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Sc By Presumption


Berta

Question

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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  • HadIt.com Elder

Berta,

You are correct in your asumptions. The key is that the presumed condition listed in §3.307-3.309 must have manifested its self to a degree of 10% disabling within the prescribed presumptive period. Many veterans assume that just because a listed condition under §3.309 shows up wihin the presumptoive period, that it warrents service-connection. It must have manidfested to a dergree of at least 10% to be awarded on that basis.

The DIC claim you're working on shouldn't be a problem if the heart disease showed up within two months of the veterans release from active duty and was at least 10% disabling at the time.

Vike 17

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Berta, According to tghe directive, There is no 0 percent for Heart Disease. The minimum that needs to be shown is the diagnosis and Continuous medication. I hope the informatiuon she sends you gets it done.

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Thank you both---

With the loss of the post service private medical records this claim seemed so hard to resolve but the widow found a lot in the veteran's Tricare medical records.Death due to heart disease and heart disease treated in the veteran's Tricare records-within months of discharge.

Unfortunately there seemed to be no accrued benefits-

but she would be eligible for REPS too if they award SC death.

REPS is a Social Security program that restores 2 years of entitlement thus-

If a child of a deceased veteran gets SSA death benefits until 18, the spouse also gets an SSA benefit ,based on the decedent's SSA ,until the child is 16.

If REPs is awarded upon VA award for direct service connected death, this restores two years of the spouse's SSA benefit.

The Omnibus Reconciliation Act took away these two years of SSA death benefits for spouses with children under 18, about 20 years ago. The VA-to their credit - will restore this benefit via REPS for eligible spouses of veterans deceased due to their service.

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