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bm6546
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Citation Nr: 0842826 Decision Date: 12/12/08 Ar Citation Nr: 0842826 Decision Date: 12/12/08 Archive Date: 12/17/08 DOCKET NO 06-00 943 DATE
Hope I did this right!!
I found this case to be interesting.
"The RO stated that it assigned the initial 10 percent rating for the veteran's sc irregular heart beat because metoprolol was prescribed during his overnight hospitalization."
"There is no other relevant medical evidence of record, and resolving all reasonable doubt in favor of the veteran, the Board finds there is evidence of cardiac hypertrophy on EKG and that based on this, the criteria for a 30 percent rating under Diagnostic Code 7011 have been met for the appeal period.
The VA doctor prescribed me with metoprolol back in 2008. I am still taking this medication for my PAT.
Brian
Wings,
"My thoughts are the veteran should
be reporting on symptoms of heart disease; just because the vet did not ask for
a SC PAT increase until after his MI< does not mean that he was ineligible
for an increased rating. Maybe he wasn't motivated to file a claim for an
increase in PAT say 10 years ago, because of the injustice of the first
reduction. Appreciate your input ;-) ~Wings"
I totally agree and I am working onthis. I did not finish today. I shouldbe done Saturday. Friday is a work onthe car day. It needs breaks.
"Seems to me, the BVA's game (orwisom) in their remand is to ask the veteran to evidence symptomoly of heart disease (by whatever name) from both the SC PAT and the much later MI."
My impression on this is that theanxiety claim was previously denied and requires new and materialevidence. Thus the remand did not evenaddress the anxiety claim.
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Hoppy, I believe as you do, that the current Anxiety and PAT date back to active-duty. Obviously, since the PAT has been SC for 20+ years. A good clinician could see both diagnoses as inextricably intertwined.
Seems to me, the BVA's game (or wisom) in their remand is to ask the veteran to evidence symptomoly of heart disease (by whatever name) from both the SC PAT and the much later MI. Those symptoms can also be considered "intertwined". Even though the etiology may be different (same organ, different parts), the symptoms of PAT can esculate to mimic MI, and visa versa. I am also concerned that this veteran's service-connection had been rated under the same DC for more than 20 years; isn't the veteran protected under the old rating schedule? Thinking about the diifficulty and wisdom of heart testing under the current DC's vs the old DC. The BVA said as much, that if the testing proved too much stress for the veteran's health, it was not necessary.
My thoughts are the veteran should be reporting on symptoms of heart disease; just because the vet did not ask for a SC PAT increase until after his MI< does not mean that he was ineligible for an increased rating. Maybe he wasn't motivated to file a claim for an increase in PAT say 10 years ago, because of the injustice of the first reduction. Appreciate your input ;-) ~Wings
"My thoughts are the veteran should be reporting on symptoms of heart disease; just because the vet did not ask for a SC PAT increase until after his MI< does not mean that he was ineligible for an increased rating. Maybe he wasn't motivated to file a claim for an increase in PAT say 10 years ago, because of the injustice of the first reduction. Appreciate your input ;-) ~Wings"
Wings...you are correct on this issue. I did apply to the VA twice following my discharge and was denied twice. I just figured it was a losing battle, at that time, and didn't pursue it any farther. I did not know how the system worked back then and didn't bother with it any more.
I am sure there are a lot of veterans out there that also were denied several times and just gave up. I have just recently (almost 6 years ago) realized that I do have the right to pursue something that I believe in and deserve my fair justice with the VA. I feel that I am starting to learn a little (emphasise on the word little) about how the VA operates, in thanks mostly to the great people here on Hadit.
I am going to continue my fight until I prevail.
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I talked with Arthur Fine at Medical Opinions Associates today. They will charge me $1900 for a doctor to take a look at my service records and write up a IMO. I don't know if the doctor that they provide will give me a decision that will be in my favor or not. Guess I will just have to take that chance.
