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ljl

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I had no note of any issues with my back upon entrance nor any prior medical records of any kind. I worked as an aircraft structural technician for almost five years. I'm a woman and weighed around 115 lbs at the time. We carried 70 lb tool boxes routinely.

There is a note in my service medical records of my going to the ER or doctor with a complaint of a back injury that mentions that I felt it was caused by carrying a 70 lb tool box. I was told to wear a brace and they probably gave me something for the pain (I don't remember the details but it's in my claims file).

It was the only incident mentioned during service but I've had chronic issues with my back since.

I filed a disability application for the back condition within three months of separation and was denied. I didn't appeal (I was young and dumb), and the claim for that condition was closed. My ratings decision and denial letter stated simply that the condition "was not incurred in service".

Do I have a CUE claim? It goes back to 1990.

Edited by ljl
needed to add additional details
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  • HadIt.com Elder
Posted (edited)

Have you had continuous treatment for the back condition since service?

Do you have a formal medical diagnosis  forthe back injury?

If you re open the claim, you will need ample evidence that the back problem has been continuous since service and I am sure you would need a strong independent medical opinion  (an IME would be an inperson exam ,that follows the IMO/IME criteria here at hadit.)

You said (I don't remember the details but it's in my claims file).

I suggest you obtain a copy of you SMRs and include request for your 201 iservice personnel file as well, as maybe that noted some way the injury caused your work peformance to decline or you needed time off for this problem.

Service records can be obtained from NARA Archives.

The site has changed a lot since I last used it- if you follow the directions a blank SF 180 should pop up for you to fill out and file online.

https://www.archives.gov/

NARA - as the site says is far behind due to COVID on these requests.

If you dont want to apply on line at NARA this is the form:

https://www.benefits.va.gov/homeloans/documents/docs/standard_form_180.pdf

Make sure you read over the form very carefully and then send it to the exact place they state on the codes,numbered from 1 to 14.You might need as well buddy statements of this injury. It should also have been noted on your Discharge Certificate.

Back claims are often Very difficult to succeed in.

But nothing is impossible, My neighbor had a back strain in the military rated by VA at 10% about 25 years ago. He developed additional problems with severe arthritis and cervical problems, and a C & P VA doctor attributed, with a strong medical rational, the nexus was to his back strain inservice. VA just took him up to 90%. He said it was all from the back strain nexus (link). 

If you do succeed in having the VA service connect your current disability-and that is a Big if, unless you have continuous treatment records, VA or private, since discharge, then you might be able to file CUE on the 1990 decision but you would also need to prove that in 1990 the back problem was ratable by medical evidence at least at 10%, and that would depend on documented medical records,in VA's possession,  at time of the denial, meaning what the SMRs they had, actually reveal.

I always say Nothing is impossible but it usually takes a LOT of work and probative medical evidence to succeed.

 

 

 

 

 

Edited by Berta
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Posted (edited)

I looked more closely at the records.

There is an admittance of the condition with a denial based upon the condition supposedly being resolved and/or not being objectively evident (which is tricky with back pain) but shouldn't the VA instead, have proven with clear and unmistakable evidence, that I could NOT have incurred the condition in service rather than placing the burden on myself to prove it HAD or proving it HADN'T been resolved?

Here is the notation from my disability claim examination in 1990. Apparently, being able to bend over with a full range of motion was enough for them to come to the supposedly clear and unmistakable conclusion that the claimed condition that they acknowledged was in my service medical records had been resolved. It hadn't.

957086398_backconditionexam1990noxray.thumb.jpg.ee8febcb8ce258f748a5758dbe2b1e93.jpg

In addition, do their stated reasons for a denial - that the condition had been resolved or wasn't immediately evident - pass muster under the presumption of soundness? How does one assess the presence of pain or it's resolution with a cursory visual assessment? Lastly, I never had a follow up appointment so there is no evidence of the condition ever being resolved in my service medical records so apparently they came to that conclusion as a result of the visual only exam done for my disability claim. 

