Carlie, Could You Please Take A Look At This

[bm6546]

Carlie,

I would appreciate it if you would please look at this and tell me what you think. I know you deal a lot with claims that involve a CUE.

I would like your take on this.

Thanks in advance,

Brian

[Wings]

Wings,

"My thoughts are the veteran should

be reporting on symptoms of heart disease; just because the vet did not ask for

a SC PAT increase until after his MI< does not mean that he was ineligible

for an increased rating. Maybe he wasn't motivated to file a claim for an

increase in PAT say 10 years ago, because of the injustice of the first

reduction. Appreciate your input ;-) ~Wings"

I totally agree and I am working onthis. I did not finish today. I shouldbe done Saturday. Friday is a work onthe car day. It needs breaks.

"Seems to me, the BVA's game (or wisdom) in their remand is to ask the veteran to evidence symptomoly of heart disease (by whatever name) from both the SC PAT and the much later MI."

My impression on this is that the anxiety claim was previously denied and requires new and material evidence. Thus the remand did not even address the anxiety claim.

Yeah, But not only are the anxiety and PAT intertwined, but the PAT and MI symptoms are intertwined. Symptoms rather than medical etiology is what the RO is going to look at; for example: heart palpations, racing heart, syncope, chect pain, anxiety, etc. The BVA is paving the way for the "benefit of the doubt" via symptomology (chronic). ~Wings over

[bm6546]

Citation Nr: 0842826 Decision Date: 12/12/08 Ar Citation Nr: 0842826 Decision Date: 12/12/08 Archive Date: 12/17/08 DOCKET NO 06-00 943 DATE

Hope I did this right!!

I found this case to be interesting.

"The RO stated that it assigned the initial 10 percent rating for the veteran's sc irregular heart beat because metoprolol was prescribed during his overnight hospitalization."

"There is no other relevant medical evidence of record, and resolving all reasonable doubt in favor of the veteran, the Board finds there is evidence of cardiac hypertrophy on EKG and that based on this, the criteria for a 30 percent rating under Diagnostic Code 7011 have been met for the appeal period.

The VA doctor prescribed me with metoprolol back in 2008. I am still taking this medication for my PAT.

Brian

Wings,

"My thoughts are the veteran should

be reporting on symptoms of heart disease; just because the vet did not ask for

a SC PAT increase until after his MI< does not mean that he was ineligible

for an increased rating. Maybe he wasn't motivated to file a claim for an

increase in PAT say 10 years ago, because of the injustice of the first

reduction. Appreciate your input ;-) ~Wings"

I totally agree and I am working onthis. I did not finish today. I shouldbe done Saturday. Friday is a work onthe car day. It needs breaks.

"Seems to me, the BVA's game (orwisom) in their remand is to ask the veteran to evidence symptomoly of heart disease (by whatever name) from both the SC PAT and the much later MI."

My impression on this is that theanxiety claim was previously denied and requires new and materialevidence. Thus the remand did not evenaddress the anxiety claim.

[Wings]

Citation Nr: 0842826 Decision Date: 12/12/08 Ar Citation Nr: 0842826 Decision Date: 12/12/08 Archive Date: 12/17/08 DOCKET NO 06-00 943 DATE

Hope I did this right!!

I found this case to be interesting.

"The RO stated that it assigned the initial 10 percent rating for the veteran's sc irregular heart beat because metoprolol was prescribed during his overnight hospitalization."

"There is no other relevant medical evidence of record, and resolving all reasonable doubt in favor of the veteran, the Board finds there is evidence of cardiac hypertrophy on EKG and that based on this, the criteria for a 30 percent rating under Diagnostic Code 7011 have been met for the appeal period.

The VA doctor prescribed me with metoprolol back in 2008. I am still taking this medication for my PAT.

Brian

Brian, Was the metoprolol prescribed specifically for your SC PAT, or another related heart condition? If it was for the PAT, under the old diagnostic code (for which you have been SC for 20+ years), need for continuous medication is assigned 30% rating.

Edited December 8, 2011 by Wings

[Wings]

However, continuity of symptomatology is required, not continuity of treatment, and the veteran had indicated to a clinician that he had been suffering from anxiety for 20 years. See Wilson v. Derwinski, 2 Vet.App. 16 (1991).

[bm6546]

Wings,

I am not 100% sure if the VA doc prescribed the metoprolol for my PAT or my other heart condition. I have sent away for all my medical records up in Reno. They are telling me that it could take from 20 to 30 days to get these records. I may have to drive to Reno and get them quicker.

I need these records before I can send away for my IMO.

Brian

[bm6546]

Wings and Hoppy,

This veteran had his 10% sc for atrial fibrillation DC 7012 reduced to 0 sc.

The BVA restored and granted back to 10% all the way back to Nov 1972 from 2007 (35 years) resolving all reasonable doubt in his favor.

This case is very similar to mine in that the RO revoked my 10% sc to 0% without showing any sustained material improvement that is reasonably certain to be maintained, as shown by full and complete examination that could justify a reduction. If there is any doubt, the rating in effect will be continued.

