chr49

Carlie, Thanks. Great info. I can see why they prefer this one.

Congrats Tyler!!

Pete, I'm not sure if any of this info will be helpful to you. Apparently the 'bilateral factor' we normally see isn't used with flat feet. If the VA is rating your condition as bilateral you should be able to figure it out. According to the 38 CFR Book C there are specific ratings for bilateral vs. unilateral, which are figured according to the severity of the condition. Here's the info: 5276 Flatfoot, acquired: Pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances: Bilateral - 50 Unilateral - 30 Severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities: Bilateral - 30 Unilateral - 20 Moderate; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet: Bilateral or Unilateral - 10 Mild; symptoms relieved by built-up shoe or arch support: 0

Thanks Carlie, I was thinking along those lines. It's difficult to know whether to go with a reconsideration or not. I recently obtained a "more likely than not" IMO (following the guidelines I've found on Hadit & locating a specialist in the area I'm dealing with). I thought I'd take it to my VSO and ask about going the reconsideration route with a request to review the omitted medical records & the IMO as additional evidence. So, my question is, can a reconsideration hold things up to the point of not having time to take the traditional route?

Pat, Thanks for the reminder....so far there's nothing showing on e-Benefits, but I've never had much luck with the site. It's never up to date in my case.

Thank you Chuck75. I have considered doing that but as you say, I don't know if it's a good thing to do. I really don't know what would be the proper way to handle the situation. I don't want to make things so bad that they won't listen to me but I don't want to lose out because I didn't speak up either. I just sent an IRIS inquiry to check on whether they've received my NOD and I was hesitant in doing so, but I don't want to lose because I didn't watch close enough.

My VSO explained that the statement of case would be the next thing I'd receive. I have not checked to make sure the VA got the NOD at this point. I've checked in with my VSO but that's it. Would I get that info from an IRIS inquiry? Since my luck with IRIS inquires hasn't gone well, I would like to know if there is another way.

You can say that again!!

I went to a new VSO (same organization - TN DVA) on Aug. 13th and filed a NOD on a July 28th rating decision. I haven't heard anything from the VA yet. My VSO says it could take 60 days before I hear anything at all but I don't remember it taking this long with a NOD I filed a couple years ago. I'm trying hard to be patient but don't want to wait too long either. I may have mentioned this before, but I'm worried because I received a request for further information and sent in medical records & a statement in support of my claim in April and those records were ignored. When I made an IRIS inquiry about the records I'd filed, they came back saying: "Our records do not indicate receipt of the packet sent by your VSO after April 13, 2010; however, it appears that we received similar documents on February 16, 2010. If you feel that your packet was not received, you can resend the information via U.S. mail or fax". I followed up by requesting my C-file and found date stamped (4/20/10) evidence that they had received my packet. Everything I'd sent was in my c-file. This is upsetting to me because there were medical records, pertinent to one of my claims and that evidence is not shown in my decision letter. I'm at a loss and the new VSO doesn't offer much support on how to follow thru. Any suggestions on how should I proceed? How long should I wait to hear about the NOD I filed on 8/13/10?

Well said Pete53...I agree

Jeff, My disability isn't IHD related but if not for a complete stranger who took the time to listen to me and recognize that I qualified for VA care & compensation, I would still be out there. I was in 'Nam in '70-'71 and had no awareness of how the VA could help me, either medically or thru compensation until '07. I agree that we need to help each other all we can.

Very strange one.

Chuck75 I searched the .pdf for 5.261 and found 4 references to 5.261 (d) & (f) within in the RIN 2900–AM07 so they don't appear to be omitting it but they aren't making it easy to find out either. After reading the following statement it doesn't sound like they are making changes to that section....but who knows? "For the text of proposed § 5.261(f), which is cross-referenced in proposed § 5.251(d), see 69 FR 44625(July 27, 2004)"

I tend to have a pessimistic point of view too. There's so much to go thru and so many ways the VA can twist things. What bothers me is how quietly this has been put thru the system. I hadn't heard about it until I stumbled on it while searching for something else.

I'm not sure this is the correct forum to post the following. Moderators please move to appropriate forum if needed. Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Proposed Rules "The Department of Veterans Affairs (VA) proposes to reorganize and rewrite in plain language its regulations concerning service-connected and other disability compensation. These revisions are proposed as part of VA’s reorganization of all of its compensation and pension regulations in a logical, claimant-focused, and user-friendly format. The intended effect of the proposed revisions is to assist claimants, beneficiaries, and VA personnel in locating and understanding these regulations." Federal Register link: DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 5 RIN 2900–AM07 Service-Connected and Other Disability Compensation

I've been gone awhile and missed this one. They must have pulled the file. The link doesn't work for me. Just my luck these days.

Good news! Hopefully getting an IMO on your back claim will make a difference!

Congratulation Stever...nice effective date!

Vync, Congratulations! Hopefully an IMO will change the back claim ruling.

Jbasser Well, I never knew this little bit of info. Thanks for the explanation!

Bufloguy This is great news....Congratulations!

