Presumptive Conditions-Arthritis

[allansc2005]

Good morning everyone,

 

Got a veteran who is not SC, and was just denied SC for arthritis.

Q. Considering arthritis is a presumptive condition, is the veteran required to show a Nexus to active duty?

Veteran served from 1960-1963 if it matters, did not serve IN Vietnam or any war zone.

Even though his denial letter addresses arthritis being presumptive, it's vague about the requirement to show a connection.

Veteran's active-duty medical records show NO indication of arthritis.

Q2. Send it in for Higher Level Review?

 

Thanks,

 

Allan 2-2-0 HOOAH!

 

 

 

 

 

 

[Berta]

In this excellent article by Hill/Ponton (vet lawyers) it states in part:

"But arthritis can also be presumptively service-connected.  According to the VA regulations, if your symptoms of arthritis appear within one year of discharge from service and qualify for at least a 10% VA disability rating, the presumption of service connection applies."

https://www.hillandponton.com/va-ratings-for-arthritis-explained/

They also have info in the article on how it can be secondary to an established SC condition.

Here is the BVA's statement on chronic presumptives:

"If chronicity in service is not established, or legitimately questionable, then a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. ง 3.307. The term 'chronic disease', whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. ง 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)."

https://www.va.gov/vetapp16/Files2/1610669.txt

The list of Chronic Presmptives is here at hadit and I feel many Vet reps, VSOs etc overlook  them- even when a vet files within one year after service and has a chance to possibly prove the 10% criteria with their SMRs or with  private medical records, that arose withi the same one year after service,for the same disability.

 

Edited January 16, 2022 by Berta
added more

[allansc2005]

Berta,

 

Sadly this 82-year-old veteran has no record of arthritis during the one year period after discharge, and the earliest we can track his documented arthritis is 1994, many years AFTER his 1963 discharge from the Airforce.

He is being treated by the VA for various illnesses, considering his VERY low income level, but he has no, not even zero, SC.

 

Think it's worth a shot to get a Higher Level Review?

Certainly, don't have anything to file a Supplemental.

 

Allan 2-2-0 HOOAH!

[john999]

It is going to be hard to get him service connected unless he was exposed to something like AO or has PTSD.  After almost 60 years since discharge he might be able to get non-service connected pension if his income is very low.

[allansc2005]

@john999,

 

Unfortunately the veteran came in during a time -1960 when you had to have "boots on the ground" to be eligible for a pension. His Airforce tenure was 1960-1963.

 

We tried that route and was shot down by the VA using the laws and regulations, which I researched and found to be true.

 

Thanks,

Allan 2-2-0 HOOAH!

[Berta]

Yes, the VA was correct on that:

"Vietnam War era (November 1, 1955, to May 7, 1975, for Veterans who served in the Republic of Vietnam during that period. August 5, 1964, to May 7, 1975, for Veterans who served outside the Republic of Vietnam.)"

https://www.va.gov/pension/eligibility/

Could any of his " various illnesses " that VA treats him for

                              have any nexus to his MOS?

Allan, it is great that you continue to help veterans,but I certainly realized long ago, that there are veterans we cannot help to attain SC.

I learned years ago that ( there are many veterans in my isolated locale, because the VAMC is only about 20 miles away from me,) if they showed up here or called me up ( many at the VAMC knew where I lived) I needed to see their DD 214 and also their last decision from the VA. Then I could direct them to a local vet rep on the VAMC grounds or not far from the VAMC, with a suggestion as to how to the claim should be filed.(I knew many of the local vet reps)

However, my plumber  who had an odd story about his discharge but did get VA medical care, bugged me for years to see if I could get his CAD service connected , and I saw no nexus at all but kept telling him to get someone on his POA to file the claim.

At one point he brought with  him a stack of VA records, asking me if I could "find something" in them that VA would service connect as by that time he had asked others about the CAD, and realized he had no inservice nexus nor any MOS that could have possibly caused the CAD.

I dont look through stacks of medical records for "something "a veteran might get service connected for. It is hard enough for us sometimes to do that, to connect the dots,  for our own claims.

My woodstove cleaner and fire inspector also told me every time he was here worrking about his problems as a Navy Diver, getting his severe Hearing loss service connected. He said he  also suffered from the "bends" as a diver and that still gave him physical problems.

I felt he had a good chance of getting SC but that was based solely on what he told me, and yet it was often  a little different story every time he was here to work and he lways forgot to bring the denial with him so I suggested he get a local POA- but he never did, as far as I know.

My point (and I had many other experiences like above ones, and many were pre hadit-and others were vets who could not use a PC to come here, when hadit went on line, to include many widows of vets too)

is that some situations will never garner a veteran a SC rating and none of us can perform a Miracle.

Even a very close friend of mine thought I get get him TDIU -he wanted me to file the claim for him with the VA ---- I dont do that) but Never would show me a SSDI decision that he said was solely for his SC disability. And he never would take my advice to see one of the local vet reps at the VAMC or within the county.

Perhaps this elderly veteran's MOS caused his other problems VA treats him for.

I still believe there are Bad Water vets out there who might have disabilities from Camp Lejuene, and of course AO has been proven to have been used in CONUS and some CONUS vets have succeeded on that basis, proving their exposure to AO in the USA caused their disabilities.

Nothing is impossible but it often takes a LOT of work.

( I also ws contacted by a wannabee long ago- his BVA decision was 17 pages long.

The VA had the audacity to put him into the 21 day inhouse PTSD  program, and the vets there contacted me -my husband was there as well with him, all combat vets with SCs for PTSD, to tell me they thought he  was a wannabee because he kept asking them to describe their stressors. None of his stressors could be proven and he said he had never made friends with anyone in his unit in Vietnam, so no buddy letters.

He did have a PTSD diagnosis from a VA doctor  and lived in a shack in  the boonies in cameos and had pungy sticks all over the place, but no valid stressors from Vietnam and I did try to find any connection at all to his unit history, and his MOS.

But  his BVA denial stated he was not a " reliable historian" and every attempt the BVA made to verify his stressors found nothig to support his claim.

 

 

 

 

 

 

 

 

Edited January 17, 2022 by Berta
CTS

[Berta]

I forgot to add- the wannabee did NOT receive 100% temp SC for the Inhouse program

as the other SC PTSD veterans did. VA knew he was a BSer.

But he should have never been in the 21 day program at all.

Wannabees- I knew a few here in NY- but they usually seemed to me to be willing to gripe about the VA, but many did not even attemopt to file claims they could not prove.

I believe the percent of vet wannabees is less than 1 % of all veterans.

And if they do succeed on a SC claim that was never valid, the VA OIG proably will catch them, as VAOIG reports reveal.

There was only one vet here in the past 20 plus years that I was very leary of, based on what he posted.