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]

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.

John999,

I have already talked to a lawyer but they can't take my case because I am in the middle of a remand. She told me if or when the VA denies me, at whatever level, that they do want to talk with me.

You mentioned that your CUE made it all the way to the Court. Can I assume that you won your CUE? And if so, did they pay all the retro?

Thanks, Brian

[carlie]

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,

First off to be clear - I have NO argument with your paper or research.

I try to post what I feel BVA will use to deny this as a claim under CUE.

If I remember correctly - the VA first granted SC at 10% with an effective date of day following separation,

and this was SC'd as due to aggravation. There was related symptomology prior to active duty that are of record.

This status was amended and reduced a little less than one year later and remained SC'd

with a non-compensable evaluation of zero percent.

Going by a section of the BVA remand below a 1968 Rating Decision reduced from 10% to zero%

stating in the Dec. 1966 VA examination - a compensable disability was not shown.

I sure would like to read a copy and paste of that Rating Decision.I think page 4 of the BVA remand is of importance.

" In a December 1966 VA examination the Veteran reported heart palpitations for most of his life.

He reported incidences of palpitations with fainting in service.

The examiner noted that no tachycardia was solicited by examination. The diagnosis was PAT by history.

In a rating decision in March 196T,entitlement to service connection for PAT was granted.

An initial l0 percent evaluation was assigned from November 26,1966, the day after service separation.

By rating decision in February 1968, the l0 percent evaluation for PAT was reduced to noncompensable.

In making that determination the RO noted that in the December 1966 VA examination a compensable disability was not shown."

[Hoppy]

carlie and Brian

I did not see the BVA remand and was not aware that they contested the credibility of the original 10% rating. Brian did post what appeared to be a copy and paste of logic noted by the rater at the time of the reduction decision in 3/68 and the logic did not specifically identify that the reduction was based on the 1966 exam. According to Brian there definately was an exam in 12/67. What needs to be investigated is the possibilty theat the BVA remand mistated the facts. Mistating the facts would be an avenue the BVA would take so that they would not need to investigate the CUE issues we are presenting and possibly CUE themselves. I am sure there have been plenty of CUE cases filed in cases similar to Brian's.

If the reduction rating was in fact based on the 1966 exam I will incorporate this problem into any further workups. I think the claim may rest on the validity of the determination that the condition in 1966 was not ratable. In Brian statement in support of the claim he mentioned that the condition was diagnosed in the military with a halter monitor. Additionally, the diagnosis by history noted during the 1966 rating decision will probably wind up in the trash leaving only the symptoms noted in the military as a basis for a rating.

The BVA refers to claims that require re-instatement of benefits void ab initio based on an interpretation that the medical evidence was not properly developed in a reduction claim as required by existing laws. Even if it is true the VA contested the original rating in 1966 the determination might still involve medical and legal principals established in a reduction claim. The term void ab initio, means "to be treated as invalid from the outset," comes from adding the Latin phrase ab initio (from the beginning). Brian's claim may now involve the possibility that the determination there was no ratable condition in 1966 involves misapplication of numerous laws previously identified as CFR 3.344 ( C ), 4.1 4.2 1nd 4.10 in effect at the time of his rating reduction. See 38 C.F.R. § 20.1403(a) (providing as an example of CUE the incorrect application of "statutory and regulatory provisions extant at the time" of the Board decision).

I have yet another workup that I developed prior to reading your response and I am posting it to make it available in the event the BVA remand mistated the facts and the reduction was based on the 12/67 reduction exam.

So here goes.

The BVA refers to claims that require re-instatement of benefits void ab initio based on an interpretation that the medical evidence was not properly developed in a reduction claim as required by existing laws . The term void ab initio, means "to be treated as invalid from the outset," comes from adding the Latin phrase ab initio (from the beginning). Brian's claim involves misapplication of numerous laws previously identified as CFR 3.344 ( C ), 4.1 4.2 1nd 4.10 in effect at the time of his rating reduction. See 38 C.F.R. § 20.1403(a) (providing as an example of CUE the incorrect application of "statutory and regulatory provisions extant at the time" of the Board decision).

