Please Help Me With My Claim !

[bm6546]

I would like to ask the members on Hadit.com for some help. I am not sure which direction to go with my VA claim. I have been fighting with the VA for almost 3 years with my claims that go back over 40 years. In the last 3 years they have denied my claim twice and I am very frustrated and not sure what to do next. Someone on Hadit.com has a few ideas that they think might help me with my claim. They were nice enough to do some research and write up a "Statement In Support of Claim". I would like to briefly set this up and attach the comments that this person has sent me and I would like the Hadit members to let me know what they think. I apologize in advance for the length of this post but I don't know what else to do.

I was discharged from the US Navy back in 1966 with a heart condition called PAT (Paroxysmal Atrial Tachycardia) and was given 10% SC for approx. 1 year and then it was discontinued. (You can review my past posts for more detail info on this claim). I have been in and out of different hospitals over the last several years with this heart condition and 3 years ago I had a heart attack and I am now on SSDI because I am not able to work any more. I suffer from anxiety, depression and heart problems. And to top everything else I am going thru a divorce after 25 years of marriage. I have tried to connect my PAT and heart attack and the VA says they are not connected and denied my claim twice. I am currently on several medications thru the VA for depression, anxiety and my heart condition. I am trying to at least get my 10% back and am trying to get it raised to 30%. Here is the attachment:

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Statement In Support of Claim

THE ISSUES

1. Claim for Increase for Paroxysmal Atrial Tachycardia (PAT) currently rated 0 percent, under 38 C.F.R. Sec. 3.160(f) resumption of payments previously discontinued.

2. Entitlement to Service Connection for Anxiety Disorder, under 38 C.F.R. Sec. 3.310(a) Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.

INTRODUCTION

The veteran served the Vietnam Era, active duty in the US Navy from November 10, 1964 through November 25, 1966.

While active-duty, veteran reported heart palpitations, shortness of breath, aching chest pain, dizziness, fainting and syncope. An active-duty diagnosis of Tachycardia necessitated Holter Monitoring for approximately three weeks duration, which objectively confirmed the diagnosis Paroxysmal Atrial Tachycardia (PAT), and was positively evaluated under Sec. 4.104, Diagnostic Code (DC) 7013.

On 11-26-66, active-duty member was granted service-connection for PAT under (DC) 7013, and awarded 10% compensation rating.

Following an incomplete VA Compensation and Pension Examination, 12-12-67, the veteran’s 10% compensation was reduced to a non-compensatible 0% rating.

The veteran herein challenges that VA Rating Decision of 2-5-68, by claiming Clear and Unmistakable Error (CUE), 38 USC 5109A.

In that 12-12-67 C&P Examination, the VA Examiner noted:

"... while in service he had episodes of palpitation following inspection, with fainting and ended up in sick bay. He then began to have palpitation with some pains in mid sternal area following exertion, drills, and at times even when resting. The spells of palpitation may last from 5 to 20 minutes now, and in recent months has had 6 episodes, the last one 3 - 4 days ago. He has learned to lean forward with head between knees, and take deep breaths and this at times shortens the interval and length of attack. He is working now, gets the episodes at work, but continues working, [only] after they subside." Emphasis in italics.

By the examiner’s own admission then, the veteran’s symptomology clearly met then existing DC 7103 rating criteria for frequent attacks of PAT with impaired occupational functioning, whereby his “attacks” were “at times” manageable; and by default, other times not.

Proving that 1967 C&P Re-examination of PAT was incomplete, is the Federal Regulation which provides that, “Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction“, Sec. 3.344 Stabilization of disability evaluations. A Holter monitor provided positive objective evidence of an active-duty diagnosis of PAT; therefore, that 1967 C&P Re-examination of PAT was less full and complete without reference to the Holtor Monitor criteria.

Under then existing diagnostic criteria, the active-duty member’s medical condition was evaluated under (DC) 7013, “Tachycardia, paroxysmal”, which provided for 10 percent evaluation when there were infrequent attacks, and 30 percent evaluation when there were severe, frequent attacks. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the VA must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 CFR 4.6 (2004). See also 38 CFR Sec. 4.7 providing 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 required for that rating.”

