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Question About Date Of Diagnosis And Secondary Conditons


chr49
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Amended post - Hope this is easier to understand

I lived with PTSD for over 30 yrs before I was diagnosed in 2007. There was no such thing as PTSD in 1971, but I wouldn't have gone for help for several years anyway due to my state of mind. I didn't bother to see any doctors between 1971 and 1998 and when I went I did not talk about my Vietnam experience (I doubt I mentioned being a veteran)so my records don't say a thing, other than the fact that I was warned to stop smoking and have used multiple cessation programs since 1999 in an effort to quit.

I was recently denied a secondary claim for vascular disease. The denial states I have had an unhealthy lifstyle before and after "PTSD diagnosis in 2007." Smoking is 'the after diagnosis' unhealthy lifestyle and my addictions (in long term remission)are indicated as 'before diagnosis'.

When I initially filed for PTSD, it went thru easily. My 2008 PTSD C&P exam documents 'chronic PTSD'with classic symptoms since returning from combat(1971). The exam is standard form stuff but I'm thinking the statement "The veteran’s PTSD is the cause of the aforementioned changes in functional state and quality of life" may be of value, but I truly don't know.

My wife has found a couple cases and most important; a General Counsel’s Published Opinion (VAOPGCPRED 6-2003) which addresses whether a veteran’s tobacco-related disability or death may be service connected secondary to a service-connected mental disability, which caused the veteran to use tobacco. 38 U.S.C. §1103(a) prohibits a finding of service connection of a disability or death resulting from the veteran’s use of tobacco during the service. The General Counsel opinion, however, clarifies that service connection is permissible if the veteran’s disability or death is the result of his post-service use of tobacco, which is caused by a service-connected psychological disability.

I am considering using the materials we've found so far and getting another IMO that will support having PTSD prior to diagnosis, as well as the tobacco usage connection but we can't find any regulations specifically related to the "date of diagnosis" in regard to secondary conditions.

I'm concerned about fighting something that can't be won if there is a regulation that won't allow secondary based on the date of diagnosis.

Any help out there?? I really appreciate it. My wife does my research and paperwork (I'd most likely give up if she didn't) but I can't see stressing her over all of this if it's an impossible mission.

Thanks ahead to anybody that has advice to offer.

Edited by chr49
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I think I may have posted this topic in the wrong place. Could a moderator please move it to the proper location so I can receive comments?

chr49

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Amended post - Hope this is easier to understand

I lived with PTSD for over 30 yrs before I was diagnosed in 2007. There was no such thing as PTSD in 1971, but I wouldn't have gone for help for several years anyway due to my state of mind. I didn't bother to see any doctors between 1971 and 1998 and when I went I did not talk about my Vietnam experience (I doubt I mentioned being a veteran)so my records don't say a thing, other than the fact that I was warned to stop smoking and have used multiple cessation programs since 1999 in an effort to quit.

I was recently denied a secondary claim for vascular disease. The denial states I have had an unhealthy lifstyle before and after "PTSD diagnosis in 2007." Smoking is 'the after diagnosis' unhealthy lifestyle and my addictions (in long term remission)are indicated as 'before diagnosis'.

When I initially filed for PTSD, it went thru easily. My 2008 PTSD C&P exam documents 'chronic PTSD'with classic symptoms since returning from combat(1971). The exam is standard form stuff but I'm thinking the statement "The veteran’s PTSD is the cause of the aforementioned changes in functional state and quality of life" may be of value......but I truly don't know.

My wife has found a couple cases and most important; a General Counsel’s Published Opinion (VAOPGCPRED 6-2003) which addresses whether a veteran’s tobacco-related disability or death may be service connected secondary to a service-connected mental disability, which caused the veteran to use tobacco. 38 U.S.C. §1103(a) prohibits a finding of service connection of a disability or death resulting from the veteran’s use of tobacco during the service. The General Counsel opinion, however, clarifies that service connection is permissible if the veteran’s disability or death is the result of his post-service use of tobacco, which is caused by a service-connected psychological disability.

I am considering using the materials we've found so far and getting another IMO that will support having PTSD prior to diagnosis, as well as the tobacco usage connection but we can't find any regulations specifically related to the "date of diagnosis" in regard to secondary conditions.

I'm concerned about fighting something that can't be won if there is a regulation that won't allow secondary based on the date of diagnosis.

Any help out there?? I really appreciate it. My wife does my research and paperwork (I'd most likely give up if she didn't) but I can't see stressing her over all of this if it's an impossible mission.

Thanks ahead to anybody that has advice to offer.

Is it possible to have this moved to the appropriate forum?

Edited by chr49
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I think (and hope) your claim for tobacco usage due to mental disorder will work, but it may take a while.

I have one pending for the same reasons. I haven't heard anything yet, but it has only been filed since July 2009 (Buffalo, NY RO). I have not been scheduled for any exams, nor have I received any further requests for records or other evidence.

I have the same problem as you. My PTSD, though it originated in 1968, was only service connected in 2007.

I would certainly appeal it. I know BVA has approved service connection in some cases similar to yours (and mine), but I suppose it could depend on IMOs. Good luck, Clair!

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I think (and hope) your claim for tobacco usage due to mental disorder will work, but it may take a while.

I have one pending for the same reasons. I haven't heard anything yet, but it has only been filed since July 2009 (Buffalo, NY RO). I have not been scheduled for any exams, nor have I received any further requests for records or other evidence.

I have the same problem as you. My PTSD, though it originated in 1968, was only service connected in 2007.

I would certainly appeal it. I know BVA has approved service connection in some cases similar to yours (and mine), but I suppose it could depend on IMOs. Good luck, Clair!

