Secondary condition question

[saxman]

Hello everybody!  according to CFR 3.310 secondary condition become part of the original condition when service connection is establish for the secondary condition. My question is will my secondary condition be considered static since the original condition is static and 20 year protected?  All replies are welcome.  Thanks!

[broncovet]

Great question.  I will give it an "intuitive" answer, it would require hours of legal reading to find out for sure.  Unless someone can cite case law that is precedential, then you can try intuitive answer.  

My intuitive answer:  No.  

While I get what you are saying there is another way to interpret this..that "how you arrived" at service connection (primary, secondary, presumptive, etc) makes no difference, only the date does.  

Interestingly, Im arguing along those same lines..provided, I can get an attorney to represent me at the CAVC for that.  

I allege the same thing you are..that the primary and secondary conditions are "inextricably intertwined" and you have to "bind them together with rope".   

While I am hopeful, it may mean there is no case precedence on this.  

Attorney's dont like "risking their own money" by taking on a case that does not have any precedence, reminding you that attorneys invest time (which is money) and expenses into a case, sometimes for years, and they want to get paid for their time, so I get that they dont like taking risks.  

Maybe there is case precedence..I just dont know.  

[Buck52]

Federal law under 38 CFR 3.310 governs these claims, and once granted, the secondary condition is considered a part of the original condition.

However as for as the 20 year rule  they would go by the Award date on the secondary/condition...  & this don't make any sense if they make it a part of the original condition.

   In my opinion it should be counted as the original condition  As the CFR 3.310  Clearly States. and go by that date  but VA is going to do what they do best and fight the Veteran on an issue like this.

I would not worry to much about it  if you have 20 years under your belt.  even if the secondary was added years later  its suppose to become part of the original condition.

[Buck52]

If veteran  is granting service connection for secondary condition to an existing S.C. condition,  then full benefit is sought on appeal. 

So in my opinion they would go by the date of the awarded secondary condition.

 

jmo

[saxman]

Thanks Broncovet and Buck52!  I have a total of 5 secondary conditions related to my primary condition that is 20 year protected. The last one was just awarded May of this year and I have one that I did a NOD last year and waiting to see if it will be awarded because of the additional evidence I sent in with the NOD. The main thing I want is for the VA to say the secondary conditions are static! I would presume that they are because it's arthritis.

[broncovet]

Dont forget about the 5 year "protections" and the 10 year protections against severance.  

[Buck52]

I am not 100% sure on the 20 year rule for a secondary condition  if its  S.C. TO an Already S.C.  Condition,  that makes the Secondary a part of the first condition as a whole and static/chronic not expected to improve over your life time/just as (IF) you were rated chronic/static for the original condition.....  so it may very well be included in the 20 year rule   I mean how would they separate the service connected condition?  unless they  go by the date the secondary condition was awarded?

Edited October 16, 2017 by Buck52