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mountain tyme

Re-Opening A Closed Claim That Was Denied

Question

Hello, I hope everyone is well. I need an opinion to this claim. A friend of mine asked me if her husband John can re-open two closed claims that were both denied based on a letter they received last week from his Cardiologist.

Here is a little history of his claim.

John put in two claims with the VA for comp. one was for sleep apnea denied 3 years ago because it was not diagnosed while in service or within the 1 year window after retirement. It was diagnosed a little over 2 years later after retirement.

Second claim was for HTN this was denied because the VA stated that “after a 5 day b/p check high b/p was not detected.

What I read in his service military records was that in 87 his

b/p was within HTN levels and the doctor requested a 5 day check . The next medical note made right after that request was made 8 mo. after that appointment with no mention of a 5 day check or a check at all. By this time he had pcs and forgot all about it, he actually said he never recalled the doctor asking for him to have a check done and no mention of high b/p.

In 1988 he ended up in the Cardiac ICU unit at the local hospital the AF base emergency room had his transported there do to arterial fib. 3 days later he was released because it resolved on it’s own. Noted was that the Civilian hospital ICU Cardiologists requested firmly that a catherazation be done to rule out CAD the test was not done due to the base hospital stating It would be performed at a base hospital the test was never done.

A year after that again during a yearly physical again another doctor wrote in his records HTN? Again a 5 day b/p was requested again after reviewing his records I did not see where it was done and neither my girl friend or her husband was aware that the doctor even thought he might have had High b/p.

Her husband did request to see the 5 day checks from the VA since that is why he was denied HTN and that was 2 years ago. Still waiting to see where they found those tests.

Now for the new development.

Last year John had to have a pacemaker put in due to slow heart beats…during his check up his Cardiologist asked him to bring in all his medical records pertaining to stress tests ect. John brought in a copy of his service medical records. After he review them he called John a few days before the pacemaker implantation and asked him if he was ever placed on high blood pressure medicine while active duty or if he was asked about his sleeping habits because of his tension headaches and fatigue he said no they told him he had migraines.

Also in John Medical records were the 5 buddy statements he received from men he shared quarters with thought out his AF career and they wrote that he would snore so loudly that they could hear him down the hall and one of his supervisor wrote a statement that John would come to work often fatigued and he remembered going tdy with him a few times and he did snore so loudly that he had to pay to have a room of his own because he couldn't get a good night rest.

But he was diagnosis with sleep apnea 2 years after he retired from the AF.

When John was sent a copy of his Cardiologist report the doctor put an Addendum to his report it states

“Mr. xxxx has snored loudly his whole life. His neck size has been greater then 17 inches (a strong correlate with sleep apnea risk) since he has been 20 years of age. During his time in the military (he was in the military until 19xx) he had untreated sleep apnea. His untreated sleep apnea likely contributed to his ultimately development of hypertension, symptomatic bradycardia and need for permanent pacemaker implantation.

If you have any questions please contact me."

Sincerely,

Dr. xxxxxxxxxx MD

(This Cardiologist is well known and is best known for his studies in the field of cardiovascular medicine, he also is a professor who teaches at universities about cutting edge developments in his field)

So would this addendum be enough to re-open his two closed claims would this addendum be considered new and material evidence?

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You can always ask to reopen (reconsider) a claim based upon new and material evidence.

If you can show that the VA failed to properly consider and/or ignored material evidence, and that evidence would likely have resulted in an outcome different than denial, you may have a basis of a "CUE" claim, which would take the claim back to the original date.

CUE claims are difficult to win, and I'd suggest that a lawyer's help be seriously considered.

Hello, I hope everyone is well. I need an opinion to this claim. A friend of mine asked me if her husband John can re-open two closed claims that were both denied based on a letter they received last week from his Cardiologist.

Here is a little history of his claim.

John put in two claims with the VA for comp. one was for sleep apnea denied 3 years ago because it was not diagnosed while in service or within the 1 year window after retirement. It was diagnosed a little over 2 years later after retirement.

Second claim was for HTN this was denied because the VA stated that "after a 5 day b/p check high b/p was not detected.

What I read in his service military records was that in 87 his

b/p was within HTN levels and the doctor requested a 5 day check . The next medical note made right after that request was made 8 mo. after that appointment with no mention of a 5 day check or a check at all. By this time he had pcs and forgot all about it, he actually said he never recalled the doctor asking for him to have a check done and no mention of high b/p.

In 1988 he ended up in the Cardiac ICU unit at the local hospital the AF base emergency room had his transported there do to arterial fib. 3 days later he was released because it resolved on it's own. Noted was that the Civilian hospital ICU Cardiologists requested firmly that a catherazation be done to rule out CAD the test was not done due to the base hospital stating It would be performed at a base hospital the test was never done.

A year after that again during a yearly physical again another doctor wrote in his records HTN? Again a 5 day b/p was requested again after reviewing his records I did not see where it was done and neither my girl friend or her husband was aware that the doctor even thought he might have had High b/p.

Her husband did request to see the 5 day checks from the VA since that is why he was denied HTN and that was 2 years ago. Still waiting to see where they found those tests.

Now for the new development.