I do not recall posting the second paragraph of section iii noted in Brown V. Brown. So here are both paragraphs. Additionally, I developed some added arguments involving the lack of objective standards of law that would require medical authority to specifically address the issue of "improvement" and an allowable definition of "severity" under laws existing at the time of Brian's reduction.

iii. General regulatory requirements: Additionally, the Board failed to comply with several general VA regulations applicable to all rating reductions regardless of whether the rating has been in effect for five years or more as required by § 3.344©. Specifically, _CFR_4.1 38 C.F.R. § 4.1 (1992) states that "it is . . . essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history." Similarly, _CFR_4.2 38 C.F.R. § 4.2 (1992) establishes that "it is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present." These provisions impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability. See Schafrath, 1 Vet. App. at 594. Furthermore, _CFR_4.13 38 C.F.R. § 4.13 (1992) provides: "When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the {5 Vet. App. 421} thoroughness of the examination or in use of descriptive terms."

Pursuant to these provisions, the RO and Board are required in any rating-reduction case to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. See Schafrath, supra ("these requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition."). Finally, _CFR_4.10 38 C.F.R. § 4.10 (1992) establishes that "the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment", and _CFR_4.2 38 C.F.R. § 4.2 (1992) directs that "each disability must be considered from the point of view of the veteran working or seeking work." Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work.

Position paper (addendum)

CFR 4.1 For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition…….It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history……… 4.2 Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. § 4.10 Functional impairment. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.

In Brian's reduction exam there was no emphasis on limitation of activity. The C&P examiner did not investigate the known historic limitations on activity involving exercise induced PAT. Additionally, although it was noted that Brian was employed and the PAT events occurred while working the exam did not include a detailed investigation of limitations on employment.

Improvement implies a comparative analysis of pre-existing symptoms or as was done in Brian's case an assessment that there is no current ratable condition. It is my contention that the exam cited by the rater so vaguely identified a time period (recent months) as to identify any objective evidence allowing a determination that the time period investigated by the C&P examine covered a period of current symptoms exceeding 10 days. The frequency of PAT events and any investigation of previously known precipitating triggers (exercise) as required in 4.1, 4.2 and 4.10 was so inadequate it could not have been considered credible evidence of improvement or deterioration. There is no evidence Brian was queried as to whether or not he had limited his activities in daily life to avoid triggering PAT, as was identified as an issue in the SMR. Thus, there was no evidence that there was not a ratable condition.

In 93 Decision Citation: BVA 93-16560 It was the BVA's conclusion that an exam covering two weeks cannot demonstrate "sustained" improvement. The BVA rejected the reduction void ab initio based on an interpretation that the medical evidence was not properly developed. The term void ab initio, means "to be treated as invalid from the outset," comes from adding the Latin phrase ab initio (from the beginning)

I am advancing the position that considering that a two week period does not sufficiently identify "sustained" improvement it can also be advanced that an investigation of a two week period of subjective complaints without consideration of the effects of exercise does not represent any sustained, temporary or episodic improvement. The veteran stated in 93 Decision Citation: BVA 93-16560 that he can go without symptoms for a month or two. Additionally, the veteran reported three spells a week and received a 30% rating. Brian reported six episodes that due to the vague wording used by the C&P examiner cannot objectively be determined to have occurred in a time period longer than ten days. Additionally, in Brian's case there was no investigation as to the effect of exercise.

The BVA admits that the condition undergoes "episodic" improvement. There is no objective standard of law equating "episodic" or "temporary" improvement to a medical determination that a condition has "improved" or is no longer symptomatic. To complicate matters individuals with this condition may deny having PAT events yet a halter monitor detects such events during the time period the individual denies symptoms. This is due to the fact that the individual may only associate the event with discomfort yet not associate the event with a PAT. Thus, without a halter monitor there is no objective way to determine the frequency of PAT events.

In the absence of an objective standard of law defining "improvement" medical principals dominate (this is an argument I learned from the late Alex Humphries). An opinion of a rater that PAT had improved in the absence of a specific medical determination that the condition had actually resolved or improved resulted in a determination than is not based in the existing law or on valid medical authority. Thus, a medical determination that the condition had improved would be the only basis of a determination and such an opinion should have been sought. Additionally, the question arises is whether or not improvement is comparative to the symptomology that resulted in the original rating and whether or not Brian went through a 10 day period while in the military without symptoms and yet the condition was determined to be sufficiently chronic to be rated at 10% at that time.

