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Hypertnsion. Must It Be Diagnosed In Service, Ro Thinks So


Guest jstacy

Question

Treated for Hypertension in Service. Claim denied in 1994 due to no service records available. Reopen claim denied in 1999 with request to use Service records as evidence. SSOC stated no treatment. complaints, no diagnosis of Hypertension in service.

Filed NOD after the VCAA took effect, received another SSOC. This time the reasons and basis showed the following>

138/72 entrance exam

114/72 1week later

134/98 1year later

140/88 1year later

142/102 17 mos later

138/100 Taken during reserve service.

First post service readings were

152/102 Htn was diagnosed. 8mos after discharge

146/104 next day

140/98 5mos later.

I was was wondering if anyone sees any chronicity here. According to the previous RO there was none. Am I the backwoods hillbilly this guy thought I was.

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Treated for Hypertension in Service. Claim denied in 1994 due to no service records available. Reopen claim denied in 1999 with request to use Service records as evidence. SSOC stated no treatment. complaints, no diagnosis of Hypertension in service.

Filed NOD after the VCAA took effect, received another SSOC. This time the reasons and basis showed the following>

138/72 entrance exam

114/72 1week later

134/98 1year later

140/88 1year later

142/102 17 mos later

138/100 Taken during reserve service.

First post service readings were

152/102 Htn was diagnosed. 8mos after discharge

146/104 next day

140/98 5mos later.

I was was wondering if anyone sees any chronicity here. According to the previous RO there was none. Am I the backwoods hillbilly this guy thought I was.

Jstacy,

You know the drill - take all the BP data to either your VA primary or an outside doc for an IMO and have the doc write the chronicity nexus from today back to the SMR BP readings. You want an "As likely as it is not."

Go get 'em!

Objee

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  • HadIt.com Elder
138/72 entrance exam

114/72 1week later

134/98 1year later

140/88 1year later

142/102 17 mos later

138/100 Taken during reserve service.

First post service readings were

152/102 Htn was diagnosed. 8mos after discharge

146/104 next day

140/98 5mos later.

John,

I only see two normal readings the first one and the second one and after that the diastolic is sky high.

Who do they think they are kidding?

I wouldn't think that you would need to pay for an IMO for something so obvious. Any private doctor can see this one!

They will have to give you your retro- pay on this one, but it isn't fair, how the Va is doing everyone!

Josephine

Edited by Josephine (see edit history)
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Josephine, The RO has this information because he sent it to me. There is a Private report that diagnosed Hypertension 8 months after service. Being 21 years old I did not know the system. By the way if you come across a medical record and there is the abbreviation DX or dx ,It means diagnosis.

That was the onset of my problems, I have severe Disabling Hypertension Now and I have moderate to severe arterisclerosis or CAD as a result.

The disease is reaking hovac on the body: headaches, Blurred Vision, sustained tachycardia, Angina, Shortness of breath combined with a paralyzed left hemidiaphragm really makes it hard to take a deep breath.

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  • HadIt.com Elder

When I was at Ft Benning we had a guy who fell out of every march we did. After the first time they must have known something was up but they risked his life over and over until, finally, after keeling over for the 10th time they discharged him. This was when they had a draft so they must have thought that losing a draftee was no big deal. Just a quick telegram to the folks back home telling them your kid is dead. Getting a IMO may seem like overkill but you would be surprised at how dumb they can be when it comes to granting compensation.

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What sent me off the deep end was the fact that the post service records (actually in the posession of the RO at the time of the decision) contained a diagnosis of Essential Hypertension. That is what I based the Cue claim on. The fact that the RO missapplied the regs on rating this claim. This just goes to show even with a slam dunk the referees can still change a play with some type of bogus call.

Edited by jstacy (see edit history)
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  • HadIt.com Elder

John,

Believe me, I have heard every darn excuse in the book to not grant benefits. I know that myself, I may end up at the Court of Appeals.

This is one crazy mess and I know, first hand, that the Va. does not read the records.

Josephine

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jstacy,

Would this help your case? It's long but might hold some hidden treasure for you (and others who are seeking service connection). It's hard to read with all the legal inserts, so you may want to copy and paste into a Word document then delete the Court citations so you can keep the flow going as you read. Or I can email you my Word document.

I found these statements about service connection quite interesting:

"... nothing in the language of § 3.303(b) suggests that ‘being noted’ is limited to recordation in examination reports...."

“...the principal definition of ‘noted’ does not require a writing, WEBSTER’S NEW WORLD DICTIONARY 927 (3d College ed. 1991) (defining “noted” as “1 to pay close attention to; heed; notice; observe[;] 2 to set down in writing; make a note of”)...."

