This Response Is For Carlie

[bm6546]

carlie, I tried to respond to your last post but it would not post.

In response to your post, yes I am 0% sc for my heart condition. The VA gave me 10% in 1966 and then took it away 1 year later. My claim at the BVA is requesting that they give me back my 10%. I have included in my claim a "Statement In Support of Claim" that shows that the VA made a CUE in taking my 10% away from me.

Brian

[carlie]

carlie, I tried to respond to your last post but it would not post.

In response to your post, yes I am 0% sc for my heart condition. The VA gave me 10% in 1966 and then took it away 1 year later. My claim at the BVA is requesting that they give me back my 10%. I have included in my claim a "Statement In Support of Claim" that shows that the VA made a CUE in taking my 10% away from me.

Brian

bm6546,

What is the specific circumstance and reason

that you feel VA made a CUE ?

carlie

[bm6546]

bm6546,

What is the specific circumstance and reason

that you feel VA made a CUE ?

carlie

carlie,

Following an incomplete VA Compensation and Pension Examination on 12-12-67 the veteran's 10% compensation was reduced to a non-compensated 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."

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".

This is just part of the Statement In Support of Claim that I sent to the BVA. Let me know if this helps or if you would like to see the full statement.

Thanks, Brian

[carlie]

carlie,

Following an incomplete VA Compensation and Pension Examination on 12-12-67 the veteran's 10% compensation was reduced to a non-compensated 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."

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".

This is just part of the Statement In Support of Claim that I sent to the BVA. Let me know if this helps or if you would like to see the full statement.

Thanks, Brian

bm6546,

So are you saying that the C&P exam dated 12/12/67 is the exam that your reduction from 10 percent to zero percent

was based on ?

You also need to spell out for VA (on a CUE claim) how the error manifestly effected you - such as,

if not for this error I would have continued to receive my 10 percent (or higher) compensation.

What was the date of the holter monitor readings and did the readings specifically support a rating of 10 percent

or 30 percent?

When was your original grant of SC at 10 percent ?

carlie

[Philip Rogers]

bm6546 - I doubt the Holter Monitor was available in 1967. If you have continued care for PAT, it would help your CUE but the fact that a Holter Monitor wasn't used probably, in my opinion, won't do it, especially if the monitor wasn't available then. I still think it could be won, tho.

pr

carlie,

Following an incomplete VA Compensation and Pension Examination on 12-12-67 the veteran's 10% compensation was reduced to a non-compensated 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."

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".

This is just part of the Statement In Support of Claim that I sent to the BVA. Let me know if this helps or if you would like to see the full statement.

Thanks, Brian

[bm6546]

bm6546 - I doubt the Holter Monitor was available in 1967. If you have continued care for PAT, it would help your CUE but the fact that a Holter Monitor wasn't used probably, in my opinion, won't do it, especially if the monitor wasn't available then. I still think it could be won, tho.

pr

Philip Rogers,

After reviewing my hospital records from way back in the 60's, I don't see any reference to a Holter Monitor. I remember walking around with some kind of device that verified I had my PAT episodes.

Yes I have been treated for my PAT since being discharged from the Navy in 1966.

Brian

[bm6546]

bm6546,

So are you saying that the C&P exam dated 12/12/67 is the exam that your reduction from 10 percent to zero percent

was based on ?

carlie,

yes, effective on 5-1-68 I was reduced from 10% to 0% for Paroxysmal Atrial Tachycardia

You also need to spell out for VA (on a CUE claim) how the error manifestly effected you - such as,

if not for this error I would have continued to receive my 10 percent (or higher) compensation.

I did not fill out a CUE form. Should I send in a CUE form to the DVA? And where can I get this CUE form?

What was the date of the holter monitor readings and did the readings specifically support a rating of 10 percent

or 30 percent?

After reviewing my old hospital records I do not find any reference to a Holter Monitoring. I know I was monitored for the approx. 5 months I was assigned to the Naval Hospital with several well documented incidents of PAT. The only reference to the reason that the VA awarded me the 10% on 11/26/66:

"In view of the length of service and worsening of the condition, aggravation is conceded."

1. SC 38 USC 331 (Aggr. PTE)

7013 10% from 11/26/66

PAROXYSMAL ATRIAL TACHYCARDIA

10. Not entitled 38 USC 336.

When was your original grant of SC at 10 percent ?

March 21, 1967

carlie