Citation Nr: 0709985

Decision Date: 04/05/07 Archive Date: 04/16/07

DOCKET NO. 73-00 062A ) DATE

The provisions of 38 C.F.R. § 3.344 were essentially the same in 1972 as they are today. The requirements for a reduction in the evaluation for disabilities in effect for five years or more are set forth at 38 C.F.R. § 3.344, which require that only evidence of sustained material improvement that is reasonably certain to be maintained, as shown by full and complete examinations, can justify a reduction. If there is any doubt, the rating in effect will be continued. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). This regulation also provides that, with respect to other disabilities that are likely to improve, namely those in effect for less than five years, reexaminations disclosing improvement will warrant a rating reduction. See 38 C.F.R. § 3.344©. The duration of a rating is measured from the effective date assigned to a rating until the effective date of the actual reduction. See Brown, supra.

Since the veteran's rating had previously been reduced to noncompensable and later reinstated to 10 percent, the effective date of that most recent 10 percent rating was July 22, 1970. So at the time of the effective date of the reduction currently on appeal, November 1, 1972, his 10 percent rating had been effect for less than five years. Thus, 38 C.F.R. § 3.344(a) and (b) are not applicable in this instance. Even so, it still must be determined that an improvement in the veteran's disability had actually occurred and that such improvement actually reflected an improvement in his ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Further, in any rating reduction case VA must ascertain, based upon a review of the entire recorded history of the condition, whether a preponderance of the evidence reflects an actual change in the disability and whether the examination reports reflecting such a change are based upon thorough examinations. See Brown at 420-421.

The Board emphasizes that, a rating reduction case focuses on the propriety of the reduction, and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). When the RO decided to reduce his rating, the veteran's heart disorder was evaluated in part under 38 C.F.R. § 4.104, Diagnostic Code 7012 (1972), which indicated a 10 percent rating was to be assigned for permanent auricular fibrillation. And 10 percent was the only rating assignable under that diagnostic code provision. His disability, alternatively, could have been evaluated under Code 7010 for paroxysmal auricular flutter - which, in turn, was rated as paroxysmal tachycardia under Code 7013. And a 10 percent rating under Code 7013 required infrequent attacks. Code 7011, for paroxysmal auricular fibrillation, also referenced Code 7013 for paroxysmal tachycardia, so also warranted a 10 percent rating for infrequent attacks. After consideration of this veteran's long-standing appeal and the evidence of record in or about the relevant time at issue, 1972, the Board will give him the benefit of the doubt and conclude his 10 percent rating should not have been reduced as of November 1, 1972. So he is entitled to have this rating reinstated retroactive to that date. The evidence underlying the August 1972 rating action was insufficient to establish sustained improvement under the ordinary conditions of life. And when, as here, there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, the veteran is given the benefit of the doubt - including in this specific instance as it concerns the severity of his heart disorder in 1972. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The June 1972 VA examination report - which the RO used as the primary basis for reducing the veteran's rating, notes that physical examination had revealed no abnormalities; his chest X-ray was negative, with a notation that his heart was not enlarged, and his EKG was within normal limits. The report also noted that he was on daily medication for his condition, but the examiner's notation of the name of the medication is illegible. In any event, the August 1972 rating decision at issue that reduced his rating to 0 percent - again, on the basis of the results of that VA medical evaluation, made no mention of the fact that he was still taking medication daily for treatment of his heart disorder. That rating action only mentioned that atrial fibrillation was not found at the last examination.

The Board finds that the totality of the contemporaneous medical evidence of record in or about 1972 did not definitively show the veteran's atrial fibrillation had improved to the point where continuous medication was not required to control it. Granted, the results of his June 1972 and May 1973 VA examinations were mostly unremarkable in showing relevant symptoms, the fact remains that it is reasonably certain he was still required to take medication on a daily basis (and several times each day at that) to prevent an exacerbation of his symptoms and maintain his heart in normal sinus rhythm and to keep active episodes to a minimum. Further, the documented history at that time was that, when off the medication, he rather quickly became symptomatic, as had recently occurred in 1970, even requiring hospitalization for further observation and clinical work-up. He also had been denied civilian jobs for fear of problems arising from his heart disorder.

At his January 2006 VA examination, the veteran told the examiner that he had experienced four to five episodes of atrial fibrillation since 1968, and that over the years his condition had been intermittent with remissions, but that he required continuous medication. He also told the examiner that a battery of cardiac tests had shown negative results. The examiner indicated that diagnostic tests done for the January 2006 examination showed a left ventricular function higher than 50 percent, and that the veteran's heart was larger than normal. The examiner diagnosed paroxysmal atrial fibrillation and CAD, indicating the condition did not impact the veteran's daily activities.

Accordingly, the Board finds that the disability rating reduction effectuated by the August 1972 decision was not in accordance with the requirements of § 3.344©, and that giving the benefit of the doubt to the veteran the 10 percent rating for his atrial fibrillation must be reinstated retroactive to the date it was reduced - November 1, 1972.

ORDER The claim for restoration of the prior 10 percent rating for atrial fibrillation as of November 1, 1972, is granted, subject to the laws and regulations governing the payment of VA compensation.