Exit Exam Diagnosis - Not Service Connected?

[hollyh1344]

During my exit exam in 2009, I had several service-connected conditions diagnosed and was placed on TDRL for those conditions. I filed claims with the VA, and the VA denied them stating that all but one were not service-connected. I was dumb and did not appeal in time.

This past year, I was re-examined by the MEB. It was determined that my conditions stabilized, and I was placed on permanent disability retirement. I've filed to re-open my case because 1.) the new exam and disability rating are new and material evidence to those conditions and that 2.) the VA committed a CUE by ignoring my exit exam and the entire reason I was discharged to begin with. The VA is continuing to state that the conditions aren't service-connected, and it's currently on appeal. I've requested a copy of my C-file and an additional copy of my orders placing me on PDRL that I will forward as evidence.

I've read that if the exit exam states the diagnosis, it should automatically be service connected. Is that correct? Any similar experiences is greatly appreciated. Thanks.

[FormerMember]

You can see his grant letter now.

"Welcome to the VA System. You are now service connected as of yesterday. We'll hear no talk of 2009 because you did not appeal that decision. Therefore it is final. Your new and material evidence, presented for the first time on 1 March 2015, finally shows proof of service connection. That will therefore be your service connection date. We cannot go back to 2009 because you did not supply us with this document then even though it wasn't issued until last year. That's the bummer about time. You can never go back. We are assigning a non-compensible rating to this as you have not provided evidence that your injury/disease is incapacitating for more than a week per year. If you feel this decision is in error, please fill out form 21-0958 Notice of Disagreement and tell us why in less than a year."

[kennjj]

Hi I have been watching this site for some time now below is what I'm dealing with along with allot of other disabilities I am 60% at this time allot of 10% I have a IMO from Dr Bash that I have already turn in to VA my claim was at Prep for decision now it when back to gathering of evidence can I please get some feed back on this. I thank you guys in advance!! Berta I think I'm dealing with the same thing that your Husband when though concerning his heart condition, I'm sorry for your lost.

Ken

Military: 1979- 1999

I started going to Womack Army Medical Center in the early 90’s not sure when my Hypertension started I would say sometime in 1993-1994 that is when I started having shortness of breath through out the years I when on sick call many times for S0B I was referred a Cardiologist who found that I had a echocardiogram showing left atrial enlargement and nonsutain V- tach assessment was Hypertension in need of better control no indication to treat why I don’t know. My weight went from 175 to 211 my Unit Commander put in a special request Medical treatment for pathological Disorder before putting me on the weight control program during all this time my Blood pressure had not have been under control still no tests to determine what could be the problem moving on I was given a P-4 profile where I didn’t have to do any exercise with the Company, basically doing what ever I wanted to do all this stuff is attach. I was given a Medical Broad where they said I was fit for duty along with my P-4 profile where I did whatever I wanted to do, time went on I retired in 1999 in 2000 I had a EKG that showed some abnormal signs, in 2002 I had another EKG that showed Left Atrial Enlargement, Left Ventricular Hypertrophy, Abnormal EKG no tests to determine what the cause. Through out the following years I was given different medication one after another in 2006 I was tired of nothing happening knowing that as my time goes by that this high blood pressure was causing damage. Decided to go to the Va hospital thinking things would be different from notes that I have read when I started going to Fayetteville VAMC my potassium level was low, potassium chloride was added which kept my potassium within range still no test to determine what was causing my Hypertension just went from one medication to the other. Which brings me to the present time. I would say sometime in 2013 Dec I think, I was given a series of tests I guess that’s when they found out Hyperaldosteronism was going on and I was diagnose with Hyperaldosteronism told that my Hypertension have been fluctuating and difficult to control for a long time I started asking question about Hyperaldosteronism which until this day no one from VA or Womack have discuss with with me I asked Dr Tan my endocrine did I need to be concern I was told told he had release me back to my PCP and I needed to get with her so I emailed her though secure messaging where I was told that I got the results from Dr Tan so I needed to get with him until this day no one have discuss the disease with me I started reading and guess I found out why no one wanted to talk to me these messages that I had with them are enclose also what I have found out on my own and I was put on Spironolactone and that so far have kept my pressure within range for the most part.

