hypertension New Ao Presumptive

[Berta]

I foresee problems in the new Ischemic AO heart disease presumptive disability-

this case shows what I mean.

Veterans might sure need to rely on ECHO reports and documented Ejection Fractions-and other evidence of atherosclerotic heart disease because heart disease can have many types of names yet only the "ischemic" type is within the new AO presumptive addition.

"The Veteran's death certificate shows that he died from

congestive heart failure. The VA physician who wrote the VA medical opinion in April 2009 concluded that the Veteran's congestive heart failure was not due to ischemic heart disease or hypertensive vascular disease. However, he made no mention of the February 1986 private medical record showing nonspecific ST-T wave changes, the October 1986 chest X-rays showing arteriosclerosis, or the diagnoses of generalized arteriosclerosis and essential hypertension in January 1987. His opinion appears to have been based on an incomplete history, and it is not sufficient to rebut the presumption of service incurrence for atherosclerotic heart disease and hypertensive vascular disease. See 38 C.F.R. § 3.307(d). During the Veteran's lifetime, he was diagnosed as having arteriosclerosis and hypertension. Since atherosclerotic heart disease and hypertensive vascular disease (and their complications including congestive heart failure) are connected to service by presumption in light of the Veteran's POW status, and he died from congestive heart failure, service connection for the cause of the Veteran's death is warranted. Reasonable doubt has been resolved in the appellant's favor. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). ORDER Service connection for the cause of the Veteran's death is granted. From:http://www.va.gov/vetapp09/files3/0924239.txt

Edited October 17, 2009 by Berta

[sweeper68]

Berta, No correspondence at all except for acknowledgement of the reciept of my SF-95. The time frame is close to the 6 months, but I will check to see exactly when they got it. I am going to request copies of the VAOIG medical review under FOIA and see what tranpires. And if they decline my request have them cite the CFR regulation as to why I am not entitled to it ! I would retain an attorney if I can find one willing to take it on. You mention going against the VA and most attorneys go haywire and run ! LOL.. I guess they feel if it's not a slam dunk, then forget it. But I can assure you if I were dead they would jump on it like a chicken on a Junebug! They seem to be afraid of the causation clause in a heart attack since it is hard to nail down. But No treatment on a diagnosed disease is malpractice any way you shake it ! And I'm afraid the they will use this tactic in finding vets SC for IHD in this current AO announcement by Shinseki. When I find the date on the SF 95 I will post again with the date and how they respond to the FOAI request. I will probably end up going Pro Se and they of course have the upper hand as they usually do. But if I go down. I will go down fighting! And again thanks Berta your experiences have been very helpful .. Sweeper

[stillhere]

Sweeper-how long has it been since you got any correspondence from the OGC?

"Prior to presenting the FTCA claim in federal district court a claimant must either (1) receive an explicit denial by the VA within 6 months of the filing or (2) have the administrative claim constructively denied," 38 USC 2675 (a)

You can assume constructive denial if the VA fails to decide the claim within 6 months after date of the filing.

There could be a tolling time frame however for filing in a federal court.

If you have not heard from them in some time- they have probably constructively denied the claim- hard for me to say-however-

There is a lot to FTCA laws- found in 38 USC 2675 and 38 CFR 14.604-this is why it is best to get a lawyer unless a claimant has the time to thoroughly read these laws.

Berta, This an interesting subject. QUESTION IN MY CASE I applied for heart/chest pain in 2003. The VA gave me a walking tread mill stress test C&P and denied my claim stating that I did have hyperlipmedia and HBP but no DX of heart disease. I APPEALED FOR A DRO REVIEW AND THEY again denied and soc said basically the same thing.They did not give me a C&P that time.

When my DM2 got worse I again filed for chest pain (had been to ER acouple of times and they could not find anything. This time they gave me a C&P but no stress test. I received my denial in June of 05 although they did increase my DM2.

In oct. 05 4 months later I had a heart attack (actually 2) over a weekend but did not go to doctor until Monday afternoon and the damage to my heart had been done. I filed again in Jan.06 and this time the VA gave me 60% for heart disease but only back to the date of my heart attack.

Now my argument is the VA never gave a cath even after I was still complaining of chest pain. My heart disease per my cardio doc was evident long before then. WHEN I finally had a emergency cath it showed I had a 100% bolcking in my left disending and a 70% in my right.

