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

[bm6546]

I am still having my attacks of PAT to this day. In fact, the VA Cardiologist prescribed me with medication in 2008 for my PAT which seemed to be getting worse. I think the medication seems to be helping because my PAT has not been so bad lately. Gee...you think the drugs are helping?

I don't really remember my C&P exam back in 2006 but I know I did not have a PAT attack when the dr was examining me. I have gone several months without a PAT attack and there are times that I have had 3 PAT attacks in 1 week...go figure. I am pretty sure my C&P exam back then didn't last for more than 15 minutes. The last 3 C&P exams, by a NP, didn't last more than 10 minutes....max.

"I don't really remember my C&P exam back in 2006"

Sorry, meant to say my C&P exam back in 1966. My bad!!

[carlie]

After reading thru about 10 old BVA decisions, I think one of the reasons

VBA amended / reduced your 10%

down to zero percent due to the pulse rate shown on the 12/67 exam.

I think the below is another BVA case that is worth a read.

http://www.va.gov/ve...es3/9220064.txt

" 92 Decision Citation: BVA 92-20064

Y92

BOARD OF VETERANS' APPEALS

WASHINGTON, D.C. 20420

DOCKET NO. 90-28 078 ) DATE

THE ISSUE

Entitlement to restoration of a 10 percent rating for sinus tachycardia."

" The question to be addressed which must be resolved in the

affirmative in order for the reduction to be sustained is:

Does the evidence clearly show

improvement in the appellant's sinus

tachycardia or that he has infrequent

attacks of paroxysmal tachycardia?

Disability ratings are assigned in accordance with rating

criteria, which are intended to represent, as far as can

practicably be determined, the average impairment in

earning capacity resulting from service-connected

disabilities in civil occupations. 38 U.S.C.A. § 1155; 38

C.F.R. § 4.1 (1991). We are here primarily concerned with

the current severity of the appellant's condition and the

functional limitations, if any, imposed by it.

There is no positive evidence showing that the appellant

has a heart rate currently which is persistently 100 or

more beats per minute. Heart rates above 100 have been

recorded recently on a very small number of occasions.

See the March 1990 VA Holter Monitor report and the

December 1991 VA examination and electrocardiographic

reports (a heart rate up to 121, and of 108 and 119). The

predominance of the heart rate readings currently are

below 100. See the numerous other VA medical records

dating from the date of the May 1989 claim to December

1991, and some of the readings reported at the times the

above-100 readings mentioned above were reported. There

are numerous recent heart rate measurements. Most showed

the pulse to be in the 60's, 70's, 80's, and 90's. The

appellant has stated and testified to the effect that he

often has heart rates above and even well above 100, but

this does not take into account the "persistence"

requirement of Code 7014. However, the disability is

properly rated as paroxysmal trachycardia Code 7013.

He does, however, have continued complaints of and is on

medication for tachycardia, and had fluctuating heart

beats during Holter Monitor testing. Additionally, he

takes medication. This is consistent with or nearly

approximates infrequent attacks of paroxysmal tachycardia,

under which he may be rated. Such level of symptomatology

warrants continuing the 10 percent rating which was

assigned back in 1982.

Moreover, failure to consider 38 C.F.R. § 3.344 (1991)

before reducing a disability rating renders the rating

reduction void ab initio, requiring restoration. Peel v.

Derwinski, U.S. Vet.App. No. 90-359 (Feb. 18, 1992).

ORDER

Restoration of a 10 percent rating for sinus tachycardia

is granted."

[bm6546]

Carlie,

This case is very interesing and pretty much verifies the problem I have. This case is almost exactly like mine.

1. Rated 10% for his sinus tachycardia under DC 7013.

2. RO reduced his rating to non-compensable

3. Two (2) RO decisions that where denied

4. BVA remanded back to RO

5. RO denied him again

6. He contends CUE because sinus tachycardia only gets worse, not better

7. Heart rate averages 100 or 120

8. Heart rate controlled with medication

9. Wonders whether he must quit taking medication, which would make his heart rate go up in order to retain his 10% rating.

10 His condition is not clearly shown to have improved.

DECISION OF THE BOARD For the reasons and bases hereinafter set forth, it is the Board's decision that restoration of the 10 percent rating previously assigned for sinus tachycardia is granted.

　

FINDING OF FACT The appellant probably continues to have infrequent attacks of paroxysmal tachycardia, since some rhythym disturbance has been shown, and he takes medication. His condition is not clearly shown to have improved.

CONCLUSION OF LAW The criteria for reduction of the appellant's 10 percent rating for sinus tachycardia to noncompensable have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.344, Part 4, 4.31, Codes 7013, 7014 (1991).

　

The question to be addressed which must be resolved in the affirmative in order for the reduction to be sustained is: Does the evidence clearly show improvement in the appellant's sinus tachycardia or that he has infrequent attacks of paroxysmal tachycardia?

ORDER Restoration of a 10 percent rating for sinus tachycardia is granted.

Carlie, Thanks for posting this...Brian

After reading thru about 10 old BVA decisions, I think one of the reasons

VBA amended / reduced your 10%

down to zero percent due to the pulse rate shown on the 12/67 exam.