These are the disability that I have suffered while all of this have been going on:

I have Hyperaldosteronism

High Blood Pressure

and Enlarge Heart

Adnormal Heart Beat (sustain)

ED

Gout

Headaches

Weight Gain And allot of other physical things that I’m sure this hypertension have had somethings to do with. Thank you!

I suffer from just about all the side affect of these disability from one time are other. And now I have Pulmonary heart disease.

IMO

Craig N. Bash M.D., M.B.A., Neuro-Radiology

4938 Hampden Lane, Bethesda, MD 20814

Phone: (301) 767-9525 Cell: 301-651-6392 Fax: (301) 951-9106

DrBash@Doctor.com

INDEPENDENT MEDICAL EXPERT (IME) NEXUS OPINION 18 Dec 2014

To: Veterans Administration (VA)

Claimant Name

1979-1999

This patient has several under-rated conditions and as a specialist in the fields of IMOs and diagnosis with 30 years experience as a physician and a PGY-7 level of training I have carefully and compassionately reviewed this patient’s medical records on longitudinal view to determine if his current rating are correct concerning his cardiac, sleep apnea and TDIU as they relate to his experiences in service or secondary (inferred/implied) to service connected conditions or service connected treatments.

I understand that this opinion is partially justified based on the veteran's verified and corroborated account of what he experienced in service, much of that experience is within the competence of the veteran to report, and there is no reason in the record to doubt his credibility and many of his historical details have been corroborated by lay testimony.

I have looked for any new/first time/secondary conditions as they relate to his service time and I utilize the concept of reasonable doubt in accordance with the three-judge VA Court case [case Polovick v. Shinseki (Kasold, Hagel and Davis--22 April 2009)] concerning credible evidence. (Please note that legally inextricably intertwined medical problems are medical problems that have significant impact on each other as these are known as secondary conditions in the medical lexicon. Also known within VA rate circles as inferred claims)

I have reviewed this patient’s relevant and critical medical facts contained in patient’s medical records/testimony/lay statements/personnel records, conducted a 60-120 minute patient clinical interview history to document the effects of his disabilities upon his ordinary activities, imaging based medical examination (see below medical examination sections) and an in-person history/clinical interview. Thus I have had access to the critical relevant medical facts and have reviewed the pertinent relevant medical literature. I have advanced training including a 3-year Neuroradiology fellowship (2 fellowship years at NIH) following my 4-year radiology residency.

I shred all records after this report is produced which is in line with Federal/VA policy on duplicative historical medical records.

Facts/data:

Patient entered service fit for duty without any doctor-diagnosed illnesses.

Medical Diagnostic Codes OPINIONS:

(Please note: That VA guidelines on benefit of the doubt allow for a causative opinion to be formed at the 50 to 50% probability which is a legal standard that is much different than the usual clinical medical causation of 95%. Thus any reviewing physician should be aware of the VA guidelines in causation so that the patient has a fair analysis of service connection and causation)

Cardiac

He is currently rated at 10% for his hypertension (HTN) effective 10/1/1999, which is incorrect as he has a large heart due to his longstanding HTN. For example, his 2002 EKG shows left ventricular hypertrophy, which is a form of cardiac enlargement. His recent chest x-ray of 18 Sept. 2013 shows”…cardiac silhouette at the upper limits of normal for size… Dr. Radiology…”.

It is my opinions that his heart is enlarged due to his long-standing HTN and thus he should be rated at the 30% for his cardio-meglia as his records do not contain another more likely cause for his enlarged heart. This 30% should be retro-active as the patients records contained the 2002 EKG with left ventricular hypertrophy thus the rated erred (CUE).

CUE;

(a) Error . Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500(b)(2) will apply.

The above includes a three-pronged test to determine whether CUE is present in a prior determination: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question.

This patient’s prior ratings decisions contain CUE for his heart rating as follows and this should be reversed:

OPINION RE: DECISION 2013

Error is assigning 10% and not 30% for his hearts.

