Although we were only involved in the claim for the last year, after multiple now-final denials (dating back to the 1960s) and a request to reopen that has been pending over ten years at various levels of the adjudication process, the Board of Veterans’ Appeals (BVA) granted service connection for an Army Security Agency (ASA) veteran with a severe lumbar-spine disability that he genuinely believed (and the VA has now acknowledged) was related to service. I’ll provide a link the BVA decision once it is uploaded to the BVA website with redacted personal identifying information.
The substantive issue involved — simplified for educational purposes — whether the veteran’s lumbar spine disability: (1) there was clear and unmistakable evidence of a pre-existing back disability; (2) assuming their was a pre-existing disability, whether the evidence established by clear and unmistakable evidence that the veteran’s injury in service did not aggravate the pre-existing disability; and (3) whether the veteran’s current diagnosis of degenerative disc disorder related to what occurred in service. Ultimately, the Board held that “the evidence is not clear and unmistakable that there was no aggravation [of the veteran’s lumbar-spine condition]” and “[t]his record is in at least equipoise as to whether the current back disability is related [to service].” Therefore, service connection was granted.
My takeaway for veterans faced with similar issues: (1) it is important for veterans who are being denied service connection for a pre-existing condition to understand the statutory and regulatory burdens upon the agency related to such issues. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) explains the legal analysis and a copy of the decision can be found at http://caselaw.findlaw.com/us-federal-circuit/1371909.html; (2) it was important to track the course of the veteran’s back condition due to the length of time between current claim and time in service and have a full understanding of the medical literature concerning various types of back disabilities. After reviewing medical literature (I use a proprietary for-fee scientific/medical research website, however, veterans can use http://scholar.google.com/) it became obvious that the current disc degenerative manifested during service; and (3) this veteran, in spite of significant obstacles, remained steadfast in his belief that his condition was related to service and continued to appeal after many would have given up.
Ultimately, this is not the end of the claim process. The BVA decision will be returned to the Agency of Original Jurisdiction (AOJ) for further adjudication. The issues that are relevant for me to carefully track are: (1) timely compliance and resolution of all issues by the AOJ; (2) ensuring that the veteran is properly rated based upon his current level of disability; (3) ensuring that the AOJ properly tracks the level of disability for the entire ten year period of time that the claim has been active; (4) ensuring the veteran is aware of ancillary benefits that will result from a compensable disability rating, to include change in Priority Group before the VHA; and (5) ensuring that any secondary conditions/issues related to the veteran’s service-connected lumbar spine disability are properly adjudicated.
Unfortunately, the postscript to this claim cannot be written until those issues are addressed. If you have questions or concerns about issues related to pre-existing conditions, please do not hesitate to contact me for a free consultation at sdirector@FRE-L.com or (732) 382-6070.