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Federal Register Schedule For Rating Disabilities, Respiratory, Cardio Including Pulmonary Hypertension


Capt.

Question

https://www.federalregister.gov/articles/2002/08/22/02-21366/schedule-for-rating-disabilities-guidelines-for-application-of-evaluation-criteria-for-certain

Hello All,

Here is the Federal Register rules proposal from back in 2002 concerning the Cardiovascular , Pulmonary areas and I want to especially bring up the rule governing PULMONARY HYPERTENSION.

For the first provision, we propose to state when pulmonary function testing is not needed for disability evaluation purposes. The first instance would be when there is a maximum exercise capacity of record that is 20 ml/kg/min or less (which would result in a 60- or 100-percent evaluation). Although this test is not routinely done, and not all facilities have the necessary equipment to conduct the test, if available, it is a reliable and precise way to assess respiratory disability, so it may be used to evaluate when it is available and is reported at levels that would warrant a 60- or 100-percent evaluation. If not of record, however, evaluation will be based on alternative criteria. The second instance would be when pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed. Any of these would result in a 100-percent evaluation. The third instance would be when there is a history of one or more episodes of acute respiratory failure, and the fourth instance would be when there is a requirement for outpatient oxygen therapy, because either of these also establishes entitlement to a 100-percent evaluation.

So whenever a veteran has a service connected lung disease with a diagnosis of Pulmonary Hypertension, with Heart Cath or Echocardiogram, Core Pulmonale, Right Ventricular Hypertrophy as the ruling says ......it is 100%.

Many Veterans ,,,,including myself missed the PH diagnosis because , VA really will not want to talk about Pulmonary Hypertension and its limited treatment. It almost always will fall upon the Veteran or his Advocate or a good Friend .......Hooray Jbasser , to find it in the records . Do not expect the VA or Regional Office to list it in the claims process or to award it on their own.

As the saying goes... the Veteran is his or hers own best Advocate.

Lets see how many of our members have one of the diseases listed with a service connected award. It will be so neat to have someone find this in their record and to NOD or even reopen a claim because the VA never spotted it on their own.

Oh yes ,,,,,the pyramiding rule would certainly apply. For instance if you have COPD at say 30 percent and have Pulmonary Hypertension , you would have the 30 percent raised to the 100 percent and any other pulmonary issues would be capped at the 100 percent level.

NEVER GIVE UP. God Bless, C.C.

Edited by Capt.Contaminate (see edit history)
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18 answers to this question

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Capt, I've had high blood pressure since a very young age. Since stationed with the Marines in Camp Lejuene N.C. in 1976 and was introduced to the contaminated waters there.Since then I retired in 2010 and I also claimed for Hypertension which has been noted in my health records for the longest. I am currently pending a deferred rating for it as we speak.I am having a bunch of exams on the 9th of this month by my private doctor. I have been provided medication for High blood pressure by the VA for the longest. I currently have several medical conditions that are service connected, but yet having to wait for the VA to rate 6 other issues. I hope this comment makes since, cause it's very early and I can't sleep due to anxiety and other stuff due to the lost of vision of my left eye.Hopefully I made a little since of it all.

Thank you for the information, I'm sure I will be using it when the time comes.

Happy New Years Capt.

Aggie

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Hello Aggie,

I would hope your claim on the Lejune contamination has been filed and sorry you are dealing with these health issues. The Pulmonary Hypertension normally will only be found by EchoCardiogram and or Heart Cath. To be rated for Pulmonary Hypertension a Veteran must have a service connected lung disease. This means that the diagnostic codes must be following noted with the conditions listed under the code.

I would like to say that the VA is not looking for this one to award the Veteran. Basically it comes down to an increase in the rateable condition of the lung disease that is governed by the M21 schedular. You cannot file a claim for Pulmonary Hypertension as it is rated in conjunction with the service connected disease. The Veteran really has to keep an eye on his records and to make sure the Heart Cath and the Echo cardiograms do list it.Even if the disease is listed , most of the time the VA will not award it unless the Veteran is careful to pursue it and stay on it.

