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[Guest rickb54]

delete

Edited February 19, 2007 by rickb54

[Guest jstacy]

Rick you have the same type of CUE I do except except that mine is For Hypertension. I was seen in service 7 times for High Bloodpressure but since the NAvy did not diagnose it they denied it. They said they cold not use the diagnosis ,They needed a Nexus from a VA doctor. (What a croc of bull)

Look at the post service records and look for the following. DX or dx. sunusitis. That means a diagnosis of a condition. Lay the cue back on them and take it to the next level as the claim has fallen on deaf ears at the RO.

Let the BVA or court make that decision as the RO definatly does not want to.

Edited November 19, 2006 by jstacy

[Ricky]

Rick - I don't know much about the claim that you are working on but it seems that cue was not the way to go as it appears that it is an interpertation at question and not law. Looks like they are saying yep he did have sinus problems but the records lack the diagnosis. I have seen a lot of service medical records which say that the symptoms were clogged nasal passages with sinus infection - questionable sinusitis or possible sinusitis or words to that effect. Same with the post treatment records - vet has complaints of sinusitis but dx not clearly listed as sinusitis. I have also seen a lot of exit exams which say things like sinusitis ? follow with va for treatment - this won't get it either without a nexus statement. Did he have a C&P for this? if not why? Just my honest input

ricky

[Guest rickb54]

Yes he had a C/P exam, and the va agrees he had sinus problems post military service. I have gone through this records and not being a rater, I still don't no how they can say he was not diagnosed with sinus problems since he was treated for sinus problems. I do think he will have to get an IMO but only becasue the va is playing blind with the facts.

[Berta]

I agree with Ricky as to the SMRs stating symptoms but not a clear diagnosis.

Sinusitis ratings are found in this BVA case:

http://www.va.gov/vetapp06/files3/0617394.txt

I too think only an IMO that medically associates his inservice records with his present sinusitus is the only way to service connect this.

Did he get a VCAA letter telling him what specific evidence they want?

Does his current sinusitus problems fully fit into the rating criteria?

[Guest jstacy]

Does the Vet have all of his medical records post service. I am willing to bet a Private DOc has the Diagnosis in a record somewhere.

One does not need a diagnosis in service. A Post service may be needed to establish the chronic condition.

B) Chronicity and continuity. With chronic disease shown as such in service (or within the presumptive period under §3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.

Edited November 19, 2006 by jstacy

[Vike17]

Rickb54,

Wow, this is a really good one! Was the veteran actually diagnosed with "sinusitis," or was the veteran seen for a combination of symptoms asociated with possible sinusitis? If the veteran was seen for just some symptoms and the "clinical entity" wasn't stablished, then I could maybe see why service-connection was denied. Does that make sense? I don't think the 21 month lapse in time from discharge to the next post discharge treatment is a problem. If that was an issue, then it would be a judgmental call on the RVSR's part. If the RVSR denied it on the basis of the short time lapse, then there would be a 99.9% chance it would be overturned by a DRO.

Another thing that struck me was the claim was already denied and then appealed on the basis of CUE. That means a number of people have looked at it, such as probably a Coach of the rating activity, a RVSR, a possible second RVSR if the first one isn't authorized to sign a rating by themselves, a DRO, and possibly the Coach of the Appeal Team. That's alot of people that have looked at the claim and the chances are that a blatant error as it appears would have already been caught. I'm not saying that all blatant errors get noticed when you have all these people look at an issue, but some do slip through. I'm willing to bet that there is something that is causing the VA to have to deny this.

Vike 17

Edited November 19, 2006 by Vike17