Thanks so much for telling me you are up against a similar situation and have the same 'date of diagnosis' issue. I'm sure the probability of winning is low, but it's worth trying if a win could help somebody else in the future. Your comments make me feel better. Waiting to hear good news coming from your direction Pat!

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"I was recently denied a secondary claim for vascular disease."

Is the vascular disease due to ischemic heart disease?

If so, are you an incountry Vietnam veteran?

If so- have you filed a claim under the new AO proposed presumptives?

Can you be more specific as to the type of vascular disease you have?

Do your medical records show it is ischemic in nature , involving the cardiovascular system - If you were exposed to Agent Orange?

“For claims filed after June 9, 1998, the law prohibits

service connection of a death or disability on the basis that

it resulted from an injury or disease attributable to the use

of tobacco products by a Veteran during active duty service.

38 U.S.C.A. § 1103; 38 C.F.R. § 3.300(a). Service

connection, however, is not precluded where the disability or

death resulted from a disease or injury that is otherwise

shown to have been incurred or aggravated during service. 38

C.F.R. § 3.300(b)(1). For purposes of this section,

"otherwise shown" means that the disability or death can be

service-connected on some basis other than the Veteran's use

of tobacco products during service. Id.

VA's Office of General Counsel has held that the legal bar to

service connection for a disability or death attributable to

tobacco use does not bar a finding of secondary service

connection for a disability or death related to the Veteran's

use of tobacco products after the Veteran's service, where

that disability or death is proximately due to or aggravated

by 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. VAOPGCPREC 6-2003

(October 28, 2003). In other words, secondary service

connection may be established for disability or death related

to post-service tobacco use that is the result of or

aggravated by a service-connected disability unrelated to

tobacco use. See id. The opinion further held that VA

adjudicators must resolve (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 or death may be

service-connected. See id. “

http://www4.va.gov/vetapp10/files1/1004021.txt

This entire case shows how a widow proved her husband's nicotine dependency was due to his PTSD and how it contributed to his death.

These claims are not easy but possible, if a service connected disability causes nicotine dependency and then directly causes a ratable disability.

In the new proposed ischemic heart disease regs for incountry Vietnam vets, the VA certainly did not state that any vet with smoking history would be denied for heart disease under the new regs.That doesnt quarantee that some rater might use a smoking history to deny the claim. But the VA knows full well that cigarettes were in the C rats and many nicotine habits began in the military because of that.

There are other claims at the BVA web site for nicotine dependency casing or contributing to addition disability.The denials contain as much good info as the awards.

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Berta,

Thank you so much for your reply. I will try to address your questions (to the best of my ability) within your post:

"I was recently denied a secondary claim for vascular disease."

Is the vascular disease due to ischemic heart disease?

I have been diagnosed with Abdominal Aortic atherosclerosis. I also have atherosclerotic build up in the common carotid arteries, and kidney arteries. Are they considered part of the peripheral vascular system? They are outside the heart, yet within the body. Sometimes I feel very stupid where all of this is concerned.

If so, are you an in-country Vietnam veteran?

YES - 1970-71

If so- have you filed a claim under the new AO proposed presumptives?

I recently found a claim (???)listed on the e-benefits site for heart problems dated back to 10/2009 which I never initiated. I have not have spoken to my VSO about this yet, but it is going to be addressed. In answer to your question: I am seriously considering filing a claim. I was waiting to see what happened with the PTSD claim.

Can you be more specific as to the type of vascular disease you have?

I have hypertension and peripheral vascular disease with occlusion in both legs (1 leg corrected per stent) and carotid occlusion ® and 50-60% in (L) carotid.

Do your medical records show it is ischemic in nature , involving the cardiovascular system - If you were exposed to Agent Orange? My files are filled with "atherosclerotic" but little use of 'ischemic.' I have noticed that the VA was very careful not to use to use the 'ischemic' terminology.

“For claims filed after June 9, 1998, the law prohibits

service connection of a death or disability on the basis that

it resulted from an injury or disease attributable to the use

of tobacco products by a Veteran during active duty service.

38 U.S.C.A. § 1103; 38 C.F.R. § 3.300(a). Service

connection, however, is not precluded where the disability or

death resulted from a disease or injury that is otherwise

shown to have been incurred or aggravated during service. 38

C.F.R. § 3.300(b)(1). For purposes of this section,

"otherwise shown" means that the disability or death can be

service-connected on some basis other than the Veteran's use

of tobacco products during service. Id.

VA's Office of General Counsel has held that the legal bar to

service connection for a disability or death attributable to

tobacco use does not bar a finding of secondary service

connection for a disability or death related to the Veteran's

use of tobacco products after the Veteran's service, where

that disability or death is proximately due to or aggravated

by 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. VAOPGCPREC 6-2003

(October 28, 2003). In other words, secondary service

connection may be established for disability or death related

to post-service tobacco use that is the result of or

aggravated by a service-connected disability unrelated to

tobacco use. See id. The opinion further held that VA

adjudicators must resolve (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 or death may be

service-connected. See id. “

http://www4.va.gov/vetapp10/files1/1004021.txt

This entire case shows how a widow proved her husband's nicotine dependency was due to his PTSD and how it contributed to his death.

These claims are not easy but possible, if a service connected disability causes nicotine dependency and then directly causes a ratable disability.

In the new proposed ischemic heart disease regs for incountry Vietnam vets, the VA certainly did not state that any vet with smoking history would be denied for heart disease under the new regs.That doesnt quarantee that some rater might use a smoking history to deny the claim. But the VA knows full well that cigarettes were in the C rats and many nicotine habits began in the military because of that.

There are other claims at the BVA web site for nicotine dependency casing or contributing to addition disability.The denials contain as much good info as the awards.

I am amazed with all of the information you have provided me. Your post has given me hope. I can not begin to thank you enough.

Edited by chr49
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