free_spirit_etc

Sierra68, I am certainly not trying to diminish how horrid the chemotherapy was on you. In fact, I am gung ho to try to help you figure out a way to be adequately compensated. But since we are talking about a final unappealed claim, the only way I know you could have that increased would be to file a CUE. The standards for CUE are high. You don't just have to show that you were more disabled at that time, you have to show that based on the evidence that was in the record when the decision was made, the VA made a clear and unmistakable error in granting you 40%. So that is why I asked you what evidence is in the record to show that not only that you were disabled to the 60% rate, but that the RO made a serious error in deciding the claim. The thing that is puzzling to me is that the biggest difference between 40 and 60, aside from the weight loss, is the amount of time you experienced the symptoms. So if the record shows that you experienced those symptoms for a long period of time, maybe you have a CUE on that basis. I am not sure. You would need to research a bit and find what decisions were made and the reasons on similar claims. What is the reason the VA gave you on the SOC for why they rated you at 40% rather than 60%?

Yes. It should be. You don't actually have to be considered "incapacitated" to be rated at 100% for cancer. Cancer is 100%. That is the only rating they have for cancer. You either have it or you don't. And yes, the rating should be continued for at least 6 months after curative treatment - until you are re-evaluated. If there is no sign of cancer at the re-evaluation, then they rate on residuals. Did you file your claim for cancer within the 6 month time frame of your surgery? If so - you should have been rated 100% for whatever time is within that time-frame. Or actually, did the VA treat the cancer? If so -- then you might be able to argue that the VA records were an informal claim - if you followed up by filing a claim within one year. (3) Reports of Examination or Hospitalization by VA or Military (38 CFR 3.157(b) (a) Evidence of examination or hospitalization in a VA or uniformed services health care facility is an informal claim for an increased evaluation of a condition previously service connected. Additional information regarding uniformed services medical facilities may be found in Subchapter III. A notice of hospitalization may not suffice as an informal claim if a veteran service connected for one disability is hospitalized for a different disability for which service connection has not been granted. If the medical evidence shows treatment for the service-connected disability or manifestations of the service-connected disability, the provisions of 38 CFR 3.400(o) pertaining to the 1-year limitation for receipt of a claim do not apply. Accept the date of admission for treatment for a service-connected disability as the date of claim for increased evaluation. Establish and maintain control of the claim. (b) Accept evidence of examination or hospitalization at a VA or uniformed services health care facility as an informal claim if a claim specifying the benefit sought is received within 1 year of treatment. Liberally interpret reasonable probability of a valid claim. After final adjudication of an original claim, if subsequent communication from a claimant alleges facts that present the reasonable probability of a valid claim, accept the claimant's written allegations as a reopened claim or a claim for increase. The claimant need not specifically state that it is a claim or identify the exact benefit sought. Establish and maintain control of the claim.

Have you contacted your VSO? If the VLJ sent it back to the VSO for written argument, then the VSO should be able to let you know what is going on with it at the moment. "Question four can they include a 2007 cnp from the 2004 appeal as well but a secondary condition to the initial appeal residuals from an operation that the AMC refuse to look at but was ordered by the BVA in the 7 30 2013 remand tolook at this 2007 cnp is in my favor " I am not really understanding exactly what you are asking here.

Brain scans yield potential biomarker for PTSD Research at Minneapolis VA used high-tech method for capturing neuron activity http://www.research.va.gov/news/research_highlights/ptsd-020210.cfm#.UnVY3vl2_1o http://www.va.gov/RAC-GWVI/docs/Minutes_and_Agendas/Presentation2.pdf GWVI is a distinct brain disorder: Evidence from MEG

