Carlie, Could You Please Take A Look At This

[bm6546]

Carlie,

I would appreciate it if you would please look at this and tell me what you think. I know you deal a lot with claims that involve a CUE.

I would like your take on this.

Thanks in advance,

Brian

[Hoppy]

Wings,

Thanks for the back up with some legal citations concerning unsupported subjective statements being used as evidence for the basis of a determination a condition pre-dated service. Without your reference to a more substantive legal basis my post could sound like a personal opinion.

I actually wrote and posted my position on this issue in the middle of the night. Sometimes I wake up with some thoughts on my mind and if I do not write them up and immediately post them I can't get back to sleep. I was traveling and only had my notebook computer. It has an embedded cellular phone and I can post using it anywhere. Unfortunately, all my easily accessible case law and CFR's are on my main computer at home (boat). Thus, I did not reference any specific laws.

I think this immediacy I deal with is due to my "sense of foreshortened future". Having been hospitalized and basically useless on countless occasions for a period of three weeks at a time due to the fact my body has uncontrolled edemas resulted in my dealing with some things immediately and just not deal with other things at all.

I suspect I will have plenty more to say on Brian's anxiety disorder claim as I find out more as to where this part of his claim is at and what type of treatment he was provided in the early seventies. In the early seventies the VA and anybody else for that matter did not provide adequate treatmentfor his condition. I have an opinion written by a VA staff specialist who has been treating patients with symptoms of anxiety related PAT and panic attacks for over twenty years. This clinician's statement specifically addresses the issue of lack of treatment for these conditions in the seventies and the potential this lack of treatment has on the development of lifetime symptoms.

Edited December 3, 2011 by Hoppy

[Wings]

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Hoppy, I did not provide legal citations, but I will work on that double-time. I appretiate your lead, and was able to follow your train of thought. I support your appreciation and patience regarding complex issues. I hope you can see that I am in agreement with you. ~Wings

[Wings]

Wings,

Thanks for the back up with some legal citations concerning unsupported subjective statements being used as evidence for the basis of a determination a condition pre-dated service. Without your reference to a more substantive legal basis my post could sound like a personal opinion.

Hoppy, Here we go hohoho ;-)

A history of pre-service existence of conditions recorded at

the time of examination does not constitute a notation of

such conditions but will be considered together with all

other material evidence in determinations as to inception.

Determinations should not be based on medical judgment alone

as distinguished from accepted medical principles, or on

history alone without regard to clinical factors pertinent to

the basic character, origin and development of such injury or

disease. They should be based on thorough analysis of the

evidentiary showing and careful correlation of all material

facts, with due regard to accepted medical principles

pertaining to the history, manifestations, clinical course,

and character of the particular injury or disease or

residuals thereof. 38 C.F.R. § 3.304(b)(1).

There has been a change in the interpretation of the law with

respect to the adjudication of claims involving pre-existing

conditions and the application of the presumption of

soundness. Essentially, under 38 U.S.C.A. § 1111, as

recently interpreted under Cotant v. Principi, 17 Vet. App.

116 (2003), and VAOPGCPREC 3-2003 (July 16, 2003), mandates

that, to rebut the presumption of sound condition, VA must

show by clear and unmistakable evidence both that the disease

or injury existed prior to service and that the disease or

injury was not aggravated by service.

The burden of proof is on the government to rebut the

presumption of sound condition upon induction by clear and

unmistakable evidence showing that the disorder existed prior

to service, and if the government meets this requirement, by

showing that the condition was not aggravated in service.

Vanerson v. West, 12 Vet. App. 254, 258 (1999); Kinnaman v.

Principi, 4 Vet. App. 20, 27 (1993). The Court has defined

the word "unmistakable" as an item which "cannot be

misinterpreted and misunderstood, i.e., it is undebatable."

Vanerson, 12 Vet. App. at 258 (quoting WEBSTER'S NEW WORLD

DICTIONARY 1461 (3rd Coll. Ed. 1988)). See also Crippen v.

Brown, 9 Vet. App. 412 (196).

(see attached) PREC 3-2003 Requirements for Rebutting the Presumption of Sound Condition under 38 U.S.C. § 1111 and 38 C.F.R. § 3.304

Citation: Vet. Aff. Op. Gen. Couns. Prec. 3-2003, VAOPGCPREC 2-2003, 2003

PREC3-20031.txt

[Hoppy]

Wings,

Federals Law, Title 38, has ruled that (in most cases) the veteran is not capable of providing expert medical testimony;

The above reference noted in your first post is what I thought could be applied to presumption of soundness disputes. Below is what I had on my computer. We are in agreement.

