Are Missed Lab Reports/Diagnostics New and Material Evidence?

[cetay]

Are Missed Lab Reports/Diagnostics New and Material Evidence?

                Really wanted to thank everyone for their help in advising me. Since the last time I`ve posted I have went from 20% (for 30 years) to 80 %. My original claim for kidney disease was denied, with the help of a VSO, and is with the DRO to date. I decided no one would have the time to look at the 6000 plus pages and filed my other claims pro se. Following the guidance in this forum I was service connected for migraines (50%) tinnitus (10%), and left ventricular hypertrophy (30%) in addition to my original service connected HBP (20%). I really appreciate your help.

                I ordered my c-file and looked through all five-thousand pages and found that in 1981 and again in 1983 I had filed claims for hypertensive vascular disease (hypertension and enlarged heart disease). In the VA doctors evaluation of my claim, he mentioned there was no evidence of an enlarged heart.In the diagnostic ekg and chest xray reports, for 1981 and 1983, they both reported enlarged heart diagnoses.      

                Could these reports be considered as new and material evidence because the doctor in making his decision didn’t take into  consideration the material fact of conclusive evidence? Va just rated me with and enlarged this year (left ventricular hypertrophy) and gave me a 30% rating. Question: could this constitute an claim for an earlier effect date, a CUE perhaps? Not sure how to look at this revelation.

Thank in advance for any replies.

Cedric

[Berta]

I think it could be looked at both ways-

in the older claims ( for LVH) did they mention and rate the LVH at all?

I am glad you took the time to read all through your medical records. 

[broncovet]

We dont know how relevant they are.  Do the lab reports have anything to do with a diagnosis, or a nexus?  

Sometimes doctors use labs to diagnose specific diseases.  

They should be "new" if VA has not seen such report before, but I certainly dont know how likely they are to change anything.  

The "bar" is low that you have to have for "new and material" evidence.  It does not necessarily mean the new evidence is "positively outcome determinative", but only that its "plausable" it could change the result.  

The VA is required to review the applicable evidence and issue a decision as to whether or not the "new evidence" is sufficient to meet the standard to "reopen" the claim.  

Some evidence would obviously not make a difference.  If the doctor did an exam, for example, which did not include glucose tests, then those results may not matter as to whether or not you have diabetes.  However, if his tests included an A1C test, then the results of that test could positively identify or rule out diabetes. 

The same with high blood pressure.  A single incident of when your blood pressure is high may not lead to a diagnosis of hbp.  The doctor would consider the reason your blood pressure is high.  And, he would likely confirm/rule out high blood pressure diagnosis if your blood pressure was high on multiple readings.  

Some people get high blood pressure when they are excited, for example.   

[Buck52]

If this veteran is referring to the Progress Notes on Myhealthvet???, they can be used as evidence in a claim  even if they were over looked, these progress notes are considered to be a matter of medical records and the good thing about these notes is  if a veteran fails to add them in with his claim for credible evidence   they are dated, normally  when the Dr writes his/her report  usually the same day you see this Dr..

I have used these for some of my claims and the VA Accepted them, one time they accepted them and I had a private urologist specialist I paid a lot of $$ to write me a nexus  as least likely as not...the Rater used my progress notes and never mention this private Doc.

[cetay]

Thanks everyone, Berta, broncovet, Buck52, for your prompt reply. The ekg and the x-rays were done in conjunction with my filing of a claim for hypertension and enlarged heart. On active duty, there was concern about my blood pressure (long standing) and in evaluating it was found through ekg and x-ray i was a suspect for an enlarged heart.

                 I was discharged in 6/1981 and filed a disability claim for hypertensive vascular disease, for which I was awarded a 20% disability for hypertension. The compensation examiner in his report (8/81) stated that I did not have an enlarged heart "The heart is regular, it is not enlarged." The doctor interpreting the chest x-ray, for the same compensation exam on (8/81), stated that the heart is enlarged (Chest films reveal that by measurement the heart is enlarged, the CTR is 17.5.32 cm).

                In 12/83 I filed another claim for hypertensive vascular disease for an enlarged heart (left ventricular hypertrophy) and was denied. The same x-ray physician again found "Examination of the chest shows by measurement the heart is slightly enlarged. The CTR is 16.5:31.2 cm"

                Now in 4/2018 I`ve been service connected for a disease which should have been service connected in 8/81 and 12/83.

                They did not rate the enlarged heart (LVH) because the examiner said I did`nt have it, when the diagnostic testing in my records showed that I did have LVH. The lab reports found a nexus between my in-service hypertension and enlarged heart. My concern is that " New and Material Evidence" has to be evidence that was not already in the record and was not available to the rater at the time. Is this scenario a " Clear and Unmistakable Error" or would filing of an " Earlier Effective Date" fit. I am already service connected for the enlarged heart (LVH) as of 4/2018.

Once again, thanks

 Cedric

[broncovet]

If your VARO decision was in the past year, the appropriate manner to contest the decision is by filing a NOD.  You need not meet the "CUE" standard of review if the appeal was timely.  

What did the decision (in the evidence section) say?  Did it say it considered this exam?  If it considered it already, no its not new and material evidence under 38 cfr 3.156.  

If the decision did NOT consider this exam, then yes, you could submit this exam as new and material evidence under 3.156 (b) (B if its a pending claim, that is you are still in the appeal period).  

[broncovet]

With each claim, you can dispute:

1.  Denial of Service connection

2.  You can dispute the disability percentage, if applicable. 

3.  You can dispute the effective date(s).