Do I have a 1151 claim or a case for an EED??

Thanks for all your help!

Edited November 15, 2009 by stillhere

[Berta]

Stillhere

"My heart disease per my cardio doc was evident long before then. WHEN I finally had a emergency cath it showed I had a 100% blocking in my left disending and a 70% in my right."

I assume this is private cardio doctor? Would he state this with full medical rationale to support a claim?

I think you could perhaps file this as a CUE as well as Sec 1151 claim-

the rating sheet and diagnostic codes on the 2003 decision could be all wrong with wrong percentages and that is where the CUE would be for better EED.

Did you NOD the decision of Jan 2006?

Did they give you any ECHO or EKG for the initial C & P exam?

Sweeper- don't have anything to add here except I kept on them like mud on a pig after I filed my SF 95.

-------------------------------------------------

First I dealt with the Regional Counsel up here in NY - I called him- no sense waiting for him to call me-he ordered a Peer Review right away and it agreed with my charges as to untreated strokes and heart disease.It was done by the Chief Medical Director of the Bath VA.

The regional counsel said he would begin negotiations with me and would personally take the Peer Review findings over to the VARO - a few blocks from ORC then-for my Section 1151 claim.

But he also had come up to his retirement date and left the VA.

I ended up calling him at home to see what happened to that Peer Review record.The VARO denied the 1151 again- about 3rd time-

He said he did take it to the RO person who had my Sec 1151 claim and that OGC in DC would follow through on my FTCA matter.

Long story- I had to demand the OGC in DC follow through-I already mentioned the RO seemed to take my autopsy from the c file every time I sent it to them-and then I found out per OGC that there had been NO Peer Review at all.I didnt believe that.

I had to start from the beginning in some respects with the OGC at that point as I had no evidence of the Peer Review.Then I ran into the Medical Director at a large department store and he assured me he had prepared this report for the VA and had agreed with my charges.

Longer story-I kept on the OGC-and mentioned the autopsy situation here already-when I sent this critical evidence directly to OGC (not depending on it to come from VARO) I won the case-

the Peer review report atill never showed up anywhere.

Longer story-in 2003 when I re-opened my claim I asked for completely copy of my C file.

One copy of the autopsy was in it and low and behold- the entire Peer Review report was on the very bottom of the stack.Dated May 1995 (Section 1151 was filed in 1/94) they could have awarded FTCA and the Section 1151 DIC in 1995.

They managed to string it out however for over 2 more years.I think if one does not get actively involved in their FTCA matters-then VA thinks they can walk all over us.

I had complete confidence in my evidence and rattled it off every chance I got.When they did get a VACO medical review they knew they had to settle with me.

I couldnt get copy of their med review until I signed a settlement agreement.

I think you should call the OGC and see what is what- 1-202-273-6660

[stillhere]

Stillhere

"My heart disease per my cardio doc was evident long before then. WHEN I finally had a emergency cath it showed I had a 100% blocking in my left disending and a 70% in my right."

I assume this is private cardio doctor? Would he state this with full medical rationale to support a claim?

I think you could perhaps file this as a CUE as well as Sec 1151 claim-

the rating sheet and diagnostic codes on the 2003 decision could be all wrong with wrong percentages and that is where the CUE would be for better EED.

Did you NOD the decision of Jan 2006?

Did they give you any ECHO or EKG for the initial C & P exam?

Sweeper- don't have anything to add here except I kept on them like mud on a pig after I filed my SF 95.

-------------------------------------------------

First I dealt with the Regional Counsel up here in NY - I called him- no sense waiting for him to call me-he ordered a Peer Review right away and it agreed with my charges as to untreated strokes and heart disease.It was done by the Chief Medical Director of the Bath VA.

The regional counsel said he would begin negotiations with me and would personally take the Peer Review findings over to the VARO - a few blocks from ORC then-for my Section 1151 claim.

But he also had come up to his retirement date and left the VA.

I ended up calling him at home to see what happened to that Peer Review record.The VARO denied the 1151 again- about 3rd time-

He said he did take it to the RO person who had my Sec 1151 claim and that OGC in DC would follow through on my FTCA matter.