I was wondering if anyone has used them before and what they thought of them.
Thanks for any help.
Brian
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Hoppy,
Watta ya mean, tomorrow is a play day. I thought you worked every day...LOL Just kidding!! You deserve a day off.
Thanks for all the help.
Brian
PS I got 2 responses from doctors and they want me to call them in the morning. Maybe things are starting to work for me after all. I will let you know what they say.
B
Wings,
Good job that was very interesting. I am still working on CUE involving several issuse. It is typed up for the most part. However, I wont' finish until Thursday. Tomorrow is a play day for me.
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Thank you Wings
Remand page 2.pdfRemand page 3.pdfRemand page 4.pdfRemand page 5.pdfRemand page 6.pdfRemand_page_7.pdfRemand_page_8.pdfRemand_page_9.pdfx
x
x
Brian, I am re-loading your current BVA REMAND (pages 2-9) here, so that your Claims Issues and Decisions can be together. ~Wings
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Hoppy,
I will start working on the search at the BVA website. I am currently sending e-mails to several more doctors to see if I can get an IMO. I have a couple of possible leads that I am working on right now. I will let you know what I find.
Thanks for your help.
Brian
Wings and Brian
I have also thinking about the claim to establish a connection between the service connected PAT and any current heart condition. There was a veteran who posted on hadit several years ago who was not able to establish a connection between PAT and a heart condition that onset in his sixties. I do not remember the diagnosis that onset when the veteran was in his sixties. With this in mind I was going to mention that an alternate way to get some information would be to read BVA cases. The doctor's logic and how the cases are given weight would be helpful. Then Brian could make his own determination as to what he is up against.
It may be difficult to sort through the decisions. However, I remember finding a lot of info for the veteran who had a similar problem several years ago. Right now I am focusing on the Benefit of the doubt rule and it is occupying a lot of my time. I have had a very strong dislike for the old rating schedule and am trying to find a way to undo the problems it caused. Then I want to focus on the anxiety claim.
It might be better to use these types of search parameters. Use the secondary heart condition followed by "due to PAT" or tachycardia or Paroxysmal Atrial Tachycardiaor sinus Tachycardia. Include the quotations and search all years.
go to this search engine
http://www.index.va....rch/va/bva.html
Examples: possibly change heart to artery in the examples below
"Coronary heart disease due to PAT"
"Coronary heart disease due to tachycardia"
"Coronary heart disease due to paroxysmal atrial tachycardia"
"Coronary heart disease due to sinus tachycardia"
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P.S. Do you have a copy of your military discharge examination?
Yes I have a copy of the military discharge examination.
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The diagnositic code (DC) for Paroxysmal Atrial Tachycardia (PAT) has changed over the years under the VA rating schedule for 38 CFR Sec. 4.104 Diseases of the Heart.
You have been service-connected for PAT for over 20 years, correct? The VA reduced your compensation from 10% to 0%, but they did not sever your service-connection, correct? Did the VA send you an actual Notice of that reduction? Did they send you your Appellate Rights?
I have been SC for PAT for over 40 years and the VA did not sever my SC, just the 10%. And no, I did not appeal back then.
You have claimed an increase in your SC PAT. The maximum rating for PAT is now what? 30% ?
You have additional heart disease which is "more likely than not", or "less likely than not" related to your SC -PAT. From reading the BVA remand, I take it they want to know if the diseases are related, correct? Are they related in your mind?
At this point I do not know if the 2 heart conditions are related. My local Cardiologist says they are not related and that is what the VA is telling me also. I have tried to get a Cardiologist to provide me with an IMO but have not had any luck with that yet.
Bottom line -- this is your claim. What do you want from the VA? We are all seeking the maximum allowances permitted by law, but you have to know where you are going with your claims. You can't file a claim and sit at the mercy of their decisions. When the VA reduced your SC PAT from 10% to 0%, you did not appeal. I do not know how many years passed before you filed for an increase in your service-connected disability --but you now have additional disabilited that may be related.
