N4XV

The VA will post the final Reg. when the OMB gets done with it. The VA's view on the Court Order is that the Petitioners reasons for the petition are invalid and that they haven't come up with an alternative. The VA did their part and responded to the court order. I don't believe this court order will have any real effect on making the new regs. get published any faster than it is already going. Also once the final regs. are published then there is the 60 days for Congressional Review;

Donna, After OMB completes its review it goes back to the VA for the VA Sec. to sign and it will be posted in the regs as the final rule within a few days or so. Once it is posted final the clock for CRA will start. The 60 day clock is not a continuous 60 days. When ever the congress is out of session for three or more days the clock will stop and start again when congress goes back in session.

http://hlr.rubystudio.com/media/pdf/vol_122_the_mysteries.pdf The link above may ease some of the concern over the Congressional Review Act as it may pertain to RIN: 2900-AN54 now at the OMB.

http://www.reginfo.gov/public/jsp/EO/eoDashboard.jsp

'oldtimer I was very disappointed with the way the VA did my IHD C&P exam, lasted all of about 15 minutes. Examiner stated she hadn't read my records yet. Asked the same questions you stated. Checked my heart and lungs and looked at my feet and lower legs and said it was over. a week before the exam the VA had me in for an Echo. Those results showed a higher LVEF than from earlier tests but did state IHD and heart wall scarring. If they go by the Echo alone I might get a 30% rating. I really thought I was getting the shaft until I got a copy of the exam results. It states estimated LVEF of 50 -55%, chronic congestive heart failure ands METS 3 or less. You might have to wait a month or so to get a copy of your C&P exam and it might turn out to be a lot more favorable to you than you'd expect at this point. PS - I was with the 117th MRF (68-69) and went to DongTam many times.

I emailed my Congresswoman Brown-Waite about H.R. 4899 and S.A 4222 and her response was about H.R. 2254, the Agent Orange Equity Act of 2009. Seems to me Congress is totally in the dark about this issue or they are just keeping silent about it. Anyway she voted against H.R. 4899 the first go round.

Sandra, the regs. have not been finalized yet. Speculation has it around October. All the regs. will do is add the three new diseases to the presumptive list. Those diseases will be rated as they always have in the past.

Ranger43, according to what you wrote an EF of 46% should get you a 60% rating for IHD. The New VA Training Letter 10-04 dated May 18, 2010 mainly covers how the VA will apply the Nehmer stipulation for effective date for retroactive payment due past denied claims for the three new presumptive diseases to be added to the CFR.

New VA Training Letter 10-04 dated May 18, 2010 Lead [-] Posts: 104 05/25/10 09:12:05 SUBJ: Training Guide for the readjudication of Claims for Ischemic Heart Disease (IHD), Parkinson’s Disease (PD), Hairy Cell Leukemia (HCL) and other Chronic B-cell Leukemias, and other Diseases Under Nehmer. dated May 18, 2010 This is a 128 page document that describes how the VA will provide users (VA personnel) with the information necessary to review, develop, rate, and authorize Nehmer claims for the three new presumptive conditions – hairy cell leukemia and other chronic B-cell leukemias (HCL), Parkinson’s disease (PD), ischemic heart disease (IHD), and any other presumptive conditions involving in-country Vietnam service. I found this on http://groups.google.com/group/straight-ta...litary-veterans in the Files section listed under Nehmer Training Ltr for IHD, PD amd HCL.doc It was posted yesterday and has a lot of information that may be of interest to those Nehmer veterans wondering about how the VA is going to handle retro for past denied claims. If you are unable to locate the document I can send you the file via email

