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Carlie, Could You Please Take A Look At This

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bm6546

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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

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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appears to me that the rater's statement that the veteran did not currently have a ratable condition could easilyhave been replaced by a statement that the original rating was made in error,if in fact that was the issue.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.

Hoppy,

Please by no means take my input in this thread as a statment arguing against your points or information. I saw a subject line with a heart condition and CUE and that interests me some what since I am working a claim for EED - hypertension on the basis of an informal claim that was never adjudicated, and VA never asked for a formal claim. Brian was quite clear from the beginning of this thread that it was CUE and he should be rated back to 1967. I also saw IMO being tossed around and was worried about the individual spending a significant amount of money for an IMO that quite possible wont help prove CUE. If it sounds like I am discouraging it is not my intention, I just want to keep expectations realistic. There is a lot of information not provided that could sink this appeal/claim before it is even filled.

I have found your posts to be a wealth of knowledge and thank you for sharing them with the board.

Brian needs to do what he thinks is right and should pursue all benefits owed to him from the Veterans Administration.

Best regards,

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  • HadIt.com Elder

Hoppy, This is an excellent post. As ever, your sensibilities are grossly intact ;-)

Indeed, it is intimidating when the VA decides "existed prior to service (EPTS)". Your position here illustratues the VA history (sans court documents) of denying claims based upon the "veterans unsupported statements" --that his/her disease or illness EPTS.

Federals Law, Title 38, has ruled that (in most cases) the veteran is not capable of providing expert medical testimony; the veteran must support his medical claim with medical evidence. Likewise, the VA can not deny a claim sans medical evidence. The VA's opinon must be supported with medical evidence.

My intution about this specific claim is that PAT is evidenced by objective (measurable) medical criteria. Thus, the condition remains service-connected, even at 0% --and this veteran has been service-connected for PAT more than 20 years! The VA can not severe service-connection, itis protected by law.

In addition, PAT also has a subjective element --and is both caused by anxiety, as well as causing anxiety. Intertwined. The veteran has filed a claim for an anxiety disorder. There are many roads to service-connection ...

In my experiences as a mental health provider (and patient), it would be almost impossible to rule out an anxiety disorder as primary or secondary to the PAT. In other words, I would give the benefit of the doubt to the veteran that the PAT had it's onset in the military service as evidenced by objective, measurable criteria --and the PAT has in fact incresesed in severity. The PAT is iniextricably linked to the anxiety disorder --and both may have contributed to his additional heart disease. This link however, is totally out of my range of expertise.

The VA's rating decision to reduce compensation from 10% to to 0% was thoughtless, unkind and also erroneous --because the criteria used to severe compensation was based uopn the veteran's unsupported medical "opinion".

I very much dislike the VCAA in that is eliminated the proactive approach to the veteran seeking the NEXUS STATEMENT from a medical doctor ... more on that later. ~Wings

Edited by Wings
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Greetings all:

I tried to find the BVA remand on this and looked in this year and last year, is it posted yet? If it is what is the citation number?

Seeing the entire decision and remand instructions would help. Was this information on a previous post/thread?

Best regards,

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Hi 71M10 and everyone else,

I am sorry I have not been here the last few days. I have a bad cold or flu or something. I feel like crap but starting to come around a little.

71M10, I scanned and posted my BVA remand here under a different heading. If you go back about 3 pages you will find it as "My BVA Remand" with the last posted date of Nov 18. Hope this helps you.

I will be getting around to answering a few questions in the next day or so when I am feeling a little better. Right now I just need to crawl back to my pillow.

Brian

Greetings all:

I tried to find the BVA remand on this and looked in this year and last year, is it posted yet? If it is what is the citation number?

Seeing the entire decision and remand instructions would help. Was this information on a previous post/thread?

Best regards,

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  • HadIt.com Elder

Brian,

I said there would be addendums. This issue was in my original notes. However somewhere it got lost. Several years ago there was a poster here named DeltaJ. This poster is probably still around. DeltaJ suggested that if you were denied by a rater who said that you were not treated for a condition or the SMR is silent for a condition and you were denied without a C&P that this type of case was being appealed to a higher court and to keep aware of this issue. I did not hear anything else on this issue. What does this have to do with your claim? The issue that was being advanced was that determining that a condition did not exist requires a medical opinion in some types of conditions. As such when a rater states you did not have a condition he could be advancing an unsupported medical opinion

On a reduction the minimum requirement is that the evidence needs to show an improvement. In complex medical conditions determining whether or not there is an improvement in my opinion is a medical determination. As such I am of the opinion that the C&P should require that the doctor opine as to whether or not the condition has improved since the last exam. In the absence of such an opinion the medical evidence could be determined to be incomplete. The test of this issue would be to have a qualified clinician review the reports and determine whether or not the tests and statements available to the rater were sufficient to determine your condition had improved.

Run this by any attorney you talk to. I have not seen any decisions on at any level addressing this issue. If anybody on the board has anything they can cite, it would be appreciated. Hopefully any attorney you retain would have doctors in their stable they can use to get a report. Workers comp examiners who worked with plaintiff attorneys often worked on a fee contingency. That is the plaintiff did not pay the doctor bills unless they won the claim. The workers comp. or civil attorney’s I worked with would never take a disputed claim to court with an opinion from a doctor chosen at random.

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  • HadIt.com Elder

I would start to shop for a lawyer that will take a CUE. I shopped around because most of the lawyers I talked to did not want to do a CUE due to the risk. I went to five lawyers before I got one to take my CUE. The lawyer I hired told me if he lost my CUE he would never take one again. He said it was so clear, but so far I have been denied. If there is a lot of retro you will get a fight and the VA really plays dirty. You are going to find yourself at the Court of Veteran Appeals. When it gets there it has to be perfect or it will be dismissed, or denied. It will get remanded for certain I believe even if you win. So you are in for the long haul on some big retro. One false move and your CUE is dismissed. If the BVA or VARO fouls up you just go into remands or more appeals. Reading my appeals over the last 6 years has been an education. The VA does not want to pay 30-40 years of retro. Everyone has a boss and most of the people who decide claims don't like to stick their necks out to be chopped of for giving some vet 300,000 bucks.

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