CONTINUITY AND CHRONICITY (38 C.F.R. § 3.303(b))

(While there are references in this section to “well groundedness”, there is no longer a requirement to well ground a claim. These cases are cited because they provide the Court’s interpretation of the statute which establishes the chronicity and symptomatology basis for providing nexus evidence necessary to grant the benefit claimed.)

§ The chronicity provision of § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such a condition. Such evidence must be medical unless it relates to a condition as to which, under the Court’s case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded or reopened on the basis of § 3.303(b) if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology.

See Savage v. Gober, 10 Vet.App.488, 498 (1997).

§“Section 3.303(b) provides that a veteran may utilize the ‘chronic disease shown as such in service’ provision when the evidence demonstrates: (1) that the veteran had a chronic disease in service, or during an applicable presumption [hereinafter element 1]; and (2) that the veteran presently has the same condition [hereinafter element 2]. See Savage v. Gober, 10 Vet.App. 488, 495 (1997).

“With respect to element 1, two questions are posed: (a) is medical evidence needed to demonstrate the existence in service or in the presumption period of such chronic disease, or will lay evidence suffice; and (b) must such evidence be contemporaneous with the time period to which it refers, or can post-service or post-presumption-period evidence address existence in service?” Id.

“With respect to question (a), the answer depends on whether the disability is of a type that requires medical expertise to demonstrate its existence (see Epps v. Gober, 126 F.3d 1464, 1468 (Fed.Cir.1997), aff’d 9 Vet.App. 341 (1996) (adopting this Court’s definition of a well-grounded claim as set forth in Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d, 78 F3.d 604 (Fed.Cir.1996) (table), and Grottveit v. Brown, 5 Vet.App. 211, 214 (1993); Caluza, 7 Vet.App. at 506; Heuer v. Brown, 7 Vet.App. 379, 384 (1995)) or whether the disability is of the type as to which lay observation is competent to identify its existence (see Falzone v. Brown, 8 Vet.App. 398, 403 (1995) (citing Harvey v. Brown, 6 Vet.App. 390, 393 (1994) for the proposition that medical causation evidence may not be necessary for conditions that lend themselves to lay observation such as flat feet); Layno v. Brown, 6 Vet.App. 465, 470 (1994): Horowitz v. Brown, 5 Vet.App. 217, 221-22 (1993); Budnik v. Derwinski, 3 Vet.App. 185, 186-87 (1992)).” Id at 10-11.

CONTINUITY OF SYMPTOMATOLOGY, NO CHRONIC DIAGNOSIS (38 C.F.R. § 3.303(B))

§ “If the evidence fails to demonstrate the applicability of the chronicity provision of [38 C.F.R.] § 3.303(b), a VA claimant may still obtain the benefit of § 3.303(b) (that is, providing a substitute way of showing in-service incurrence and medical nexus for purposes of well grounding or reopening a claim, as set forth in part II.B., supra) if continuity of symptomatology is demonstrated. The questions raised by the regulation with respect to establishing continuity of symptomatology are: (a) how is the existence of continuity of symptomatology determined; (b) does a condition ‘noted during service’ require a noting contemporaneous to service or through any special documentation; and © is any medical evidence of nexus needed in order to obtain the benefit of this provision?” Savage v. Gober, 10 Vet.App. 488, 495-96 (1997).

“With respect to question (a), whether there is continuity of symptomatology in connection with well-grounding a claim, see Caluza v. Brown, 7 Vet.App. 498, 504 (1995); Grottveit v. Brown, 5 Vet.App. 91, 93 (1993), or reopening a finally denied claim, see Evans v. Brown, 9 Vet.App. 273, 283 (1996); Moray v. Brown, 5 Vet.App. 211, 213-14 (1993), is a question that the Court determines de novo.” Savage, supra at 496 citing 38 U.S.C. § 7261(a)(1); see also Robinette, 8 Vet.App. at 76 (evidence presumed credible for purpose of determining whether claim is well grounded); Justus v. Principi, 3 Vet.App. 510, 513 (1992) (evidence presumed credible for purpose of determining whether evidence is new and material). “If the Court is reviewing a BVA decision on the merits, a determination by the BVA as to continuity of symptomatology would be one of fact that the Court would review under the clearly erroneous standard.” Savage, supra citing 38 U.S.C. § 7261(a)(4) (review by the Court is as to BVA “finding of material fact made in reaching a decision in a case before the Department with respect to benefits under laws administered by the Secretary”); Gilbert v. Derwinski, l Vet.App. 49, 53 (1990) (“if there is a ‘plausible’ basis in the record for the factual determinations of the BVA . . . [the Court] cannot overturn them”).

“Regardless of context, the Court notes that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage, supra citing Wilson v. Derwinski, 2 Vet.App 16, 19 (1991) (“regulation requires continuity of symptomatology, not continuity of treatment”).

