Fabulous CUE award due to"pre existing condition" BS

[Berta]

https://www.va.gov/vetapp20/files6/20042814.txt

In part- you have to read the whole thing----it is a Beauty, retro back to 1996!!!!!!

"The Veteran’s allegation of CUE centers primarily upon whether the RO correctly applied the presumption of soundness provisions under 38 U.S.C. §§ 1111, 1132. The statute provides that the Veteran will be 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 clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111, 1132; 38 C.F.R. § 3.304(b).

Concerning the lumbosacral spine, the 1988 x ray findings of early arthritis post-dates the MVA in 1987 and the 1984 electrical accident.  Notwithstanding, the medical evidence of record at the time of the 1996 rating decision does not suggest or establish that the Veteran injured his back as a result of the electrical accident.  In addition, the 1988 x ray results bear a notation that they were taken status post MVA one week ago and reference complaints of back pain over entire back.  The findings of arthritic changes themselves were described as minimal and early, but not acute.  Thus, and in context of the Veteran’s reported inservice injuries and his report to the 1996 VA examiner that his back pain began in active service and had persisted to that time, the Board finds that the preponderance of the evidence is supported a finding that the lumbosacral spine disability diagnosed in 1996 is causally linked to the inservice lumbosacral spine. 

Accordingly, revision of the December 12, 1996 rating decision is appropriate.  Service connection for thoracic and lumbosacral spine disability is granted, effective October 10, 1996, the day the claim for service connection for a back disability that was the subject of the December 12, 1996, rating decision was received."
 

 

Edited May 26, 2021 by Berta
added more

[Scottish_Knight]

Bloody fantastic that!  Great decision and write-up by Judge Donnelly!   Worth saving for future reference.