There is a difference between Hypertension and Pulmonary Hypertension and the VA does not treat them as the same. One is dealing with Cardiovascular System and the other is dealing with Pulmonary System so careful study of the M21 schedulars and the 38 CFRs have to be followed to see where the Veteran fits and what treatments are available if any and what benefits could be awarded.

As always the Veteran has to keep his feet to the grindstone and move ahead and to NEVER GIVE UP. God Bless, C.C.

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Re: LeJeune------these sites might help and we have other info here on what I call the “Bad Water” vets .

This situation is Love Canal, AO, SHAD etc all over again........in my opinion. A National disgrace.

http://www.tftptf.com/

TDFTPTF- The Proud, the Few, the Forgotten

http://www.marinecorpstimes.com/news/2012/08/ap-president-obama-signs-bill-helping-camp-lejeune-water-victims-marine-corps-080612/

Info on the Bill Pres.Obama signed last year.

http://blogs.mcclatchydc.com/washington/2012/07/new-documents-released-in-lejeune-water-contamination-case.html

New documents released last summer

The google info for this site states:

“The VA office had reviewed about 42 claims and granted about 12 of them; 195 ...

I have not had time yet to read the entire site info to find more on that

http://www.watersurvivors.com/faqs.asp

Lots more info here at hadit and

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Capt C,

Thank you for your response, I have not yet filed a claim for the Camp Lejeune water, I am afraid that it might hold up my current claim, so I will wait until this claim is over and then file.I was notified by the Marine Corps in 2008. I am number 433 on their registry.I have also filed out the health survey that was sent to me several times.Filing out a claim on this is going to take a lot out of me, and sometimes I just don't have the energy or the will, but I do know it's important so I will get it done with some help from my friends.

Berta, thank you so much for the information that you have provided, I will surly go through it.

Thank you both, and Happy New Years.

Aggie

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Well Capt C,

I am currently going into my third year on a DRO. My last claim was restrictive lung disease I filed for SC for restrictive lung disease based on Sleep apnea diagnosed post service(have letter from sleep specialist that reviewed the records and pointed to the medical indicators that indicate sleep apnea started in service) and Kyphoscoliosis secondary to my SC Thoracic spine. I had no kyphosis of scoliosis noted on my induction pysical. After my inservice injury it is noted that I have scoliosis. Khyphosis is not noted until my requested and granted increase. In the award letter/decision they clearly describe the khyposis and scoliosis when describing my current SC injury. When they were adjudicating my Cardiomegally the tests and rater indicated (in the decision) that I have right ventricular hyperthrophy.

On the decision I am appealing they stated I did not have restrictive lung disease and couldn't have restrictive lung disease since i was never exposed to asbestos(WTF????). They didn't even consider the Sleep Apnea, and Ignored the kyphoscoliosis. I have been C&P'd for the DRO and they have requested two seperate medical opinions/clarifications on the C&P. They seem to be twisting and turning, trying to find someway not to recognize this.

Eventually they will have to issue the SOC. How they are going to worm their way out of the clear language saying I have khyposis and scoliosis that was used to describe my SC spine injury and the clear statements of both clinician and rater that state I have right ventricular hypertrophy will be interesting. I expect that I will have to go to the BVA, but I am confident that I will prevail.

Best regards,

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Hello 71M,

I am trying to follow what the VA has decided in your claim and I do see the right ventricular hypertrophy but the 38 CFR has it rateable IF you are dealing with one of the lung diseases that it falls under. Such as the COPD under 38CFR 4.96 and 97 with the diagnostic code of 6604 or the Restricted Lung Disease of diagnostic code 6845. Do you have a rateable lung disorder? And if the VA is saying you were not exposed then you will have to look at where you were stationed and what years. Nearly all of the buildings before 1980 had asbestos in them.

http://dec.alaska.gov/spar/csp/sites/ftgreely.htm

Important state environmental agencies and other agencies like Base Realignment and Closure Commissions (BRAC), or Corps of Engineers reports.Especially state Environmental Agencies and possible EPA. Also private engineering companies like Jacobs Engineering or Teledyne Solutions, just to name a few are necessary to link the COC(Contaminate of Concern) to the locality and the years it was there.