Last year John had to have a pacemaker put in due to slow heart beats…during his check up his Cardiologist asked him to bring in all his medical records pertaining to stress tests ect. John brought in a copy of his service medical records. After he review them he called John a few days before the pacemaker implantation and asked him if he was ever placed on high blood pressure medicine while active duty or if he was asked about his sleeping habits because of his tension headaches and fatigue he said no they told him he had migraines.

Also in John Medical records were the 5 buddy statements he received from men he shared quarters with thought out his AF career and they wrote that he would snore so loudly that they could hear him down the hall and one of his supervisor wrote a statement that John would come to work often fatigued and he remembered going tdy with him a few times and he did snore so loudly that he had to pay to have a room of his own because he couldn't get a good night rest.

But he was diagnosis with sleep apnea 2 years after he retired from the AF.

When John was sent a copy of his Cardiologist report the doctor put an Addendum to his report it states

"Mr. xxxx has snored loudly his whole life. His neck size has been greater then 17 inches (a strong correlate with sleep apnea risk) since he has been 20 years of age. During his time in the military (he was in the military until 19xx) he had untreated sleep apnea. His untreated sleep apnea likely contributed to his ultimately development of hypertension, symptomatic bradycardia and need for permanent pacemaker implantation.

If you have any questions please contact me."

Sincerely,

Dr. xxxxxxxxxx MD

(This Cardiologist is well known and is best known for his studies in the field of cardiovascular medicine, he also is a professor who teaches at universities about cutting edge developments in his field)

So would this addendum be enough to re-open his two closed claims would this addendum be considered new and material evidence?

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You can always ask to reopen (reconsider) a claim based upon new and material evidence.

If you can show that the VA failed to properly consider and/or ignored material evidence, and that evidence would likely have resulted in an outcome different than denial, you may have a basis of a "CUE" claim, which would take the claim back to the original date.

CUE claims are difficult to win, and I'd suggest that a lawyer's help be seriously considered.

Hello Chuck...and thank you for your reply....so based on there doctor report he received last week he could go back and ask for a re-open to his denied claims. I thought the same thing regarding the CUE based on the denial of the HTN being that two different doctors at two different bases one actually putting HTN? requesting a 5 day b/p check and the other doctor based on the b/p reading also requested a 5 day check then when checking though the service medical records there was no check noted, and after John contacted the RO office asking if they could send them a copy of the 5 day checks he never heard a response. I told him since he received his medical records when he retired (had a copy from the base he retired from) that maybe what he needs to do is request a copy of his medical records from St. Louis to see if the copy the VA has is different from the copies he was given at discharge. And if the records are the same and do not reflect that a 5 day check was ever done then I believe there would be a CUE, because then the VA based there denial on tests that were never run in the first place and since two separate doctors suspected HTN by even requesting the tests to be done say's a lot. or at least the benefit of the doubt should lean towards the veteran favor. I tend to believe he did have the sleep apnea and HTN based on just the frequency of the headache complaints were overwhelming and he would have them when he would wake up in the morning and then of course the fatigue and the number of times in his records that it was recorded that he felt weak and faint and if a b/p was taken it would run 135/96 reading like that. But I told him the Va is swamped with claims and they don't have enough staff to adequately go though them, if he had that report from his Cardiologist at the time he put in his claim the outcome might have been different it is a crap shoot either way. mt

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Mountain Tyme

You can always re-open if the VA considers the medical evidence new and material. However, the failure of the military doctors to perform a requested test is not the basis of a CUE. The fact that the VA fails to perform tests is not a CUE. Failure of military doctors to run a test is no different. A CUE is based on thee vidence before the board as it is known. If the military did not run tests then that fact that the tests were not run was known to the board. You need to prove the condition existed in the military.

When a doctor writes a note I have them include in the text of the note the fact that the SMR was reviewed and that the determination regarding the specific medical condition being addressed was based solely on the evidence contained in the SMR. It is best to have the doctor site the specific date and symptoms noted in the SMR that was used to make the assessment.

You say that the doctor had the SMR. How would the VA know this if the doctor does not tell the VA he read the SMR? They will not take your word that you gave the doctor the SMR. The doctor must say he reviewed the SMR.

Additionally, the VA will say that the doctor relied on the veteran's subjective recollection rather than the medical evidence if thedoctor does not specifically refer to the date and symptoms noted in the SMR.

Edited by Hoppy

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Just to clarify. I am familar with cases that were awarded for sleep apnea based on less evidence than what you added to the file since the prior denial. I am assuming the buddy letters were added after the previous denial. The letter from the doctor should be considered new and material. The buddy letters should be sufficient without the letter from the doctor to make the initial sleep apnea claim. However, do not be surprised if they pick it apart at the RO. If so, then you might have to get the doctor to be more specific as to the manner in how his determination was made.

When I filed my angioedema claim the law was quite different and I was required to show an inservice diagnosis, post service diagnosis and a nexus prior to the VA's duty to develop the claim was applicable. I got a letter from the head of immunology at a VA hospital who had been there for thirty years and performed C&P exams. I thought the letter was a slam dunk. It was denied by he RO stating the examiner did not read one medical report that was in the file. The report the doctor did not read was completely irrelevant. Also they claimed that the the doctor based his determination on my subjective statements. The doctor clearly stated that he made the determination based on the results of numerous blood studies. I was awarded by a DRO after pointing out that the doctor made his determination based on blood studies and that the report he did not read was for a different and unrelated condition.

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