Basically, my intent was for the VA to just reinstate my 10% for my SC PAT because I still have the PAT and it is still affecting me.
Your claim for Anxiety, secondary to your heart disease was Denied. Have you appealed that Decision? ~Wings
Yes I did appeal the denial for anxiety and my claim was sent to the BVA and they remanded it back to the RO.
PAT http://wikidoc.org/index.php/Paroxysmal_atrial_tachycardia
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Another thing that keeps bothering me about all this, If I did indeed have this problem before I enlisted in the Navy, and they were aware of this by me telling them that I have this heart condition.......Why would they have enlisted me in the Navy if they were aware of this at the time? And why did they wait for over 2 years to discharge me?
When I was inducted in the Navy, I think I recall the doctor asking me about my heart problem. I believe I told them that I was in good health and that I had "occasional" heart pounding and that it was not incapacitating. That all changed, of course, once I was in the service with all the exercise and drilling. I did feel that at the time of enlistment that I was in pretty good shape, as any 18 year old would be.
I don't believe that before I went in the service that I ever checked my pulse, not sure if I even knew how to check it back then. I do remember the doctors in the hospital did show me how to check my pulse with my fingers on my wrist. And they also showed me how to put my head down between my knees to help slow down my racing heart. And again, I repeat, I was never treated by any doctors for my PAT before I entered the service. There are no medical records anywhere that I was seen or treated for any heart problems I may or may not have had.
The more I think about this, I am not even sure if I did in fact, have this heart problem before I enlisted in the Navy. I know my records state that I have been having this problem most of my life. I am just not sure of this at all. I know I saw a lot of doctors while in the Navy and just not sure of what I did or did not say to them.
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When I was inducted in the Navy, I think I recall the doctor asking me about my heart problem. I believe I told them that I was in good health and that I had "occasional" heart pounding and that it was not incapacitating. That all changed, of course, once I was in the service with all the exercise and drilling. I did feel that at the time of enlistment that I was in pretty good shape, as any 18 year old would be.
I don't believe that before I went in the service that I ever checked my pulse, not sure if I even knew how to check it back then. I do remember the doctors in the hospital did show me how to check my pulse with my fingers on my wrist. And they also showed me how to put my head down between my knees to help slow down my racing heart. And again, I repeat, I was never treated by any doctors for my PAT before I entered the service. There are no medical records anywhere that I was seen or treated for any heart problems I may or may not have had.
The more I think about this, I am not even sure if I did in fact, have this heart problem before I enlisted in the Navy. I know my records state that I have been having this problem most of my life. I am just not sure of this at all. I know I saw a lot of doctors while in the Navy and just not sure of what I did or did not say to them.
BM6546,
This issue may never come up. However,to show you how I think as an advocate I will dig into this a little.
If you told the military doctors you were aware of your heart fluttering and skipping beats they could justify pre-service onset if they assumed that you in fact having a fluttering heart that was skipping beats.
The laws have wiggle room. Even though they are not supposed to use a veterans subjective statements it is possible that the veteran could give such a detailed picture in their descriptions of pre service episodes that there would be no other explanation. I do not believe your condition gives rise to the "no other explanation" scenario.
The question I have as an advocate is how do you really know that you were not having feelings similar to fluttering or skipping beats. Were you actually experiencing deep muscle twitches in your chest? There is actually a ton of information on the web identifying the confusion between muscle twitches and heat flutter.
Do your service records state how you were checking your pulse prior to the military. I was taught that using your wrist was not as reliable as your carotid artery. If your SMR is silent for how you were testing yourself prior to the military I would argue that your statement back then were not sufficiently developed to determine the reliability of your statements at that time. Any attempt to determine today as to what was going on in 1968 based on your recollection would be challenged due to the fact that there would need to be some way to determine the reliability of 40 year old memories.