Concentrating on the Lung issues would be my #1 focus. I would leave the Sleep Apnea alone for now with Lung issue and it probably would have to be secondary. Maybe looking at something more serious as this article points out.

http://ezinearticles.com/?Restrictive-Lung-Sleep-Disorders&id=409066

I would also look at "Sick Building Syndrome" which is not very well discussed among Veterans Claims. I do have an environmental scientist who gave expert testimony and the link of lung disease with asbestos , 2nd hand smoke , as well as cleaning fluids and buildings with no circulation systems. The VA has to take this type of testimony as long as it is probative and if it supports medical rational.

I presume you were also in service in the 60s or 70s and do not know if you were in Vietnam. I think you know how hard Agent Orange is to link with Lung Diseases though I suspect that eventually the IOM or NIH will try and support that with studies and reports linking a nexus between the pulmonary issues and Agent Orange somewhere in the future.

Hopefully this will maybe get you looking at other avenues of evidence and science to keep the VA at bay and a way to have a claim brought forward rather than have it brought to a standstill. The Restricted Lung Disease with Pulmonary Hypertension diagnosis is going to have to be dealt with by the VA eventually.

And as slow as the VA is................. 3 yrs is a definite stall for you by the VA....still a Veteran has to keep his head up and NEVER GIVE UP. God Bless, C.C.

Edited by Capt.Contaminate (see edit history)
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I have kyphoscoliosis VASRD code 6842. I was never exposed to asbestos(more than any average GI), but they were indicating I could not have restrictive lung disease because I was never exposed to asbestos. They created thier own little medical reality where you cannot have restricitve lung disease unless you were exposed to asbestos.

No kyphosis or scoliosis pre service (per entry exam)

scoliosis in SMRs 2 years post (thoracic) injury.

Arthritis on xray VA exam 1988, SC at 0%(lowballed but was ignorant of the actual rules).

Kyphosis and scoliosis noted and described as part of my SC injury in my 2007 decision for increase (and C&P exams) and 2008 SOC (to include again 2nd C&P exam)

My initial injury resulted from Cold weather PT(PT leader was bored and invented some new excercises for us), Was told to run in place crouched down, than jump up and extend arms back. I heard a pop and folded in half like a jack knife, emerg room visit, meds and two days of counting the dots on the ceiling. Re-injured after that every 2-3 months, repeat as necessary.

The crux of the matter is they are not recognizing my kyphoscoliosis as a seperate condition. This also creates an interesting issue. abnormal spinal contour Kyphosis/scoliosis are now (as of 2006) part of the rating criteria for general ratings of the spine. If i have scoliosis and khyposis (kyphoscoliosis) in a spinal segment and that medical fact is one of the rating criteria, I don't know how they can then not recognize it as being SC for the purposes of a respiratory rating. I have no other back pathology or injury (I have been an office worker for 26+ years).

We will eventually see what type of a reason they are going to invent to deny on the SOC.

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Hello 71,

I know what Jbasser is asking you and please look or listen to what he is saying about the Diaphram issue so try to look at the xrays and radiology reports. There is a way to start a new direction with this and to try and correct this mistake the VA is heading you down.

Ok.

First its going to go back to a Medical expert to point this to the direction you need to get it to go.

According to the Veterans Benefits Manuel : 14.5.5.2 The BVA Erred in its Assessment of Medical Evidence...."Specifically , it is error for the Board to reject a medical opinion for the sole reason that the examiner did not review the veterans VA claims file. This rule is especially relevant when the Board assesses the probative value of a a private physician's medical opinion, as non-VA doctors are less likely to have reviewed the documents in the VA claims file. IN THESE SITUATIONS, THE BOARD MUST RECOGNIZE THAT THERE ARE OTHER MEANS BY WHICH A PRIVATE PHYSICIAN CAN BECOME AWARE OF CRITICAL MEDICAL FACT, NOT THE LEAST OF WHICH IS BY TREATING THE CLAIMANT FOR AN EXTENDED PERIOD OF TIME". LIKEWISE, IT IS ERROR FOR THE BOARD TO REJECT OR DISREGARD A MEDICAL OPINION SOLELY BECAUSE IT WAS BASED ON A HISTORY GIVEN BY THE VETERAN". Nieves v Rodriguez 22 Vet. App. at 303.... (The claims file is not a magical or talismanic set of documents, but rather a tool to assist VA examiners to become familiar with the facts necessary to form an expert opinion to assist the adjudicator in making a decision on a claim).