New regulations for rating service-connected cardiovascular disorders became effective January 12, 1998, 62 Fed. Reg. 65207- 65224 (December 11, 1997). These revised regulations no longer contain criteria applicable specifically to PAT; but rather rate PAT by analogy to Supraventricular Arrhythmias under Diagnostic Code 7010.

Under DC 7010, a 10 percent evaluation is warranted for supraventricular arrhythmias with permanent atrial fibrillation (lone atrial fibrillation), or; one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by electrocardiogram or Halter monitor. A 30 percent evaluation is warranted for supraventricular arrhythmias with paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year documented by electrogram or Holter monitor. 38 C.F.R. § 4.104, DC 7010 (2004).

Significant is the application of Section 4.100 Application of the evaluation criteria for diagnostic codes 7000–7007, 7011, and 7015–7020.

(a) 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.

(B) 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.

© If left ventricular ejection fraction (LVEF) testing is not of record, evaluate based on the alternative 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. [71 FR 52460, Sept. 6, 2006]

VAMC Reno Cardiologist prescribed the Metoprolol Tartrate (date). Veteran has Heart Disease.

CLAIM FOR GENERALIZED ANXIETY DISORDER

Where separate and distinct manifestations have arisen from the same injury, separate disability ratings may be assigned where none of the symptomatology of the conditions overlaps. See Esteban v. Brown, 6 Vet. App. 259 (1994). Under the circumstances in this case, the veteran should be provided with VA heart and psychiatric examinations in order to obtain current information to evaluate his generalized anxiety disorder and PAT under the appropriate regulatory criteria. Massey v. Brown, 7 Vet. App. 204 (1994).

Sec. 3.102 Reasonable doubt. It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.

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I took the attached "Statement In Support of Claim" to my VSO and she liked it very much and she submitted it to the VA in it's entirety. My PAT claim is still pending and it has been almost 1 year to the date.

I am reaching out to the members on Hadit.com and asking anyone for any help you can give me. I would appreciate ANY suggestions and would be happy to answer your questions.

Thanks in advance. Brian

[bm6546]

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Please see the CUE Caim granted, that was posted todayentitled, Cue Awarded (1990), misapplication of the rating schedule, here:

http://www.hadit.com/forums/index.php?show...c=24563&hl=

Wings, thank you for posting this CUE. If I read this correctly the BVA reversed the 40% rating and awarded a 60% rating back to Feb 24, 1960 on a CUE. That is over 30 years of retro. Good for him.

As far as the CAD it sounds like the BVA wants to award the CAD as SC, but they won't accept it because it wasn't addressed properly. Is this correct?

With my case, I have CAD from my heart attack or PAT, not sure. It has never been established what caused my CAD. We also don't know if I had my CAD while I was in the service or got it recently. How can I establish how and when I aquired my CAD?

In my SOC that I posted, it is mentioned that I am being treated for CAD.

Thanks, Brian

PS I sent an inquiry to IRIS asking what was happening with my claim appeal for PAT and when would it be decided. Haven't heard back from the VA yet.

[bm6546]

bm6546,

1967 is a long time ago. Do the codes you cite go back to the time of the cue

You might want to review your SMR and compare it to the present diagnostic criteria DSM IV for "Panic Attacks" & "Panic Disorder". Panic disorder was not in the DSM in 1967. What happened after service. Do you have any record of symptoms through the 70's and 80's.

The reason I bring up panic attacks is because the symptoms you mentioned are similar. Could this machine you were wearing have been able to tell the difference between a panic attack and other causes of palpitations. Good question to ask a doctor.

If you think you might have been having panic attacks there could be a way to link this to the current anxiety disorder. This would depend on the entire history and a Paychiatrics would have to review all records from military to present.

Hoppy,

Back in 1964 my PAT was positively evaluated under Sec 4.104 Diagnostic Code 7013 and I was awarded 10% compensation and SC for my PAT. 1 year later they took my 10% away and left me 0% SC. In 1998 they changed the Rating Code and the PAT to Supraventicular Arrythmias under Code 7010.

I didn't know back in the 60's and 70's that I was having a "panic attack" or "anxiety attack". All I know is that everytime I had a PAT attack, especially while I was driving, it scared the crap out of me and my heart would palpitate and skip all over the place. I would get very swetty and dizzy I thought for sure I was going to die right there on the spot. Its enough to give anyone a "panic attack" or "panic disorder". Unfortunately, nobody back then knew what they were called. For this reason I don't have any medical records to substantiate this. Over the past 3 years I have been seeing VA Psychiatrists, Psychologists and Social workers and everyone of them have diagnosed me with panic attacks, anxiety and depression.

