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

[Hoppy]

Brian,

I have read about 50 cases in the last week and have been interviewing several veterans who have PAT. I have a resource that shows when all the rating instruction were put on the books. I will be arguing that the VA failed to apply 4.1 4.2 and 3.334 ( C ). I am on my mobil computer and will get back to finish up my workup tomorrow. I found BVA cases in which the rating reduction was performed two years after the initial exam and the basis of the CUE on the reduction specifically focused on the failure to provide adaquate exams under 4.1 and 4.2. The case I found paid over thirty years of retro. Additionally, I am focusing on your statement that you were working as being inadaquate to show that the condition was not actually causing problems in employment. I go into great detail as to the inadaquacy of the exams due to the known process used to evaluate PAT which were not addressed by the C&P examiner. Also, I feel it is very likely that the rater mis read the requirements of the rating schedule. 7013 addresses two different conditions. It address's both sinus tachycardia and Praxomal Atrial tachycardia. These are two different conditions.

[bm6546]

Brian,

I have read about 50 cases in the last week and have been interviewing several veterans who have PAT. I have a resource that shows when all the rating instruction were put on the books. I will be arguing that the VA failed to apply 4.1 4.2 and 3.334 ( C ). I am on my mobil computer and will get back to finish up my workup tomorrow. I found BVA cases in which the rating reduction was performed two years after the initial exam and the basis of the CUE on the reduction specifically focused on the failure to provide adaquate exams under 4.1 and 4.2. The case I found paid over thirty years of retro. Additionally, I am focusing on your statement that you were working as being inadaquate to show that the condition was not actually causing problems in employment. I go into great detail as to the inadaquacy of the exams due to the known process used to evaluate PAT which were not addressed by the C&P examiner. Also, I feel it is very likely that the rater mis read the requirements of the rating schedule. 7013 addresses two different conditions. It address's both sinus tachycardia and Praxomal Atrial tachycardia. These are two different conditions.

Hoppy, I appreciate all the hard work you are doing on this. I am looking forward to seeing the final workup from you. Another thought was I hope you put something in there that when they diagnosed me with PAT and awarded me 10%, that I actually met the criteria for 30% based on the holter monitoring when they tested me.

I was not aware that sinus tachycardia and Paroxysmal Atrial Tachycardia under the DC 7013 were 2 different conditions.

Stay tuned,

Brian

[Hoppy]

Brian,

There are about five different types of tachycardai. I found cases where the veteran was diagnosed with sinus tachycardia and they only used the section of 7013 that applied to that condition. I also found cases of PAT that only mentioned the section of 7013 that applies to PAT. The schedule is not differentiated by markers such as A or B. However, There are clear differences in the diagnoses and they are addressed in different sentences within 7013. Yes, I will be arguing that the evidence supported a rating of at least 10% and likely 30%. Itis not a question if it is somewhere between 0 and 10%.

[Hoppy]

Berta, wings and bm6546

Berta, I included you because I want you to review my logic.This may be a lot to ask. This has been quite an adventure for me. You and wings are much more experienced at CUE claims than I am. If this were my claim I would run the issues identified in this position paper by an attorney and ask him or her if they thought there was a legal basis to these arguments and ask that they make an analysis based on their legal knowledge as to whether or not there is a CUE. I have had veterans I previously developed position papers for tell me that they showed them to an attorney or doctor and that these professionals found my position papers to be an asset. There are many issues. Prior to 1998 the rating schedule for these conditions was a joke.

I worked on a scathing assessment of the inadequacies of the rating schedule and how the vagueness of the old rating schedule resulted in extremely different interpretations of the facts by different raters just to learn today that this would not be applicable to a CUE. I also had to drop comparative analysis of BVA cases in which the symptoms were similar to Brian's case and focused totally on the inadequacy of the C&P exam and the lack of any recognition in the decision of the medical history of the claim. My focus pretty much was the same as a previous post in which I contested the length of time covered bythe report of the C&P examiner and the failure to address the issue of exercise induced PAT. I did not feel I could question the evidence. Rather I had to show that the evidence cited by the rater was not capable of determining in favor of reduction or against reduction.

I read the higher court decisions and noticed that they tore apart rating decisions that were silent for consideration of the applicable laws. In a case that was decided at the RO level and did not even produce an SOC I wonder just how much consideration was given to applicable laws. As wings indicated I hope the relevance of the raters reference to only one questionable exam without any discussion of the noted history of medical examinations and my reference to higher court decisions does not go over the heads of the folks at the AMC There are so many of these fr….en cfr's. I hope I did not get too many confused. It would not surprise me if the VA responded by saying the original 10% rating was made in error. I think that would be a hard one for them to prove considering how vague the rating schedule was at that time. That may be a hoop to jump through at a later date.