Definition of severity: When defining the severity of PAT the BVA often refers to hospital visits. This is quite odd considering that the most severe impact that PAT is the interruption to employment caused by the temporary lack of focus on an individual's job duties and requirement that postural exercises are needed to eliminate the uncomfortable effects the PAT attacks have on the individual. Brian clearly stated that his attacks required postural changes to eliminate or shorten symptoms. Medically, the literature describes PAT in the absence of other known heart conditions as a condition that presents no immediate or long term health hazard. Additionally, it appears that Brian was advised to do postural exercises and there is no mention that he was advised to immediately call 911 or go to the ER. In view of the existing laws at the time of Brian's rating, proper application of CFR 4.2 any PAT event that temporarily interrupts employment by resulting in postural changes to control or shorten symptoms should be considered severe. The postural changes Brian was taught by medical authority while on active duty would interfere with any type of job duty. As such Brian's symptoms would more correctly represent a 30% disability. See 38 C.F.R. § 20.1403(a) (providing as an example of CUE the incorrect application of "statutory and regulatory provisions extant at the time" of the Board decision).

The position being advanced is that medical authority would have identified the difficulty in determining improvement or absence of symptoms in a paroxysmal condition such as PAT and indicated that any medical opinion that was based solely on subjective reports that do not objectively cover a time period longer than ten days (occurrence in "recent months" potentially defined as the last several days of February and first few days of March) and static heart rate tests and did not at least try to measure Brian's heart rate on a tread mill or with a monitor device cannot be reliable in a paroxysmal condition that was reported to occur at random and be triggered by exercise at the time of the original rating. When determining "improvement", "absence" or that the condition that was previously identified as being chronic and triggered by exercise has spontaneously resolved significant non static testing would be required. It should also be noted that medical literature identifies that the condition is very hard to diagnose without such tests and the absence of such tests does not allow for a determination as to whether or not the condition exists.

I am going to start contacting cardiologists to see if I can get one to write a pro bono IMO backing up my contention that the evidence developed by the C&P examiner and cited by the rater was not sufficient to medically determine whether or not the condition had resolved, improved or deteriorated. Whether or not a two week lack of subjective complaints of symptoms and in the absence of a halter or treadmill test it could be determined medically that the condition had improved. Additionally, exercise induced PAT is a unique form of PAT that typically is associated with underlying conditions that are more permanent than PAT that is not triggered by exercise.

Edited December 27, 2011 by Hoppy

[Wings]

Hoppy, You exemplify veterans advocacy. Someone must fight for the veteran where the "benefit of the doubt" most obviously presents a case for it. This is such a case.

If my memory is intact, I believe the evidence will also show that Brian (correct me if I'm wrong) was hospitalized for his PAT while active duty military for several weeks. That speaks of functional impairment at an occupational level.

I appreciate your reference to the laws and regulations regarding "reductions", in that "The BVA refers to claims that require re-instatement of benefits void ab initio based on an interpretation that the medical evidence was not properly developed in a reduction claim as required by existing laws ." I will research those laws more fully.

I support your arguments. ~Wings

[bm6546]

Hoppy, You exemplify veterans advocacy. Someone must fight for the veteran where the "benefit of the doubt" most obviously presents a case for it. This is such a case.

If my memory is intact, I believe the evidence will also show that Brian (correct me if I'm wrong) was hospitalized for his PAT while active duty military for several weeks. That speaks of functional impairment at an occupational level.

I appreciate your reference to the laws and regulations regarding "reductions", in that "The BVA refers to claims that require re-instatement of benefits void ab initio based on an interpretation that the medical evidence was not properly developed in a reduction claim as required by existing laws ." I will research those laws more fully.

I support your arguments. ~Wings

"If my memory is intact, I believe the evidence will also show that Brian (correct me if I'm wrong) was hospitalized for his PAT while active duty military for several weeks. That speaks of functional impairment at an occupational level."

Wings, I was actually hospitalized at the US Naval Hospital from 7-5-66 to 11-16-66 , approx 4 1/2 months. I was wearing a monitor for a couple weeks, if my memory can recollect, and undergoing a lot of tests.

Brian

[Wings]

"If my memory is intact, I believe the evidence will also show that Brian (correct me if I'm wrong) was hospitalized for his PAT while active duty military for several weeks. That speaks of functional impairment at an occupational level."

Wings, I was actually hospitalized at the US Naval Hospital from 7-5-66 to 11-16-66 , approx 4 1/2 months. I was wearing a monitor for a couple weeks, if my memory can recollect, and undergoing a lot of tests.

Brian

Thank you for confirming that my memory hasn't failed me completely!

Another question: Did the military diagnose you with heart disease? ~Wings