "objective" vs. "subjective", the "presumption of soundness", and "relative equipoise". Keep in mind that this is not a precedent set by the CAVC. I'm not sure if this approach will work for everyone, but it did in his case.

I'll go through the principles and give examples pertaining to each first.

Objective evidence
What can be visibly seen, examined, measured, etc... by qualified medical personnel, like compound fractures, bruises, temperature readings, lab results, tattoo's, piercings, etc....

Subjective evidence
What was reported verbally, like "I'm feeling fine", "my knee hurts", "I had a headache last week", etc...

Presumption of soundness
This is based on your entrance medical exam and has two parts. The "subjective" part is your reported medical history, usually "do you currently have or have you ever had" and you check off whatever conditions apply. The "objective" part is the doctor's examination and objectively confirms/denies any problems on the list whether you reported them or not. If the doc does not confirm a condition as present, you were presumed to be in sound health regarding that condition.

Pre-existing Conditions
Some of these could be really obvious, like a surgical scar due to an old injury, eyeglasses, acne, etc.... Others may be hidden or could disqualify service, like sickle cell anemia, diabetes, colorblindness, etc... If you try to file a claim for a pre-existing condition, they consider this "aggravation" or worsening of the condition due to service. SC can be granted, but the VA likes to reduce the rating percentage.

Relative Equipoise
This is the principle which considers the evidence for and against the claim. If the evidence is balanced for and against, the VA is supposed to side with the veteran, but this does not always happen.

 

So what's the deal here?
The below BVA case was found in favor of a veteran who won an appeal for a pre-existing condition claim. When he joined, it was not objectively verified on his entrance exam. While in service, he sought treatment and subjectively told the military docs he had it before joining and they noted it in his records. The VA used his subjective statements to assert the problem was pre-existing even though they had no objective evidence of a pre-existing condition. Even though the veteran subjectively admitted having the condition, the absence of objective medical evidence proving this is what helped him win. It sounds kind of crazy, but it's documented in the link below.

 

http://www4.va.gov/vetapp10/files5/1040625.txt

FINDINGS OF FACT

1. There is not the required clear and unmistakable evidence the Veteran had a pre-existing skin disorder such as psoriasis when entering the military, only his self-reported history of the condition preceding his service by some 6 to 7 years, so it must be presumed he was in sound health when entering service - especially since there was no objective indication of such a disorder when examined in anticipation of entering the military.

2. The first objective indication of psoriasis was during the Veteran's service and, indeed, the reason for his premature discharge.

3. The medical evidence is at least in balance for and against the claim as to whether this condition was first shown in service and insofar as whether it has persisted during the many years since.