30 Years to file claim, is this possible to win?

[Michvetinfla]

Disproving a discharge for a physical disability existing prior to entry determined by a medical board.

Facts.
Entered the United States Marine Corps November 7th 1990,  discharge date May 20th 1991 for a total of 6 months 14 days. 

In Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the 
United States Court of Appeals for the Federal Circuit 
(Federal Circuit) found that, when no preexisting condition 
is noted upon entry into service, the Veteran is presumed to 
have been sound upon entry and then the burden falls on the 
government to rebut the presumption of soundness.  The 
Federal Circuit held in Wagner that the correct standard for 
rebutting the presumption of soundness under 38 U.S.C.A. § 
1111 (West 2002) requires that VA shows by clear and 
unmistakable evidence that (1) the Veteran's disability 
existed prior to service, and, (2) that the preexisting 
disability was not aggravated during service.

When I entered active service in Detroit MEPS no waivers were signed As I had no disabilities including flat feet or bunions Etc. I was 100% healthy, passed my background check for top secret clearance and signed a five-year enlistment with a $10,000 bonus, MOS 0231. 

While in Marine Corps boot camp, during the third phase or last part of training until graduation,  I went to sick call for the first time complaining of lower leg and foot pain, that they were numb painful feel like knives are in them and hurts to walk or march. I was put on light duty no marching running PT and  ordered to wear go fasters or sneakers. I did miss the final last long march with the platoon at the very end of boot camp because of being on light duty, but I did graduate with my platoon (01Feb91). (Stating this now as there should be evidence of it somewhere in San Diego MCRD of me going to sick call, Proving the beginning of my foot problems and leg problems happened in boot camp). Went home for boot camp leave ,returned 10 days later for MCT Marine combat training, put in a guard platoon until a position opened up for me in the combat training class. The first week there while pulling guard Duty, (Reported back 11 February 91)- 19Feb91, and doing various Marine guard Duty tasks, the same problem occurred that happened in boot camp, shooting pains numbness etc etc. This time they took x-rays the first time 19Feb91, I came back in two days, 21Feb91, for another series of x-rays and that was it for my medical services at Camp Pendleton, and apparently that was the whole of my Medical Board in terms of talking to me or even having any contact with me upon making a final decision 29 April 91 Medical Board.

The Veteran was not shown to have any foot 
disability when examined for entry into service and the 
Veteran asserts that he had no foot disability prior to 
service.  The Board, however, finds that there is clear and 
unmistakable evidence that the Veteran had bilateral foot 
disability prior to service.  This is shown by the inservice 
medical findings that the bilateral foot disability existed 
prior to service.

Nonetheless, in order to rebut the presumption of soundness, 
the evidence must also show, clearly and unmistakably, that 
the Veteran's bilateral foot disability was not aggravated by 
service.  

A preexisting 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.  38 C.F.R. § 3.306(a).  Temporary or 
intermittent flare-ups of the preexisting 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).  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 C.F.R. § 3.306(b).

(this is my conjecture of extrapolating recorded VA cases and actual notes with my facts in my case)

Although the April 29th 1991 medical board report states that the veterans physical disability had not been aggravated by service, But in almost every instance of cases I've been studying, like this, the VA court case inspected disagrees and Rules in favor of the veteran. It usually will sound like this. “ in this case the service treatment record clearly shows that the veterans bilateral foot disability increased in severity during service. the veteran went from having no foot complaints to having extreme foot pain and difficulty walking. even after going on light duty and 10 days bootcamp leave and refraining from marching and wearing boots after all that he still had the same symptoms and pain as in boot camp the pes planus flat feet. Despite the medical board, the evidence does not clearly and unmistakably show that the foot disability did not worsen in service.

 Because the veteran bilateral PES planus did increase in severity during service and because there is no clear and unmistakable evidence that the veterans pre-existing bilateral foot disability was not aggravated during service, the board finds that the veterans pre-existing bilateral pes planus was permanently aggravated by service. Because the presumption of soundness has not been rebutted, service connection for bilateral PES planus is warranted. !!!!
That is the outcome that I see coming from the facts of this case unless I am wrong. I want to add the rest of the information to complete the Nexus. 

I am including in this the x-rays and doctors prognosis of those x-rays which are the originals from 1991. this was given to me by the nurse who told me I was getting screwed over that clearly my injuries occurred in service in that they're doing this so I don't get any disability she was a Vietnam vet nurse very angry gave me all the records that I took pictures of below and told me to hold them until I was ready for disability I never forgot that and kept them in the safe place for 30 years that is why I have this evidence.

The discharge papers and the board paperwork I have included, does state a physical disability existing prior to entry determined by a medical board as the narrative reason for separation.The medical board consisted of going to sick call twice and getting x-rays. 

Two different times I went for x-rays as you can see I was diagnosed the first time February 19th with possible stress fractures of the proximal tibia of both the right and left leg as well as the right foot hallux valgus deformity otherwise within normal limits my left foot degenerative changes in the MP joints. Then on the February 21st prognosis was of bilateral mild pes plannus.