Long story- I had to demand the OGC in DC follow through-I already mentioned the RO seemed to take my autopsy from the c file every time I sent it to them-and then I found out per OGC that there had been NO Peer Review at all.I didnt believe that.

I had to start from the beginning in some respects with the OGC at that point as I had no evidence of the Peer Review.Then I ran into the Medical Director at a large department store and he assured me he had prepared this report for the VA and had agreed with my charges.

Longer story-I kept on the OGC-and mentioned the autopsy situation here already-when I sent this critical evidence directly to OGC (not depending on it to come from VARO) I won the case-

the Peer review report atill never showed up anywhere.

Longer story-in 2003 when I re-opened my claim I asked for completely copy of my C file.

One copy of the autopsy was in it and low and behold- the entire Peer Review report was on the very bottom of the stack.Dated May 1995 (Section 1151 was filed in 1/94) they could have awarded FTCA and the Section 1151 DIC in 1995.

They managed to string it out however for over 2 more years.I think if one does not get actively involved in their FTCA matters-then VA thinks they can walk all over us.

I had complete confidence in my evidence and rattled it off every chance I got.When they did get a VACO medical review they knew they had to settle with me.

I couldnt get copy of their med review until I signed a settlement agreement.

I think you should call the OGC and see what is what- 1-202-273-6660

Berta, The original C&P I beileive I will have to go back and check. The tread mill stress was in one place and the xray in another and the doc evaluation in still anther.

Yes actually I went to my private PCP and the nurse gave the ekg and the doc when he saw it had the office call the ambulance while he was giving me nitro. Once in ER (private) I was enformed I would need a emergency cath to see how bad it was. When I came to I had two stent!

No I did I did not appeal my 06 decision.

Thanks for looking at this!

[Berta]

"Yes actually I went to my private PCP and the nurse gave the ekg and the doc when he saw it had the office call the ambulance while he was giving me nitro. Once in ER (private) I was enformed I would need a emergency cath to see how bad it was. When I came to I had two stent!"

If that all happened within the last 2 years-you could have basis for FTCA case.

But I think there could be a basis for a earlier EED based on negligence-but based on direct SC as well-you could raise3 oth issues in the CUE.

I sure hope others chime in here-

I might be confused here- do you now get SC CAD rating?

The CUE might well be-not for any 1151 negligence but for proper EED for direct SC.

Although it appears to be malpractice-if it is all SC by now (except for the EED matter)

That is why I am having problems with my CUE claims-

they have to rate conditions they never diagnosed but which were established not only by the OGC under FTCA claim I filed- but now also under direct SC.

They admitted to wrongful death in my case without a proper rating -

and now have granted SC death due to DMII, due to AO, CVAs due to AO,and CAD due to AO-yet still not rating whatsoever.

Regarding your claim-the only way I foresee any additional money is FTCA - as well as a successful CUE on the EED.

What is the heart rating you get now?

Edited November 15, 2009 by Berta

[stillhere]

"Yes actually I went to my private PCP and the nurse gave the ekg and the doc when he saw it had the office call the ambulance while he was giving me nitro. Once in ER (private) I was enformed I would need a emergency cath to see how bad it was. When I came to I had two stent!"

If that all happened within the last 2 years-you could have basis for FTCA case.

But I think there could be a basis for a earlier EED based on negligence-but based on direct SC as well-you could raise3 oth issues in the CUE.

I sure hope others chime in here-

I might be confused here- do you now get SC CAD rating?

The CUE might well be-not for any 1151 negligence but for proper EED for direct SC.

Although it appears to be malpractice-if it is all SC by now (except for the EED matter)

That is why I am having problems with my CUE claims-

they have to rate conditions they never diagnosed but which were established not only by the OGC under FTCA claim I filed- but now also under direct SC.

They admitted to wrongful death in my case without a proper rating -

and now have granted SC death due to DMII, due to AO, CVAs due to AO,and CAD due to AO-yet still not rating whatsoever.

Regarding your claim-the only way I foresee any additional money is FTCA - as well as a successful CUE on the EED.

What is the heart rating you get now?

I am rated 60% with a left injection reading of 47 and it is sc secondary to DM2.

Thanks a lot Berta and hope others benefit from this.

Not sure what FTCA is bout I have service contected for the heart back to 05.