I advanced preemptive arguments (potential errors). I figure the VA will fight this by arbitrarily saying anything they can to justify the reduction. It does not appear that Brian filed a notice of disagreement. Thus, the decision is lacking the type of logic that the VA might have used in the SOC. My preemptive arguments (potential errors) are designed to prevent them from making arbitrary baseless arguments thus delaying the claim even longer. I am not sure these types of arguments can be used in a CUE.

I used the preemptive approach in a previous complex claim that was awarded full benefits on the very next decision by a DRO. The flip side is that adding the potential errors may be used to invent weakness in the potential errors that the VA would use to rebut the issues. Thus, it might be best to just submit the obvious errors and keep the arguments addressing potential errors in your file and only bring them up when necessary.

I have not seen the entire SMR or complete decision. Thus, Brian will need to go over this and letme know if there is anything I said that is not backed up in the papertrail. If there is, then somemodification will be necessary.

Position paper

The veteran contends that a CUE occurred when His Paroxysmal Atrial Tachycardia condition was reduced in the rating decision dated 2/5/68

Inadequate medicalevaluation for the purpose of making a reduction.

As identified indecision located at http://www.va.gov/ve...es1/1103213.txt ……"Prior to reducing a veteran's disability rating, the VA is required to comply with several regulations applicable to all rating- reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2008); see Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran's disability. See Schafrath v. Derwinski, supra." The veteran contends that when reducing a rating the burdenof developing the evidence falls on the VA. Additionally, the failure to properly develop the medical evidence in the case of a reduction of a previous rating can be the basis of a CUE. (see 92Decision Citation: BVA 92-28582).

The veteran contends the crf 4.1, 4.13, 4.2, and the cases cited above were not considered at the time of his reduction. The decision was silent as to the application of any of the cited cases and laws.

CFR 3.344 ( C ) was not considered. The decision is silent for any consideration of this section of code. This resulted in obvious errors in the application of cfr 3.334 ( C ) The decision does not cite any prior history of the veteran's PAT condition. The decision refers to a singular "cited exam". See Schafrath v. Derwinski, and any other decision cited above.

The evidence of record at the time of the reduction determination did establish that there was a statement from the C&P examiner that the veteran reported 6 events in recent months. Additionally, the examiner stated the veteran was continuing to try and control these episodes by engaging in changes of posture and breathing. The period of time associated with "recent months" can be used to establish an objective time period of no more than five weeks. The term "Recent months" is not of sufficient detail to allow a determination that the referenced time period was longer than five weeks without speculation.

Inadequate medicalevaluation for the purpose of making a reduction.

Obvious errors

The fact that the veteran was not queried during the C&Pexam for any period that can be objectively established as being longer than five weeks raises the possibility that the exam was not of sufficient longitudinal investigation to be adequate for the purposes of determining that the condition did not exist under provisions of cfr 4.1 and 4.2, or that the condition had improved as required in a reduction examination by cfr 3.334 ( C). The veteran is familiar with a case in whicha veteran was hospitalized for a period of two weeks. During this time continuous monitoring did not reveal any event of PAT. Thus, theveteran's claim was reduced as non compensatable. Upon appeal it was determined that two weeks was not sufficient to establish improvement. In the current case the objective time period reference by the veteran was only five weeks. The question arises as to whether five weeksis sufficient to base a reduction cfr 4.1 and 3.334 ( C). The veteran contends that the exam should have been returned to the C&P examiner for further evaluation as required by cfr 4.2.

The veteran's service medical records clearly identify that the veteran was experiencing episodes of PAT with exercise. Yet, the C&P examiner did not even query the veteran as to whether or not he was exercising. The C&P exam is totally silent for any reference to the issue of exercise induced PAT. Considering the history noted in the military such an omission resulted in a report that was not based on the known entire history of the veteran'scondition as required by cfr 4.1, 4.13, and 3.334 ( C ). A determination as to the frequency of PAT and precipitating factors would have required testing that exceeded static tests and would need to be based on measurements of heart rate with exercise.

Whether or not exercise was triggering PAT would have been a significant consideration when the veteran was seeking work or working. More importantly, events triggered by exercise as was noted in the SMR would have restricted the veteran from numerous job opportunities as the result of this feature of the disorder continuing post service. The veteran contends that the instruction noted in cfr 4.2 that "Each disability must be consideredfrom the point of view of the veteran working or seeking work" was not investigated by the C&P examiner and the report should have been returnedfor additional clarification as required by cfr 4.2. Additionally, provisionsof cfr cfr 4.1, and 3.334 were totally ignored as a result of exercise triggered PAT being known to exist in the military and unaddressed by the C&P examiner.

