Carlie, Could You Please Take A Look At This

[bm6546]

Carlie,

I would appreciate it if you would please look at this and tell me what you think. I know you deal a lot with claims that involve a CUE.

I would like your take on this.

Thanks in advance,

Brian

[bm6546]

I was not able to continue my research because the VA search engine has not been working. I have found that your reduction may have several issues that are not addressed in your statement which I feel need to be developed. I will see what more I can do this weekend.

I still feel that the notes in your SMR showing positive symptoms of heart rate acceleration documented by the halter tests can provide very strong evidence to show that the reduction was not legal. However, even if the halter results were not used to make the initial rating you still have strong arguments to show the reduction was not legal.

It would help me focus if I were to know the following.

Did the halter monition document heart rate acceleration in excess of 100 beats per minute? If yes, how many times was this event documented?

Where did the BP and heart rate results cited by the raters come from? Were these noted in post service treatment records or were they from the SMR. Check the evidence list noted in the decision and review you medical records to figure this out.

Your claim is very complex. However, I feel it is obvious that the reduction was a railroad job by raters who went outside the facts and failed to properly apply relevant laws to determine that you did not have a ratable disability.

Hoppy,

I am going through all my boxes of records and trying to find the info. I will post it when and if I find it. Hopefully this weekend some time.

Thanks for your help.

Brian

[bm6546]

I was not able to continue my research because the VA search engine has not been working. I have found that your reduction may have several issues that are not addressed in your statement which I feel need to be developed. I will see what more I can do this weekend.

I still feel that the notes in your SMR showing positive symptoms of heart rate acceleration documented by the halter tests can provide very strong evidence to show that the reduction was not legal. However, even if the halter results were not used to make the initial rating you still have strong arguments to show the reduction was not legal.

It would help me focus if I were to know the following.

Did the halter monition document heart rate acceleration in excess of 100 beats per minute? If yes, how many times was this event documented?

Where did the BP and heart rate results cited by the raters come from? Were these noted in post service treatment records or were they from the SMR. Check the evidence list noted in the decision and review you medical records to figure this out.

Your claim is very complex. However, I feel it is obvious that the reduction was a railroad job by raters who went outside the facts and failed to properly apply relevant laws to determine that you did not have a ratable disability.

Hoppy,

After checking the paperwork for my C&P exam on 12-1-67 it appears that no Holter Monitoring was performed to evaluate my rating deduction decision.

The C&P notes says:

Clinical Impression: Paroxysmal Atrial Tachycardia

Normal EKG (and there is a copy of the EKG)

-no cough

-no dyspnosa

-no thyroid enlargement

-no precordial thrust

-no enlargement to percussion

-heart regular

-soft systolic at apex

-no radiation

-no thrill

-heart is regular

-rate 78-80

-normal peripheral vessels

Pulse 80 B/P 130/64 respiration 18

Pulse 80 B/P 130/64 respiration 20

pulse 96 B/P 102/70 respiration 20

Thats pretty much all the C&P reveals.

I noticed several sick bay examinations performed while in the service were my pulse and B/P were recorded.

17 Jan 1966 Apicae pulse 132 EKG rate 110

June 11, 1966 Pulse 108 EKG 100

6-17-66 Pulse 138

I can scan all the paperwork for this information if it will help.

Thanks, Brian

[Hoppy]

It won't be necessary to scan the reports at this time. I will work on a position paper based on what I have. If I say something that contradicts medical evidence then maybe you can show me what the reports actually say. My main concern was the establishment of accelerated heart rate while in the military. Back then they were looking for an accelerated heart rate when making the diagnosis of PAT. There was no specified manner in which the heart rate was documented. Thus, any static, treadmill or any other test is sufficient. I was afraid they were trying to say you never had any evidence of a compensatable condition.