Sierra68, What is the evidence that you think showed you were entitled to 60% rather than 40%? It looks like the major difference between the two is either the significance of the weight loss, or the type / duration of the symptoms. At first glance, I thought that it should be 60% because the symptoms lasted longer than six weeks. Daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly 60 Daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period 40 But in this BVA case, the BVA only granted the veteran 40% for the year he received treatment http://www.va.gov/vetapp12/Files1/1202514.txt With a 20 pound weight loss, you wouldn't qualify under the significant weight loss - http://www.va.gov/vetapp08/files3/0821665.txt "Substantial weight loss is a loss of greater than 20 percent of the individual's baseline weight, sustained for 3 months or longer. 38 C.F.R. § 4.112 (2007). Minor weight loss is a weight loss of 10 to 20 percent of the baseline weight, sustained for 3 months or longer. 38 C.F.R. § 4.112. Baseline weight means the average weight for the 2 year period preceding onset of the disease. 38 C.F.R. § 4.112." The above case discusses how the BVA applied the difference between a 40% and 60% rating. "The evidence of record indicates that an increased evaluation for hepatitis C with cirrhosis of the liver is warranted. The medical evidence of record shows that the veteran has consistently reported daily fatigue and malaise. Beginning in 2005, the veteran also reported weakness, abdominal pain, and nausea. The veteran's testimony is competent to establish his symptoms. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992) (holding that a layperson is competent to provide evidence on the occurrence of observable symptoms). In 2005, a liver ultrasound found hepatomegaly. Thus, the veteran's symptoms more closely approximate the requirement for a 40 percent, rather than 10 percent, evaluation. See 38 C.F.R. § 4.7 (2007) (noting that where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating). Accordingly, and resolving all reasonable doubt in favor of the veteran, see Gilbert v. Derwinski, 1 Vet. App. 49 (1990), a 40 percent evaluation for service-connected hepatitis C with cirrhosis of the liver is warranted. An evaluation in excess of 40 percent is not warranted for hepatitis C with cirrhosis of the liver. 38 C.F.R. § 4.114, Diagnostic Code 7354. The medical evidence of record does not demonstrate substantial weight loss or incapacitating episodes with symptoms such as anorexia and arthralgia, and right upper quadrant pain. 38 C.F.R. § 4.114, Diagnostic Code 7354 (holding that a 60 percent rating is assigned for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least 6 weeks during the past 12-month period, but not occurring constantly)." So this might be a hard one to fight, especially as you would need to file a CUE claim, asserting that the RO made a clear and unmistakable error in rating you at 40% based on the evidence in the record. The time-frame to appeal a 2004 decision has ended. Incapcitating episodes: "http://www.va.gov/vetapp08/files3/0821665.txt "An incapacitating episode is a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician."

No. That specific rating wouldn't apply to hep c. The rating was based on having cancer; not on the treatment. So it doesn't matter what type of treatment you have for cancer (chemo, radiation, surgery, etc.) the rating is based on having cancer. Cancer is 100%. It continues to be 100% until 6 months after you finish treatment and are not showing any cancer. The rating for chemo for Hep C would be different. I would think it would be based on the level of disability the treatment created. However, even with the cancer ratings, the rating is not based on receiving chemotherapy. It is based on the fact the person has active cancer.

Sorry. I misunderstood. That's why I asked if the chemo was for the kidney cancer. If so, the cancer should have been rated at 100% until at least 6 months after treatment ends.

7528 means if you had kidney cancer that you should have been rated at 100% for the time you were going through chemotherapy - been re-evaluated 6 months after the treatment ended, and then rated on residuals if you no longer had active cancer.

From what I am getting from you SOC You first filed a claim for SC for recurring PVCs in 2005. The private treatment records showed a history of PVCs, a normal cardiac ultrasound report (of June 1991) a treadmill test that was negative for angina or ischemic changes (in June 1991), and no diagnosis of coronary artery disease or ischemic heart disease. They denied SC because the evidence didn’t show a relationship between the current condition and the PVCs in service. They denied the claim May 3, 2006. In January 2007 they did an Arrhythmias exam which showed no PVCs. They denied you again in April 2007. The next “evidence mentioned is that in a January 2010 conversation, you told them that you were diagnosed with mitral valve prolapse problems. They sent you a letter in February 2010 that asked you to submit evidence: 1. That your mitral valve prolapse existed from service until now. 2. That connects your mitral valve prolapse and your heart condition and your DM II. They say your treatment records from VA Phoenix do not show any of the above conditions. They also say that an April 2011 examiner stated you do not have a diagnosis of IHD. So they denied SC for PVC for the purpose of retroactive benefits. It seems like they were right on the denial for retroactive benefits, as those would only be granted for an AO presumptive condition under Nehmer. IHD is AO presumptive. And DM II is AO presumptive. So unless you can show that you have IHD, and that it causes the PVCs, or that your DM II causes your PVCs, they wouldn’t grant retroactive benefits – because even the PVCs were SCed, they wouldn’t be eligible for the purpose of retroactive payments under Nehmer unless they were connected by an AO presumptive. (as far as I know). As far as the other evidence they asked for – that is what you need to be able to show them. You either need to be able to show them that you have had the mitral valve condition since service (a doctor’s statement to that effect would help – here is where the more likely than not comes in), or you need to show them medical evidence that links the mitral valve to your DM II (or another service connected condition). Again… you would need a doctor to make that link. I was thinking that you said that you told them you didn’t want to claim the Mitral Valve Prolapse as SC. So I am really stumped at how to help you with this one. What might help is if you could clarify - What does your doctor say is causing the PVC's? Does your doctor think this condition started in service?