1. The correct facts were in his claims file, as they were known at the time, but the statutory or regulatory provisions in existence at the time were incorrectly applied because the rater did not fully read the patient’s records which un-mistakably show left ventricular hypertrophy. The rater should apply the equipoise rule and grant the claim.

2. The rater’s error is "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made and the patient would receive more years worth of a higher level of disability.

3. This CUE is based on the record and law that existed at the time of the prior adjudication in this patient.

Sleep Apnea

Pt has obstructive sleep apnea as per Dr.Grant ‘s 2014 note with a prescription of 6 Cm H2O CPAP.

Pt had a diagnosis of asthma in 12/1996 with a code of 493.10 as per Dr. Torrens and in 1/1998 at Womack medical center medical visits for sleep disturbance and insomnia.

.

Obstructive sleep apnea is different than central sleep apnea. Obstructive sleep apnea is due to an obstruction in the airway and his obstruction is likely significantly due to her sinusitis. Please note, that it is well known standard medical knowledge that sinusitis and snoring are root causes of sleep apnea. In fact, the article below shows that nasal obstruction was associated with a two-fold increase in sleep arousals and deep sleep time was decreased from 90 min to 71 min.

Zwillich CW ,

Pickett C ,

Hanson FN ,

Weil JV

The American Review of Respiratory Disease [1981, 124(2):158-160]

Type: Clinical Trial, Journal Article, Randomized Controlled Trial, Research Support, Non-U.S. Gov't, Research Support, U.S. Gov't, P.H.S.

Abstract

Highlight Terms

Gene Ontology(1) Diseases(3)

Anecdotal observations suggested that poor quality of sleep is a frequent complaint during upper respiratory infections (URI). Nasal obstruction

occurs frequently during URI and causes sleep apnea in some infants. Sleep apnea disrupts normal sleep and could explain the complaints of poor

sleep quality during URI in adults. Accordingly, 10 normal men had full night recordings of sleep stages and breathing rhythm before and during

nasal obstruction. The order of obstructed and nonobstructed nights was randomized after a standard acclimatization night. During nasal obstruction,

time spent in the deep sleep stages decreased from 90 +/- 11.2 (SEM) to 71 +/- 12.9 min (p less than 0.05), whereas significantly more time was

spent in Stage 1 sleep (p less than 0.03). This loss of deep sleep during obstruction was associated with a twofold increase in sleep arousals and

awakening (p less than 0.01) resulting from an increased (p less than 0.02) number of apneas (34 +/-19 during control sleep versus 86 +/- 34 during

obstructed sleep). Apneas of 20 to 39 s in duration became 2.5 times more frequent (p less than 0.05) during obstruction. Oxygen saturation was

studied in the last 4 subjects using an ear oximeter. Desaturation (SaO2 less than 90%) occurred 27 times during control sleep compared with 255

times during obstructed sleep. These desaturation episodes occurred only during apneas. All men complained of poor sleep quality during nasal

obstruction. We concluded that apneas, sleep arousals and awakenings, and loss of deep sleep occur during nasal obstruction and may explain

complaints of poor sleep quality during URI.

It is my opinion¹ considering every possible sound medical etiology/principle, to at least the 90% level of probability that his current sleep problems are due to his experiences that the patient had during military service with insomnia and sleep disturbance at Womack and his diagnosis of asthma for the following reasons .

1. Per his military records he entered the service fit for duty without any doctor-diagnosed illnesses.

2. He had medical visits for asthma problems in service and asthma can interfere with breathing should the CPAP should help nullify the asthma breathing complications at night.

3. He also has insomnia and sleep disturbance in service and this was likely the early symptoms/manifestations of his later in life diagnosis.