This is the criteria they go by: Evaluation criteria • A 100-percent evaluation is warranted if a workload of three METs or less produces dyspnea, fatigue, angina, dizziness, or syncope. A workload of three METs represents such activities as level walking, driving, and very light calisthenics. • A 60-percent evaluation is warranted if a workload of greater than three METs but not greater than five METs results in cardiac symptoms. Activities that fall into this range include walking two and a half miles per hour, social dancing, light carpentry, etc. • A 30-percent evaluation is warranted if a workload of greater than five METs but not greater than seven METs produces symptoms. Activities that fall into this range include slow stair climbing, gardening, shoveling light earth, skating, bicycling at a speed of nine to ten miles per hour, carpentry, and swimming. • A 10-percent evaluation is included for some conditions, which is warranted if symptoms develop at a workload of greater than 7 METs but not greater than 10 METs. Activities that fall into this range include jogging, playing basketball, digging ditches, and sawing hardwood. When symptoms develop only during such activities, there may be some impairment of earning capacity, but it is likely to be slight. The alternative of the need for continuous medication warrants a 10-percent evaluation for some conditions. Even if the requirement for a 10% (based on the need for continuous medication) or 30% (based on the presence of cardiac hypertrophy or dilatation) evaluation is met, METs testing is required in all cases except: (1) When there is a medical contraindication. (2) When the left ventricular ejection fraction has been measured and is 50% or less. (3) When chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year. (4) When a 100% evaluation can be assigned on another basis. METs are measured by means of a treadmill exercise test, which is the most widely used test for diagnosing coronary artery disease and for assessing the ability of the coronary circulation to deliver oxygen according to the metabolic needs of the myocardium (Cecil, 175 and Harrison, 966). Alternatives to the METs Administering a treadmill exercise test may not be feasible in some instances, however, because of a medical contraindication, such as unstable angina with pain at rest, advanced atrioventricular block, or uncontrolled hypertension. In those instances, objective alternative evaluation criteria were provided, such as cardiac hypertrophy or dilatation, decreased left ventricular ejection fraction, and congestive heart failure, for use in those cases. When a treadmill test cannot be done for medical reasons, the examiner's estimation of the level of activity, expressed in METs and supported by examples of specific activities, such as slow stair climbing or shoveling snow that results in dyspnea, fatigue, angina, dizziness, or syncope, is acceptable. The other objective criteria as alternatives to the METs are: • A 100-percent evaluation is warranted for a left ventricular ejection fraction of less than 30 percent or chronic congestive heart failure. • A 60-percent evaluation is warranted for a left ventricular ejection fraction of 30 to 50 percent, or more than one episode of acute congestive heart failure in the past year. • A 30-percent evaluation is warranted for evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. • A 10-percent evaluation is included for some conditions, and a requirement for continuous medication. Note that the Court has held in Otero-Castro v. Principi that Diagnostic codes 7005 and 7007 do not require a separate showing of left-ventricular dysfunction in addition to an ejection fraction of 30 through 50% in order to qualify for a 60% rating. If left ventricular ejection fraction (LVEF) testing is not of record, evaluate based on the other criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the veteran's cardiovascular disability. Whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication must be ascertained in all cases. Conditions rated on criteria other than METS Hyperthyroid heart disease (DC 7008) is usually rated based on hyperthyroidism (DC 7900) or as supraventricular arrhythmias (DC 7010), whichever results in a higher evaluation. Arrhythmias (Supraventricular (DC 7010) and ventricular (DC 7011) which are rated based on the number of episodes per year or whether there is permanent atrial fibrillation. Ordinarily, supraventricular arrhythmias (7010) are milder with evaluations of 10 or 30 percent, as distinguished from the more potentially disabling ventricular arrhythmias (7011), with a range of evaluation from 10 to 100 percent. Implantable cardiac pacemaker (DC 7018) is rated for arrhythmias (7010 or 7011) or heart block (7015). Total Impairment Criteria A 100-percent evaluation requires chronic congestive heart failure or that a workload of three METs or less produces dyspnea, fatigue, angina, dizziness, or syncope. A workload of three METs includes such activities as level walking, driving, and very light calisthenics. While the development of cardiac symptoms at this level of activities indicates total impairment, it does not suggest that the patient is either housebound or helpless.