And the most important part of the case, I believe is, my father has been my primary doctor my entire life and he was a licensed chiropractor who retired in 2005. He did have all my records and notes for all my years, he did keep them the required seven years when he retired in 2005 and burn them along with all his patients in 2012. But he is willing and ready to go on record for me from memory. Again this was one of the factors I never attempted this because I have no doctor except my dad, and I didn't know they allowed Chiropractic doctors and gave the same weight of evidence as medical doctors.(I found out starting in 2004 so I guess I'm 16 years too late) I was always told the opposite so I felt I never could do anything about this unjustice that has been done to me all these years. 

When I was discharged I was Furious because I was perfectly healthy and they claimed that it existed prior when it actually happened in boot camp because they didn't want to pay disability to me. Now it doesn't matter per se proving I didn't have it previously if they failed the presumption of soundness test but my father will testify to the fact that I never had flat feet or fallen arches are any problems with my feet until I returned from the service and that is when he did his own X-rays of me and can testify that, yes they(USMC) had permanently injured Me by causing the flat feet tibia stress fractures hallux valgus and degenerative changes in the MP joints. 

Again all the files have been burned as per law but he will testify that he gave me physicals every year and noted the declining health of my feet and how it has caused back damage, lower back damage. He noted this all through my life while treating me, giving me adjustments Giving me arch support to try in my shoes as well as Orthopedic inserts and shoes all to no avail as they did not help my feet just got worse as well as the Nexus needed from my father to associate my lower back pain specifically the MRI that I included with the information about the disc herniation with severe Central stenosis and sacral nerve root impingement. 
Will the VA take into account my Father being a chiropractor as well as being my father and having an intimate knowledge and relationship of my health my entire life would they give his testimony the same weight as a medical doctor or more? He will testify that more so than not it is likely probable that my flat feet conditions led to the secondary conditions of the lower back where it is evident with the MRI from 2017 how bad my back truly is. As a matter of fact I'm waiting for a decision for Social Security disabilityI just sent in one month ago. I fit the listing for sacral nerve root Central stenosis lower back listing And have not been able to work since August 2019 where I had a bicycle accident and broke my right scapula resulting in the secondary hurting my back which was already end herniation and sacral nerve impingement. 

Now in terms of what to claim disability wise, I still need to speak with someone and I mailed in my intent to file a claim today and would like some advice?? I was going to use the Disabled American Veterans as my VSO the one in Tampa Florida Does anyone recommend them in Central Florida or have a better vso recommendation?. Again I am waiting for my SSI disability which I just put in 2 weeks ago and how will that ruling affect my VA ratings at all if any?

And should my father the chiropractor be putting in his prognosis such as my pes planus is either pronounced or severe Etc should he be making prognosis on my feet and back because he is a professional in that needs to give his professional opinion?

Any info would be great I guess I'm fairly confident that I finally have the facts straight that even if they claim it existed prior to enlistment they have to then prove it wasn't made worse in service and as I pointed out that's very high bar,  but again connecting the Hallux valgus, stress fractures, pes planus as Service-connected so that the secondary connection to my documented lower back issues that he, my father the chiropractor, has made the Nexus Link to the primary and it definitely happened at the direct result from my flat feet in it problems that happened to me while in service in the Marine Corps. United States claim

Any info would help should he be putting in a rating for my back there are many codes should he be trying to figure out all these codes and ratings or is that something my vso should help me with as I said my father is in my corner and knows that this was all caused by my in-service primary and secondary and will do whatever he has to to back that up. 

Edited April 20, 2020 by Michvetinfla
add info

[Michvetinfla]

Thank you so much that is great advice and I am going through it line by line. I also made a huge step last week and made a psychologist appointment and have a counseling session tomorrow night 9 p.m. I am going to finally document what this has done to me mentally and put in a claim for that as well. I do believe this is the right course but any comments would be appreciated again thank you I just feel so overwhelmed right now 30 years of them denying me I wasn't actually crazy when I went in there they had my name wrong so when they actually said they did had nothing on me I never served actually believe them for a while but as I found out just a few weeks ago they had my name spelled wrong in Saturday I finally faxed  the correct information hopefully it will be fixed by then but thank you again.

[kanewnut]

I don't know how it happened but ebenefits had my middle name wrong. They had it listed as Dennis. It was the correct first letter but not my name. I had to send them a certified copy of something to get it changed. No where else was this done. I don't know how ebenifits gets their information.

2 hours ago, Michvetinfla said:

I just feel so overwhelmed right now

It can seem to be overwhelming. Tbird has some stuff on here somewhere about going through your records and dealing with copies. I have done mine by creating files on my computer. I have different folders for things such as C&P exams, VA decisions, CUE with sub folders 1985 CUE, TDIU CUE and Date error CUE. It just depends on whether you are comfortable doing it on a computer or whether you would rather have all paper. As you get it all documented it should become a little less overwhelming.