The rater's comment that the veteran was "steadily employed"had no factual relevance to the claim. The rating decision is silent for any recognition that the C&Pexaminer reported that the condition requires postural changes to control symptoms. An opinion that is based on an inaccurate premise has no probativevalue. The statement noted in the C&P exam that the veteran was working was not sufficiently detailed to rule out that the condition was not interfering with employment. Most importantly, in depth evaluations and reporting asrequired by cfr 4.1 and 4.2.were not performed. A more in depth evaluation would be necessitated by the veteran's statements that the episodes of tachycardia required that he engage in shortterm postural changes to control the symptoms. It should be noted that these postural changes are supported by medical literature and not indicated asexcessive by the C&P examiner. The postural changes described by the veteran would be capable of causing short term inability to perform just aboutany job duty.

The statement made by the veteran that he was working does not investigate whether or not the veteran was hiding the events from his employer or whether the employer made accommodations that allowed the veteran to continue working with restrictions on employer training programs, promotions and transfers to jobs in which a medical condition with proximal features known to cause sudden onset of distraction and fatigue would present a hazard to the employee or other co-workers. The veteran has a paroxysmal condition. The term paroxysmal means that the event begins suddenly, without warning and ends abruptly. Whether or not a proximal condition ofthis type interferes with civil employment is not a unilateral determinationmade by an employee.

The veteran contends that the reference to "recent months" when reporting thefrequency of PAT and lack of detail in other parts of the assessment isevidence that the examiner was not capable of or instructed to perform athorough exam. The veteran contends that the determination that he did not havea ratable condition was based on a single inadequate medical report. Most importantly, the evidence cited by therater was incapable of determining whether or not the PAT condition the veteranhad in the military had improved.

Inadequate medicalevaluation for the purpose of making a reduction.

Potential errors

In addition to the failure to properly apply cfr 4.1 and 4.2 as indicted above Theveteran contends there were other potential errors involving application of cfr4.1 1nd 4.2. . When considering the fact that there is evidence based on theveteran's credible statements and the fact the veteran's condition was reduced,the possibility that the rater was looking for medically confirmed reports ofepisodes as the basis of establishing a ratable condition does arise. The possibility that the rater did not feel the veteran's statements were credible also could have been the reason the condition was not considered ratable.

At the time of the reduction the rating schedule did notcontain any requirement that the frequency of episodes of tachycardia be confirmed or documented by identifiable medical tests.

An in depth evaluation of the veteran as required by cfr 4.1would have shown that prior to the reduction the veteran had significant medical treatment which confirmed the diagnosis of PAT and the veteran received training on how to self test his pulse rate. The veteran also was reasonably able to distinguish symptoms of PAT. In the absence of any contradictory testimony by the veteran and any specific medical opinion that the veterans belief that he continued to have episodes of PAT were not believable the veteran's statement should be considered credible based on the entire history of the veteran's condition as required by cfr 4.1. The absence of medical tests at the time of the reduction confirming the frequency of PAT episodes would be over ridden bythe veteran's complete medical history and competent descriptions of his condition.

Edited December 11, 2011 by Hoppy

[Wings]

x

x

x

Hoppy, I'm on my way now ... to print your work, sit back up in bed with a cup of hot chocolate and READ ;-) GOOD JOB. Love your style! HUGS! ~Wings

P.S. Brian's Claim is on REMAND from the BVA to the AMC. The Remand (attached to this thread p. 2-9) dooes not cite his CUE claim, but that CUE was part of his Appeal to the BVA. Likewise, the BVA Remand does not cite his Claim for Anxiety, secondary to PAT. These issues are enumerated in his Appeal to the BVA --and must be addressed. The Remand does, however "infer" a claim for TDIU. I know that any and all evidence may be submitted to the AMC, as long as the vet "waives" review of the evidence by the RO. So, anything that Brian submits now to the AMC (getthe address Brian) MUST be attached to a signed waiver that states" I waive prior review of this evidence by the RO".

Edited December 11, 2011 by Wings

[bm6546]

Berta, wings and bm6546

Berta, I included you because I want you to review my logic.This may be a lot to ask. This has been quite an adventure for me. You and wings are much more experienced at CUE claims than I am. If this were my claim I would run the issues identified in this position paper by an attorney and ask him or her if they thought there was a legal basis to these arguments and ask that they make an analysis based on their legal knowledge as to whether or not there is a CUE. I have had veterans I previously developed position papers for tell me that they showed them to an attorney or doctor and that these professionals found my position papers to be an asset. There are many issues. Prior to 1998 the rating schedule for these conditions was a joke.