For the increases: What I suggest you do is look at the rating schedules and see what the rating schedules say about the conditions you are claiming. And then see how your evidence lines up with meeting those rating schedules. That way you will be setting a good foundation for building your claim on those. The court cases can be very helpful in how the law is applied. But first, you need to make sure you are meeting the requirements of the ratings.

I am also in a quandry about the '87 sarcoid rating for reopen on "new material" claiming the lack of any rating to actually refer to '85-'87 in service, and again in '92-95, after service. BTW, the SAME CIGNA records hold the recurrence in '92-95 and actually have PFT EXAMS, one per year, the treatment and the Stage 4 references, or doing a CUE as they never followed my request for reconsideration/increase or anything else. Advice would be appreciated. Are you still on the prednisone now? For some reason I was thinking you were because your note on the SOC says “Still on…” But now I see it says “Still on 5-10 mg per day prednisone on retirement. So now I am wondering if you meant you were still on it when you retired (but aren’t on it now) or if you were still on it at retirement AND are still on it now. When you put in for an increase, they will see what level you are functioning at that point. So with your current claim for increase, they aren’t going to go back to what your 4 PFTs were in 1990 – 2004. They will go by what the current PFTs show. .. and whether you are on medicine for it now (or since the time you put in for your latest increase). So I am sorry if I misunderstood what you said and led you to believe you should have a higher rating now if you really aren’t on medicine now and your PFTs now are not showing decreased function. You may be able to file a CUE on the initial claim if the evidence shows that you were on predisone at that time to control it and they granted you zero percent anyway IF the rating schedules were the same back then. Rating schedules change from time to time, so you would need to find out what the rating schedule was for sarcoidosis in 1987 before filing a CUE on it. I am not sure what you mean by they never followed your request for reconsideration / increase. Are you saying you have appealed previous denials and they didn’t respond to the appeal? Or that you file for increase before and they did not adjudicate it?

"BTW, actually I have also found cases with the "more likely than not" presumption of high dosage prednisone causing DM II." Again, this is not a presumption. It is a doctor stating that high dosage prednisone caused DM II. But you don’t need to go there in your argument because you already have a presumptive SC connection for DM II from AO. "I could care less that they failed to find evidence of PVCs in two separate 5 second EKGs that they are using for denial. Why??? because that means that they never reviewed the cardiologist report that was submitted way before this rating and "can't see the trees" That is evidence you need to point out for sure. If the cardiologist report states you have PVCs, and they have done testing to measure them, then the fact that they didn’t show up on short measurements the VA did in 2007 shouldn’t be used to support the idea that they don’t exist now, or possibly even that they didn’t exist then.

"So my "mind" says that maybe, just maybe there is a possible presumptive AO, "more likely than not" for the "CHRONIC PVCs" what came first, "the chicken or the egg" and with ALL of that association, presumed or otherwise direct, I have "ammunition" for the sarcoidosis and my "acquired" exo-Cushing Syndrome(not disease) residual effects as secondary to sarcoidosis treatment by high dosage prednisone (corticol steroids)." I am not following your line of reasoning here. I certainly agree that you have ammunition for the sarcoidosis. But the ammunition is that it started in service and was treated in service. It is already SC. You just need to increase the rating. Even if you could get your doctor to say that AO caused your sarcoidosis, I don’t see how that relates to the PVCs. And I agree that you need to follow up and see if you can get your Cushing Syndrome and / or residuals SCed, to the extent it was caused by the high-dose steroids used to treat your sarcoidosis. But I am not seeing the link to the PVCs in all of this.