I must eat crow. I really thought it was just an unsubstantiated rumor.

I'm always a sport.... just last week my VA PCP asked me if I ever have suicidal thoughts and I told her "Only when I feel like killing myself." Now she has me going to MHC for an eval.

ROFLMAO :P :) ;)

No surprise here. Don't see how the threat of a law suit will make the VA move on these new presumptives any faster. By the time any law suit for not having the proposed regs written and published on time ever sees the inside of a court room they will have been published making the law suit moot. I would think the law firm that sent that letter to Secretary Shenseki with the Mar 12th deadline knows it would be a waste of time and money to pursue. IMHO the VA is taking it's sweet time on this so that they can cull out and/or low ball as many claims as possible before the new regs are published and then when they are published they will send out a mass mailing of denials and low balled claims and maybe only few will actually get a fair shake.

Rotorhead From what I read it looks like a very favorable C&P exam report and an estimated METS of 3 or less should warrant a 100% rating.

Berta, I am a verified Brown Water in country Vietnam Vet. I am already SC for DMII due to AO exposure since 2001 but was denied SC for CAD because I was DX'd with CAD before being DX'd with DMII. I agree the longer the VA draws out the publishing of the new regs makes us think they are coming up with ways to limit as many new IHD claims as possible. But then to bring life style choices into the mix for IHD and not everyother persumptive disease or condition in the past that life style choices could have been considered risk factors would really open up a can of worms. The VA could then deny or recind granted claims for an AO presumptive such as lung cancer because the veteran had a history of smoking or the same for DMII because the veteran is obese. All hell would break loose. I might way wrong about this but life style choice risk factors just increase the chance, where as the presumptive is considered the cause. IMHO

Bill, I am almost certain heart disease or a stroke is what will take me out. Infact I am amazed I made it this long. In early to mid 1990, 6 months before my 4 the heart attack ( the one that took me out of the work force and cinching SSDI), one cardiologist (not VA) told me he predicted that with in 4 years I'd suffer a massive heart attack I would not survive. Boy, am I glad he was soooooo wrong

john999, I agree with you 110% but am financially stuck between a rock and a hard place as my wife and I are raising our two grandchildren on just my SSDI and 30% VA comp. Mortgage and living expenses eats up just about all of that. We get no support from the state or the parents of our grandchildren. So my only option for private medical is through a medicare HMO. Hopefully it is not near as screwed up as the VA system.

jbasser, I have infact had seven Cardiac Caths. Last one in 2001. An angioplasty that failed on the table that lead me into a triple bypass in 1987. I am large framed (obese) and just about all tests requiring an external transducer stated technical difficulties of some sort. The Echo-Doppler Report of 01/07/2010 states Technical Quality: Poor. While discussing my condition with the VA cardio doc I saw on 03/05/2010 he stated to me an angiogram or any other invasive cardio testing was no longer an option for me because in his opinion my chances for surviving the proceedure were very low. I recently heard of a proceedure where the patient swallows the transducer so it is closer to the heart and much more accurate readings are produced. I will be looking into that option as soon as I see a private cardiologist.

jone, The form would be VA FORM 21-526, VETERAN'S APPLICATION FOR COMPENSATION AND/OR PENSION You stated you used the DAV to file your claim for pension in 2004, so if you signed a POA with the DAV back then it should still be in force and in your C-file. I would suggest you contact the DAV VSO in your area and they should be able to help you file a claim for IHD presumptive to AO exposure. I don't know how the VA pays a non-SC pension and SC compensation. Were they combined or does the 30% SC compensation offset the 60% non-SC pension for pay purposes? If the latter applies and you are granted SC for the IHD your claim might fall under Nehmer and you could be entitled to retro pay for the difference back to 2004. I am not trying to get your hopes up but just suggesting it as something you might want to look into.

