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Berta
I saw here today a topic regarding a disability noted within one year after service-
It is my understanding that only Presumptive chronic conditions as within 38 CFR 3.307,3.309, which-by medical evidence-became manifested to at least 10% within that year after service- are service connectable as presumptive.
All other conditions not on the presumptive list would still need service linkage.
That is my take on the presumptive regs- any thoughts?
(this is not regarding POW regs or AO regs)
I have a claim from one of my vet orgs that is dependent on fitting into the presumptive regs for heart disease-
It is a DIC claim and many post service private medical records were lost in a fire at the private hospital where the veteran was treated.
Yesterday I was informed by our vet org President (VCV,ltd) that the widow has found additional medical records which would appear to show the veteran definitely had heart disease within 2 months after discharge-they are being mailed to me---
cardiovascular disease is presumptive in the above regs- but
the problem might be the 10% medical criteria for presumption.
Am I interpreting these presumptive regs wrong?
This is a good read on these regs:
http://www.va.gov/vetapp02/files02/0207112.txt
The veteran exhibited poliomyletis within months after service.
poliomyletis is not on the presumptive list.
The BVA said:"The veteran was
hospitalized by VA in September 1953, and he gave a history
of onset of fever and aching on the third Sunday in June
1953. Acute anterior poliomyelitis with onset in June 1953
was diagnosed. This is more than 35 days after the veteran's
discharge from service, and it is therefore probable that, if
the disease the veteran had in June 1953 was polio, it was
incurred after service. Id.
Two IMos were not found as probative:
"The statements from Drs. Lester
and Granberry have no probative value, even if the diagnosis
of polio were certain, because they do not ascribe a time to
the onset of the disease."
BUT:
The January 2002 VA expert medical opinion affords an
alternative theory of the cause and time of onset of the
veteran's left upper arm atrophy. The VA expert concluded
that the veteran contracted the infection in service that was
diagnosed as left palmar space infection in April 1953. He
concluded that the veteran's left upper arm atrophy is
neuralgic amyotrophy directly resulting from the infection
contracted in service that presented in April 1953. These
conclusions provide the elements of proof required to grant
service connection atrophy of the left upper arm due to
neuralgic amyotrophy diagnosed after service as determined by
all of the evidence of record, including that pertinent to
service. 38 C.F.R. § 3.303(d).
ORDER
Service connection for atrophy of the left upper arm due to
neuralgic amyotrophy (claimed as a residual of poliomyelitis)
is granted."
ANother point in this claim is that the two IMO docs failed to opine on the time of onset and this rendered their opinion moot.
As 1968 Army stated-a few days ago- even though the nexus of your disability might need proof as it stands- still the IMO doctor must state a nexus and service etiology.
Had these IMos docs specifically refrred to the SMRs- which the VA doctor did-
the nexus factor in them could have awarded this claim faster.
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