Service Conection

[schauba]

I was in iraq and suffered from chest pain and shortness of breath. When i went to sick call they treated me as muscle pain i told them that i think i have asmha. I am out of the military and i have asmha but they denied my service connection because of nothing in my medical records. What else can I do?

[Wings]

Schauba

Go ahead and appeal your rating. History is full of soldiers who LIED on there application to enter the service and they served with distinction. I am sure many of us know individuals who were underage or hid arrest records and served with honor.

Your long service record should override the denials. Appeal based on medical evidence and you should win.

I'd REALLY like to know if he was MEDICALLY (meaning an M.D.) diagnosed with Asthma PRIOR to enlistment - or - MEDICALLY diagnosed with Asthma AFTER military discharge. Answer this question for me please???

[Josh]

Wings

Your point about a medically confirmed diagnosis before or after service seems very key here.

Josh

[Wings]

Veterans Benefits Administration

M21-1, Part VI

Change 119

September 28, 2004

Paragraph 7.05a is revised to state that when no preexisting condition is noted at entrance into service, the burden then falls on the VA to rebut the presumption of soundness by clear and unmistakable evidence that shows that the disease or injury existed prior to service and that it was not aggravated by service.

7.05 AGGRAVATION OF PRESERVICE DISABILITY

A preexisting injury or disease may be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the condition (38 CFR 3.306).

Additionally, in Splane v. West, 2216 F. 3d 1058(2000), the United States Court of Appeals for the Federal Circuit held that 38 U.S.C. 1112(a) establishes a presumption of aggravation for chronic diseases that existed prior to service, but first became manifest to a degree of disability of 10 percent or more within the presumptive period after service. Such presumption may be rebutted by affirmative evidence to the contrary, or evidence to establish that such disability is due to an intercurrent disease or injury suffered after separation from service (38 CFR 3.307). Always address the issue of aggravation when service connection for a preservice disability is claimed. If service connection by aggravation is not found, the reasons and bases section of the rating should support the decision with relevant findings from the medical record before, during, and after service, demonstrating that the condition which pre-existed service has not increased in its severity.

a. Consider a veteran to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service. When no preexisting condition is noted at entrance into service, the burden then falls on the VA to rebut the presumption of soundness by clear and unmistakable evidence that shows the disease or injury existed prior to service and that it was not aggravated by service. (38 CFR 3.304(b))

b. Aggravation should not be conceded merely because a veteran's condition was in remission at the time of entry on active duty. The baseline for determining whether there is aggravation of a preexisting disability is in all of a veteran's medical records for that condition, not just those covering the period of enlistment and entry on active duty. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened.

c. The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. (38 CFR 3.306(b)(1))

7.06 CLAIMS FOR SECONDARY SERVICE CONNECTION BY AGGRAVATION

a. Under the provisions of 38 CFR 3.310(a), disabilities which are proximately due to or the result of a service-connected condition will be service connected. An increase in nonservice-connected disability caused by aggravation from a service-connected disability will also be service connected under 38 CFR 3.310(a). (Allen v. Brown, 7 Vet. App. 439 (1995).)

b. In order to adjudicate a claim for secondary service connection for an incremental change in an otherwise nonservice-connected disability, first establish the baseline level of nonservice-connected disability and the level of additional disability which is considered proximately due to the service-connected disability. Request a medical examination, including review of the claims folder, for this purpose. Identify for the examiner the evidence of particular relevance in the claims file. Request that the examiner separately address each of the following medical issues. A medical report that fails to address these issues will not be considered sufficient for rating this type of claim:

(1) The baseline manifestations which are due to the effects of nonservice-connected disease or injury;

(2) The increased manifestations which, in the examiner's opinion, are proximately due to service-connected disability based on medical considerations;

(3) The medical considerations supporting an opinion that increased manifestations of a nonservice-connected disease or injury are proximately due to service-connected disability.

c. An examination which fails to identify baseline findings, or the increment of increased disability due to service-connected causes, would not be adequate for rating purposes.

d. When all potentially relevant records have been obtained, or it is determined that no further evidence can be obtained, order an examination. The examiner must have all available evidence for review when providing an opinion on the issues of aggravation and the degree of increased disability.