[bm6546]

bm6547

If the criteris was met for a rating based on the current history of attacks in the 67 exam then the fact that he did not incorpotate the monitor in his exam may not mean the exam was not complete. It could be argued that the exam was complete and still supported a continued rating and the raters failed to apply the correct rating based on a proper exam.

The probelm I see is that even though they used the monitior to verify your original subjective complaints of the palpitations, it might not be necessary to use another monitior test to say whether or not the palpitations were continuing. This is something a doctor might need to address. However, I think your original argument that you meet the rating criteria is the strongest and it would not require a medical opinion that a second monitior test would have been necessary. I have told other veterans that when arguing the quality of an exam you really neeed to get a doctor to back you up. The VA does not necessarily have to agree with a veterans opinion that a test was incomplete or otherwise flawed.

Hoppy, I agree that I need a Cardiologist to give me a medical opinion on my medical records. I went to my private cardiologist and he was no help to me at all. I live in a small town and he is the only cardiologist here. I have to go closer to a city and try and get a cardiologist to write a good medical opinion for me. Unfortunately, I am living on my SSDI and can't afford to pay for a medical opinion. Any suggestions on this would help. Thanks, Brian

[cowgirl]

BM6546 , just a thought, is there a college or university type medical center nearbye? could be help there. You seem to describe your condition well, medical files and historical data should help connect the dots.

Best of luck to ya,

Cg'up2009!

Hoppy, I agree that I need a Cardiologist to give me a medical opinion on my medical records. I went to my private cardiologist and he was no help to me at all. I live in a small town and he is the only cardiologist here. I have to go closer to a city and try and get a cardiologist to write a good medical opinion for me. Unfortunately, I am living on my SSDI and can't afford to pay for a medical opinion. Any suggestions on this would help. Thanks, Brian

Edited February 9, 2009 by cowgirl

[bm6546]

BM6546 , just a thought, is there a college or university type medical center nearbye? could be help there. You seem to describe your condition well, medical files and historical data should help connect the dots.

Best of luck to ya,

Cg'up2009!

cowgirl, thanks for the info. Can you tell me what kind of help I might expect from a colleg or university type medical center? Not quite sure I follow your angle. Thanks in advance, Brian

[Hoppy]

bm6546

Take your SMR to the VA psychiatrists who recently diagnosed the panic attacks and ask them to review the SMR and write an opinion if you were having panic attacks in the military. If they are cooperative have them write an opinion that the symptoms you have now are the same symptoms you were haviung in the military. Get a nexus statement that it is more likely than not that the current diagnosis of panic attacks and panic disorder are more likely than not related to the symptoms in the military. This will be a good way to advance a claim. As for the CUE you can base the CUE on the fact that they failed to apply the criteria in the 67 C&P. I am not looking at the C&P. However, it does not sound like the examiner said your condition had significantly improved or resolved. If you can find the 67 decison it would be interesting to see the logic they used to reduce your rating.

VA doctors are not always cooperative. If they refuse to even review the SMR let me know. I am helping a veteran who has the identical situation you had in the military. He was discharged in 1977 for breathing difficulty heart palpatations shaking, fatigue tingling etc. The same symptoms were called a panic disorder in 2005. They gave him a personality disorder diagnosis in 1977 which would be considered bogus under the DSM IV and discharged him. They did the same thing to me in 1970. I got a VA shrink to write a report that the Personality disorder the military shrinks gave me was bogus and that the symptoms in the military were for a condition then called angioneurotic edema and that my symptoms were caused by this disease. Angioneuotic edema was dropped from the DSM IV and is now considered a vascular disease called angioedema. You deserve to have a complete explanation of the diagnostic history. The guy I am helping is having problems with the VA doctors. We are working on a way to make them give him a longitudinal evaluation that would review the entire histroy in view of the DSM IV. The way psych conditions are diagnosed has changed dramatically since the 70's,

There are plenty of ways for the VA to delay and confuse this type of claim. If you are ready for battle you might get it straightened out. It took me 8.5 years and my claim never went to the BVA.