The fact that you only mentioned flutter and skipping beats and did not say anything about accelerated heart rate makes me wonder what was really going on. Accelerated heart rate measured reliably would be the key marker for all forms of PAT.
________________________________________________________________
http://www.docofdiets.com/exercise-3.htm
How do you check your pulse? The best way to check your pulse during exercise is not at your wrist like you have seen doctors and nurses do on television. The best and most accurate place to check your pulse druing exercise is by placing your index and middle fingers gently over the carotid artery in your neck.
_____________________________________________________________
Check out this conversation I found on a med site.
Question
Aug 24, 2004
Hi im 19 years old and im not sure if i feel the same sensations but i do infact feel like there is something vibrating when i hit my chest or sometimes it can happen out of the blue.
When these sensations happen i check my pulse and its normal, doesnt mean its my heart right? more like muscle spasms?
Response
Aug 25, 2004
Internal sensations of vibrations can be causedby a wide range of phenomenon. Muscle spasms could only come from muscles, and there are only a few inside the chest: heart, esophagus, diaphragm and artery walls. If there is no arrhythmia, then it's likely coming from one of the other sources.
On the other hand, if you experience an "internal" sensation ofvibration "out of the blue", then my prime suspect would be the diaphragm, as it has a history of reacting to exercise-induced stress at later time points, thus seeming to come out of the blue. Check out the neurologyforum for examples of muscular ticks and spasms. Again, this is generally not abig deal, as it may arise due to anxiety as well.<br style="mso-special-character: line-break;"><br style="mso-special-character: line-break;">
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Sorry, I screwed up the last reply.
The BVA has remanded:
1. Entitlement to an increased compensable evaluation for a heart disorder, to include paroxysmal atrial tachycardia (PAT).
2. Entitlement to a total disability rating based on individual unemployability.
The RO has already denied my Anxiety. There has been nothing mentioned about the CUE in the remand.
Good, good, all good.
I am forgetting: has the BVA addressed all of your claims x3 (increase in SC PAT? New claim for Anxiety? CUE?)
I need to go back and read what the BVA told the RO to do. ~Wings
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Back in 2008 the VA Cardiologist prescribed me with Metropolol Tartrate because my PAT was getting worse. Metropolol Tartrate is used to treat various heart tachycardia arrythmias and anxiety. It seems to be working because my PAT attacks have decreased somewhat. My anxiety seems to be a little better also.
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.
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
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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.
Hoppy,
Before I enlisted in the Navy, I was aware of my heart fluttering and skipping beats. It wasn't until I was engaged in vigorous exercise that I started having episodes on my PAT and was taken to sick bay numerous times. When they finally diagnosed me with the PAT and was hospitalized
for further tests is when I realized what my diagnosis really was. There are no records or was I ever treated for PAT before I enlisted in the Navy.
BM6546This 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?
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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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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
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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.
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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
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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
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I was seeing the Clinical Social Worker, the Psychologist and the Psychiatrist at my local VA Clinic for almost 2 years. These visits were a result of my anxiety and depression after my heart attack. Both the Social Worker and the Psychologist indicated in their "Progress Notes" that my visits were related to: "Service Connected Condition". Diagnosis: Generalized Anxiety Disorders and Depression". Primary condition "Supraventicular Arrhythmias" 0%
After almost 2 years the Psychologist informed me that he had to change his wording to read "not service connected". I was then billed for my visits to him. Interesting that after all these visits someone told him to change my service connected visits to non service connected visits.
All 3 of these MH professionals are no longer working at this VA clinic.
Not sure what this means. Its very interesting when you go back through your SMR and MH notes what you find.
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Brian - are you a VN in-country vet? And if so, have you filed for IHD, yet?
pr
I was in the Viet Nam era but never served in a war zone. I have only filed to increase my 0% to 10% for my PAT. I didn't know I could file for my IHD or anxiety until just a few weeks ago. I am still pretty new to all this VA claims stuff, but am learning real quick about the claims process.
