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

[Capt.]

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 February 14, 2013 by Capt.Contaminate

[Capt.]

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 January 7, 2013 by Capt.Contaminate

[jbasser]

What kind of Injury did you have in service?

How did your symptoms start?

J

[71M10]

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.

[jbasser]

Has anyone ever told you that you have an elevated diaphragm?

Like one side of the Chest Xray is elevated and one shoulder is elevated.

J

[Capt.]

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 February 14, 2013 by Capt.Contaminate

[71M10]

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!