Ao/herbicide 2010 Bbe Arrived Need Advice

[jcolwell]

My skills limit me to converting , please see attachment. So Why not grant 100 % for IHD and AICD retro to 2010. Did I fail the last 2 years of learning . Please advise all you heart people.

Confused . JC and wife Colwell IHD with AICD.pdf

[free_spirit_etc]

http://www.va.gov/vetapp11/Files1/1107194.txt

"Diagnostic Code 7011 is used for evaluating ventricular
arrhythmias and provides that a 100 percent rating is to be
assigned for an indefinite period from the date of
hospitalization for initial evaluation and medical treatment for
sustained ventricular arrhythmias, or following ventricular
aneurysmectomy, or following insertion of an automatic
implantable cardioverter/defibrillator (AICD). The record shows
that the rating for the Veteran's heart disability was increased
to 100 percent, effective June 12, 2008, based primarily on the
implantation of an AICD. Therefore, the issue on appeal concerns
entitlement to a rating for the disability greater than
60 percent prior to June 12, 2008."

[free_spirit_etc]

I like the way this one states it:

http://www.va.gov/vetapp12/Files4/1227862.txt

"A 100 percent rating requires an automatic implantable cardioverter-defibrillator (AICD) be in place; chronic congestive heart failure; a workload of 3 METs or less resulting in dyspnea, fatigue, angina, or syncope; left ventricular dysfunction with an ejection fraction less than 30 percent; or hospitalization for evaluation and medical therapy for sustained ventricular arrhythmia or for ventricular aneurysmectomy. 38 C.F.R. § 4.118, Diagnostic Code 7011 (2011)."

[free_spirit_etc]

I am not clear on the effective date either. They say in one place that you were diagnosed with IHD in 2001 and had an AICD placed in 2007. But later they said the law was changed August 31, 2010 and that you were diagnosed with the condition in August 2009. It says that since you did not ask for a review until October 2011 - which was more than one year after the change in law, that you are only granted benefits back to August 2010 - when the law changed. But it looks like you had a PENDING CLAIM when the law changed. The claim was filed April 2011 (within one year of the change in law). And the review you asked for (that they said was more than a year after the change in law) was actually a timely filed NOD on the October 2011 decision on a PENDING CLAIM. So I am not getting the part where they said you asked for a review a year past the change in law. Your claim was pending at that time.

Since they went back to the date the law changed (August 2010) though they said you filed your claim in April 2011, I am thinking you probably claimed for this condition before and was denied? And you reopened the claim in April 2011?

Edited October 20, 2013 by free_spirit_etc

[free_spirit_etc]

There is an interesting article on effective dates for IHD here:

http://www.attiglawfirm.com/blog/va-benefits/va-disability-benefits-how-to-compute-effective-dates-for-ischemic-heart-disease-and-other-agent-orange-presumptive-conditionsunder-nehmer/

[Berta]

Nehmer EEDs are different from AO Thailand EEDs.

They went back to 1988 on my Nehmer claim for Retro IHD....Nehmer does not apply the Thailand AOs. This vet might be able to see if 38 CFR 3.156 can help him but I am not sure how he can do that.

This decision is absolute BS plain and simple.

I see nowhere in the decision that the VA acknowledged or even considered the AICD.

Of course, VA wont award two 100% comp awards, but they should consider you for SSMC ,when they get this right.

You can file a clear of clear and unmistakable error, ASAP ,....I gave info here some time ago as to how to do that.

Carlie posted this CUE award a year ago here under the same basis:

I say Sooner than later....they can reverse this in the appellate period ….

This is my Go Cue Yourself Request on my Nehmer award:

This is m,y prior Cue Yourself request:

They violated (from what I see here) in your case, 38 CFR 4.6.There is no regul;ation for the Go CUE Yourself VA tactic ..but I figured since they can use it , we claimants can too. It will be my very first avenue of assault for the next VA decision I get because it sure has worked for me.

§4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

“b. Review of Evidence. Concisely cite and evaluate all evidence that is relevant and necessary to the determination. Rating decisions must evaluate all the evidence, including oral testimony given under oath and certified statements submitted by claimants, and must clearly explain why that evidence is found to be persuasive or unpersuasive. Decisions must address all pertinent evidence and all of the claimant's contentions. “

Source: September 23, 2004 M21-1, Part VI

Change 118

I am pressed for time these days but will try to develop the wording for your CUE claim on this tomorrow and I will post the CUE claim here.

I am furious that the VA does this crap. It doesn't happen in a vacuum. I would still be sitting with my thumb up my butt probably at the BVA by now, on their Dec 2011 ridiculous denial,

if I had not taken a frontal assault or, in BVA lingo "collateral attack", on their &^%$##@! stupidity. and absurd violation of 38 CFR 4.6.

I filed that Dec 2011 CUE via Fax to the Nehmer VARO and by using the IRIS Complaint area.

Dont know if I saved the Fax. or IRIS ..if I find it ,I will post that CUE request here too.

[Berta]

ooops I am so pissed that I posted SSMC but I meant SMC...as I think you have 100 or TDIU now.,for a separate disability ,.......and dont have time to stay on line.today to read the past posts you made.

This CAN BE FIXED!