I worked on a scathing assessment of the inadequacies of the rating schedule and how the vagueness of the old rating schedule resulted in extremely different interpretations of the facts by different raters just to learn today that this would not be applicable to a CUE. I also had to drop comparative analysis of BVA cases in which the symptoms were similar to Brian's case and focused totally on the inadequacy of the C&P exam and the lack of any recognition in the decision of the medical history of the claim. My focus pretty much was the same as a previous post in which I contested the length of time covered bythe report of the C&P examiner and the failure to address the issue of exercise induced PAT. I did not feel I could question the evidence. Rather I had to show that the evidence cited by the rater was not capable of determining in favor of reduction or against reduction.

I read the higher court decisions and noticed that they tore apart rating decisions that were silent for consideration of the applicable laws. In a case that was decided at the RO level and did not even produce an SOC I wonder just how much consideration was given to applicable laws. As wings indicated I hope the relevance of the raters reference to only one questionable exam without any discussion of the noted history of medical examinations and my reference to higher court decisions does not go over the heads of the folks at the AMC There are so many of these fr….en cfr's. I hope I did not get too many confused. It would not surprise me if the VA responded by saying the original 10% rating was made in error. I think that would be a hard one for them to prove considering how vague the rating schedule was at that time. That may be a hoop to jump through at a later date.

I advanced preemptive arguments (potential errors). I figure the VA will fight this by arbitrarily saying anything they can to justify the reduction. It does not appear that Brian filed a notice of disagreement. Thus, the decision is lacking the type of logic that the VA might have used in the SOC. My preemptive arguments (potential errors) are designed to prevent them from making arbitrary baseless arguments thus delaying the claim even longer. I am not sure these types of arguments can be used in a CUE.

I used the preemptive approach in a previous complex claim that was awarded full benefits on the very next decision by a DRO. The flip side is that adding the potential errors may be used to invent weakness in the potential errors that the VA would use to rebut the issues. Thus, it might be best to just submit the obvious errors and keep the arguments addressing potential errors in your file and only bring them up when necessary.

I have not seen the entire SMR or complete decision. Thus, Brian will need to go over this and letme know if there is anything I said that is not backed up in the papertrail. If there is, then somemodification will be necessary.

Position paper

The veteran contends that a CUE occurred when His Paroxysmal Atrial Tachycardia condition was reduced in the rating decision dated 2/5/68

Inadequate medicalevaluation for the purpose of making a reduction.

As identified indecision located at http://www.va.gov/ve...es1/1103213.txt ……"Prior to reducing a veteran's disability rating, the VA is required to comply with several regulations applicable to all rating- reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2008); see Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran's disability. See Schafrath v. Derwinski, supra." The veteran contends that when reducing a rating the burdenof developing the evidence falls on the VA. Additionally, the failure to properly develop the medical evidence in the case of a reduction of a previous rating can be the basis of a CUE. (see 92Decision Citation: BVA 92-28582).

The veteran contends the crf 4.1, 4.13, 4.2, and the cases cited above were not considered at the time of his reduction. The decision was silent as to the application of any of the cited cases and laws.

CFR 3.344 ( C ) was not considered. The decision is silent for any consideration of this section of code. This resulted in obvious errors in the application of cfr 3.334 ( C ) The decision does not cite any prior history of the veteran's PAT condition. The decision refers to a singular "cited exam". See Schafrath v. Derwinski, and any other decision cited above.

The evidence of record at the time of the reduction determination did establish that there was a statement from the C&P examiner that the veteran reported 6 events in recent months. Additionally, the examiner stated the veteran was continuing to try and control these episodes by engaging in changes of posture and breathing. The period of time associated with "recent months" can be used to establish an objective time period of no more than five weeks. The term "Recent months" is not of sufficient detail to allow a determination that the referenced time period was longer than five weeks without speculation.

Inadequate medicalevaluation for the purpose of making a reduction.

Obvious errors

The fact that the veteran was not queried during the C&Pexam for any period that can be objectively established as being longer than five weeks raises the possibility that the exam was not of sufficient longitudinal investigation to be adequate for the purposes of determining that the condition did not exist under provisions of cfr 4.1 and 4.2, or that the condition had improved as required in a reduction examination by cfr 3.334 ( C). The veteran is familiar with a case in whicha veteran was hospitalized for a period of two weeks. During this time continuous monitoring did not reveal any event of PAT. Thus, theveteran's claim was reduced as non compensatable. Upon appeal it was determined that two weeks was not sufficient to establish improvement. In the current case the objective time period reference by the veteran was only five weeks. The question arises as to whether five weeksis sufficient to base a reduction cfr 4.1 and 3.334 ( C). The veteran contends that the exam should have been returned to the C&P examiner for further evaluation as required by cfr 4.2.