[Wings]

Wings

Your point about a medically confirmed diagnosis before or after service seems very key here.

Josh

THANK YOU JOSH! I think so too!!

[Wings]

http://usmilitary.about.com/od/joiningthem...tmedstandar.htm

Military Entrace Processing Station (MEPS) Regulation 40-1, paragraph 5-1b(1) directs the use of Army Regulation 40-501, Chapter 2 for medical qualifications for all branches of the Armed Forces (including the Coast Guard). The information in Army Regulation 40-501, is derived directly from Department of Defense (DOD) Directive 6130.3, Physical Standards for Appointment, Enlistment, and Induction, and DOD Instruction 6130.4, Criteria and Procedure Requirements for Physical Standards for Appointment, Enlistment, or Induction in the Armed Forces.

Military Medical Standards for Enlistment & Commission:

Lungs, chest wall, pleura, and mediastinum

The disqualifying medical conditions are listed below. The International Classification of Disease (ICD) codes are listed in parentheses following each standard. The causes for rejection for appointment, enlistment, and induction are:

a. Abnormal elevation of the diaphragm (793.2), either side.

b. Abscess of the lung (513).

c. Acute infectious processes of the lung (518), until cured.

d. Asthma (493) including reactive airway disease, exercise induced bronchospasm or asthmatic bronchitis, reliably diagnosed at any age. [meaning a medical diagnosis by a medical doctor !!]

Reliable diagnostic criteria should consist of any of the following elements:

(1) Substantiated history of cough, wheeze, and/or dyspnea that persists or recurs over a prolonged period of time, generally more than 6 months.

(2) If the diagnosis of asthma is in doubt, a test for reversible airflow obstruction (greater than a 15 percent increase in forced expiratory volume in 1 second (FEVI) following administration of an inhaled bronchodilator) or airway hyperactivity (exaggerated decrease in airflow induced by standard bronchoprovocation challenge such as methacholine inhalation or a demonstration of exercise-induced bronchospasm) must be performed.

*Guide Note: Up until just a few years ago, receiving a medical waiver for asthma was virtually impossible. That's still the case, if the applicant *currently* has asthma, or if they have a history of asthma that was reliably diagnosed, after their 13th birthday. Under new MEPS policy, dated 4 June 2004, asthma is a disqualifier, only if it was present after the 13th birthday. Applicants with a history of asthma will be required to sign an official statement, certifying that there have been no attacks (including exercise induced asthma) since the age of 13.

The Department of Defense has softened their medical qualification standards for cases of childhood asthma. Previously, any history of asthma was disqualifying, regardless of age. While medical waivers were sometimes possible, waiver approval usually required scheduling and passing a pulmonary function test. Under the new policy, Asthma is only disqualifying if it occurs after the applicant’s 13th birthday.

Medical record screening may still be required, depending on the applicant’s medical history. However, in many cases, a signed statement, attached to the medical pre-screening form, stating that the applicant did not have any type of asthma (including exercise induced, or allergic asthma) or treatment for asthma after their 13th birthday will be sufficient.

Applicants who’ve experienced asthma or reactive airway disease after age 13 will require all medical documentation. Waivers may still be considered, depending on the applicant’s medical history and – possibly results from a pulmonary function test.

**FALSE STATEMENTS: There is absolutely nothing wrong with a recruiter giving you instructions on how to answer questions at MEPs (Military Entrance Processing) - - as long as he/she is not encouraging you to be dishonest. MEPs can sometimes be very fussy when it comes to determining qualifications. If, for example, you say to your recruiter "I might have had asthma as a kid, but no doctor ever diagnosed it as asthma," then the recruiter is perfectly correct to instruct you that the correct answer to the question "Have you ever been diagnosed with asthma?" is "no." One should read the questions carefully, and answer them truthfully, but it's never a good idea to offer more information than what is actually asked. http://usmilitary.about.com/cs/joiningup/a...tatements_3.htm

Edited January 17, 2006 by Wings

[schauba]

I'd REALLY like to know if he was MEDICALLY (meaning an M.D.) diagnosed with Asthma PRIOR to enlistment - or - MEDICALLY diagnosed with Asthma AFTER military discharge. Answer this question for me please???

I was MEDICALLY diagnosed with Asthma AFTER military discharge.