JRW Thank You for your input. I was thinking along the same lines but figure this will take some time as I haven't used a private cardiologist in over ten years now. But inlight of the time it is taking the VA to get the new proposed regs published and then the added time it will take before they are finalized it might not prolong the processing of my claim very much. I have an appointment with an HMO PCP on 03/18/2010 and I intend on asking for a referal to see a cardiologist to at least discuss the increases in dosages in my meds and ask him to review the results of the chemical stress tests and EKG's and the recent Echo. I also have an earlier appointment at the VA clinic on the same day with my regular VA PCP and hopefully will be able to obtain all the recent VA medical records since 10/26/2009 that he can review also. I have all my VA records from Jan 2004 to 10/26 /2009 but have been unable thus far to get any records prior to that released from other VAMC's I was seen at. Maybe by the time I see the private Cardiologist I will have them in hand and if he orders any new tests he will be able to offer a more favorable medical opinion for me to submit to the VARO handling my claim as new evidence. I just received a denial in a claim submitted for IU after I reopen the IHD claim. The reason for denial being I don't meet the eligability rquirements for IU and without a 60% rating for my IHD claim I still won't meet those requirements. I was hoping the VA would have held off on the decision for the IU claim until the IHD claim was completed but I guess logic is not a factor in the VA process or they already decided the IHD is not going to reach 60% on the results of the Echo and C&P report.

After 20 years of no significant improvement. Since the announcement of IHD to become a presumptive my heart condition has gotten better. All these tests were performed at the same VAMC From Chemical Stress Test study performed on 01/27/05. Impression: 1. Abnormal adenosine myocardial perfusion scan. Nontransmural infarction of the inferior wall from apex to base with potential ischemia of the residual viable myocardium primarily in the apical half of the infarct zone. Potential ischemia in the adjacent inferolateral wall from apex to base. 2. Mildly depressed resting left ventricular systolic function with an ejection fraction of 46%. ( I figure this impression to be worth at least a 60% rating) From Chemical Stress Test study performed on 11/14/2008. Impression: 1. Abnormal adenosine myocardial perfusion scan. Potential ischemia in the inferior, inferolateral, and lateral walls from apex to base superimposed on inferior wall scar with an element of post stress "stunning" in the potentially ischemic zone. However, findings are similar to hard copy images of previous study performed on 01/27/05. 2. Globally reduced left ventricular systolic function with an ejection fraction of 42-45%. ( I figure this impression to be worth at least a 60% rating) From ECHO-DOPPLER REPORT (Echocardiogram) performed on 01/07/2010 for a C&P exam in connection with my recent IHD claim under the new AO presumptive. Impression: LV systolic function is preserved. Estimated ejection fraction is 50-55%. LV wall thickness shows mild concentric left ventricular hypertrophy. LV wall motion abnormality was noted, suggestive of CAD. Grade II diastolic dysfunction is present ( I figure this impression to be worth no more than a 30% rating) I also had an Electrocardiogram (EKG) performed on 03/05/2010 that said - Abnormal EKG and possible Inferior Infarction. But the VA cardiologist said my heart condition had improved since 11/14/2008 yet warranted an increase in dosage of two of my heart meds. Before 1991 I had 4 heart attacks and a triple bypass. Now since there has been no real changes in my life style or improvement shown in my heart condition for the past 19 except for a Transient Ischemic Attack (TIA or silent stroke) in Feb. of 2008 it makes me wonder if the powers that be in the claims part of the VA are somehow influencing the interpretations of tests and exams for new IHD claims under the new presumptive due to AO exposure.