Just for your information I have assisted on several cases where veterans had heart rate problems in the early seventies. They were diagnosed with an"asthenic personality disorder" and discharged without benefits.There were numerous diagnoses of hyperventilation episodes and subjective complaints of accelerated heart rate in their SMR's. They were not given halter monitor tests to confirm the symptoms. When they were examined their heart rate was normal. The fact that your heart rate was accelerated when you were examined is probably what got you the PAT diagnosis. I was able to obtain a change of diagnosis from the 'asthenic personality disorder" to an anxiety disorder and the veterans were service connected. However, these cases incurred delays and were difficult. The VA raters and C&P examiners did everything they could to subvert the claims.

The presumption that heart rate symptoms were caused by a mental condition was allowable under the DSM II. Currently, when the heart rate symptoms are not caused by a perceivable threat to a person's well being or a known medical condition they are not presumed to be caused by a mental condition. The official position by qualified examiners is that there is no preferred etiology that explains the cause o fthese changes in heart rate. However, without proper treatment such changes are very capable of inducing anxiety and long term disabling anxiety disorders and agoraphobia.

The PAT and anxiety appears to be intertwined dating all the way back to the military. I will be working on the CUE and also the anxiety claim. I have a question on the anxiety claim. Have you sought a nexus opinion by a clinician who reviewed the SMR and post service treatment reports or are you waiting on a C&P exam?

Edited November 26, 2011 by Hoppy

[bm6546]

It won't be necessary to scan the reports at this time. I will work on a position paper based on what I have. If I say something that contradicts medical evidence then maybe you can show me what the reports actually say. My main concern was the establishment of accelerated heart rate while in the military. Back then they were looking for an accelerated heart rate when making the diagnosis of PAT. There was no specified manner in which the heart rate was documented. Thus, any static, treadmill or any other test is sufficient. I was afraid they were trying to say you never had any evidence of a compensatable condition.

Just for your information I have assisted on several cases where veterans had heart rate problems in the early seventies. They were diagnosed with an"asthenic personality disorder" and discharged without benefits.There were numerous diagnoses of hyperventilation episodes and subjective complaints of accelerated heart rate in their SMR's. They were not given halter monitor tests to confirm the symptoms. When they were examined their heart rate was normal. The fact that your heart rate was accelerated when you were examined is probably what got you the PAT diagnosis. I was able to obtain a change of diagnosis from the 'asthenic personality disorder" to an anxiety disorder and the veterans were service connected. However, these cases incurred delays and were difficult. The VA raters and C&P examiners did everything they could to subvert the claims.

The presumption that heart rate symptoms were caused by a mental condition was allowable under the DSM II. Currently, when the heart rate symptoms are not caused by a perceivable threat to a person's well being or a known medical condition they are not presumed to be caused by a mental condition. The official position by qualified examiners is that there is no preferred etiology that explains the cause o fthese changes in heart rate. However, without proper treatment such changes are very capable of inducing anxiety and long term disabling anxiety disorders and agoraphobia.

The PAT and anxiety appears to be intertwined dating all the way back to the military. I will be working on the CUE and also the anxiety claim. I have a question on the anxiety claim. Have you sought a nexus opinion by a clinician who reviewed the SMR and post service treatment reports or are you waiting on a C&P exam?

I am in the process of trying to find a Cardiologist that will provide me with an IMO. I have e-mailed 5 or 6 doctors but have not received an answer yet. Do you know of any Cardiologists that I can contact?

I am waiting for a C&P from the RO that my BVA remand states I need.

[Berta]

I tried to research the PAT as to any association to IHD but came up with very little:

PAT is explained here:

http://medical-dictionary.thefreedictionary.com/paroxysmal+atrial+tachycardia

“Paroxysmal atrial tachycardia may be caused by several different things. The fast rate may be triggered by a premature atrial beat that sends an impulse along an abnormal electrical path to the ventricles. Other causes stem from anxiety, stimulants, overactive thyroid, and in some women, the onset of menstruation. “

http://besthealthadvices.com/conditions-a-diseases/heart/416-paroxysmal-atrial-tachycardia.html

“Paroxysmal atrial tachycardia is most common in people with heart disease organic chronic ischemic heart disease, myocardial infarction, administration of drugs (especially digoxin).”

This veteran had almost the same situation and this was the only PAT and IHD claim I cold find at the BVA.

