hypertension Hadits First Challenge To The Varo On Rin Am-015

[jbasser]

I just received information from my Congressman that my claim was now being prepared. The VA sent me for a C@P exam 2 weeks ago and It backfired on them again. Doc said Lung condition was at least as likely as not related to SC Cervical Spine. ( Paralyzed Diaphragm)

He also said the Appeal may be moot since the appeal for an IU denial. The reason was that the criteria meets a 100 percent schedular. (Pulmonary Hypertension) It should be P@T.

I have 2 more issues on appeal.

1: EED for Hypertension based on cue and the new criteria for effective dates and recipt of service departmernt records. The CUE was VA lied and said there was no treatment or complaints in the SMR when there was actually 7 out of 10 readings were extremely high.

2: EED for Migraine headaches: Exact same criteria. VA said no complaints or treatment in service.

SMR showed several treatments and complaints.

I am asking for 40 percent retro back to the 1994 Original Date of claim based on recipt of service department records.

The 100 percent should revert back to 08-2005. SSD award date.

I will keep you posted on the outcome as it should be nearing crunch time.

You Vets who live in Kentucky, Ben Chandler is the man.

J

Edited March 28, 2008 by jbasser

[jbasser]

Hi Berta, I was one of the ones chomping at the bit when this one hit. I also discovered another cue. The regs state that the VA is supposed to reeconsider a claim if Service Department records are received. My claims for HTN and Migraines were denied and The VA refused to reopen them even after they had received the SMR.

They failed to apply the regs to the claim and I can prove it.

© Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.