“As to threshold determinations of well groundedness or the existence of new and material evidence, such evidence is generally presumed credible and is not subject to weighing.” Savage, supra citing King (Roderick) v. Brown, 5 Vet.App. 19, 21 (1993); Justus, supra (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). (However, the Court notes that in a merits context the lack of evidence of treatment may bear on the credibility of the evidence of continuity.)

“With respect to question (b), the Secretary asserts that the noting requirements of § 3.304(b) (“[o]nly such conditions as are recorded in examination reports are to considered as noted”) are to be superimposed on § 3.303(b). The Court rejects the Secretary’s assertion and holds that as long as the condition is noted at the time the veteran was in service such noting need not be reflected in any written documentation (other than as required to be in a format sufficient for inclusion as part of the record and proceedings before the Secretary and the Board (see Rogozinski v. Derwinski, l Vet.App. 93, 94 (1990))), either contemporaneous to service or otherwise. In so holding, the Court notes the following.

First, nothing in the language of § 3.303(b) suggests that ‘being noted’ is limited to recordation in examination reports.

Second, the recordation-in-examination report requirement of § 3.304(b) is for the veteran’s benefit rather than to his or her detriment, as would be the case if it were superimposed on § 3.303(b).

Third, the Secretary’s argument contains the seeds of its own defeat; the very fact that the Secretary has required in § 3.304(b) written documentation for the notation of a preexisting condition strongly suggests that reading such a documentation requirement into § 3.303(b), where the Secretary did not elect to include one specifically, would be unwarranted.” Savage, supra citing Russello v. United States, 464 U.S. 16, 23 (1983) (“where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion”) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)) (internal quotation marks omitted); Smith v. Brown, 35 F.3d 1516, 1523 (Fed.Cir.1994) (“canons of construction of course apply equally to any legal text and not merely to statutes”).

“Fourth, the principal definition of ‘noted’ does not require a writing, WEBSTER’S NEW WORLD DICTIONARY 927 (3d College ed. 1991) (defining “noted” as “1 to pay close attention to; heed; notice; observe[;] 2 to set down in writing; make a note of”).

Fifth, to the extent that the language of the regulation is ambiguous, ‘interpretive doubt is to be construed in the veteran’s favor.’” Savage, supra at 497 citing Brown v. Gardner, 513 U.S. 115, 117-18 (1994).

“Sixth, if service records have been lost through no fault of the veteran, it would be unfair to require that a writing be contained in a service record.

Seventh, limitations on dating and type of evidence have been found in only the few instances where there has been clear regulatory guidance to that effect.” Savage, supra citing Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc) and Tubianosa v. Derwinski, 3 Vet.App. 181, 184 (1992) (interpreting 38 C.F.R. § 3.374© and holding that private physician’s diagnosis of tuberculosis being manifest during the presumption period must be corroborated by “acceptable clinical, x-ray or laboratory studies”); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992) (expert evidence required where subject matter necessitates expert opinion). “Of course, as to type of evidence, unless the condition is of a type as to which a lay person’s observation is competent, medical evidence of noting will be required. Savage, supra citing Caluza, supra.

“With regard to question ©, if the continuity of symptomatology provision of § 3.303(b) requires that there be medical-nexus evidence relating the veteran’s present disability to service (Savage, supra citing Grottveit and Moray, supra (medical-nexus evidence of relationship between present disability and service is generally required for purposes of well grounding a claim and reopening a previously disallowed claim)), the continuity of symptomatology provision would simply be a nullity. Thus, the Court holds that no such medical-nexus evidence is required. Nevertheless, because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence (Savage, supra citing Epps, Caluza, Heuer and Grottveit, all supra) is required to demonstrate such a relationship unless such a relationship is one as to which a lay person’s observation is competent (Savage, supra citing Falzone v. Brown, 8 Vet.App. 398, 403 (1995); Layno v. Brown, 6 Vet.App. 465, 470 (1994); Horowitz v. Brown, 5 Vet.App. 217, 221-22 (1993); Budnik v. Derwinski, 3 Vet.App. 185, 186-87 (1992)).

CONTINUITY OF SYMPTOMATOLOGY, NOT TREATMENT (§ 3.303(B))

§ “[T]he Court notes that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” See Savage v. Gober, 10 Vet.App. 488, 496 (1997) citing Wilson v. Derwinski, 2 Vet.App. 16, 19 (1991) (“regulation requires continuity of symptomatology, not continuity of treatment”).

Carrie

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Carrie, thank you for that. I will keep it intact in order to print the court cases. I will definatly use that in My cue claim. It has been less than 1 year since filed and I will submit it in a couple of weeks. That should be after I receive the Decision from the RO. If I submit it now, They will delay all other claims.

Once gain, Thanks

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