The VA denied for any association to his IHD but did rate him higher- at 30% for the PAD.

http://www.va.gov/vetapp00/files3/0029481.txt

I feel a strong IMO would help you here.Even it it only raises you to a higher PAT rating and re establishes the improper reduction.

It might be difficult however for an IMO doc to support a direct link from the PAT to the IHD but the doctor might see a better way of stating the SC PAT aggravates the NSC IHD to a ratable level and could possibly give a full medical rationale for that.

It is a good idea to file a CUE on the past unappealed rating decision that reduced the rating.

[Hoppy]

I have not gotten deeply involved in CUE claims before. However, I had a claim with an issue that is common to your claim. The issue involves the inadequacy of rating criteria that is based on vague descriptive words such as "infrequent". The VA made wholesale changes in the rating schedule in 1998 to many different conditions resulting in definitive ways of rating claims. Instead of saying infrequent or frequent they started using criteria that required specific counts of an event during a specific time period, Such as 3 episodes per week. Your claim is very complex and I will probably think of amendments in the future.

As a result of my inexperience with CUE claims there are several issues that are not clear to me which require further investigation. Consider that if you win the CUE this would be a significant amount of money. You want to be very careful. If it were my claim I would consult an attorney. There might be a requirement at some point in time that you only have one shot at a CUE. That is you cannot amend the filings or add evidence after an initial denial. I amnot sure what level you would run into this; RO, BVA or higher courts.

When arguing points with the VA it is best to go into detail. You need to cite specific weak points in their decisions. If you make general statements that they erred they will not fill in the logic for you. I made this mistake on claim of mine and it took me two years to figure out that they cannot see the errors of their ways unless you slap them in the face with specific details.

When reading your denial I was any opinion that the rater did not dispute your subjective claims as to the frequency of attacks or use the heart rate tests showing a pulse less than 100 as evidence against the claim. The reduction was based on therater's interpretation that your symptoms were "occasional" rather than infrequent. I will be arguing that the rater did not use exams sufficient to determine the frequency of attacks or any other reliable evidence to determine your condition had improved.

When addressing your CUE claim I am thinking that Icannot directly attack the decision for not using a halter monitor. It appears that ( C ) shown in 3.344 states that A and B do not apply to cases that were re-examined in less than five years. The argument that can be used is that the evidence used for the reduction did not establish an improvement.

§ 3.344 Stabilization of disability evaluations.

(a) Examination reports indicating improvement.

Rating agencies will handle

cases affected by change of medical

findings or diagnosis, so as to produce

the greatest degree of stability of disability

evaluations consistent with the

laws and Department of Veterans Affairs

regulations governing disability

compensation and pension. It is essential

that the entire record of examinations

and the medical-industrial history

be reviewed to ascertain whether

the recent examination is full and complete,

including all special examinations

indicated as a result of general

examination and the entire case history.

This applies to treatment of

intercurrent diseases and exacerbations,

including hospital reports,

bedside examinations, examinations by

designated physicians, and

examinations

in the absence of, or without taking

full advantage of, laboratory facilities

and the cooperation of specialists

in related lines. Examinations less full

and complete than those on which payments

were authorized or continued

will not be used as a basis of reduction.

Ratings on account of diseases subject

to temporary or episodic improvement,

e.g., manic depressive or other psychotic

reaction, epilepsy, psychoneurotic

reaction, arteriosclerotic

heart disease, bronchial asthma, gastric

or duodenal ulcer, many skin diseases,

etc., will not be reduced on any

one examination, except in those instances

where all the evidence of

record clearly warrants the conclusion

that sustained improvement has been

demonstrated. Ratings on account of

diseases which become comparatively

symptom free (findings absent) after

prolonged rest, e.g. residuals of phlebitis,

arteriosclerotic heart disease,

etc., will not be reduced on examinations

reflecting the results of bed rest.

Moreover, though material improvement

in the physical or mental condition

is clearly reflected the rating

agency will consider whether the evidence

makes it reasonably certain that

the improvement will be maintained

under the ordinary conditions of life.

