What about the Presumption of Soundness?

[lance-tek]

I am still trying to figure out the VA and claims process but I've been "in the system" since 2012.  I am currently 90% s/c but the VA has denied a lot of my claims without much information.  My initial claim was for many items that I was not diagnosed with at that time.  So my claim was decided and some items were denied.  However, I was in in treatment and did later get diagnosed with what I had claimed. 

As time goes on, I get smarter.  But, the VA seems to go the other direction in my opinion.  If there is any kind of proximate cause and presumption of soundness then I am confused as to how these can not be s/c at this point?  I ask as I just have gone through an IDES PEB and my items were all sent through on another claim but still denied (mostly) by the VA for s/c.  Don't they have to actually look at the claimed items and see if there is new evidence?  My DAV rep said they already have access to my VA health records so I don't need to resubmit them.  Well, my new evidence (diagnosis) is in my VA health records since I am treated at the VA.

[broncovet]

No, they dont have to look at your claim to see if there is new evidence.  The so called "duty to assist" is a

political buzzword used to dupe innocent Vets and citizens standing up for their rights.  

YOU have to submit "new and material evidence" under 38cfr 3.156c AND

1.  It needs to be new SERVICE records OR

2. You need to submit the new evidence in the appeal period for it to be considered as of the date of claim.  

[Gastone]

Change your profile, currently indicates "Service Connection NONE," your receiving VA Comp at the SC 90% rate, right? Did you get an "Inferred IU Claim," listed in your Award Letter?

Are you on appeal from your 2012 Denials? Post a redacted copy of your Award/Denial Letter, easier to get a grip on your situation.

Never rely on what you "THINK" about what the VA should have, unless you personally forwarded the N & M Evidence, US Mail Cert Return Receipt. Then there is always, attaching Evidence PDF's to claims on your E-Ben site.

Even if the N & M Evidence is in your VMC Med Records, US Mail a copy of the Record along with either a VA Stmt in Support or better yet, a "Sworn Affidavit." You have to be proactive, can't sit back assuming some industrious VA Rater is going to go looking, you have to lead them.

Semper Fi

[lance-tek]

5 minutes ago, Gastone said:

Change your profile, currently indicates "Service Connection NONE," your receiving VA Comp at the SC 90% rate, right? ...

Semper Fi

I have updated the profile. 

 

As far as IU you mean individual unemployable right?  If so, I don't recall seeing anything of the sort.  My rating is comprised of 14 combined ratings currently.  I think I now understand why I have been denied on the other items and I will be addressing it with the VA.  I don't know if I should fight the iPEB results or just accept the DoD rating at 40%...  this pressure (what is best to do) and my anxiety don't play well together...

 

[Gastone]

What's your Award Date? The redacted copy of the Award/Denial, would help.

Never let your claim Die due to missing the NOD filing Deadline, would be a very big mistake.

A 90% SC indicates serious disability picture. If an IU "Individual Unemployability," claim wasn't listed as "Inferred," you may or may not be IU. Are you currently employed, earning in excess of $12,400 per year?

If your SC's don't cause an employment/income problem currently, your not eligible for IU.

Check out the VA Vocational Rehabilitation/Independant Living Programs. Great benefits available.

Think FUTURE!

Semper Fi

[broncovet]

Let me explain the "presumption of soundness". 

When you entered the military, you had a pre entrance physical.  Those are usually pretty thorough.  

When you exit the military, you should also get an exit physical.  

Here is where the "presumption of soundness" occurs.  

If, on your entrance physical, there are "no issues noted" on, for example, your knees.  

But, on your exit physical, you have a problem..torn ACL, or whatever.  

The VA "presumes" the entrance doc did a good job, and this means your ACL was caused from service.  

Nothing in...something going out..that means the military caused it.  That is the presumption of soundness.  It means they presume the docs who examined you did a good job, and their statements are accurate.  You dont have to prove the doctor was right or wrong.  The VA would have to try to rebut a presumption of soundness.  

For example, a rebuttal of soundness my be something like, "While you told the physician you had no knee problems prior to service,  You told, Doc B, a VA doc, that you had fractured your leg riding a bicycle in the sixth grade.  Uh oh.  This may rebut your presumption of soundness.  Watch out, the Va will use what you say against you when they can.  Its so important to always tell them the truth.  

Where I have problems with this is "when did xxx happen".  Mostly I dont remember when.  Was it September...no..April...2003...no 2004...

Then, when another doc asks you again, you may have looked it up on your medical records and found out it was 1998.   The VA will likely attack your credibility and say,

"Gee, in 2012, you said this happened in 2003, but then in 2016, you reported this happened in 1998.  For this reason we are denying your claim as your testimony is conflicting and therefore not credible."  

This technique works for VA but it probably wont fly with a real court.  Here is why.  The court knows if you memorize "what happened" and repeat the story EXACTLY the same, that is probably because you were coached and someone gave you a script to memorize.  That is, its a lie.  

However, if you go..oh..yea..that was at my sisters birthday party when I broke my knee.  I remember now.  Its entirely possible, or even likely, for you to recall different details of a particular event depending upon your mood at the present.  Maybe you just went to your sisters house, and she reminded you that you broke your knee on her birthday.  "Yea..thats right. I remember how much my knee hurt at the time, but I never knew your birthday party was busted because I was in the hospital."  

Therefore, telling a story a bit differntly does not mean you are lying..it may well mean you guessed the first time and were corrected later.  

This was explained in some detail at the Kennedy's Assination.  They had some 100 witnesses, who all had different viewpoints and they did not agree where the shots came from, or even how many shots were fired.  These people were citizens who came out to see the president and were not involved in the murder.  One was sitting on the lawn.  Another was driving by in a car.  Others were in the building where the shots were muffled, and they were unsure.  It does not mean these people are lying..their different testimonies meant they were telling the truth.  If every witness said, "There were 3 shots, coming from the grassy knoll, by a guy wearing a black coat and white rimmed hat, with fishing flies tied to the front.  He then packed up the gun, got in a white 62 Chevrolet biscayne with red interior."  Then they would know the witnesses are lying.   A car guy would notice its a chevy biscayne, but many others would say a white car.  Others might not notice the color.  The fisherman who saw it close may notice the ties on his hat, but the teacher would notice he was carrying books.  The plumber, who drives a van, may thought it maybe a white van, from his view at the back.