And in 14.6.6.3 The BVA erred in its assessment of Relevant Lay Evidence, Buchanan v Nicholson.

So you have a decision from VA that says one thing and not addressing the main issue or in your case , making up a story and neglecting/ignoring your medical record and the 38CFR/M21s. You getting a medical nexus , an IMO and your own statement cannot be discounted according to the above. I do not know how you can resteer this vessel back in the direction you want it to go without taking these steps.

I am dealing with the same scenario you are describing, with my Section 1151. The VA is trying to cloud up your water and confuse everything that it reads is just like what they are doing to me. Same old tactic.

I also want to point out the VA's negligence in trying to not discuss the Restricted Lung disease in the diagnostic code that will allow a 100 percent disability ,,,,,,,,,your right ventricular hypertrophy still has to be steered by a medical link and rational.....again a stout IMO. The VA saying asbestos was not found in your record is ridiculous . Anyone older than 40 years of age has been exposed to asbestos. Yes they are trying to make their own little treaties like you said. This one is easy to refute though. Getting it back to where the right ventricular hypertrophy is service connected and getting it a correct diagnostic code and getting their ERRONEOUS decision corrected and that direction stopped is the main goal. Waiting to file a CUE at the end of the case is really not going to help you .....you don't have 10-15 years to reach the end of your case and have it closed.

Don't think its just your claim......I have a 100 percent rating due to Pulmonary Hypertension that they are not wanting to even look at. ......just like your RVH. Also the diagnostic code for me is also being ignored but it is listed on my award.

Your injury from below can be brought into evidence and I do not know what you are or have done with this .But I do know it is going to be tough to get the RVH thru this door from this avenue. You are probably going to have to try a totally new path to steer it down and still stop the VA from continuing down the path they have started.

I would also look at what Jbasser is asking because it may open another door thru your medical records. That might mean direction by your Primary care provider and an IMO.

Regardless it looks like your own statements and an IMO is necessary to start this thing back on course. A journey that is still going to take time. Hopefully someone else will chime in also to help with this.

At any event your dealing with VA deliberately trying to be stupid and cloud up those waters, testing your patience and fortitude. So I know you will......NEVER GIVE UP. God Bless, C.C.

Edited by Capt.Contaminate (see edit history)
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I have a flattened diaphragm on va x ray, also chest expansion on initial va exam in 88 was only 1 inch. It is important to note they have still not addressed the sleep apnea that also has a specialist nexus letter. Thy have had it for 5 years, and refuse to act on it one way or the other.

I fully expect I will have to go to the BVA, I am going to pick up a lawyer for that Adventure and most likey will do another visit to the specialists for a fresh set of IME s that deal with any supposed problems with the current evidence.

I am confident i will prevail, I think the current foot dragging is similar too a 2 year old who's throwing a tantrum and refuses to walk to bed.....like that has ever stopped a parent....ever!

I appreciate both of your inputs and will post an update whenever they act or act up!

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The current situation is not really that different from them trying to not SC for my cardiomegally after 27 years of Hypertension. I won that one in a DRO appeal.

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Hello 71,

BINGO...... This may be really big for you. Jbasser hopefully will pick this up on the diaghram issue. he has experience with this one and knows what needs to be done with it. It is interesting that you are not alone when it comes to Pulmonary Hypertension and the Sleep Apnea issue is them trying to stall the outcome. If they change your diagnostic code on a respiratory issue then this could put you into the codes rateable for 100 percent. The sleep apnea is probably going to have to be awarded as a SECONDARY and they are already trying to head that off at the pass by not noticing the important issues which would allow the sleep apnea to be awarded secondary. Its like the VA doesn't want you to make any issue of the PH. Makes sense why the stall is going on for so long. You have them in a choke hold and they don't want to go to sleep and rather than make a decision in your favor , they do the only thing they can do and that is stall the veteran rather than give the award.

You are going to have to get them to start moving in the process. I would get a lawyer to keep the road clear of the obstacles and a fresh IME like you are saying. Do you have any C and P exams concerning your respiratory issues and I would go over those results again?