It has been held on multiple occasions that lay statements by a Veteran concerning a pre-existing condition, alone, are insufficient to rebut the presumption of soundness. See, e.g., Gahman v. West, 13 Vet. App. 148, 150 (1999) (recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners); Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a layperson's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a pre-existing condition); see also LeShore v. Brown, 8 Vet. App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional.)

Edited December 4, 2011 by Hoppy

[Wings]

Wings,

Federals Law, Title 38, has ruled that (in most cases) the veteran is not capable of providing expert medical testimony;

The above reference noted in your first post is what I thought could be applied to presumption of soundness disputes. Below is what I had on my computer. We are in agreement.

Hoppy, Good job! ~Wings

It has been held on multiple occasions that lay statements by a Veteran concerning a pre-existing condition, alone, are insufficient to rebut the presumption of soundness. See, e.g., Gahman v. West, 13 Vet. App. 148, 150 (1999) (recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners);

Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a layperson's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a pre-existing condition).

[bm6546]

The VBA is full of claims that were initially denied by the RO due to a determination the condition pre-dated service and later overturned by the BVA because RO raters were relying on veteran’s unsupported statements that they had a condition prior to the military. Most discouraging was that there were even cases in which the BVA was giving negative weight to veteran’s subjective statements in cases involving complex conditions with numerous different potential causes for the symptoms.

If the VA is not in possession of pre-service medical reports signed by a doctor who stated in the report that a diagnosis of sinus tachycardia was confirmed by EKG, I would contest any determination your condition pre-dated service.

Hoppy,

Before I enlisted in the Navy, I was aware of my heart fluttering and skipping beats. It wasn't until I was engaged in vigorous exercise that I started having episodes on my PAT and was taken to sick bay numerous times. When they finally diagnosed me with the PAT and was hospitalized

for further tests is when I realized what my diagnosis really was. There are no records or was I ever treated for PAT before I enlisted in the Navy.

BM6546

This is an issue I did not address in the response I posted yesterday. The issue of pre-military tachycardia has been raised. As such I want to give you some insight into the types of problems that you might want to investigate in the event this is later raised by the VA.

Tachycardia is a complex medical diagnosis. There are multiple forms of the condition with multiple etiologies. You did report that you were given multiple EKG’s and a halter monitor and that your SMR contained a notation of sinus tachycardia. You might benefit from reading the link below. Be sure and click on the link contained on their webpage to inappropriate sinus tachycardia.

http://en.wikipedia.org/wiki/Supraventricular_tachycardia

When I was forced by the medical/legal community to retire due to the fact that my angioedema became severe and life threatening, I transitioned from battling workers comp and civil claims to work VA claims from home. One of the first issues I researched was “presumption of soundness”. What I was learning gave me a real bad taste for the VA system. Raters were determining that conditions existed prior to the military based solely on veteran’s subject statement that they had their condition prior to the military. The raters were determining the conditions predated service and denying the claims without the benefit of C&P exams. I am not talking about broken noses. I am talking about complex systemic diseases with symptoms that were potentially caused by numerous conditions that were not related to the condition the veteran was diagnosed with in the military. Additionally, the raters did not even ask the veterans what the pre-service symptoms were, who told them they had this condition prior to the military or if they were seen by doctors.

The VBA is full of claims that were initially denied by the RO due to a determination the condition pre-dated service and later overturned by the BVA because RO raters were relying on veteran’s unsupported statements that they had a condition prior to the military. Most discouraging was that there were even cases in which the BVA was giving negative weight to veteran’s subjective statements in cases involving complex conditions with numerous different potential causes for the symptoms.

If the VA is not in possession of pre-service medical reports signed by a doctor who stated in the report that a diagnosis of sinus tachycardia was confirmed by EKG, I would contest any determination your condition pre-dated service.

The reason I developed a bad taste for the VA system is that the attorneys I worked with on workers comp and civil cases would have wiped up the floor of the court room with these types of decisions. The fact the VA perpetuated these decisions for decades demonstrates that the raters were grossly under trained or they developed an arrogance that service officers would drop the claims once they were denied. I had a friend who worked in the VA system for 40 years. Ten years in a VA hospital, 20 years in the 1970’s and 1980’s as an RO level rating specialist and another 10 years as a service officer. We used to argue about these cases and others. I would take the stand that the VA was purposefully corrupt. He would argue that the raters were grossly undertrained. What does that tell you?