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

[Philip Rogers]

thanks for helping. My understanding as a nurse is that my husband has Major IHD which results in unanticipated ventricular cardiac irregular beats that can cause unexpected death etc. He also has stents for circulations and has had the widow maker fixed , but the AICD becomes permanent in that the irregular beats can come anytime and condition never gets better , only worse. Hope this helps. They get tuneups ever 4-5 years but never get removed. thanks Patsy and JC

Thanks, this thing has me more confused than you.

pr

[jcolwell]

All, just so you know I am the nurse wife helping my husband last 2 years with his claim so he sleeps while I type. Today was a very bad day , he is not handling all this CUE stuff very well at all . Looks like I get to carry this load a little longer.

I have reviewed your old posting Berta and all on CUEs. Are these the correct 2 regs to reference in my nasty gram ? I saw your sample, of course what I send will be different . I sent them a fax and called appeal center/Peggy last week about CUE but some of your ideas might be heaver so I want to resend along with all you guys ideas.

Who all should I send this to ? Include McCain?

Maybe I should send picture of AICD scar ?

Really PIA. Thanks Patsy

38 USC 5109A - Revision of decisions on grounds of clear and unmistakable error

(a) A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.

(b) For the purposes of authorizing benefits, a rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.

© Review to determine whether clear and unmistakable error exists in a case may be instituted by the Secretary on the Secretary’s own motion or upon request of the claimant.

(d) A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made.

(e) Such a request shall be submitted to the Secretary and shall be decided in the same manner as any other claim.

38 CFR 4.6 - Evaluation of evidence.

§ 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.

[free_spirit_etc]

38 USC 5109-A indicates a decision by the Secretary is subject to revision on the grounds of a clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.

There is a very clear and unmistakable error on my October 17, 2013 decision. The evidence clearly shows I have an Automatic Implantable Cardioverter-Defibrallator (AICD)

The rating schedules clearly state “ Evaluate implantable Cardioverter-Defibrillators (AICD’s) under DC 7011.

DC 7011 clearly states

7011 Ventricular arrhythmias (sustained):

For indefinite period from date of hospital admission for initial evaluation

and medical therapy for a sustained ventricular arrhythmia, or; for

indefinite period from date of hospital admission for ventricular

aneurysmectomy, or; with an automatic implantable Cardioverter-

Defibrillator (AICD) in place..................................................... 100

Though the evidence clearly shows I have a AICD, which should be rated at 100%, I was only granted 30% for this condition.

I am asking the Regional Office to CUE themselves and correct this clearly obvious error. There is no need to waste the time and resources of the Department of Veteran’s Affairs in going through a lengthy process of getting this matter resolved.

[free_spirit_etc]

You might want to consider sending an IRIS. Sometimes they read and respond to those faster...

[jcolwell]

Thanks Free spirit , that was along the lines I was going to use / I have already emailed Iris last week but will send copy again ceritified ..... send to Mc Cain, as my senator, and copy VSO. Once I have a chance to get VSO educated on my claim then he mentioned them speaking with DRO or ask him to meet with us .(laughter)

Weill attach decision page, evidence of AICD from 2007, reference the regs in letter Clearly define error that VA committed and ask for immediate correction.(laughter)I cant imagine a DRO hurrying to FU on a CUE.

I hope I can get some resolution as this is really becoming a strain my cardiac patient.

Does RO have a patient complaint/resolution/compliance officer?

I really don't want to assume the bitch role, type A, rachet role but if I must , I must.

Thanks for listening and will look for more advice in am.

Patsy for Jim

[Berta]

Patsy, I sure LOLed on that one regarding the DRO!

This can possibly be used as an IRIS complaint ( the complaint pop down tab is at the IRIS site) although Free Spirit and you both have some very good ideas here too

This is a complaint and a request under auspices of 38 USC, 5109A. for the VA Regional Office in _____________to immediately call a Clear and Unmistakable Error on their recent erroneous decision to me dated _______________ and prepared by

( put the initials here in the Re: the alphebetic/numeric code on the right hand side (by their date) of this decision.That is initials of the RO person who made this decision.The decision might still be on their desk)

.

The VA violated the provisions of 38 CFR 4.6 and also M21-1MR ,as to the proper diagnostic code and rating for the implant I had in (date) that was directly due to my Agent Orange induced Ischemic Heart disease.

Nowhere in this decision does it reflect any consideration of that evidence which is probative to a proper service connected rating

Although the decision recognizes the AICD, which indicates the evidence was in VA;s possession in order to adjudicate this claim properly , no further narrative regarding the AICD, nor any proper diagnostic code or rating for it appears.

This legal error on VA's part has significantly impacted on my monetary award and thus manifested an altered outcome to my detriment as a claimant.

The legal error VA has committed is a violation of 38 CFR 4.6, as well as of provisions in M21-1MR Part IV thus:

§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

The proper diagnostic code and rating is found within the VA's schedule of Ratings thus:

7011 Ventricular arrhythmias (sustained):

For indefinite period from date of hospital admission for initial evaluation

and medical therapy for a sustained ventricular arrhythmia, or; for

indefinite period from date of hospital admission for ventricular

aneurysmectomy, or; with an automatic implantable Cardioverter-

Defibrillator (AICD) in place........................................................................... 100

I expect an immediate and proper revision of your recent decision to me,that reflects proper consideration of the regulations regarding probative evidence , in 38 CFR 4.6, as well as within M21-1MR, as to my AO IHD induced AICD.

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Patsy, as a nurse you certainly can assess whether the 7011 code (Thanks Free spirit for the info here that all help!) reflects the actual current disability your husband has and can send to VA your own brief assessment based on your professional experience and based on his medical records.

After all ,nurses are doing C & P exams sometimes and the VA should not question your medical rationale, that supports the proper rating.

If you IRIS them you can add that info to the IRIS....I forget if IRIS accepts attachments , and I always followed up my IRISes with hard copy to the VAROs (except in Dec 2011) I raised so much Hell I didn't have to mail the VARO any more info)

When VA Central called me up I was well prepared for what I would say to them.

I love your style !

"I really don't want to assume the bitch role, type A, rachet role but if I must , I must."

That is why I got my degree in 2007 from a Military school (AMU) and the VA paid for half of it under Chap 35.

Somewhere on the VA EDU app or something VA wanted to know why I was going to attend this school....forget how they put it, so I told them I am a veteran's advocate and ,I work on a paper battlefield (aka the VA claims process) so,as a civilian I needed to go to a war school to learn battlefield command and warfare tactics, .in order to help veterans and their dependents fight the VA's War of the Words..... something exactly to that affect......I bet VA edu Choked on that one. HA HA

I had no idea that day that my 4 years at AMU,under the auspices of the United State Marine Corps, would turn me into a citizen soldier as well as a (unprintable MFB) ha ha .when it comes to me seeing the VA do something stupid that also impacts so negatively on any veteran or dependent.

And to think they get PAID to commit these errors.

I have many decisions here I got over the last 2 decades , in a VA CANT READ file if I ever need to use it against them in future testimony at the H VAC.

I enrolled into AMU about a year after filing my AO DMII death claim.That claim took over 6 tears for VA to award due to THEIR errors ,not mine and I regret I didn't use the GCY (Go CUE Yourself tactic then) I could have but never gave it a thought because I was suffering from an Illusion.

I actually believed that my VARO would read my IMOs and additional evidence and award the claim at the VARO level,even though their VCAA letter to me had violated the VCAA provisions. That was sure an Illusion.

I .