Scoliosis

[Brumbaugh]

It is my understanding that if you are accepted into military with a condition that is aggravated by military service then you are entitled to a Service Connected Disability.

Is this true? If so how do I file for this disability?

I am wearing a back brace now prescribed by a VA Doctor.

[pwrslm]

16 minutes ago, pwrslm said:

 

I was told I was born with scoliosis. It was not ID'd on my entrance exam and I had never been told about it before. 18 months after I hurt my back in basic they told me I had it. Got an IMO from a  scoliosis specialist that told me that it was the result of a disc injury that was never treated. I had slipped my L5/S1 disc out the front of my spine and the scoliosis was my body maintaining its balance over many years.  He told me that he saw this before, not unique.

Was the scoliosis identified before you joined? There is a presumption of fitness that they go by based on the enlistment examination. If it was not noted there, and the VA does not have any evidence of any previous diagnosis, you should be good to go as long as you can document back problems while you were in act

 

[vetquest]

"A Veteran is considered 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are considered as noted. 38 C.F.R. § 3.304(b). 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).

VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 03- 2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).

In deciding a claim based on aggravation, after having determined the presence of a pre-existing condition, the Board must first determine whether there has been any measured worsening of the disability during service and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. 1153; 38 C.F.R. 3.306.

Temporary or intermittent flare-ups of the pre-existing condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247- 48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). Accordingly, "a lasting worsening of the condition" -- that is, a worsening that existed not only at the time of separation but one that still exists currently -- is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). “

_______

This is something Bertha unearthed five years ago but it is still pertinent today.

[Berta]

I actually read this same reg the other day.

My husband's HBP had been misdiagnosed by the VA ( one of many disabilities that caused his wrongful death)

and this was an 1151 issue determined by VA in 1997.

The VA had rated the HBP at 10% and the C & P examiner used the date of his total disabling 1151 stroke, as the EED for the HBP.(wrong) 

And denied this claim in 2015.

Then suddenly awarded because I filed CUE on it, as they had acknowledged my evidence...but said they had already paid me enough under 1151. (wrong)

I have asked for a copy of the signed C & P exam-that caused the denial.

The examiner stated the veteran's HBP had been "pre-existing," and not compromised by VA's prescribed sudafed.

There was no pre existing HBP condition when he was hired by the VA. And certainly not when he was in the USMC.

And they stated that he only had a few refills of the lisinopril and the sudafed over a 6 year period.That is com-pletely wrong.

I had already proved to VA that my husband's  HBP had been misdiagnosed and improperly treated.This  was clearly spelled out in the VACO review of 1997 they had received from me, confirmed by phone from the RO ,Feb 2015 ,the day before this  bogus "review " was done. The Vet rep or whoever he was who called me ,because the director asked him to, and said they already had someone picked to do the HBP C & P right away

I won that claim in less than one month, due to the CUE , but I want a copy of the C & P exam ( if there even was one, or if they just made up some BS in the denial ----to send to the Secretary and to , as I understand it, someone who is directing the VA accountability office....along with all my other bogus C & P exams, because this supports my complaints on my RO that former Director Gregory Mason said was not an attempt to discriminate against me ( 1996) yet this seems to be, if that is the case, how they are treating other widows as well.

Alex said here somewhere I should write a book- that is my goal this winter- VA made it so easy for me, Every denial and BS C & P exam I got will be in it. I think the way I overcame every denial will help others.

It might even impress on veterans that their spouses need to be up to speed on 38 CFR, DIC etc too.

And maybe cause them to really question if their VA health care is medically proper.

My recent HBP CUE on this was easy- the EED was wrong as I proved, and also the OGC pres op I used as evidence says they owe me some cash.

In past CUEs I filed, they violated 38 CFR 4.6 and completely ignored my evidence-never listing it in the evidence list.

In this case they Did list it-but maybe withheld it from the C & P examiner-as they did in the past--

either way this is how the VA can deny a claim, and it violates one of the most basic regulations the VA has to honor- 38 CFR 4.6.

 

 

Edited October 1, 2018 by Berta

[paulstrgn]

I had scoliosis prior to joining the AF and it was noted on my entry exam. I did have to obtain a letter from my doctor before they would let me enlist (March 1978).  I had injured my back several times while in the service causing my scoliosis to become worse. The VA has rated my scoliosis as "Intervertebral disc syndrome and degenerative arthritis with scoliosis, spondyloarthropathy, and thoracolumbar strain". Since it became worse because of military service I do receive a VA rating for it.

[broncovet]

Great answers, especially by paulstrgm, Vetquest, and, of course, Berta.  VA often cites the Caluza elements, but,  often considers only direct service connection, and completely forgets the others:

Secondary

Presumptive

1151

Aggravation