"As for presumptions: I may confused all. I have found court cases, where doctors have stated for various claimants, "sarcoidosis more likely than not, came from AO expose in 'Nam", and other cases where DM II more likely than not came from sarcoidosis." This isn’t actually presumptive. The presumptive conditions are ones that are automatically granted if you have them and you were in Vietnam during the applicable periods. A doctor doesn’t have to write it is more likely than not for a presumptive condition. For presumptive illnesses, if you were boots on the ground in Vietnam and you have the disease = SC. In the cases you reference, they were granted SC. The sarcoidosis was granted SC in the above mentioned case, on a DIRECT (not presumptive) basis (because the doctor stated it most likely was caused by AO exposure). The DM II was granted SC in the above mentioned case on a secondary basis (because the doctor said it was caused by a SC condition). The AO presumptive conditions are listed in §3.309 (e) "So why is this important to me? I am already SC for sarcoidosis because of active duty, I am presumptive AO for DM II, so it is SC right? I am fighting to establish SC for a "chronic" PVC problem" The PVC isn’t a presumptive condition. The DM II is. But you can’t likely show the DM II resulted in the PVCs because you had the PVC condition a long time before you had DM II. I understand the part about it being chronic. But you need to connect it to a diagnosis. What does your doctor say is causing the PVCs? I get what you are saying about how they started in service. But what is your diagnosis? What diagnosed illness is causing your PVCs? What would really strengthen your claim in regard to the PVCs is to be able to show “I have been diagnosed with ___, which causes me to have PVCs – and then showing that illness started in service, or was caused by the service, or was aggravated in service. --- But I am not seeing any link through the AO presumptives. I know you said you have mitral valve disease. Is that what your doctor said causes the PVCs? If so – does he think the condition started, was caused by, or was aggravated in service? If so – a statement from him stating that (and providing reasoning) would help. As far as the chicken and the egg thing, it would be hard to show that they were caused by another SC condition, since it looks like you had those before you had the other conditions. However, if your other SC conditions aggravate them, then you might be able to establish that.

"Since my original rating for sarcoidosis was 0% and it was BEFORE CLAIMANTS could appeal ratings, (that changed in '88), I really don't know how to get "them" to reopen that item. Yes, I have more than 5 cases where claimants got 30% or more at the initial rating and they were ONLY Stage 1 sarcoidosis. I was Stage 4 while in the service and AGAIN IN '92-'95." 6846 Sarcoidosis: Cor pulmonale, or; cardiac involvement with congestive heart failure, or; progressive pulmonary disease with fever, night sweats, and weight loss despite treatment .......................................................................... 100 Pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control................................................................................... 60 Pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids ..................................... 30 Chronic hilar adenopathy or stable lung infiltrates without symptoms or physiologic impairment..................................................................................... 0 Or rate active disease or residuals as chronic bronchitis (DC 6600) and extra- pulmonary involvement under specific body system involved http://en.wikipedia.org/wiki/Sarcoidosis Granted – this is Wikipedia – not a medical journal, but it says: “Chest X-ray changes are divided into four stages:[49] · Stage 1: bihilar lymphadenopathy · Stage 2: bihilar lymphadenopathy and reticulonodular infiltrates · Stage 3: bilateral pulmonary infiltrates · Stage 4: fibrocystic sarcoidosis typically with upward hilar retraction, cystic and bullous changes Although patients with stage 1 X-rays tend to have the acute or subacute, reversible form of the disease, those with stages 2 and 3 often have the chronic, progressive disease; these patterns do not represent consecutive "stages" of sarcoidosis. Thus, except for epidemiologic purposes, this X-ray categorization is mostly of historic interest.[7]” So it says the stages are not progressive, but it has more to do with what is shown on the xray. So it looks like they rated you 0% -- based on xray changes. To get a higher rating you need to show pulmonary involvement and the use of steroids to control it. I know you say your evidence shows that you are on medicine for it. So that is what needs to be pointed out. You don’t need to argue the stages. The stages don’t have anything to do with the rating. Focus your arguments on how that evidence shows you are entitled to __% because (and then how your evidence lines up with the ratings schedules.

This 20 pager also has the "new" claims because they are required to do a de novo review of these items while the appeal is still active, or at least, that is what I have read and undertstand. If I am wrong I hope "someone" will tell me. That is something I am not entirely sure of. I do know if you submit new and material evidence, they are supposed to re-adjudicate your claim. As long as you submit it while the appeal is still active, then it should keep the effective date of the current claim. Presenting more argument and pointing out evidence they already have wouldn't be new and material evidence. Yes. They should consider it, but that would be considered at whatever level you are at -- rather than an actual readjudication. What I am not sure of is if you can submit additional argument to the DRO after you have already had the DRO hearing. I would think that you could, as long as they haven't made a decision and issued an SSOC on the claim. You might want to get ahold of the VA and ask about the status of your claim. If they say a SSOC has not been issued yet, or that the DRO is still reviewing it, then you might be able to submit additional argument for him to consider. I think I will take your advice and put the "points" on a cover page and reference those "points" by letter or number in the other pages. What do think of that??????? That might be a good idea. You might want to put your stronger arguments and evidence in a concise version, with attachments to a more detailed version. Re: The rating schedule states sarcoidisis which is ___ should be rated at ____. I should be rated at ___ for this because the evidence shows I am taking ____ medication, and have been doing so since ___. (See attachment # 1 - 3) -- or something like that... Or my rating should not have been reduced without a 60 day notice CFR_3.105 (See attachment # ___. I just ran across a BVA case on that.... I will see if I can find it again. They re-instated the veteran because his rating was reduced improperly.