I am in the process of putting together a IMO letter to a few Cardiologists to see if they can write a IMO for me.
Brian
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If you have proof of a documented anxiety -producing situation inservice-that could be consider as service connectable- then if that is claimed and awarded , the PAT could also be claimed as secondary to that when you claim the anxiety.
"The Social Security has diagnosed me with:
1. Primary Diagnosis - Anxiety Disorders
2. Secondary Diagnosis - Chronic Ischemic Heart Disease with or w/o Angina"
As a primary diagnosis, the anxiety could possibly become a strong claim with PAT as secondary but anxiety in service could come from many non service connected reasons-such as a death at home,while serving.
PTSD is an anxiety disorder but PTSD vets can pinpoint often to the hour of the day, the first anxiety producing event they experienced in service as a stressor.
Then again PAT with no known etiology can also produce anxiety.
I hope you find a good IMO doctor who can assess your medical situation.
What you found in your SMRs is interesting but contains no apparent documentation for the cause of the anxiety.
Others will chime in here I am sure.
I worked with PTSD vets at a vet center,married a PTSD vet, and most of my friends are PTSD vets locally.
I regret I am not able to understand anxiety disorders other then PTSD very well without a specific inservice cause for the anxiety but others here can help with that.
Your prime focus however, is the pending claim for an association of the PAT to the IHD you now have.
The reduction of the PAT % might well have been a CUE.That could be claimed as CUE when you current claim is resolved.
You could mention these SMR notes to any opining doctor.They might agree with your past denied claim- that the PAT ,in fact, caused the anxiety.
While I was in the service, I was in and out of sick bay many times with my PAT. I have copies of all the different times doctors examined me. The problem is, I can't read half the stuff they wrote or the paper work is either blurry or too light to read it.
After my heart attack in 2006, I was diagnosed with Anxiety and PTSD by the VA Social worker, psycholgists and psychiatrists. I was prescribed medication for my anxiety and PTSD.
Not sure if tis helps, but there it is.
Brian
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I have been thinking about jumping in on this thread. I have been reading related BVA cases. However, as carlie suggested it would be best to read the exact reason and basis for the reduction. I do not believe the mere fact that you had a halter test on the intitial rating exam and no halter test on the reduction is a slam dunk CUE. It would depend on how instrumental the test was in making the original diagnosis and if there were other objective tests that the C&P examiner thought were equally capable of measuring symptoms used for the reduction. From what you have posted their appears to be no justification for the reduction. I am curious if the C&P examiner did not say something negative that you are not posting.
Also, I would like to comment on the GAD claim. My suggestion is that you front load as much evidence as you can and not rely on the VA to develop the evidence. This could prevent many long delays. You did not cite any medical reports in your statement. If you have a current diagnosis of GAD and any nexus statements you should reference them in your statement and attach them to your statement.
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.
And here is the wording when they reduced me from 10% down to 0%:
Cited examination.
Evaluation of SC tachycardia.
Cited exam discloses the veteran is steadily employed but complains of occasional dizziness, a heavy feeling in the chest and that his heart flutters. Blood pressure was 120/68, 130/64, 102/70 and there is no precordial thrust, no enlargement to percussion. Heart sounds are regular, there is a soft, systolic murmur at the apex with no radiation, no thrill and a rate of 78 to 80. EKG is normal.
Current examination does not disclose a compensable condition.
Rating of 3-3-67 amended as follows:
1. SC 38 USC 331 & 310 (agg. PTE; VE from 10-1-67)
10% from 11-26-66
0% from 5-1-68 7013
PAROXYSMAL ATRIAL TACHYCARDIA
10. Not entitled --38 USC 336
There is no mention of any holter monitoring and I do not remember any holter monitoring taking place at this C&P exam.
Hope this makes sense.
Brian
PS I just commented in a different post that after reviewing my service records, I noticed that at least 2 times they mentioned Sinus Tachycardia with Anxiety. Another reference was to Paroxysmal Atrial Tachycardia secondary to anxiety.
