hypertension Wrong Diagnostic Code On Nod For Request For Increase

[Capt.]

Hello All,

Well to say I am livid may be an understatement but hopefully my problem will be brought to the board as a warning to all Veterans on another tactic that the VA is doing to cause a more delays.

Ok if anyone has an idea I would like to hear it so here goes.

I was rated at 30 percent for COPD and Restricted Lung Disease. Just for the record they are Diagnostic code 6604 and 6845.

So we also have PULMONARY HYPERTENSION which is a 100 percent disability if found by heart cath or by echocardiogram.

Today I was looking closely at my NOD/SOC for a higher percentage because of the Pulmonary Hypertension and it says that I am not entitled because they don't see it in the records. But much worse ,,,,they put down a diagnostic code of 6602 which is Asthma and that is not a disease that will pay 100 percent for Pulmonary Hypertension under the regulations. So they are now in error of the SOC and I do not have Asthma. The award letters show COPD and Restricted Lung Disease which do show under the Diagnostic codes 6604 and 6845 as Pulmonary Hypertension ancillarary awards. Worse than that, in the SOC from Regional office to our NOD for Pulmonary Hypertension, the VA did not even list the Restricted lung disease at all. In the original NOD sent in May we NOD them for a higher rating for PULMONARY HYPERTENSION.

I just sent the lawyer a note on this and am not happy that the lawyer did not find this mistake and am waiting to see what the next move is. This is outright fraud,,,,,on VAs part,,,,,,you cannot get it wrong everytime. Criminal and just plain evil.

How in the world do you get this kind of thing back on track? Calling the 800 line will not do anything and I do not want to do an IRIS because it will come back as a new claim ....their favorite trick.

I guess since it happened to me , this is another tactic for them to use on all Veterans so I better sound the alarm and just say that we as Veterans are our best advocate and we have to constantly make sure that not just our statements and such are correct, but really run over the VAs SOCs and decision letters with a fine tooth comb. Hopefully my mistake by the VA will help others here to WATCHOUT for this tactic of using wrong diagnostic numbers which of course changes everything in a decision.

Just think if I would have not found this mistake. I have the SOC from them and is only about 4-5 months old. So there is a way to get the word out.

Anybody have some ideas here. I do have a lawyer but don't know what that will open for instances. As usual .....NEVER GIVE UP. God Bless, C.C.

Edited January 17, 2013 by Capt.Contaminate

[Berta]

I am with Meg on this one."sounds like a CUE to me..."

You bet if it comes under the following criteria below.

JR said "It is a cue but it cant be cue unless it goes final. " I disagree.

I have been trying to make the point here that the VA CAN and Will CUE itself when they

1. make a legal error (such as wrong DC-legal error)in a decision within the appeal period (prior to NOD and I-9 etc

AND

2. that legal error manifestly altered the outcome to the claimant's detriment (due to established or ignored probative evidence.

And 3. The claimant or their VSO formally asks the VA to call CUE on itself and tells them exactly why they are wrong legally.

I am sorry I have not finished my article on this maneuver but I pointed out here many times since last January how I got VA to CUE my Nehmer Denial in 3 weeks and then they awarded me.

NVLSP knows exactly how I did it.

NVLSP supported the same issue I have pending. I asked them this time to CUE the award that resulted from my first Cue request to them in December.

I know that pending issue will succeed.

There is no reg for this.

I just used 38 USC 5107 against them.

Th is tactic is one way for claimants to reduce a small part of the backlog.But It will only work if the 3 conditions above are met.

There is never enough time in the day for me to do all I want to do here at hadit.

Maybe I can get that article done this weekend and post it here because this is one way a denial can be reversed n a heartbeat. As I well know from personal experiences using this tactic.

If the enemy retreats and drops some of their weapons, it just makes sense to pick up those weapons and use them against the enemy.

Of course VA is not an enemy. Time is the enemy of all VA claimants.

Maybe I should just post the CUE- yourself- VA claims I wrote.

And I won.

I have been trying to make this point here since last January when I had documented proof of how this type of claim goes.

It is all in the search feature.

When I get that article done,and posted here at least I wont need to keep repeating myself on this issue.