Back pain is particularly difficult to diagnose as it is sensory to the patient with the cause not always being ascertainable through other means. I've been reading that other indicators such as vocation and other factors should be weighed into that sort of decision and they didn't have my personnel records in 1990 as I describe below.

2078680402_backconditionratingsdecision1990.thumb.jpg.a68410277e930124c8d565b2f49e2eaf.jpg219737866_backconditionratingsdecision19901.jpg.ae7b80b20ee846638478e82383a62da6.jpg

I've had pain ever since and have records only for the latter years between 1990 and now. I had pain during and immediately after separation, hence the claim, but I no longer have records from three decades ago. That was a long time ago and I never thought I'd need them, of course.

I was service connected with an earlier effective date for GAD through the device of 38 cfr 3.156(c) but I don't know if the personnel records they added to my claims file would provide a nexus for my back condition through an examination of my specialty and the physical demands associated with it, but again, doesn't the presumption of soundness apply over the burden of evidence provided on my part?

I would think that due to the fact that I brought up the pain in a disability claim immediately upon separation, would add to an argument that the condition existed at the time.

Edited by ljl
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Hello

I was seen 4 times in active duty for back pain. They called it a lumbar strain and sent me back to work with a few pills and a couple days off. The last one was a trip to Ramstein Airbase Hospital in an ambulance because I could not stand up due to severe spasms. 

I tolerated the pain for 35 years. When I signed up for VA healthcare I was sent to therapy and the therapist gave me the wrong exercise that resulted in my left foot drop. Things have snowballed since, but I told you this so you know that SC after 35 years can be accomplished. 

The key to my success was a medical professional provided me with an IMO that stated

-my active duty medical records had been reviewed

-my medical records since I left active duty had been reviewed

-my current medical records had been reviewed

and that the MD had examined me in person.

The info you provided is very similar to what I went through. When I was discharged, the VA "lecture" was about 5 minutes, and very inadequate. I waived the examination because I was not disabled, just like I learned in active duty, because disabled people could not walk, run, and do the job.

Collect all of the records that you can. As far as back pain goes, lay statements by you, your spouse(s), and any other family member that has conversed or observed you over the last 30 years can document the continuity of the back condition. You need a current diagnosis also. It is smart to get your own caretakers to put the etiology in your medical records. Etiology is the study of the causes, origins, or reasons behind the back pain, and/or the reason for the dysfunction, so it can refer to what the cause was (i.e. medical records from 30 years ago demonstrate a back problem, and the normal progression from the old injury is what we see today, so the two are more likely than not/definitely related).

Getting this info before you submit the claim is pre-emptive. Even the VA medical examiners tend to agree with a logical etiology that already exists in the records.

If you cannot get your own medical professional to put this in your records, you should seek out an IMO/E locally from a orthopedic specialist. I found one by hitting the phone asking for an IMO/E until I found a sympathetic specialists that was also a veteran. Absent that, some other examiners like Dr Bash are available but the prices may go 5-10K.

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  • HadIt.com Elder
Posted (edited)

You said"

"I would think that due to the fact that I brought up the pain in a disability claim immediately upon separation, would add to an argument that the condition existed at the time."

Yes, but the hurdle you would have to overcome, is that it appeared to the VA to have been resolved. And there seems to be no subsequent treatment records or diagnosis.

I dont know if it will help you but there are 22,066 Back claims for 2021 at the BVA web site-

their denials as well as awards will show how the VA handles these claims.

https://search.usa.gov/search/docs?affiliate=bvadecisions&sort_by=&dc=9162&query=back+pain&commit=Search

I am not trying to discourage you from filing  claim, and these claims can be dificult, but Pwrslm  just gave you Excellent advice as to what evidence you need.

 

 

 

 

Edited by Berta
added more.
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