4. The literature below supports links between seep apnea and asthma due to airway collapsibility.

Difficult‐to‐Control Asthma and Obstructive Sleep Apnea

2003, Vol. 40, No. 8 , Pages 865-871

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Mordechai Yigla , Naveh Tov , Anna Solomonov , Ami‐Hai E. Rubin , and Dan Harlev

¹Division of Pulmonary Medicine, Rambam Medical Center and Faculty of Medicine, Technion‐Israel Institute of Technology, POB 9602, Haifa, 31096, Israel

This study tested the hypothesis that asthma can promote obstructive sleep apnea (OSA) by looking at the prevalence of OSA among patients with difficult‐to‐control asthma receiving long‐term oral corticosteroid (CS) therapy and examined some possible etiological factors. The study design was a prospective cohort study and was conducted in the pulmonary outpatient clinic of a tertiary care center in Haifa, Israel. Twenty‐two consecutive patients with severe unstable asthma, 14 on continuous and 8 on bursts of oral CS, in addition to their standard therapy for a mean of 8.9 ± 3.3 years, underwent a night polysomnography in a sleep laboratory regardless of sleep complaints. A standard questionnaire was completed upon attending the sleep laboratory. The OSA was defined as respiratory disturbance index (RDI) of ≥ 5 and typical complaints. The correlation between RDI to asthma and morphometric parameters was tested. All but one patient had OSA [95.5% prevalence], with mean RDI of 17.7 ± 2.5. The RDI values were significantly higher in the continuous CS therapy subgroup (21.4 ± 3.4 vs. 11.1 ± 1.6, p < 0.05]. The study group had above normal neck circumferences and body mass index. The former increased by 12.1% ± 3.1% to 29.8% ± 1% during the oral CS therapy interval but had no significant effect on RDI as a covariant. This study showed an unexpectedly high prevalence of OSA among patients with unstable asthma receiving long‐term chronic or frequent burst of oral CS therapy. It may be assumed that prolonged and especially continuous oral CS therapy in asthma increases airway collapsibility.

Read More: http://informahealthcare.com/doi/abs/10.1081/JAS-120023577

5. His service insomnia was likely due to his sleep apnea.

6. His current symptoms are per the attached lay statements, which show chronicity of sleep symptoms.

7. His records do not support another more plausible etiology for his current sleep pathology or other risk factors (in or out of service) to explain his problems other than his service time insomnia and asthma experiences.

8. This opinion is consistent with the patient’s subjective lay statements, the objective findings/imaging tests/diagnoses.

9. These disabilities and his total VA medical disabilities clinical problems affect his ability to be gainfully employed.

10. This opinion represents sufficient and competent medical data and is comprehensive enough for the VA to establish a rating and MDC for this organ system problem without the need for additional work-ups or development.

11. This illness is permanent in nature and thus is not expected to improve with time as he will likely need CPAP for life thus should be assigned P and T status.

12. He should be rated for his asthma as it began in service.

Diabetes:

Diabetes is know to occur secondary to sleep apnea thus he should be rated for his diabetes as his records do not contain another more likely cause.

TDIU

He has not been working for several years do to his VA related injuries and illnesses.

He is not working and considering the effect of his disabilities on his employability his total medical pictures supports TDIU via the direct route due to the sum of his VA disabilities because the patient is unable to engage in employment of any type or in any situation due to his service-connected disability.

It is my medical opinion that this patient has a severe impairment in the ability to obtain or retain employment that would be considered both substantial and gainful by VA standards. The patient’s current service connected disabilities.

He is not able to work of any period of time due to his sleepiness. He also has serious cardiac dysfunction which requires medication frequent check-ups both of which interfere with his ability to work a regular schedule.

*** If more information becomes available via the VCAA at a later date it may or may not change the opinions rendered in this evaluation. Or if the VA decides that my recent pair of opinions is somehow still somehow deficient, in fairness to the patient, it would be ethical to allow me the opportunity to provide another addendum to this report prior to any final VA decision in order to correct any deficiencies.***

Respectfully submitted,

ELECTRONICALLY SIGNED

Craig N. Bash M.D. ‘86, M.B.A. ’81, G.M.E. ‘95

10 years as a VA accredited Claims Agent with both PVA and DAV (1997 to 2007)

Associate Professor of Neuroradiology

*****Please note that this opinion is academic in nature and as such is not meant to reflect negatively on any other professional who might hold an alternative professional opinion. The purpose of this report is also not meant for medical care or treatment and my opinions do not explicitly or implicitly guarantee that the VA will award any particular rating or benefit to the patient.*****

Edited June 4, 2015 by Tbird
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