This shows what is needed to go from 60% on DM II to 100% Both ratings, as well as the 20% and 40% ratings take into consideration they require insulin. So there shouldn't be any need to prove how much insulin you take, or how many injections you need. Your rating already takes insulin injections into account. To get an increase, you need to show that you are closer to the 100% rating requirements than you are to the 60% requirements. 7913 Diabetes mellitus Requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated ................................................ 100 Requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated ....................................................................................... 60

NavyWife, You are already way ahead of me. I was going to say I think your next step is to get the medical reports and see what they say. And we have time to keep checking to see if the doctor actually has to use the words "increase" or "worsen" in the report, or if other terminology can be used. Hopefully, at least one of the reports will have something useful.

Are you talking about the kidney cancer? 38 CFR 4.115b 7528 Malignant neoplasms of the genitourinary system .................................................... 100 Note: Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of §3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant.

Meg, Thanks for clarifying the information on the psychiatrist / psychologist. Though I realized PTSD had to be diagnosed by a psychologist or psychiatrist, I did not realize that was not part of a C&P exam. The last time my husband had a C&P exam, they set him up with a mental health examination with a psychologist, who diagnosed him with depression. Perhaps I was wrong in assuming that vets would be scheduled exams with mental health examiners when they had mental health claims. If the vet actually does have PTSD, then of course, it is best to get both diagnosed and treated for PTSD. However, if the examiner (i.e. psychiatrist / psychologist) does not diagnose them with PTSD, but does diagnose them with another mental condition (such as anxiety – that they were treated for in service) then the vet might be able to get granted service connection for that. I thought it was important for the vet to know that because sometimes we get so locked into thinking of one diagnosis, that we miss other diagnosis that might also be able to be service connected. I said the diagnosis might be changed later because some of them do change. Sometimes a vet is diagnosed with one condition, and the diagnosis is sometimes changed to another condition. Or a condition is added. So I was thinking even if the vet is just diagnosed with anxiety, that doesn’t mean the VA wouldn’t later add the diagnosis of PTSD, or even change the diagnosis if that was appropriate. Yes. It was my opinion. I got it from reading lots of posts and lots of claims. I never thought I was an expert or a doctor. I just tried to help. And I don't generally just start spouting my opinion without having some type of basis for it. I really do try to research and study and make sure I am giving vets information that might help. So it kind of stings to be chastised so harshly. I wish you could have made your points in a bit gentler way.

But this footnote on the above case might be helpful, as it does point out that the report does NOT have to be as detailed as the M21-1MR manual indicates they should be in order to qualify under 3.157. "1 The Veterans Court also consulted the Veterans Benefits Administration Adjudication Procedures Manual (M21-1MR) which lists eight (8) different factors intended to assist the VA in determining whether a report of examination is sufficient for compensation and pension purposes. The Veterans Court ultimately concluded, however, that for a medical record to qualify as a “report of examination” under § 3.157(b)(1), it could be far less detailed. We agree with that assessment. As long as a report references one or more actual examinations and indicates that a veteran’s disability has worsened, it will qualify under section § 3.157(b)(1)."

It looks like to be considered an informal claim, the report has to indicate the condition had worsened: Massie v. Shinseki http://law.justia.com/cases/federal/appellate-courts/cafc/12-7087/12-7087-2013-07-29.html "Although the language of § 3.157(b)(1) does not expressly require that the report indicate the veteran’s service-connected disability has worsened, any contrary interpretation would be inconsistent with the statute, and the regulation can hardly require less than the statute. It also would make no sense, because under that reading any subsequent medical record could trigger an informal claim under § 3.157(b)(1)."

Most of the decisions I am running across are ones where the claim for EED was denied because the vet didn't already have a service connection for the disability at the time of the exam. They were either trying for an EED on an original claim or a reopened claim. But even these can be useful because they repeat over and over again that 3.517 applies to claims for increase.

You might find some cases that are similar by searching for 38 CFR 3.157 (If you search for earlier effective date you will come up with tons of TDIU claims). The claims might not be exactly like yours, but you can begin to get a pattern of the cases that were denied and granted - and the reasoning. Also, look for the cases cited in the reasoning, and use those cases as a search term to search some more. I am not even sure that you would have to show the RO "at fault" on this - for not adjudicating the claim earlier. But you very well might start building a case that an earlier VA exam showed that your husband's seizures had increased (even if the doctor didn't specifically use that word), and thus, the increased rating should be granted from the time of that VA exam.

bronco, Does that count for seeking an increase for conditions that are already SC? The standards for seeking SC and for seeking an increase are different.