Question On My Claim

[Berta]

VA just confirmed whereabouts and status of my claim via 800.

It again appears that the CUE claim must be resolved before the formal IHD claim.The man said the PC indicated that both claims can "go forward" on March 7th. ????

I said what couldn't they 'go forward' prior to that but he couldn't tell why from the PC. ???

The CUE claim was filed in July 2004.

This is my question-under the CUE the VA failed to give any diagnostic code or rating whatsoever for my husband's documented IHD.

Although it was granted under FTCA and Sec 1151 as well as his totally disabling FTCA and 1151 CVA, the CVA was given DC and rating but it was all wrong.

VA refused to award SMC and they were wrong there too.Thus the CUE.

Consequently these all became direct SC AO disablities last year by BVA award.

The CVA is easy to rate. 100% direct SC (I forget what the right DC should be.)

The IHD has to be rated at a staged rating for 4 years -1988 heart attack and then IHD to 1992 as then in 1992 an ECHO reveals a 60% IHD rating was warranted.

The veteran died 2 years after the ECHO with IHD as cause of death and CVA contributing.

I have asked VA to award 100% for the 2 years coming after the ECHO.

The 60% ECHO results didn't happen overnight so that could involve up to 60% staged ratings prior to the ECHO.

The VA as you all know admitted to malpractice on all of above now SC disabilities -so that isnt the issue.

Although VA was aware of my husband's heart disease for 6 years they did nothing to diagnose and treat it and hid it in the med recs but I found it.(FTCA/Sec 1151 award)

Question -so since VA has no evidence whatsoever medically to say Rod's heart disease was not at 100% level for most of the time after the 1992 ECHO to his death due to their proven failure to treat it, do you think would they have the nerve to say it was only at 60$ SC up to day of his death?

Has anyone here ever had situation like that?

My claim is under Nehmer -has VA ever told anyone here that-as of a certain date- their claim will 'go forward'?

The 800 rep said there is no indication of any letters to me at all regarding this claim under Nehmer from the VAMC-True.

I have 2 Irises confirming it is Nehmer accrued.He said they must have all they need to "go forward".whatever that means.

[Berta]

"I have asked VA to award 100% for the 2 years coming after the ECHO." as well as the staged rating etc to account for the 6 years of malpractice and also Aid and Attendance. forgot to put that in.I asked them for accrued SMC at the "M" level for the 2 years prior to death and then to tack on the additional 4 years of staged IHD.

[jbasser]

Hi Berta.

I agree with you onthe staged ratings for ROD. The VA should use the medical evidence available and do an analysis and make a chart on the dates of his condition and make a time line. For example.

Date: Test:Echo Ejection Fraction

The time stamp would be staged of course. You may see some 60 percent ratings based on the available evidence.

Now if he had any types of stress tests during this time they also come into play as well as Cardiac Caths. remember a CAth overrides an echo as an Echo is an offical SWAG(Sophisticated wild @## guess) compared to someone actually looking at a persons heart through the use of a catheter.

Does this make sense to you?

John

[Berta]

Thanks John-

Only 2 EKGS and an ECHO were done-this is the extent of VA medical care on the IHD.No diagnosis and no treatment.My husband never knew he had heart disease. They told him his 1988 heart attack was a sinus infection. The sudsfed they prescribed for the next 6 years-I also proved-had contributed to his death.

But I had sent with the claims the General Counsel Peer Review FTCA Reports and some other records that give my statement as to the 100% IHD some definite credibility.

I can certainly get an IMO too if needed.

The date of the ECHO was the day that Syracuse discovered the prior EKGs (indicating heart attack while my husband was at work at another VA)and same day I had a lengthy conversation with the Cardio doc causing him to make an odd entry in the med rec. That entry involved the first med rec I sent with my SF 95.

They werent treating him for cardio, but for a major sudden CVA.They were confused as to origin of his stroke and one doc said he needed brain surgery and I was doing all I could to try to find something in his medical background that caused the stroke and to rule out the surgery.I knew they were wrong on that.

It was after the ECHO that VA realized they had to cover up the prior undiagnosed and untreated heart attack.They almost got away with wrongful death.

I just realized too that I think the VA had to check with the General Counsel on those Peer Review reports I sent them.

That would take time so maybe this is why they can 'go forward' on March 7th now.

I dont know how the CUE claim will turn out. Maybe for the first time in almost 7 years the VA will read my legal evidence.

So far their responses to that claim have been ridiculous.

The other AO IHD claim I have is a no brainer.

The veteran was exposed to AO and had IHD due to DMII which also caused his CVA and direct SC death. That is an established fact.BVA decision April 2009. VA told me they wont rate the DMII because it never appears at all in the med recs.True. It was an additional misdiagnosed condition and that claim took 7 years.I filed a NOD on the RO award letter and responded with Footnote one of the Nehmer Court Order.

[broncovet]

Like you, It looks like that I will have a good possibility of a "staged" rating, tho I am trying to avoid it...I would much rather get 100% retro than 40% retro. It sounds like you are trying to avoid staged ratings also.

I will be arguing against staged ratings (I also am considering not even bringup up "staged ratings" heck, they may not even consider them and I certainly dont want to give the VA an idea on how to award me less!) , in part at least because I am appealing the effective date of the 100% disability...I did not appeal the 40% rating decision.

Still, I know the VA will likely argue that I did not deserve 100% retro all the way back to 2002, but only 40% back to that point, based on "facts found".

The BVA only has jurisdition over the issues that The Veteran gives to the BVA. (The VA can not appeal the Veterans claim to the BVA...only the Veteran can appeal a RO decision) So, I will consider arguing that, since I have not appealed the 40% rating..that is not the issue and cant be considered by the VA...they can only consider changing decisions to which I give them authority to change by filing a NOD. Since I did not NOD the 40% decision...that stands as final...but the only effective date I am appealing is the effective date for 100% benefits. I do not know if they will find my arguement "persuasive" or not, of course.

Weeks vs West seems to say I wont prevail:

http://www.ll.george...ons/99-7137.pdf

However, Hart seems to indicate that Staged ratings only apply to an initial disability and (are not for appeals) in this case: http://38uscode.com/...9/Hart-2424.pdf

stating, in part:

The Secretary argues that the 2005 Board decision's failure to consider staged ratings for Mr.

Hart's increased-rating claim was reasonable given the extant law. Secretary's Response at 8.

Indeed, we acknowledged in Hart that, previously, staged ratings had been associated with the

assignment of initial disability ratings. See 21 Vet.App. at 509 ("It is well established that, at the

time of an initial rating, separate ratings can be assigned for separate periods of time based on the

facts found–a practice known as staged ratings."); Fenderson v. West, 12 Vet.App. 119, 126 (1999)

(noting that staged ratings are assigned at time initial disability rating is assigned

I do think it may hinge on "prejudicial error" or lack of it.

Bottom LIne: I think there are not clear cut court rulings on this, at least that I have studied so far. Since there are different interpretations, I am thinking of arguing that this can put the Veterans claim in equipose...that is, the Veteran gets the benefit of the doubt.

Edited March 4, 2011 by broncovet

[Berta]

For anyone interested in staged ratings this is a recent case that shows how they go:

http://www4.va.gov/vetapp10/files4/1034756.txt

[carlie]

Question -so since VA has no evidence whatsoever medically to say Rod's heart disease was not at 100% level for most of the time after the 1992 ECHO to his death due to their proven failure to treat it, do you think would they have the nerve to say it was only at 60$ SC up to day of his death?

Berta,

I think VA will grant 60 percent to date of death.