Edited January 19, 2013 by Berta

[broncovet]

I seem to recall a CAVC case on just this issue. (Maybe someone can help me find it again) The VA is required to assume the Veteran is seeking the max benefit, while the VA often assumes the Veteran seeks the minimum. And, the VA has an obligation to award the max available, if the case is ratable under 2 different DC's, then it is error for the VA to select the one that yields the lower benefit result. Instead, the VA is obligated to award the maximum benefit allowable, not the minimum.

I also recall, some years ago, where the VA raters were given a quiz to check their knowledge. Less than half knew that the VA was required to assume the Veteran is seeking the max benefit. So they are obviously rating cases with the thinking..."Ok, now this Vet is seeking the lowest possible rating..how can I oblige him?"

I agree with Basser and Berta, even tho they apparently have conflicting view points. Basser correctly says you dont want to "Cue" a decision that is appealable with a NOD. I agree, in that it is unnecessary to "raise the bar" with a higher review standard (CUE), when an appeal will do. But, I also agree with Berta that the VA can CUE themselves, regardless of the length of time it has been since the decision. Further, it is not prohibited for the Veteran to point out such an error. Altho it does not seem like it to us, the VA HAS to have a way to correct their own errors, altho their favorite way is to put the Veteran on the hamster wheel for 10 years. It is possible that the Va says..."oops" we made a mistake, its this instead. And, in theory at least, its possible the Va CUE itself either to the benefit of the Veteran or to the demise of the Vet. The Vet is unlikely to appeal if the mistake was made in his benefit.

[broncovet]

As an example of the "Vet is seeking the minimum" rating senario, the VA has a habit of "awarding" 0%. You rarely see this in the "real" world. I mean, gee. Somebody sues you, and the court agrees you are liable for the debt. So, they "award" $Zero.crap dollars. And they call this a "win"? It skews the numbers. You see, the VSO's count an "award" of 0% as a "win". Lawyers wont do this....can you imaging telling your lawyer.

"Ok, you did a fine job winning the case for me. Now, its payday for you. Im going to write you a check for 20% of what we won...who should I make it out to? Ok, Joe Lawyer.

That's $zerodollars and no sense."

Using this method, the VSO's like to make it look like they are as good as the lawyers. The lawyers know its all about the money, and not about zero percent ratings. There is a remarkable amount of Veterans "collecting" zero percent ratings.

[broncovet]

Of course, CC's problem is he does not want to appeal for years to wait for his money. I dont blame him. None of us do. And, I agree the lawyer should have found this. In his defense he may have, but they dont necessarily communicate everything to us...some of their clients have no clue what a DC is..they probably think its a place where the White House is at. I also think lawyers and VA people often underestimate Vets...especially those knowledgeable hadit readers!!!!!!!

[Capt.]

Hello Jbasser, Meg, Berta,Bronco and Carlie.......

My lawyer is pretty put out with me because I am challenging some of the stragedy that she has taken. I sent an email yesterday and hope to have a answer to some questions.

First I really want to thank all of you for helping me at a very low point with my health. I know that the Form 9 is filled out and gone for several months. Yes we already did a NOD on the higher rating for SC COPD 6604 and Restricted Lung Disease 6845 and the SOC from the VA was the nightmare ....no evidence of PH,,,, then the wrong diagnostic code and leaving the other one off. I am almost to the point of firing my lawyer , full realizing that I will have to get another . I am not happy with her lack of communication and any ideas or shouldn't we do it like this , is meet with , the "I am the lawyer here". And for me to try and wait 4-5 years is just not really applicable for me.

I do not know what to do because I don't want to put the VA delay stream longer but am at a standstill. I feel that the regulations may withhold me from trying the CUE because of the Form 9 in and she keeps telling me that. The Administrative Error is something I am not sure about right now. I know that this is a "coreographed" effort as jbasser said ,,,,,nobody can make this many mistakes. I will have to think more this week on what I am going to do. Once again thank you all. I have a lot to think about. NEVER GIVE UP. God Bless, C.C.

[broncovet]

Aye, Aye, Captain. I have a similar problem. For me, my problem is that I overthink my claim. While its good you saw something your attorney did not bring up, it may boil down to do you trust your attorney or not. If you dont, then you can shop for another one. If you do, then you should trust their judgement but tell em what you think.

In my case, I am going to go with the attorney opinion over mine. His boss, at the firm, is "the best of the best", so I am going to occupy my time with something else, and let him be an attorney.

I found something else to do that is pretty fun.