The veteran's service medical records clearly identify that the veteran was experiencing episodes of PAT with exercise. Yet, the C&P examiner did not even query the veteran as to whether or not he was exercising. The C&P exam is totally silent for any reference to the issue of exercise induced PAT. Considering the history noted in the military such an omission resulted in a report that was not based on the known entire history of the veteran'scondition as required by cfr 4.1, 4.13, and 3.334 ( C ). A determination as to the frequency of PAT and precipitating factors would have required testing that exceeded static tests and would need to be based on measurements of heart rate with exercise.

Whether or not exercise was triggering PAT would have been a significant consideration when the veteran was seeking work or working. More importantly, events triggered by exercise as was noted in the SMR would have restricted the veteran from numerous job opportunities as the result of this feature of the disorder continuing post service. The veteran contends that the instruction noted in cfr 4.2 that "Each disability must be consideredfrom the point of view of the veteran working or seeking work" was not investigated by the C&P examiner and the report should have been returnedfor additional clarification as required by cfr 4.2. Additionally, provisionsof cfr cfr 4.1, and 3.334 were totally ignored as a result of exercise triggered PAT being known to exist in the military and unaddressed by the C&P examiner.

The rater's comment that the veteran was "steadily employed"had no factual relevance to the claim. The rating decision is silent for any recognition that the C&Pexaminer reported that the condition requires postural changes to control symptoms. An opinion that is based on an inaccurate premise has no probativevalue. The statement noted in the C&P exam that the veteran was working was not sufficiently detailed to rule out that the condition was not interfering with employment. Most importantly, in depth evaluations and reporting asrequired by cfr 4.1 and 4.2.were not performed. A more in depth evaluation would be necessitated by the veteran's statements that the episodes of tachycardia required that he engage in shortterm postural changes to control the symptoms. It should be noted that these postural changes are supported by medical literature and not indicated asexcessive by the C&P examiner. The postural changes described by the veteran would be capable of causing short term inability to perform just aboutany job duty.

The statement made by the veteran that he was working does not investigate whether or not the veteran was hiding the events from his employer or whether the employer made accommodations that allowed the veteran to continue working with restrictions on employer training programs, promotions and transfers to jobs in which a medical condition with proximal features known to cause sudden onset of distraction and fatigue would present a hazard to the employee or other co-workers. The veteran has a paroxysmal condition. The term paroxysmal means that the event begins suddenly, without warning and ends abruptly. Whether or not a proximal condition ofthis type interferes with civil employment is not a unilateral determinationmade by an employee.

The veteran contends that the reference to "recent months" when reporting thefrequency of PAT and lack of detail in other parts of the assessment isevidence that the examiner was not capable of or instructed to perform athorough exam. The veteran contends that the determination that he did not havea ratable condition was based on a single inadequate medical report. Most importantly, the evidence cited by therater was incapable of determining whether or not the PAT condition the veteranhad in the military had improved.

Inadequate medicalevaluation for the purpose of making a reduction.

Potential errors

In addition to the failure to properly apply cfr 4.1 and 4.2 as indicted above Theveteran contends there were other potential errors involving application of cfr4.1 1nd 4.2. . When considering the fact that there is evidence based on theveteran's credible statements and the fact the veteran's condition was reduced,the possibility that the rater was looking for medically confirmed reports ofepisodes as the basis of establishing a ratable condition does arise. The possibility that the rater did not feel the veteran's statements were credible also could have been the reason the condition was not considered ratable.

At the time of the reduction the rating schedule did notcontain any requirement that the frequency of episodes of tachycardia be confirmed or documented by identifiable medical tests.

An in depth evaluation of the veteran as required by cfr 4.1would have shown that prior to the reduction the veteran had significant medical treatment which confirmed the diagnosis of PAT and the veteran received training on how to self test his pulse rate. The veteran also was reasonably able to distinguish symptoms of PAT. In the absence of any contradictory testimony by the veteran and any specific medical opinion that the veterans belief that he continued to have episodes of PAT were not believable the veteran's statement should be considered credible based on the entire history of the veteran's condition as required by cfr 4.1. The absence of medical tests at the time of the reduction confirming the frequency of PAT episodes would be over ridden bythe veteran's complete medical history and competent descriptions of his condition.

Hoppy....WOW....you did a great job on this. I will have to read this several more times to get the full picture. I am sure I will have a few questions on this later.

Brian