I was diagnosed by the SSDI that my:
Primary Diagnosis - Anxiety Disorders
Secondary Diagnosis - Chronic Ischemic Heart Disease with or w/o Angina
Brian
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Dr. Craig C Bash can be contacted through his web site:
http://www.veteransmedadvisor.com/
He recently did a SVR radio here at hadit that is in the SVR archives.
He is a NeuroRadiologist and although my claims involved heart disease, they also involved neurological conditions and he was able to prepare 2 separate IMOs for me.
IMOs are expensive. You might want to contact a cardiologist instead of a NeuroRadiologist but then again his IMOs ,in my case, regarded diabetes and heart disease as well as cerebral vascular disability.
He used Braunwald -(the top cardio text in the USA) as one of the references he gave.VA uses Harrison's for heart disease as to defining IHD but Braunwald contributed to Harrison'a texts.
I have Braunwald on Cardiology -it is so large and heavy I cannot scan anything from it.
But every cardio doc would have it or be able to access it via the net.I think non professionals cannot access the text on the net and this is why my daughter gave this to me for Christmas last year.I thought it would help with AO IHD claims but so far I only needed to refer to it once or twice.
By all means you can send an email to Dr. Bash.Briefly describe the type of IMO you need.
And also try a cardio doctor as well.
The IMO must outweigh anything any VA doctor comes up with.I hope others will chime in here because
Dr. Bash is a NeuroRAdiologist and not a Cardiologist.
Then again he opined successfully over a VA Endodrinologist for my diabetes claim.
I need to add-
I presented him a very compelling claim.
I have done my medical homework and knew my IMO fees would be absorbed by an eventual award.
I sent along with the Med recs, and numerous other documents,
my assessment of what really caused my husband's death.
In that assessment I referred to specific enclosures that I had highlighted.
I did this for a cardio IMO I didnt need.
If I can find who that doctor was I will let you know-it is in a file somewhere here.
I contacted him via a Forensic firm on the net.
His charge was cheaper than Dr. Bash's but specific only to the cardio disability.
You have to determine who would be the best person to opine on your claim based on their expertise.
They must meet the IMO criteria here in our IMO forum.
Dr. Bash, as a former VA doctor,knows that criteria in and out and is familiar with SOCs etc.
If I find time I will see what I can find in the Braunwald text-
but I have a question-
did you experience anything that profoundly stressed you out in the military that could have been the cause of the PAT?
With SSDI for both the heart condition and the anxiety- what did SSDI attribute as the nexus for the Anxiety?
also:
"did file a claim for anxiety and depression second to my PAT. The RO denied my claim on both."
Could an in service situation have caused the anxiety as well as the PAT?
Berta, You asked whether "Could an in service situation have caused the anxiety as well as the PAT?"
As I was going thru my service records, I came across 2 entries in my records that said...
" Paroxysmal Atrial Tachycardia secondary to anxiety"
And another entry that states......
" Imp: Sinus tachycardia
Etiol - Anxiety "
Not sure if this helps but thought I would bring it up.
Brian
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one was a VA Cardiologist that was treating me another was from a cardiologist in Denver and the other was a local cardiologist the explanation about the army colonel shrink is to convuluted to explain but he helped to verify Dr Boscarino's study linking PTSD to cardiac issues
this is my BVA appeal http://www.va.gov/vetapp09/files2/0912815.txt
Testvet,
Can you give me the name of the Cardiologist in Denver? Thanks
Carlie, Could You Please Take A Look At This
in VA Disability Claims Research
Posted
Wings,
I am not 100% sure if the VA doc prescribed the metoprolol for my PAT or my other heart condition. I have sent away for all my medical records up in Reno. They are telling me that it could take from 20 to 30 days to get these records. I may have to drive to Reno and get them quicker.
I need these records before I can send away for my IMO.
Brian