I think the below is another BVA case that is worth a read.

http://www.va.gov/ve...es3/9220064.txt

" 92 Decision Citation: BVA 92-20064

Y92

BOARD OF VETERANS' APPEALS

WASHINGTON, D.C. 20420

DOCKET NO. 90-28 078 ) DATE

THE ISSUE

Entitlement to restoration of a 10 percent rating for sinus tachycardia."

" The question to be addressed which must be resolved in the

affirmative in order for the reduction to be sustained is:

Does the evidence clearly show

improvement in the appellant's sinus

tachycardia or that he has infrequent

attacks of paroxysmal tachycardia?

Disability ratings are assigned in accordance with rating

criteria, which are intended to represent, as far as can

practicably be determined, the average impairment in

earning capacity resulting from service-connected

disabilities in civil occupations. 38 U.S.C.A. § 1155; 38

C.F.R. § 4.1 (1991). We are here primarily concerned with

the current severity of the appellant's condition and the

functional limitations, if any, imposed by it.

There is no positive evidence showing that the appellant

has a heart rate currently which is persistently 100 or

more beats per minute. Heart rates above 100 have been

recorded recently on a very small number of occasions.

See the March 1990 VA Holter Monitor report and the

December 1991 VA examination and electrocardiographic

reports (a heart rate up to 121, and of 108 and 119). The

predominance of the heart rate readings currently are

below 100. See the numerous other VA medical records

dating from the date of the May 1989 claim to December

1991, and some of the readings reported at the times the

above-100 readings mentioned above were reported. There

are numerous recent heart rate measurements. Most showed

the pulse to be in the 60's, 70's, 80's, and 90's. The

appellant has stated and testified to the effect that he

often has heart rates above and even well above 100, but

this does not take into account the "persistence"

requirement of Code 7014. However, the disability is

properly rated as paroxysmal trachycardia Code 7013.

He does, however, have continued complaints of and is on

medication for tachycardia, and had fluctuating heart

beats during Holter Monitor testing. Additionally, he

takes medication. This is consistent with or nearly

approximates infrequent attacks of paroxysmal tachycardia,

under which he may be rated. Such level of symptomatology

warrants continuing the 10 percent rating which was

assigned back in 1982.

Moreover, failure to consider 38 C.F.R. § 3.344 (1991)

before reducing a disability rating renders the rating

reduction void ab initio, requiring restoration. Peel v.

Derwinski, U.S. Vet.App. No. 90-359 (Feb. 18, 1992).

ORDER

Restoration of a 10 percent rating for sinus tachycardia

is granted."

[Hoppy]

Carlie,

In the case I cited (http://www.va.gov/vetapp92/files3/9228582.txt) in my position paper showing twenty years of retro The BVA did refer to it as a CUE claim. In that case they did cite a violation of 3.344 (A) cfr 4.1 and 4.2

Reductions must be based on the entire record and examinations which are less full and complete than those on which payments were

authorized may not be used as a basis for reduction.

38 C.F.R. § 3.344(a) (1991).

It is my interpretation that the above citation shows that the BVA did not consider that the duty to assist was sufficiently applicable to override the laws governing reduction examinations. The cases you cited were not denied citing that the duty to assist was over riding and could not be used for CUE. Duty to assist was not an issue. Unless you cite a denial of a reduction specifically stating that the VA is not required to obtain adequate exams and that such failure to obtain these exams in reduction claims is not a CUE, then I will consider this a mute argument.

an assertion of a failure to evaluate and interpret

correctly the evidence is not a valid allegation of CUE. See

Damrel v. Brown, 6 Vet. App. 242, 245 (1994).

It is my position that Brian’s case is not a question of failure to evaluate and correctly interpret. It is a question of whether or not the exam which only addressed a current 12 day history of symptoms and was silent for disabling features of the veterans condition identified in the smr was capable of showing improvement or that the condition was not ratable. The exam failed to address known features of the condition identified in the smr which would be used for the purpose of making a proper rating. I have read many CUE claims that were awarded 30 to 40 years later that involved symptoms noted in the SMR that were not considered at subsequent exams. These types of claims were CUE even in cases that were not reduction cases. In Brian’s case his symptoms in the military were capable of interfering with employment. Brian was rated at 10%.

I found a reference within 3.344 dating back to 1961 at http://edocket.access.gpo.gov/cfr_2011/julqtr/pdf/38cfr3.344.pdf. The only problem I see is if this law was not in effect at the time of Brian’s reduction exam. I do not have access to the old regulations.

In Brown V Brown they stated that there are other considerations available to show that an exam is inadequate other than 3.344 (A). Brown V Brown cited 3.344 © 4.1 4.2 It was those other considerations that I cited for Brian’s claim.

Big Red,

I still laugh every time I see that little picture of you in the barrel of Agent Orange. Hang in there.