vperl Your date of claim (26sept09) should be your effective date for retro. as I read the notes looks like more than 80%.... I do not understand what the 80% you refer to in the above statement actually means. 80% of what? METs The criteria for evaluating heart conditions incorporates objective measurements of the level of physical activity, expressed in METs (metabolic equivalents), at which cardiac symptoms develop. METs are measured by means of a treadmill exercise test, which is the most widely used test for diagnosing coronary artery disease and for assessing the ability of the coronary circulation to deliver oxygen according to the metabolic needs of the myocardium Evaluation criteria • A 100-percent evaluation is warranted if a workload of three METs or less produces dyspnea, fatigue, angina, dizziness, or syncope. A workload of three METs represents such activities as level walking, driving, and very light calisthenics. • A 60-percent evaluation is warranted if a workload of greater than three METs but not greater than five METs results in cardiac symptoms. Activities that fall into this range include walking two and a half miles per hour, social dancing, light carpentry, etc. • A 30-percent evaluation is warranted if a workload of greater than five METs but not greater than seven METs produces symptoms. Activities that fall into this range include slow stair climbing, gardening, shoveling light earth, skating, bicycling at a speed of nine to ten miles per hour, carpentry, and swimming. • A 10-percent evaluation is included for some conditions, which is warranted if symptoms develop at a workload of greater than 7 METs but not greater than 10 METs. Activities that fall into this range include jogging, playing basketball, digging ditches, and sawing hardwood. When symptoms develop only during such activities, there may be some impairment of earning capacity, but it is likely to be slight. The alternative of the need for continuous medication warrants a 10-percent evaluation for some conditions Alternatives to the METs Administering a treadmill exercise test may not be feasible in some instances, however, because of a medical contraindication, such as unstable angina with pain at rest, advanced atrioventricular block, or uncontrolled hypertension. In those instances, objective alternative evaluation criteria were provided, such as cardiac hypertrophy or dilatation, decreased left ventricular ejection fraction, and congestive heart failure, for use in those cases. When a treadmill test cannot be done for medical reasons, the examiner's estimation of the level of activity, expressed in METs and supported by examples of specific activities, such as slow stair climbing or shoveling snow that results in dyspnea, fatigue, angina, dizziness, or syncope, is acceptable. The other objective criteria as alternatives to the METs are: • A 100-percent evaluation is warranted for a left ventricular ejection fraction of less than 30 percent or chronic congestive heart failure. • A 60-percent evaluation is warranted for a left ventricular ejection fraction of 30 to 50 percent, or more than one episode of acute congestive heart failure in the past year. • A 30-percent evaluation is warranted for evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. • A 10-percent evaluation is included for some conditions, and a requirement for continuous medication

THOMAS This is a copy and paste from "New Agent Orange Presumptive Conditions Q&As/Scripts" Q. Will I receive retroactive benefits based on a grant of presumptive service connection due to service in Vietnam if my claim was previously denied? A. Generally, retroactive benefits cannot be paid prior to the date of the new regulations. However, based on a federal court decision, [in the case of Nehmer v. U.S. Veterans' Admin. C.A. No. C-86-6160 (TEH) (N.D. Cal.)], Vietnam Veterans will be eligible for retroactive awards of benefits for B cell leukemias (such as hairy cell leukemia), Parkinson’s disease, and ischemic heart disease if they have applied for and have been denied service connection for these condition(s) before VA regulations go into effect and if the Veteran was diagnosed with the condition at the time the claim was filed. If you had a claim in for ischemic heart disease back when you were first Dx'd with it and it was denied by the VA. Then your retro should go back to that date of original claim, if the VA honors Nehmer. But you can bet the VA legal minds are working day and night to get around Nehmer every which way they can. So we really just have to wait until the new regs are published to see how it all pans out. If you just recently filed your claim then the date of that claim will be your effective date.

The exam they are talking about in this fast letter is a C&P exam used by the VA for evaluation of the degree of disability and is used for rating purposes. There is usually no medical advice, treatment or medication offered at these exams. It is strictly a medical opinion of the disability of the vet. It is not an exam to determine if the vet was exposed to an herbicide. If a vet fulfills the cryteria for persumption of exposure to herbicide usually his/her service records will verfy that. The VA is trying to develope as many of the claims as possible so that when the new regs are published the can move those claims to a final decision is a speedy mannor.