Secondary/residuals Of Sc'd Conditions

[Chuck75]

Here's an interesting which way to jump situation!

SC'd Veteran has existing 100% SC for IHD(alone), CAD, High Blood pressure, DMII, etc.

Medical Records, both private and VA showed the presence of an Aortic Aneurism

at ~4.5cm. (5cm is usually considered as cause to consider surgery by medical references and advice.)

A/O presumption (Nehmer) was the basis for the existing IHD 100%, and other lesser ratings.

The VA RO and Nehemer failed to mention the Aneurism in the award, even though there were existing medical records showing

that it existed. The primary cause (from medical references) seems to be HBP. Naturally, the Aneurism existed

before the veterans initial claim for DMII was made, before the veteran's HBP was SC'd. and initially discovered based upon a sonogram. SC for HBP was added/increased by the Nehmer review with a later EDD for the increase. The Veteran experiences discomfort and other symptoms that can be related to the existence of the Aneurism, as well as IHD, CAD, and complications. These can cause movement restriction, discomfort, and pain in certain "bending" related positions and motions.

The Nehmer board ruling was made in early 2011 and retroactive for several years.

An additional claim may be filed for the Aneurism, with IMO's etc.

Or, can the fact that it was ignored when evidence was present in the veterans file be used as a cause for CUE, possibly entitling the veteran to additional retro?

I'm thinking that the claim should be filed, with supporting documents, then somehow, once awarded, show that the VA made an obvious error by previously ignoring existing medical records at the time of the 2011 decision. This would possibly result in a single additional rating of up to 60%, entitling the veteran to additional SMC money paid retroactively. A limited C&P was given for DMII and heart related problems. The Aneurism was not mentioned, and although the VA medical records were available to the examiner, not completely reviewed, based upon the C&P record. Overall the C&P results were favorable.

Any advice would be welcome.

Edited March 31, 2013 by Chuck75

[Berta]

Chuck ,I will focus on the CUE aspect you mentioned:

“Or, can the fact that it was ignored when evidence was present in the veterans file be used as a cause for CUE, possibly entitling the veteran to additional retro?”

Was the aneurism ever formally claimed prior to the IHD award?

And/or Was the aneurism ever rated with a % at 10 %or higher and listed as NSC in an older decision?

Did I understand that the sonogram predated the DMII and/or HBP award?

It is an interesting situation similar to mine.

“And/or Was the aneurism ever rated with a % at 10 %or higher and listed as NSC in an older decision prior to the Nehmer Award?

Did this vet contact NVLSP to review their EED?

It is possible like in my case, this was a Nehmer Footnote One claim,if it ppeared as NSC with a rating in a past unappealed decision.

I always quote Rick Spataro's email to me on Footnote one (he is head NVLSP Nehmer Lawyer)

The “should have been coded” is what put me under Footnote One

but this is from Rick's email to me:

"As for your second question, if the VA should have coded IHD in a rating decision, the claim that resulted in the rating decision could be considered a claim for benefits for IHD under footnote 1 of the Final Stipulation and Order in Nehmer. It basically depends on the timing of the claim, rating decision, and evidence received while the claim was pending. It may also depend on the rules in the Manual M21-1 regarding coding that were in effect at the time of the claim. Typically, though, the following example would be accurate: A veteran filed a claim for SC for a low back disability on May 1, 1990. The VA obtained medical evidence showing a diagnosis of IHD in the development of that claim. The VA issued a rating decision on April 1, 1991, but does not code IHD (list IHD as “NSC” on the code sheet of the rating decision). Under footnote 1, since the condition should have been coded in the April 1, 1991 decision, the May 1, 1990 claim should be considered a claim for SC for IHD under Nehmer. "

I wanted Aug 1988 to be the EED on my Nehmer claim.

This was the day VA knew of my husband's IHD heart disease but failed to treat it(under 1151) My FTCA settlement information went back to this date.

But the EED they gave me was Oct 1988, not a big deal, but the reason NVLSP couldn't get the Aug 1988 date was because it was a 1151 issue.

The reason for the Oct 1988 was a surprise to me as a med rec popped up dated Oct 1988 that never appeared in my copy of my husband's medical records....? and the record was about his PTSD and nothing else....I questioned that date again with NVLSP but filed a request that they CUE the award anyhow for another reaspon and I did accept the Oct date.

The “should have been coded” part of Footnote One might apply in this vet's case you mentioned here.

My 2004 CUE claim covered that and Nehmer awarded the CUE “should have been coded -IHD” in a 1998 rating decision)

under direct SC IHD.

The CUE they awarded was a CUE on 3 separate errors in the older decision.