Isn't it something that the tactics they use are pretty much done to each one of us. I know Hadit has a huge archive but with these folks they use their archives and at least they are consistant. I believe you may have a chance of keeping them having to follow a path they are trying to keep you off of. Now you have something to look at.

NEVER GIVE UP. God Bless, C.C.

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  • HadIt.com Elder

Your condition is rather severe. The pressure is enormous as your spine is bent forward.

Diaphragmatic elevation causes the spine to bend and twist and it does cause Scoliosis.

This would be evident from a nerve injury of either the left or right phrenic nerve either in the trunk of the body by a foreign object like a GSW or stab wound or an injury to the cervical spine at C3 C4 with an accessory nerve in some people at C5.

This nerve is a deep nerve and it is not easy to damage and these conditions are extremely rare and are often overlooked by the duck society called the AMA. A Quict\k easy test would confirm. A sniff test (Flouroscopy)

J

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The one thing i do know to a 100% accuracy. Without HADIT and the E-CFR's i would still be SC at 0% for a "Bone Disorder" only.

In 1988 I trusted the VA, what is the old adage quoted by Scotty on Star Trek? Fool me once shame on you, Fool me twice shame on me! Can't recall the episode though.

Thank you all for your help, this site has had a profound positive effect on my life since 2006.

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Hello All;

Newbie here and thought I would share my experience regarding Pulmonary Hypertension (Secondary). I am rated 60% IHD/CAD, 20% DMII, 10% Peripheral Neuropathy each extremity and 10% for Tinnitus. 80% overall, due to presumptive herbicide exposure in VN.

Since being diagnosed by a private cardiologist with IHD/CAD my primary complaint has been chronic shortness of breath on exertion. Based on past and recent echo's/catherizations which indicated progessing mild to moderate Pulmonary Hypertension I was referred to a pulmonologist.

After multiple tests the pulmonologist came to the conclusion and completed a DBQ that the Pulmonary Hypertension (Secondary) was caused in part and due to a decreased LVEF and slow heart rate.

I filed a claim for Pulmonary Hypertension secondary to IHD/CAD only to be denied, reasons being We did not find a link between Pulmonary Hypertension associated with coronary artery disease and military service and The evidence does not show that your condition resulted from, or was aggravated by, Coronary Artery Disease.

Due to a lack of specific information in the denial letter I had to request a copy of my C file and it was only there that I discovered that on the C&P exam given the examining doctor opined Ischemic Heart Disease/Coronary Artery Disease does not cause Pulmonary Hypertension.

Needless to say I am in the process of filing an appeal for what I feel is an incorrect rating and would be grateful to hear any and all advice from members.

Captain C/Admins/Moderators I did not intend to hijack this thread and if you feel it would be better served in another area feel free to move.

Swabbie

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Hello Swabbie,,,,,,

I welcome you aboard. No problem about thinking you hijacked the thread ,,,,, you fit right into it. I do want to say that you can file for an appeal for a higher rating/incorrect rating. I would point out that the Pulmonary Hypertension is 100% if it has the diagnostic code attached to it. Such as 6604 COPD or Restricted lung disease 6845 that is rateable service connected. AND that a diagnosis from Heart Cath OR Echo cardiogram has been also diagnosed.

Having the CAD/IHD I only see that it could be secondary and then it will be rateable that way , but normally not at 100%, as the regs dictate.

The VA is very defensive of any PH award and usually requires BVA award. Meaning the Regional Offices really do not want to look at it and like to turn their back on it. I am at this stage and waiting. With Service Connected COPD and Restricted Lung Disease and nonservice connected IHD , the PH was diagnosed with both Heart Cath and Echo Cardiogram. CONVIENTLY MISSED by VARO soooooooo its back to an NOD and pointing the test and diagnosis to it.

Hopefully you will be treated fairly and not put on the back burner like me. I am hoping some others will join in ........Jbasser is very knowledgable about the PH and the evaluations and the process concerning it . Hopefully he'll join in with some other thoughts to. NEVER GIVE UP . God Bless, C.C.

Edited by Capt.Contaminate (see edit history)
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