[Michvetinfla]

Thank you for the uplifting advice, I'm realizing very quickly that organization is probably the most important thing which is simple, since I have almost no files everything I have I've uploaded to this site so it's pretty easy so far I guess the overwhelming point is that I'm still looking into podiatrist for the flat feet primary in service incident but more importantly the secondary back issues that I had the MRI for and that I'm going on social security disability for, which I'm still waiting to hear my first original claim on that as well it's been about one month since I put the claim in. and I put that claim in with just an MRI and where to get my emergency room x-rays from my broken shoulder and my father wrote a statement as he is a retired chiropractor. 

And I have my first psychologist appointment tonight 9 p.m. the document the mental health side of it for another claim so I have one doctor the psychologist who I'm working with to give me a Nexus and DBQ so I assume next step is the podiatrist and a back doctor but my father should be able to have his word stand as a Nexus statement could develop these links between my feet and my back if he is a chiropractor and had 20 some years of X-rays of me and my entire life again just starts at start overwhelming me since I don't have any answers in trouble finding a podiatrist and possible back doctor.

[SameOldSong]

Michvetinfla, the psych diagnosis won't help your case at this time.  The case is your feet, and then spinal degeneration.  I know that it has created mental issues for you, but filing psychological issues like depression without first having a service connected disability is going to kill your case outright. The VA looks at "kitchen sink" cases and then backburners them like my 10-year fight to get my own issue dealt with.  It's going to be tough to pull this together, but I would start with your feet.

First, ask your Dad if he knows any chiropractors in the area that can give you an examination and look at your x-rays and the military evidence and see what they think.  Believe me, having a friendly chiropractor that has a current license is going to be half the battle. 

You see, many of the chiropractors in our area are seeing patients forwarded to them by the VA.  The chiropractors are the ones doing spinal and skeletal issue DBQs for the VA. And if they are doing those forms for the VA, they have zero interest in doing one directly for you even if you pay them to do the same exam.  Why?  Because they are on the VA payroll by virtue of having a steady stream of referrals and don't want to tick off the VA.  And now with the DBQs gone, you need an exam from a competent outside doc that can give you an equivalent to a C&P exam examination.  I haven't been able to find one yet in my area, though I did get a physical therapist to finally give me a spinal ROM and am combining that with a spine surgeon's report.

Second, that examination has to be equivalent to a VA C&P exam. You need the DBQ exam without the DBQ. Or use the DBQ form anyway.  I'm including the one for Foot Conditions (21-0960M-6), but it may take me a bit more to find 21-0960M-5 which is the Pes Planus one.

Then, you'll need nexus to connect the service injuries to your current injuries. This needs to be done by a podiatrist or a chiropractor or someone with specialty in spines or feet and skeletal conditions. The VA wants the exams to be done by someone in person, but the nexus can be a reviewer that takes your records and looks at them. That reviewer needs to be a specialist that I mentioned above, or the VA will simply toss it.

Your Dad can put his discussion of your case in a short letter that you submit.  As he does not have his medical license now, he can't be your medical exam or nexus.  But he CAN be Lay Evidence and submit a buddy letter on your behalf.  The fact that he was a licensed chiropractor should have some weight.

Get the feet done first, then go after the spinal degeneration.  If you try to go after feet, knees, hips, spine, psychological damage and all the rest, the VA will just trash it and it will be hard to get a C&P. 

Now, you were military, get your records from the National Records Center, both military and medical, then apply for Veteran Health Benefits.  You qualify with at least a day in Active Duty service.  Ask for an appointment.  Get the VA doc to examine your feet.  That may get the ball rolling alone.  VHA (the Health group) and VBA (the Benefits group) are not the same and the VA docs are often human. 

Last piece of advice in this message:  send the forms in on paper to the VA Evidence Intake Center as certified mail, return receipt requested. That decreases the "lost records". Keep copies of every paper you send them AND those mailing receipts.  When they send you stuff, keep the paperwork and their envelope.  Twice now I've had to prove an effective date based off the letter and envelope the VA sent me and my mailing receipts by taking pics and sending my rebuttal in with these pics.

They will still deny you the first time and basically want you to get a VSO immediately.  I've never had one, and I did win my first 30% on my own (PTSD, which is really difficult to do and moreso because it was non-combat and I'm female). It takes years to get through this system. Years. Every denial or setback takes another 3-4 year waiting period.  If they think you are one of the "file everything and I'm faking it" crowd, they'll wait you to death. I'm at the point where I realize that I can't go further without a lawyer or advocate. And I'm close. Really really close.

VBA-21 - Foot conditions DBQ form.pdf

[Michvetinfla]

Update...I won my SSI Disability on reconsideration, waiting for podiatrist appt next for current diagnosis and nexus and in service injury, then file!

[john999]

If you get service connected for your feet you may be able to file a claim for depression due to pain and disability.  Many vets get depressed because of physical disability and don't realize it probably is due to the disability and pain and suffering.  I got a 10% disability that was effective one day after my discharge.  Army says I was ok until the day after I was discharged.  How does that work?  You know that Marines were just angry because they did not want to pay disability even though they decided you were unfit for duty.  They have done this about a million times.