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

[Pete53]

Hoppy:

Thank you for taking the time to make a complicated claim much easier to understand. Mitral Valve Prolapse (MVP) is a physical not mental cause of panic and anxiety attacks. It has been estimated that as many as 20% to 1/3rds of people with panic disorder also have MVP.

The American Heart Association this year formally announced it recognized a connection between panic attacks and Mitral Valve Prolapse (MVP), although it did not understand of the connection. But researchers into this problem understand the connection is actually a dysfunction in the Autonomic Nervous System (ANS).

Mitral valve prolapse is the most common cardiac problem and may affect five to twenty percent of the population. The condition is most common in women, although men are also affected. With MVP, symptoms do not begin before the early teenage years (approximately age 14 in girls and 15 in boys), but adults of any age may be affected. MVP tends to run in families, so those with blood relatives with MVP have a greater chance of also having the condition. The mitral valve prolapse syndrome is sometimes called dysautonomia.

The ANS controls the involuntary system of the body such as heart beat, blood pressure, body temperature, intestinal functions, sweating, etc. The system is made of two parts: the sympathetic (the "accelerator") and the parasympathetic (the "brakes"). When these two are out of balance or goes awry, it is described as dysautonomia.

American Heart Association

[bm6546]

Hoppy,

Thank you very much for all the hard work you are doing researching my claim. You are sure right about one thing....I think its time I contacted an attorney. This brings up several questions that I have.

1. Should I hire an attorney now?

2. Should I wait until the RO schedules a new C&P? (This could take another 1 or 2 years)

3. Should I continue to try and get an IMO from a Cardiologist before I hire an attorney?

4. Which attorney should I contact? Anyone have any suggestions?

5. Has anyone used Bergmann and Moore? (The attorneys that are at the top of the Hadit site page) Any comments on them would be appreciated.

When I filed my first claim almost 6 years ago, all I was trying to do was get back my 10% that the VA took away from me almost 45 years ago. If they would have just given me back my 10% I would probably have been happy with that and more than likely have just GONE AWAY. Now, it appears that "a can of worms" has been opened. I have no intention of giving this fight up and will continue to the end.

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

[71M10]

Brian,

Please keep this in mind. CUE stands for Clear and Unmistakable Error. I believe the error has to be determinable with the facts, rules and medical knowledge in existence and part of the record at the time the decision was made(please someone correct me if I am wrong). If your IMO (which you will pay for) relies on any information that was not known to the medical community in 1967, I doubt it can be used to prove CUE. How many practicing Cardiologists are going to be able to competently write you an opinion that ingnores 45 years of new medical knowledge? I also assure you with 45 years of retro in the balance, the VA will scour any opinon that relies on fact or knowledge that was not part of the record or medical practice at the time.

I have not seen any of the details from the initial VA exam posted, without those details I don't know how anyone can help determine if the second exam was inferior.

This is what you posted as far as the original exam:

Here is the "Rating Decision" that determined my award of 10% SC

In view of the length of service and worsening of the condition, aggrevation is conceded.

1. SC 38 USC 331 (aggr. PTE)

10% from 11/26/66

PAROXYSMAL ATRIAL TACHYCARDIA

10. Not entitled 38 USC 336.

In the minimal quote you provided from the original rating, I saw the words "aggrevation conceded". The USC reference seems to indicate it is a pre-existing condition but was given service connection due to aggrevation? If so, in 67 was the condition more episodic than prior to service? On the re-exam did the clinician or rater see something in the entire file that contradicted the 10% rating. What specifically is on your enlistment exam? In 67 this was by no means a protected rating, the second C&P is a mute point if the rater determined the initial award was in error. Do you have the complete C-file to include the notes from the raters?

What you also posted seems to indicate a reference to: "Service connected health-care eligibility of certain persons administratively discharged uner other than honorable condition".

Has VA asserted that your discharge is effecting your rating consideration?

You have provided partial details on the 2nd C&P exam, but what did the actual decision to reduce say?

You really need to consider some of these questions before you PAY for an IMO for a CUE case. I don't know what your current status is with the PAT, You might be better served to focus on getting your current disability level rated since nothing I have seen indicates they revoked service connection.

Best regards,

[carlie]

5. Has anyone used Bergmann and Moore? (The attorneys that are at the top of the Hadit site page) Any comments on them would be appreciated.

If I felt in any way that I needed legal representation - I would not hesitate a split second

in seeing if Bergmann & Moore had an interest in taking my claim issues on.