It put my claim into the SMC mandate and they paid SMC as retro plus the IHD award to 1988 and paid for my husband's 1992 Sec 1151 stroke (but that retro was wrong amount so I asked them to CUE themselves and that and I sent legal evidence that they had but didnt address in the decision.)

Does this help at all?

Edited April 2, 2013 by Berta

[Chuck75]

Chuck ,I will focus on the CUE aspect you mentioned:

“Or, can the fact that it was ignored when evidence was present in the veterans file be used as a cause for CUE, possibly entitling the veteran to additional retro?”

Was the aneurism ever formally claimed prior to the IHD award?

And/or Was the aneurism ever rated with a % at 10 %or higher and listed as NSC in an older decision?

Did I understand that the sonogram predated the DMII and/or HBP award?

It is an interesting situation similar to mine.

“And/or Was the aneurism ever rated with a % at 10 %or higher and listed as NSC in an older decision prior to the Nehmer Award?

Did this vet contact NVLSP to review their EED?

It is possible like in my case, this was a Nehmer Footnote One claim,if it ppeared as NSC with a rating in a past unappealed decision.

I always quote Rick Spataro's email to me on Footnote one (he is head NVLSP Nehmer Lawyer)

The “should have been coded” is what put me under Footnote One

but this is from Rick's email to me:

"As for your second question, if the VA should have coded IHD in a rating decision, the claim that resulted in the rating decision could be considered a claim for benefits for IHD under footnote 1 of the Final Stipulation and Order in Nehmer. It basically depends on the timing of the claim, rating decision, and evidence received while the claim was pending. It may also depend on the rules in the Manual M21-1 regarding coding that were in effect at the time of the claim. Typically, though, the following example would be accurate: A veteran filed a claim for SC for a low back disability on May 1, 1990. The VA obtained medical evidence showing a diagnosis of IHD in the development of that claim. The VA issued a rating decision on April 1, 1991, but does not code IHD (list IHD as “NSC” on the code sheet of the rating decision). Under footnote 1, since the condition should have been coded in the April 1, 1991 decision, the May 1, 1990 claim should be considered a claim for SC for IHD under Nehmer. "

I wanted Aug 1988 to be the EED on my Nehmer claim.

This was the day VA knew of my husband's IHD heart disease but failed to treat it(under 1151) My FTCA settlement information went back to this date.

But the EED they gave me was Oct 1988, not a big deal, but the reason NVLSP couldn't get the Aug 1988 date was because it was a 1151 issue.

The reason for the Oct 1988 was a surprise to me as a med rec popped up dated Oct 1988 that never appeared in my copy of my husband's medical records....? and the record was about his PTSD and nothing else....I questioned that date again with NVLSP but filed a request that they CUE the award anyhow for another reaspon and I did accept the Oct date.

The “should have been coded” part of Footnote One might apply in this vet's case you mentioned here.

My 2004 CUE claim covered that and Nehmer awarded the CUE “should have been coded -IHD” in a 1998 rating decision)

under direct SC IHD.

The CUE they awarded was a CUE on 3 separate errors in the older decision.

It put my claim into the SMC mandate and they paid SMC as retro plus the IHD award to 1988 and paid for my husband's 1992 Sec 1151 stroke (but that retro was wrong amount so I asked them to CUE themselves and that and I sent legal evidence that they had but didnt address in the decision.)

Does this help at all?

To the best of my knowledge, the aneurysm was not rated, coded, or separately claimed, based upon the records I've read, and talking with the veteran. No mention of a VA PCP's review of the VA sonogram is in the paper records of treatment that the veteran has. HBP was previously denied, and later SC'd by the Nehmer review. The EDD for HBP was incorrectly based upon an increase in HBP medication that occurred after the basic EDD for IHD. Without SC'd HBP, even though the VA was previously providing drugs to control it, a specific claim for the aneurism would likely have been denied, based upon the VA's past decisions. The veteran also has treating non VA specialist doctors. The veteran has a history of VA treatment and VA prescription drugs on a co-pay basis years before the Nehmer Review approved IHD and the related conditions.

One of my non VA doctors contacted me concerning the veteran, since the doctor also treats the veteran, and knew that I had gone through the VA claims process with my own claims, using some of the doctor's records and statements. The overall plan is to try to figure out the best way to approach the aneurism claim, have the veteran obtain any additional records needed to support, and have the veteran file either a "new claim", CUE, etc. Whatever is most appropriate. I believe the veteran prefers/intends to file through the state veterans representative, since there is a local office with a full time representative. Since treatment records, claims, and denials preceded the 2008 debacle, it's possible that some of the records are no longer in the veterans claim file. (The treatment and test records should be in the veteran's VAMC medical file)

Edited April 2, 2013 by Chuck75