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CUE or NOD

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AgentOrangeWife

Question

Hello,

FIrst time post:

Can anyone tell me if a rating reduction (from 100 to 60% for a service-connected disability) done without a reexamination is a CUE or a NOD? Less than 5-years rated. Here is a BVA case which parallels my husbands exact situation (citation 1428283).

Thanks for this really helpful website!!

A/O Wife

Edited by AgentOrangeWife
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I dont see this as having a CUE basis.

I suggest that your husband get a IME from an non VA cardiogist to see if they did give the wrong rating.

I dont know how long ago the 10% rating was awarded but the IME doctor might well want to look at those medical records  that rating was based on

Heart disease ratings had changed when VA awarded my AO IHD death claim.

They had to use rating from 1988 to 1994 to determine the percent.And then they combined that with his PTSD rating. I dont know what ratings they used for the original 10%.

It was a lot of work on my part because he had never been diagnosed or treated for IHD.I won a wrongful death claim and the IHD was part of that but still I had to find  enough evidence of IHD back to 1988, abnormal EKGs and ECHO etc within his medical records.

It is possible the past 10% decision contained CUE if that rating did not comply with the VA SRD at that time,This is not what I originally thought it was about...thanks for posting the decision.

Others will chime in.We have other AO IHD vets here.

I now think the VA refused to reconsider because they did not have any additional evidence to cause a reconsideration.

 

 

 

Edited by Berta
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45 minutes ago, Gastone said:

Gastone's reply was here

When was he DX'd with SA (? OSA CSA or MSA?)? He was Denied Direct SC, you didn't file as Secondary to his CAD DX?

He applied for non s/c OSA and was denied. Different decision. I tried to keep the issues separate and the letter denying % for OSA stated that there might be an increase in his heart condition and also told him to apply for an increase.

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It looks like he's currently 60% SC for CAD, in my lay opinion. As a CAD Quad Bi-pass myself, the whole deconditioning aspect of his estimated Mets is understandable. Normally when the VA or Non-VA clinicians do a Nuc Stress Test, where the Vet has Cardio Deconditioning a chemical is used to increase the heart rate, eliminating the need for the treadmill.

Yes he is 60%.

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It's 3/15/17, what have you filed regarding the recent 12/16 Decision? He filed the following as part of a request for reconsideration (this was a Notice at the top of the R4R):

The RO did not follow the law regarding procedural safeguards when reducing the Veteran’s service-connected 100% disability evaluation rating in a December 2016 rating decision. Within 30 days of such rating decision and in January 2017, Veteran gave Notice under 38 U.S.C. 3.103(b)(4); 38 U.S.C. 3.103(c)(1); and 38 U.S.C. 3.103(d). Such Notice has been confirmed as received by the VA.

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What are your response date Deadlines?

Dec 2017 for NOD for this specific issue but I already preserved the 30-days as shown in the previous paragraph above.

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Thanks for your insight!

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1 hour ago, Berta said:

 

It is possible the past 10% decision contained CUE if that rating did not comply with the VA SRD at that time,This is not what I originally thought it was about...thanks for posting the decision.

Yes, the original claim included an IME showing "left atrial enlargement" which is the same thing as dilatation but an RO would have to either know that or search for the term to find out they are the same condition. I was saving this issue because I'm way too busy with the CAD stuff.

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I now think the VA refused to reconsider because they did not have any additional evidence to cause a reconsideration.

Possibly however there are technical issues AND 4 weeks after the decision my husband had another MI (s/c). So, there is consistent disability over 8 years but only rated for 2+ years.

Recently filed for the "new" MI and it seems the R4R is still somehow open. They did that "combine the new claim with the old claim" and we're just waiting to see what non-sense they come up with to deny this.

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Maybe you are right though, can they use a Jan 2017 MI to reconsider a Dec 2016 decision?

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I have to ask again, what were the Dates of the Original DX's for SA & CAD. He may or may not have an SA 50%  Secondary to CAD Claim, it comes down to DX Dates.

Don't let filing Appeals interfere with filing additional SC Claims, big costly mistake.

Semper Fi

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On 3/15/2017 at 8:29 AM, Gastone said:

 

When was he DX'd with SA OSA (? OSA CSA or MSA?)? March 2016

He was Denied Direct SC, you didn't file as Secondary to his CAD DX? yes we did both ways and they denied both. I still think it should secondary to heart: no treatment makes LVEF worse/cpap and now bipap helps improve LVEF.

He applied for an increase and was denied in the attached letter.

Thanks again!

OSA denial for hadit.pdf

Edited by AgentOrangeWife
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WAS he DX'd with SA before or after his CAD DX? How about posting a Redacted copy of the complete Denial. Bits and pieces are difficult to work with.

Semper Fi

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