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

[pwrslm]

Info you should collect to support your claim...

Your own lay statement. 1-3 pages max, be concise. The only thing you put in this is based on your own experience, not your opinion or medical diagnosis, but actual life experience like the pain, your own medical history, etc.. More info on lay statements here and here

You father can also provide a lay statement and a statement as a physician who treated you from the time you were X years old until you left to become a Marine. His lay statement and his medical opinion should be supported with a copy of his CV and any statements he would provide as a treating professional. (Chiro's are considered professionals, as much so as they recognize a PA.) This is where you get credible evidence showing you never had foot problems before you went to basic.

Brothers and sisters, friends and anyone else like High School coach/teachers or friends can also provide lay statements saying they never knew you had any type of disability like Pes Planus. Every lay statement should be sworn to and also concise and to the point. 2-3 like this make a strong case ever stronger.

Looks like you already have the medical records from your Active Duty stint. The Military Personnel Records is also something you want to get if you do not have it already. Go over them with a fine tooth comb, validate that every thing they did was properly signed by an authority. Lack of signatures can invalidate even a medical board discharge. I got a guy that spent 32 days in basic 100% P&T disability because the MD who did his examinations for the discharge failed to sign the report they used to discharge him. Never underestimate the probability of a simple mistake. If the board got it wrong, you must show that to be the case. Use any lay evidence and all medical evidence you can get to do so.

My first claim came in 2015, discharged in 1984. In my claim the Army MD made up a story about a football injury in High School (a total lie) when I went to sick call for severe back pain. 31 years later I had to track down info from my High School records to show I never played football in high school. My own lay statement was backed up with those records. I spent years in pain because of the ineffective process the Army/VA provided in discharge processing. Never had a clue that they would cover my back problems. I am 100% P&T from the long term effects of what happened to me in basic training. A domino effect from what seemed to be a minor injury in 1979 after 31 years, ended up giving me a lame leg, a fused crooked spine and bad knee's and hips. The secondary connections all add up after you get your initial claim approved. Took me 4 years total from 2015 to 2019.

Edited October 19, 2021 by pwrslm