Others,

The argument is that the rater cited in his decision a single examination that did not investigate current symptoms of PAT for a time period that can be objectively identified as being longer than 12 days. As such the exam was not capable of determining improvement. It is not a question of what the report said. It is a question of whether or not an investigation of symptoms for a period of 12 days is an adequate exam to base improvement, or whether or not the veteran had a ratable condition. Additionally, the all exams including reduction exams are required to be based on the entire history of the veteran’s condition with consideration given to the effects the condition has on employment. The exam did not address a known pre-existing disabling feature that interferes with employment. The rater stated that the veteran was currently employed. Whether or not he was employed does not fully answer the question as to whether or not there is an interference with employment. Again it is not what the rater stated as his interpretation of the evidence. The argument is the adequacy of the investigation performed by the C&P examiner as required by 4.1, 4.2 an 3.344 ( C ). The examiner did not investigate what accommodations or changes in employment were occurring.

[bm6546]

Carlie,

In the case I cited (http://www.va.gov/ve...es3/9228582.txt) in my position paper showing twenty years of retro The BVA did refer to it as a CUE claim. In that case they did cite a violation of 3.344 (A) cfr 4.1 and 4.2

Reductions must be based on the entire record and examinations which are less full and complete than those on which payments were

authorized may not be used as a basis for reduction.

38 C.F.R. § 3.344(a) (1991).

It is my interpretation that the above citation shows that the BVA did not consider that the duty to assist was sufficiently applicable to override the laws governing reduction examinations. The cases you cited were not denied citing that the duty to assist was over riding and could not be used for CUE. Duty to assist was not an issue. Unless you cite a denial of a reduction specifically stating that the VA is not required to obtain adequate exams and that such failure to obtain these exams in reduction claims is not a CUE, then I will consider this a mute argument.

an assertion of a failure to evaluate and interpret

correctly the evidence is not a valid allegation of CUE. See

Damrel v. Brown, 6 Vet. App. 242, 245 (1994).

It is my position that Brian's case is not a question of failure to evaluate and correctly interpret. It is a question of whether or not the exam which only addressed a current 12 day history of symptoms and was silent for disabling features of the veterans condition identified in the smr was capable of showing improvement or that the condition was not ratable. The exam failed to address known features of the condition identified in the smr which would be used for the purpose of making a proper rating. I have read many CUE claims that were awarded 30 to 40 years later that involved symptoms noted in the SMR that were not considered at subsequent exams. These types of claims were CUE even in cases that were not reduction cases. In Brian's case his symptoms in the military were capable of interfering with employment. Brian was rated at 10%.

I found a reference within 3.344 dating back to 1961 at http://edocket.acces...38cfr3.344.pdf. The only problem I see is if this law was not in effect at the time of Brian's reduction exam. I do not have access to the old regulations.

In Brown V Brown they stated that there are other considerations available to show that an exam is inadequate other than 3.344 (A). Brown V Brown cited 3.344 © 4.1 4.2 It was those other considerations that I cited for Brian's claim.

Big Red,

I still laugh every time I see that little picture of you in the barrel of Agent Orange. Hang in there.

Others,

The argument is that the rater cited in his decision a single examination that did not investigate current symptoms of PAT for a time period that can be objectively identified as being longer than 12 days. As such the exam was not capable of determining improvement. It is not a question of what the report said. It is a question of whether or not an investigation of symptoms for a period of 12 days is an adequate exam to base improvement, or whether or not the veteran had a ratable condition. Additionally, the all exams including reduction exams are required to be based on the entire history of the veteran's condition with consideration given to the effects the condition has on employment. The exam did not address a known pre-existing disabling feature that interferes with employment. The rater stated that the veteran was currently employed. Whether or not he was employed does not fully answer the question as to whether or not there is an interference with employment. Again it is not what the rater stated as his interpretation of the evidence. The argument is the adequacy of the investigation performed by the C&P examiner as required by 4.1, 4.2 an 3.344 ( C ). The examiner did not investigate what accommodations or changes in employment were occurring.

Hoppy,

When I was a patient at the Naval hospital in 1966, I was there for approx 4 to 5 months. I was required to wear a monitor for approx 5 or 6 weeks and I had "several, well defined and documented" episodes of PAT. The Navy decided, based on those results, to discharge me and assigned me a 10% disability.

One year later, I had a C&P exam that lasted, maybe 15 minutes, and the rater determined that I was not eligible for a compensable condition. The exam I had at my C&P was not even close to all the tests while I was stationed at the hospital. The fact that I did not have a PAT attack at the C&P exam is what they are partly basing the results that my PAT was no longer there. Even though the rater stated that "cited exam discloses the veteran is steadily employed but complains of occasional dizziness, a heavy feeling in the chest and that his heart flutters". There is no wording anywhere that my PAT has gotten better or improved.

[john999]

BM6546

I have a rating decision from 1973. It looks much like yours with just letters and a few lines to justify my rating. My CUE got all the way to the Court before they discovered that the rating criteria for my condition had changed between the time I filed in 1972 and the time I got a decision in 1973. I hired a lawyer. You might consider it since you original claim is 45 years old. Those old claims really stink with much evidence ignored or excluded if it did not the purpose of the VA.