They will pretty much also tell you if they see your issue/s as winnable.

JMHO

[Hoppy]

71M10

Basically, I am saying that from what is said in the C&Pexam, the rater did not contest credible statements as to the frequency of episodes. The veteran's statements did not objectively cover a period of time greater than 31 days. The rater cited several normal heart rate test results. I have read several cases in which several normal heart rate tests are not used as evidence against this type ofclaim. I have also read cases where two to three episodes of PAT a month were rated at 10%. As such the question would be; is such an exam adequate for rating purposes for any type of claim? I am not comparing the reduction exam to any prior medical evidence. I am not determining the second exam was inferior. My question is whether or not the the "lognitudinal" investigation used in second exam was adequate for rating purposes. I am raising what I believe to be a relevant question. This is something that needs to be addressed by an attorney. You sound like you can be rather objective and your insights are welcome The veteran did post much more from the original C&P exam than you referenced in your response. It appears you have not found his earlier posts.

A look at the complete c-file would be beneficial. However, as of now it appears to me that the rater's statement that the veteran did not currently have a ratable condition could easilyhave been replaced by a statement that the original rating was made in error,if in fact that was the issue.

I did not suggest that the IMO should be obtained to address the CUE. As far as I know the IMO he is talking about is for connecting his current heart condition to the PAT in service. Additionally, when addressing this question I will do nothing other than refer the veteran to other BVA casesI find. In this type of case I only do research and tell the veteran to run it by his SO and let the veteran determine how he wants to spend his money.

The questions I will be working on invovle the possiblity that there might be evidence in the treatment records after the reduction that would influence any ongoing rating. I am not sure how that would work if he walked into a VA exam in 1975 and told a doctor he has not had an episode of PAT in years. I went 20 years in between episodes of PAT at one time in my life.

Edited December 1, 2011 by Hoppy

[Hoppy]

BM6546

This is an issue I did not address in the response I posted yesterday. The issue of pre-military tachycardia has been raised. As such I want to give you some insight into the types of problems that you might want to investigate in the event this is later raised by the VA.

Tachycardia is a complex medical diagnosis. There are multiple forms of the condition with multiple etiologies. You did report that you were given multiple EKG’s and a halter monitor and that your SMR contained a notation of sinus tachycardia. You might benefit from reading the link below. Be sure and click on the link contained on their webpage to inappropriate sinus tachycardia.

http://en.wikipedia.org/wiki/Supraventricular_tachycardia

When I was forced by the medical/legal community to retire due to the fact that my angioedema became severe and life threatening, I transitioned from battling workers comp and civil claims to work VA claims from home. One of the first issues I researched was “presumption of soundness”. What I was learning gave me a real bad taste for the VA system. Raters were determining that conditions existed prior to the military based solely on veteran’s subject statement that they had their condition prior to the military. The raters were determining the conditions predated service and denying the claims without the benefit of C&P exams. I am not talking about broken noses. I am talking about complex systemic diseases with symptoms that were potentially caused by numerous conditions that were not related to the condition the veteran was diagnosed with in the military. Additionally, the raters did not even ask the veterans what the pre-service symptoms were, who told them they had this condition prior to the military or if they were seen by doctors.

The VBA is full of claims that were initially denied by the RO due to a determination the condition pre-dated service and later overturned by the BVA because RO raters were relying on veteran’s unsupported statements that they had a condition prior to the military. Most discouraging was that there were even cases in which the BVA was giving negative weight to veteran’s subjective statements in cases involving complex conditions with numerous different potential causes for the symptoms.

If the VA is not in possession of pre-service medical reports signed by a doctor who stated in the report that a diagnosis of sinus tachycardia was confirmed by EKG, I would contest any determination your condition pre-dated service.

The reason I developed a bad taste for the VA system is that the attorneys I worked with on workers comp and civil cases would have wiped up the floor of the court room with these types of decisions. The fact the VA perpetuated these decisions for decades demonstrates that the raters were grossly under trained or they developed an arrogance that service officers would drop the claims once they were denied. I had a friend who worked in the VA system for 40 years. Ten years in a VA hospital, 20 years in the 1970’s and 1980’s as an RO level rating specialist and another 10 years as a service officer. We used to argue about these cases and others. I would take the stand that the VA was purposefully corrupt. He would argue that the raters were grossly undertrained. What does that tell you?