Cooter, My wife says the doctor would most likely bill using a new patient consultation code (there are several codes available for extended office calls, etc)and add billing codes for any necessary procedures(such as lab work, X-Ray, EKG, stress testing, etc). As far as diagnoses goes, the doctor would most likely include codes for all diagnoses that are related to your IMO. I hope this helps.

Kathy Here's a copy of the General Counsel memorandum (it's also in the Fed. Register). Under HELD #3 appears to be the trick question in my opinion. Chr49 Department of Memorandum Veterans Affairs Date: October 28, 2003 VAOPGCPREC 6-2003 From: General Counsel (022) Subj: Service Connection for Cause of Disability or Death XXXXXXXXX XXXXXXXXXX To: Chairman, Board of Veterans' Appeals (01) QUESTION PRESENTED: Under 38 U.S.C. §§ 1103, 1110, and 1131, may service connection be established for a tobacco-related disability or death on the basis that the disability or death was secondary to a service-connected mental disability that caused the veteran to use tobacco products? DISCUSSION: 1. The Board of Veterans' Appeals has requested opinions in two cases raising in essence the same issue involving secondary service connection. We are responding to these requests in a single opinion. The question raised by these two cases is whether, for purposes of a claim received by VA after June 9, 1998,[1] secondary service connection may be established for a tobacco-related disability or death that is a result of or aggravated by a service-connected disability unrelated to tobacco use. 2. In one case, the veteran served on active duty from May 1959 to March 1961. The veteran has been service connected for schizophrenia since discharge from service. In June 2000, the veteran filed a claim for service connection for emphysema, bronchitis, and asthma as secondary to smoking as a result of the service-connected schizophrenia. A Department of Veterans Affairs (VA) physician provided an opinion that the veteran's schizophrenia is as likely as not related to the veteran's tobacco use and subsequent development of chronic obstructive pulmonary disease and bronchitis. 3. In the other case, the veteran served on active duty from June 1943 to November 1945 and died on September 18, 1998. The veteran's death certificate lists the cause of death as metastatic lung cancer. The death certificate also indicates that tobacco use contributed to the cause of death. The veteran, a former prisoner of war, had been service connected for post-traumatic stress disorder (PTSD) since December 1990. The veteran's surviving spouse filed a claim for dependency and indemnity compensation (DIC) in March 1999. A letter from one of the veteran's private treating physicians stated that the veteran's lung cancer was "almost without question related to [the veteran's] history of tobacco abuse" and that the stresses of the veteran's military service made the veteran much more vulnerable to developing a smoking habit that eventually contributed to the veteran's death. A physician involved with the veteran's treatment at a VA medical center from 1988 until the veteran's death stated in a letter that the veteran smoked since World War II, that the veteran developed nicotine addiction over time, that the veteran's psychiatric condition most likely played a significant part in the development of the nicotine addiction, and that the veteran's psychiatric condition "undoubtedly doomed [the veteran's] attempts at smoking cessation to failure, and in this manner, contributed to [the veteran's] eventual demise." Another physician involved in the veteran's treatment at a VA medical center from 1988 until 1997 noted in a letter that the veteran had been addicted to cigarettes since the veteran's military service during World War II. The physician reported that the veteran had told him that the veteran's nervous condition prevented the veteran from giving up smoking. The physician concluded that the veteran died from "cancer, the result of years of smoking, refractory to cure because of . . . severe PTSD." 4. Pursuant to 38 U.S.C. §§ 1110 and 1131, compensation is payable “[f]or disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.”[2] DIC is payable to the surviving spouse of “any veteran [who] dies after December 31, 1956, from a service-connected or compensable disability.” 38 U.S.C. § 1310(a). Section 1310(a) states that the “standards and criteria for determining whether or not a disability is service-connected shall be those applicable under chapter 11 of this title.” Chapter 11 contains the eligibility criteria for disability compensation for service-connected disability. 5. Section 1103(a) of title 38, United States Code, prohibits service connection of a death or disability "on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran’s service." (Emphasis added.) VA implemented 38 U.S.C. § 1103 by promulgating 38 C.F.R. § 3.300. Section 3.300(a) and © provide in pertinent part: (a) For claims received by VA after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service. . . . . . . . © For claims for secondary service connection received by VA after June 9, 1998, a disability that is proximately due to or the result of an injury or disease previously service-connected on the basis that it is attributable to the veteran's use of tobacco products during service will not be service-connected under § 3.310(a). (Emphasis added).[3] The plain language of 38 U.S.C. § 1103(a) and 38 C.F.R. § 3.300(a) prohibits service connection for a condition that is attributable to a veteran's use of tobacco during service. In addition to barring direct service connection where tobacco use results in disability or death, this prohibition appears to apply to disability or death secondary to a service-connected disability that caused the veteran to use tobacco products during service, unless disability or death arose during service or during an applicable presumptive period. See 38 C.F.R. § 3.300(b)(1) and (2). Further, section 3.300© prohibits a finding of secondary service connection where the secondary condition is proximately due to a disease or injury that was service connected based on a claim filed on or before June 9, 1998, on the basis that it was attributable to use of tobacco products during service. However, the plain language of the statute and regulation do not bar a finding of secondary service connection for a disability related to the veteran's use of tobacco products after the veteran's service, where that disability is proximately due to a service-connected disability that is not service connected on the basis of being attributable to the veteran's use of tobacco products during service. 