Need Clairafication

[Dick]

<_< i am presently 60% sc with primary dx of dm11. On 3/18/08 my claim for reflux disease and to finally get my request for a decision which had been deferred for over a year on my PN in my legs resolved. My PN on 8/21/2009 was denied . After reading my 1st C&P Progress Notes i found on page 21 section 3 that the examiner stated that the lower extremities was most likely aggravatesd by DM. This was also stated for my claim for ED. When i read the reference to 38 of the CFR's it is stated that "service connection "may" be granted for a disease or inlury which resulted from a service -connected disability or aggravated thereby". Unless i am misinterpeting this i should be entitled to compensation due to aggravated circumstances as stated by the doctor during the exam. What is the real meaning of this statemant? Should i file a NOD for reconsidertation of this decision?

I was released from the va hospital on 9/3/09 with a dx of gastoparesis likely secondary to DM automic neuropathy secondary to gastritis and esophagitis. Any suggestions on my options?

Thanks

Dick

[darkhorse]

If the examiner stated that your bilateral lower extremities are aggravated by your service connected DM I would definetely appeal this. As long as your DM is primary you can get secondary for aggravation of another condition. Just because the DM didn't cause it doesn't mean it can't be secondary service connected.

In your appeal I would state that "although you have determined that my PN isn't caused from my DM the examiner clearly states that my PN is likely aggravated by my DM." Therefore service connection for aggravation for PN from my DM should be granted.

In the appeal I would send in the report with his opinion highlighted that "his PN is likely aggravated by DM."

I would also include this: "38 C.F.R. 3.310 (2009) also includes that if a service-connected condition aggravates a non-service connected condition, the veteran can be compensated for that degree of disability that if over and above the degree of disability existing prior to aggravation.

After you turn in your notice of disagreement I would seek out another opinion that your DM is aggravating your PN while your disagreement is pending.

dh

i guess my question is: in my c&p progress report the Dr said in section 2 the pn in the lower bilateral extremitiesis less likely than not [less than 50/50 probability] caused by or a result of DM. However in section 3 of the report it states [ his PN, bilateral lower extremities was most likely aggravated by DM. Based on medical opinion that your PN was diagnosed prior to dx of DM, entitlement to service connection for PN due to DM11 is denied. Based on this should i NOD their decision?

thanks

Dick

Edited September 19, 2009 by darkhorse

[Dick]

B) good advice... i read and copied part 3.310 and agree with you on this section. I was hospitalized a couple of weeks ago at the Tampa VA hospital and was diagnosed with abnormal gastric emtying of solids of the stomach being consistant with diabetic gastroparesis partially responsive to Reglan. It was futher found and diagnosed that i have extensive erosive esophagitis, atrophic gastritis.[Gastroesophageal refux disease] which was also denied on my last C&P because it was not connected to my DM11 it was also denied.

Question here being do i file the NOD or the new claim first? I suspect that filed in the wrong order a delay in a decision will be the result. Which should i file 1st?

[LarryJ]

B) good advice... i read and copied part 3.310 and agree with you on this section. I was hospitalized a couple of weeks ago at the Tampa VA hospital and was diagnosed with abnormal gastric emtying of solids of the stomach being consistant with diabetic gastroparesis partially responsive to Reglan. It was futher found and diagnosed that i have extensive erosive esophagitis, atrophic gastritis.[Gastroesophageal refux disease] which was also denied on my last C&P because it was not connected to my DM11 it was also denied.

Question here being do i file the NOD or the new claim first? I suspect that filed in the wrong order a delay in a decision will be the result. Which should i file 1st?

File your NOD first. Let them get to work on that, as your time is tolling on your NOD, and, G-d help you if you should happen to be unable, for some reason, to get that NOD filed (sh*t happens).

Then, in your "leisure", file a good claim for secondary effects of my DMII.

Of course, that's what I'D do, and I'M most generally all screwed up......................... :D !

[darkhorse]

Good thing is either way you have an inferred claim for aggravation since the examiner opined this way. The date of your claim will start when there is established evidence of aggravation. The start of your claim may go all the way back to when you file for secondary S/C since aggravation can be considered secondary S/C. For example, if your medical records show that it has been aggravated since 2005 that should be your start date. The VA will often err on this but as long as you have the medical evidence you should appeal the effective date of claim.

dh

B) good advice... i read and copied part 3.310 and agree with you on this section. I was hospitalized a couple of weeks ago at the Tampa VA hospital and was diagnosed with abnormal gastric emtying of solids of the stomach being consistant with diabetic gastroparesis partially responsive to Reglan. It was futher found and diagnosed that i have extensive erosive esophagitis, atrophic gastritis.[Gastroesophageal refux disease] which was also denied on my last C&P because it was not connected to my DM11 it was also denied.

Question here being do i file the NOD or the new claim first? I suspect that filed in the wrong order a delay in a decision will be the result. Which should i file 1st?

Edited September 20, 2009 by darkhorse

[Dick]

B) darkhorse, thanks for your valued opinion. Guess i need to get down to business now. Thanks again, Dick