When syphilis of the central nervous

system or alcoholic deterioration is diagnosed

following a long prior history

of psychosis, psychoneurosis, epilepsy,

or the like, it is rarely possible to exclude

persistence, in masked form, of

the preceding innocently acquired

manifestations. Rating boards encountering

a change of diagnosis will exercise

caution in the determination as to

whether a change in diagnosis represents

no more than a progression of

an earlier diagnosis, an error in prior

diagnosis or possibly a disease entity

independent of the service-connected

disability. When the new diagnosis reflects

mental deficiency or personality

disorder only, the possibility of only

temporary remission of a super-imposed

psychiatric disease will be borne

in mind.

(b) Doubtful cases. If doubt remains,

after according due consideration to all

the evidence developed by the several

items discussed in paragraph(a) of this

section, the rating agency will continue

the rating in effect, citing the

former diagnosis with the new diagnosis

in parentheses, and following the

appropriate code there will be added

the reference ''Rating continued pending

reexamination lll months from

this date, § 3.344.'' The rating agency

will determine on the basis of the facts

in each individual case whether 18, 24

or 30 months will be allowed to elapse

before the reexamination will be made.

© Disabilities which are likely to improve.

The provisions of paragraphs (a)

and (b) of this section apply to ratings

which have continued for long periods

at the same level (5 years or more).

They do not apply to disabilities which

have not become stabilized and are

likely to improve. Reexaminations disclosing

improvement, physical or mental,

in these disabilities will warrant

reduction in rating.

[26 FR 1586, Feb. 24, 1961; 58 FR 53660, Oct. 18,

1993]

The issues in this case are.

1. Was the medical evidence used for the reduction based on exams that were capable of disclosing improvement. (see3.444 (C.)

2. Will the absence of evidence that resulted bythe inadequacy of the exams used for the reduction result in the inability to obtain evidence showing an improvement in the veterans condition between the time of the inadequate exam and any other subsequent period in time.

3. Can a current re-evaluation of the history ofthe evidence or a current evaluation of the veteran be used to reduce the claim or does the 20 year rule dominate.

4. Did the raters give proper consideration tothe benefit of the doubt rule when applying the vague terminology used in the rating schedule. The vagueness of the rating schedule created issues in and of themselves.

Discussion:

At the time of the original 10% rating the evidenceavailable included credible subjective statement from the veteran as to the conditions that precipitated accelerated heart rate events and frequency within specific time frames of accelerated heart rate events. Additionally, there were objective EKG andhalter monitor test data available for purposes of rating the veteran's conditionat 10%. The subjective complains included reports of symptoms precipitated by exercise.

At the time of the reduction it was incumbent on the rater to insure that the reduction was based on adequate reports. The rater contended that the veteran's symptoms were 'occasional" and did not meet the criteria for infrequent episodes. The rater did not dispute the veteran's contention that he had six episodes in recent months. The rater failed to obtain credible subjective reports as to the actual frequency of symptoms. The C&P examiner stated that the veteran reported that in recent months the veteran had 6 episodes of symptoms. The reference to recent months does not reference a time period sufficient to constitute a longitudinal study thatis capable of establishing improvement. The reference to recent months does not provide specific details to determine the frequency the veteran claimed episodes of symptoms. Recent months could be a reference to the last 31 days up to 364 days. There could have been six episodes in the last 31 days. Thus, there is insufficient evidence to establish less frequent episodes indicating improvement or to establish that the symptoms are "occasional" rather than "Infrequent".Moreover, there is no indication in the rating decision or correspondence that 38 C.F.R. § .344 ( C ) was considered.

Additionally, in the case requiring that improvement be shown a thorough investigation would need to address all conditions noted at the time of the original rating. An adequate investigation would address whether or not the veteran was continuing to have symptoms with exercise. Considering that the service medical reports indicate symptoms precipitated by exercise the veteran should have been queried as to the effect exercise had on his symptoms.

Issues to be continued 2,3,4,5

Edited November 29, 2011 by Hoppy