hypertension A Shout Out For Help & Opinions

[carlie]

Rating Decision from my VARO dated November 16,2010.

"The BVA decisions of May 2010 and August of 2010

determined that SC for asthma and bronchitis is granted.

The Board stated that the currently demonstrated asthma and chronic bronchitis are shown as likely as not to their clinical onset during your period of active service."

For the record, this disability has been rated under DC 6600.

" ** An initial 10 percent is granted based on your

FEV1?FVC at 72 percent from August 26, 1999, the date of your claim

for SC for a lung disease.

An evaluation of 10 percent is assigned for forced volume in one second

FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71to 80 percent,

or; DLCO (SB) 66- to 80-percent predicted..

** A 30 percent evaluation is granted based on your DLCO of 55.8 percent effective February 28,2002, the date the PFT results showed you

warranted a higher evaluation.

** A 60 percent evaluation is granted based on your DLCO of 52.7 percent effective October 29, 2008, the date the PFT results showed you

warranted a higher evaluation."

** Here's where my disagreement / question comes into play.

DC - 6600

A higher evaluation of 100 percent is not warranted unless

FEV-1 less than 40 percent of predicted value,

or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent,

or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted,

or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption

(with cardiac or respiratory limitation),

or; cor pulmonale (right heart failure),

or; right ventricular hypertrophy,

** or; pulmonary hypertension (shown by Echo or Cardiac Catheterization),

or; episode(s) of acute respiratory failure,

or; requires outpatient oxygen therapy...

**Listed in the Evidence Section of this Rating Decision is :

"A review of XXX XXXXX VA Healthcare System records

dated July 28, 1998 to November 12,2010."

Briefly looking thru my medical records from the above time frame I find:

2/29/2000 - Consult Echocardiogram

Test Indication: Pulmonary Artery Pressure

Impression: Blah - Blah - Blah - Blah,

Mild Pulmonary Hypertension (PAP 35 MMHG).

Confirmed By: XXXX,XXXX, M.D.

Signed by:/es/XXXXXX

ULTRASOUND TECH. XX/XX/XXXX 11:24

Going by the above, doesn't Echocardiogram evidence of Pulmonary Hypertension in 2000 warrant an evaluationof 100 percent ?

[carlie]

I agree. I'd do an updated NOD and waive RO processing on it, if you're at the BVA, now.

pr

pr and Berta,

BVA decisions dated May and August 2010 granted SC for asthma and chronic bronchitis,

they deferred to my VARO to assign the effective dates and percentage levels.

The VARO assigned the effective dates and percentage levels on my Rating Decision dated November 16,2010.

They attached a 4107 - Your Rights to Appeal Our Decision, to this Rating Decision.

This tells me to file a NOD with them first - then they will send me an SOC and a Form 9 to

Appeal to BVA.

This issue was granted under DC's 6602-6600.

They provided the staged ratings with corresponding effective dates that I posted below.

The rating criteria they sited from was DC 6600 as that is the most predominate of the disability's.

Under DC 6600 - if Pulmonary Hypertension is evidenced by either an Echocardiogram or

a Cardiac Catherization - the percentage by regs should automatically be granted at 100 %.

The VARO rated me at the 10% level by quoting and applying the FEV criteria - Effective Date 08/26/1999.

The VARO provided a staged rating and increased - rated me at the 30% level by quoting and applying the DLCO criteria - Effective Date 02/28/2002.

The VARO provided another staged rating and increased - rated me at the 60% level by quoting and applying the DLCO criteria - Effective Date 10/29/2008.

I'm sitting here looking over 2 of my Echocardiograms :

1) 02/29/2000 - ECHOCARDIOGRAM - Mild Pulmonary Hypertension (PAP 35 MMHG).

This is signed of on by the Ultrasound Tech and Confirmed by an M.D. in the Chief Cardiology Section.

This alone should merit a single 100 % rating.

2) 10/16/2002 - ECHOCARDIOGRAM - PAP 33 MMHG.

Pulmonary Hypertension has started when PAP (Pulmonary Artery Pressure) starts going over 25 MMHG.

Soooo - when I look all of this over, it is my contention that the staged ratings should have

(by Regs and Medical Evidence of record) gone from:

The 10% level by quoting and applying the FEV criteria - Effective Date 08/26/1999

to

the 100% level by quoting the OR criteria of Pulmonary Hypertension (which merits a single 100% rating)

and applying the medical evidence of record showing the Echo's results of Pulmonary Hypertension.

When you meet the OR criteria of Pulmonary Hypertension shown by Echo or Cardiac Cath then the FEV and DLCO readings are no longer relevant

and the issue of a bronchodilator - whether it was used or not is also irrelevant.

I have a DRO Hearing scheduled on May 18 th - for some completely different issues.

I am going to see if I can persuade the DRO to also decide the big issue above as:

1) yes I can NOD the lowballed rating and wait it out.

2) it's not ripe for ME to call a CUE - but it might work for me to point out a grave procedural error to this DRO

or ask the DRO to call a CUE on the fact that the regulatory provisions were incorrectly applied.

Also, in regards to this Rating Decision it states in the Reasons and Bases Section:

A review of your VA records showed - it only lists PFT and DLCO results.

So I think it would be very clear to the DRO that none of my Echocardiograms (which would be considered correct facts)

as they were known at the time, were not before the adjudicator. I would also state to the DRO that, but for these errors

an evaluation of a single 100% for this disability would have been granted effective with the first Echocardiogram dated 2/29/2000.

I might state that this would help prevent the VBA from doing additional piece-meal adjudication - thus digging the back-log even deeper.

I might state and point out that I am aware the DRO has a higher level of authority than just anyone else at the RO, other than the VSCM.

I would also state to the DRO - that if they would be in agreement with this issue being fully rectified by

CUEing the Nov 2010 Decision that would :

1) grant me the single 100 % disability with an effective date of 2/29/2000

2) increase me to 100 % scheduler P&T with an effective date of 2/29/2000

3) grant SMC "S" due to a single disability (total) at 100 % plus my additional 60 % I already had.

I would consider this a full grant of benefits and withdraw all issues that are still under appeal

or BVA remand instruction. I will go away and leave the VBA alone.

Do You Think This Will Fly ? ? ?

[carlie]

bump

[jbasser]

Here is the bottom line. The Title 38 part 4.

For Chronic Bronchitis:

6600 Bronchitis, chronic:

FEV–1 less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV–1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy

They owe you back to the date you had the first echo that showed elevated Pulmonary Artery pressure.

JBasser