DONT BE FOOLED BY NO NEXUS!

[paulcolrain]

NO PRE SERVICE PROBLEMS... THEN ENLISTMENT EXAM PASSES WITHOUT A PROBLEM..... THEN IN SERVICE PROBLEM..... THAT IN ITSELF CREATES A NEXUS.... DONT BE FOOLED THAT IT DOESNT.... BY DEFINITION IF YOU HAD ALL EXAMS PRIOR TO SERVICE THEN YOU HAVE A PROBLEM THAT IN IT SELF IS A NEXUS BETWEEN .... DONT GIVE UP AND FIGHT IT..... IF NO ONE CAN SAY ITS BEFORE THAN YOU HAVE WIN AT BVA AND CVAC. DONT LISTEN TO VSO JUST GO ALL THE WAY TO COURT. THE CVAC HAS STATED TIME AND TIME AGAIN THAT THE GOVERNMENT HAS TO PROVE THAT NO PROBLEM WAS AGGRAVATED DURING SERVICE. NOT THAT IT WAS CREATED B4 OR AFTER BUT THAT THE GOV HAS TO PROVE NO INCREASE DURING.. THAT IN ITSELF IS THE NEXUS WHEN THEY BOTH AGREE THAT A PROBLEM EXISTS AND IT WAS EXISTING IN SERVICE.

 

Edited August 4, 2018 by paulcolrain

[paulcolrain]

In support of the claim to reopen, the Veteran has submitted a 2015 medical report of his private physician. This family practitioner reviewed the claims file, and noted that the Veteran had Legg-Calves-Perthes (LCP) disease in the left hip. This is a childhood genetic deformity involving the merger of the femoral head and the hip joint. The doctor noted that the Veteran's disorder "largely resolved with bracing" prior to service entry, although there was some "mild loss of range of motion." As of 2002, prior to service entry, there was no impaired hip function of any degree. The right hip was not affected by LCP disease. 

The Veteran reported falling off of his bunk in basic training and significantly stressing his hip during the heavy physical training demands of that initial period of service required of all enlisted soldiers. In June 2004, the Veteran was placed on a physical profile as due to bilateral hip pain, and shortly after discharge in March 2005, the Veteran's physician noted a decrease in range of motion for both hips. 

It was concluded, unequivocally, that the additional disability from a normal baseline prior to service entry "demonstrate[d] aggravation of the left hip during military service." Further, an October 2012 magnetic resonance imaging (MRI) study revealed a "large labral tear" in the hips which, the Veteran's doctor noted, was "less consistent with LCP" and "more consistent with intense trauma." The "wear and tear" of military service, to include the falls from the Veteran's bunk and the physical stress of training (noted in service as bilateral hip pain necessitating a physical profile and, eventually, removal from service), was deemed to be an "injury" to both hips that "will also likely aggravate the left hip beyond the natural progression" of the LCP disease process. 

This opinion is new, in that it was not of record at the time of the denial in 2011, and it is material, in that is relates a current left hip disability to in-service aggravation and a right hip disability to an in-service event. As this is the case, the claim for entitlement to service connection for a bilateral hip disability is reopened. See 38 C.F.R. § 3.156. 

Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.30. That an injury or disease occurred in service alone is not enough; there must be current disability resulting from that injury. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d).

Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

A Veteran is presumed to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304 (2016). A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). 

In order to rebut the presumption of soundness, the government must show by clear and unmistakable evidence that (1) a Veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness by demonstrating with clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Id.

With respect to the underlying claim of service connection, in addition to the 2015 private assessment (which came in the form of a VA disability benefits questionnaire), the Veteran also submitted a VA clinical report dated in July 2011. In this report, a staff orthopedist noted that bilateral hip pain was present in June 2004, and that "given this new information," it was "clear" that the Veteran "did in fact suffer from...hip problems while in service." It was "more likely than not" that current hip disabilities "began and/or were exacerbated by his activities as a soldier." 

A May 2015 private opinion also describes the Veteran as experiencing bilateral hip arthritis as a result of trauma in service. This clinician also described the Veteran's left hip LCP as having been aggravated by the stresses of military service. 

[Carl the Engineer]

In this case, it looks like a "private opinion" helped the Veteran.

As I have said before, the Army (military) buys you whole and returns you whole, or compensates you for the differences.

You just got to prove the differences.

LOL,

Hamslice

Nice read, Paul.  Good job!