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Diagnosis Time Limits


AKman

Question

I retired 1 Jan 05. On 22 Dec 05, I had blood drawn and it showed I have hypothyroidism. The doctor told me of this on 10 Feb 06.

My service records show tiredness, high triglycerides, and irregular heartbeat--all symptoms of hypothyroidism, but never a test for, or mention of, hypothyroidism. I have probably had this condition for 10 years or more.

I recently filed a claim for hypothyroidism in June 07.

My claim was denied because it was "diagnosed more than one year from seperation".

Do you think this is worth appealing?

Thanks

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absolutely. that is a crappy denial. check out 38 CFR 3.307©:

"This will not be interpreted as requiring that the disease be diagnosed in the presumptive period, but only that there be then shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree."

i would NOD, refer to the lab test taken within the one year time frame, point out that this was the basis of the diagnosis two months subsequentlly, and ask them to specifically consider 3.307©. ask for de novo review from the dro. i do not think it will require more than a first look by the dro on appeal for the claim to be granted.

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  • HadIt.com Elder

Fortunately your medical record support the diagnosis. Entropent gave good advice. Good Luck

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"I retired 1 Jan 05. On 22 Dec 05, I had blood drawn and it showed I have hypothyroidism. The doctor told me of this on 10 Feb 06."

I would push this point with VA-

the medical records of Dec 05 showed you have hypothyroidism-within one year after service-

It looks to me that your SMRs would support manifestation to at least 10% also-

When was the first time you had medical care done at the VA?

Seems to me that they should have been treating you for hypothyroidism prior to Feb 2006.

Why did VA wait so long to diagnose you?

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PS- this BVA claim could help you-

http://www.va.gov/vetapp98/files3/9823150.txt

This vet got an Independent Medical Opinion.

It looks like she had similiar problem as you did but her disability was clearly manifested in service.

This is what this might take.

However-if the VA treated you prior to the formal diagnosis-you could also consider filing an 1151 claim-if you can prove the VA should have diagnosed and treated you sooner and that you have additional problems due to that medical error.

That type of claim too would need an IMO.

There is info under the search feature as to Getting an IMO and Section 1151 claims.

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In my experience is that the VARO in Cleveland regularly denies claims the first time. That is one way they keep their costs low, and that is part of the reason that Cleveland Regional Office pays the least of any regional office. Yes, you should appeal. The BVA will be much more thorough, and more accurate. I wish there was some accountablility for the raters bad decisions.

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This BVA shows how they rate hypothyroidism-from "0" to 100%.

http://www.va.gov/vetapp98/files1/9808800.txt

Your IMO doctor-if you get an IMO-could use this criteria to help establish the proper rating-

the formal criteria the doc needs is found in the VA's Schedule of ratings.

The symptoms as documented in your SMRs are critical to the claim and this seems like a condition that could even get worse in time.

I am assuming that since the denial came so fast after filing the claim this VA never sent you a VCAA letter at all.

I am assuming that since the denial came so fast after filing the claim this VA never sent you a VCAA letter at all.

I would write to them-if I were you- and you did not receive the VCAA letter-

To RO etc- put your c file # in right hand corner

This letter regards your decision dated --------.

I request that I be sent a VCAA letter under auspices of 38 USCS 5103(a) and 38 CFR 3.159 (B)(1)(2007) because you have committed prejudicial error in your failure to send me one with a proper Election Notice regarding my claim for service connection of my hyperthyroidism.

My SMRs reveal the symptoms of hypothyroidism as found in similiar BVA cases such as:

http://www.va.gov/vetapp98/files3/9823150.txt.

The above BVA decisions clearly states that:

“As there is

credible evidence that the veteran had manifestations of

hypothyroidism during service, and hypothyroidism was

subsequently diagnosed and linked to service, a grant of

service connection for hypothyroidism is appropriate.

ORDER

Service connection for hypothyroidism is granted.”

Since I too had manifestations of hyperthyroidism in service as my SMRs reveal, I request a VCAA notice that is in compliance with established

VA case law and regulations so that I can be given the same fair and equal treatment under the VCAA that this veteran received in the processing of her claim.

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Thanks. I will send in a Notice of Disagreement and hope for the best. Does anyone know where the "One-year Rule" comes from or is that just a fallacy? I've heard it from other vets before. Just wondering if there's anything to it.

Thanks for all your replies, I will let you know how it turns out.

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I think you mean 38 CFR 3.307-3.309.

chronic diseases service connected by legal presumption.

The regs list the disease that fall under this and must have become manifest to degree of ten percent within one year after discharge.

Wether the disease was diagnosed or not doesant matter -only that medical evidence showed symptomology consistent with the disease and then diagnosed later.

However-I dont think your disability is in the list -

I think you should be filing for direct service connection under 38 CFR 3.303-due to the fact that you have evidence in your SMrs as well as symptomology within the first year after discharge.

Hope others give opinions-

Either way -the EED for retro is the date that you filed the actual claim.

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