6. With regard to a claim for secondary service connection, section 3.310(a) of title 38, Code of Federal Regulations, provides that “disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.” “Proximate cause” is defined by Black’s Law Dictionary 213 (7th ed. 1999) as a "cause that directly produces an event and without which the event would not have occurred.”[4] See Forshey v. West, 12 Vet. App. 71, 73-74 (1998) (that which in a continuous sequence produces injury and without which the result would not have occurred), aff'd on other grounds, 284 F.3d 1335 (Fed. Cir.) (en banc), cert. denied, 537 U.S. 823 (2002). There may however be more than one action that has an effect in bringing about a harm. When there are potentially multiple causes of a harm, a similar rule is to be applied, i.e., an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. Shyface v. Secretary of Health & Human Svs., 165 F.3d 1344, 1352 (Fed. Cir. 1999); Restatement (Second) of Torts §§ 430 cmt. d. and 433 cmt. d. (1965). A determination of proximate cause is basically one of fact, for determination by adjudication personnel. VADIGOP, 3-17-71 (Vet). The questions that adjudicators must resolve with regard to a claim for service connection for a tobacco-related disability alleged to be secondary to a disability not service connected on the basis of being attributable to the veteran's use of tobacco products during service are: (1) whether the service-connected disability caused the veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. If these questions are answered in the affirmative, the secondary disability may be service connected. 7. As noted above, DIC is payable where death results from a service-connected disability, 38 U.S.C. § 1310(a), and the standards and criteria for determining whether a disability is service connected are those applicable under chapter 11 of title 38, United States Code, for determination of eligibility for disability compensation. Those standards and criteria include the rules for secondary service connection under 38 C.F.R. § 3.310(a), which are based on the authority provided by chapter 11. See VAOPGCPREC 8-97 (38 C.F.R. § 3.310 cites 38 U.S.C. §§ 1110 and 1131 as its statutory authority and implements section 1110). Whether the cause of a veteran's death is service connected is a finding of fact. Swann v. Brown, 5 Vet. App. 229, 232 (1993). Pursuant to 38 C.F.R. § 3.312(a), a veteran's death "will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death." Thus, in a DIC claim in which the claimed cause of death is related to use of tobacco products after service secondary to a disability not service connected on the basis of being attributable to the veteran’s use of tobacco products during service, adjudicators must resolve the same three questions stated above to determine whether the disability that was the principal or a contributory cause of death may be considered service connected. If these three questions are answered in the affirmative, the secondary disability may be considered service connected and may be considered as a possible basis for service connection of the veteran’s death, applying the rules generally applicable in determining eligibility for DIC. HELD: Neither 38 U.S.C. § 1103(a), which prohibits service connection of a disability or death on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during service, nor VA’s implementing regulations at 38 C.F.R. § 3.300, bar a finding of secondary service connection for a disability related to the veteran’s use of tobacco products after the veteran’s service, where that disability is proximately due to a service-connected disability that is not service connected on the basis of being attributable to the veteran’s use of tobacco products during service. The questions that adjudicators must resolve with regard to a claim for service connection for a tobacco-related disability alleged to be secondary to a disability not service connected on the basis of being attributable to the veteran's use of tobacco products during service are: (1) whether the service-connected disability caused the veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. If these questions are answered in the affirmative, the secondary disability may be service connected. Further, the secondary disability may be considered as a possible basis for service connection of the veteran’s death, applying the rules generally applicable in determining eligibility for dependency and indemnity compensation. Tim S. McClain Attachments: C-files [1] Section 1103(a) of title 38, United States Code, is applicable to claims received by VA after June 9, 1998. Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, § 9014, 112 Stat. 685, 865-66. [2] Section 1110 of title 38, United States Code, is virtually identical to section 1131, except that section 1110 authorizes disability compensation for disability resulting from injury suffered or disease contracted during a period of war, while section 1131 authorizes such compensation for disability resulting from injury suffered or disease contracted during peacetime service. [3] See Kane v. Principi, 17 Vet. App. 97, 102 (2003) (section 3.300 constitutes a permissible construction of 38 U.S.C. § 1103). [4] This definition is very similar to the following definition of proximate cause adopted by the General Counsel of the Bureau of War Risk Insurance in a January 12, 1921, opinion, 13 Op. G.C. 141 (Bureau of War Risk Ins. 1921): An act which directly produced the injury * * *. That cause which naturally leads to and which might have been expected to produce the result. That from which the effect might be expected to follow without the concurrence of any unusual circumstances. That which immediately produces the effect as distinguished from a predisposing cause. See also VADIGOP 3-17-71 (Vet) (quoting same definition).

No problems with the link. Thanks..Great article!

Larry. Your true passion is heard, loud and clear, thru your typed words. It's wonderful to read about your excitement and know that you truly work for the veterans you service. Thank you for reminding us that there are many good, caring VSO's out there! And James...thank you too!