Have A Few Ratings Over The Years, All Basically The Same?

[MartyL16]

All the way back to 1987. Usually with the same denials. Never did they ever go back to the active duty records to "confirm" what I was telling them.

Rating usually stated "...is continued at %". or "remains denied" and you know what. I was too depressed and sick, and ignorant of how to proceed, how to fight for me, until lately!

My questions: Since they referenced no "codes", never explained why, and even when I stated extreme pain, on movement, did the wincing, refused to go past my "pain point", the ratings always said "mild pain". Since 2009 they stated they had no access to my records on the computer, so the only info that they had was my verbal answers to their questions.

Have to mention that I have NEVER seen "them" use a worksheet from the VA. Always saw them scribble a word or two on a regular tablet. Also never had an exam that went more than about 15 minutes.

I am thinking maybe since the info does not actually reflect what is in my "actual" records(that are only) referenced by "clinic name" but no specifics confirming my claims, shouldn't I have other appeal or legal rights?

Maybe their failure, over at least 4 separate ratings, to give me my rights of "due process", or whatever.

Since they always failed to describe the details, or use codes, maybe I can submit as "reopened claims" based on facts that they "missed"? Afterall, they now at least "mention" records that they have and should have had since 1967 and beyond.

For the record, I have an SC 0 from active duty, DM II from 2004 with a marginal SC % presumptive to AO from 'Nam and Thailand.

Thanks

[free_spirit_etc]

I am also in a quandry about the '87 sarcoid rating for reopen on "new material" claiming the lack of any rating to actually refer to '85-'87 in service, and again in '92-95, after service. BTW, the SAME CIGNA records hold the recurrence in '92-95 and actually have PFT EXAMS, one per year, the treatment and the Stage 4 references, or doing a CUE as they never followed my request for reconsideration/increase or anything else. Advice would be appreciated.

Are you still on the prednisone now? For some reason I was thinking you were because your note on the SOC says “Still on…” But now I see it says “Still on 5-10 mg per day prednisone on retirement. So now I am wondering if you meant you were still on it when you retired (but aren’t on it now) or if you were still on it at retirement AND are still on it now. When you put in for an increase, they will see what level you are functioning at that point. So with your current claim for increase, they aren’t going to go back to what your 4 PFTs were in 1990 – 2004. They will go by what the current PFTs show. .. and whether you are on medicine for it now (or since the time you put in for your latest increase).

So I am sorry if I misunderstood what you said and led you to believe you should have a higher rating now if you really aren’t on medicine now and your PFTs now are not showing decreased function.

You may be able to file a CUE on the initial claim if the evidence shows that you were on predisone at that time to control it and they granted you zero percent anyway IF the rating schedules were the same back then. Rating schedules change from time to time, so you would need to find out what the rating schedule was for sarcoidosis in 1987 before filing a CUE on it.

I am not sure what you mean by they never followed your request for reconsideration / increase. Are you saying you have appealed previous denials and they didn’t respond to the appeal? Or that you file for increase before and they did not adjudicate it?

[free_spirit_etc]

For the increases: What I suggest you do is look at the rating schedules and see what the rating schedules say about the conditions you are claiming. And then see how your evidence lines up with meeting those rating schedules. That way you will be setting a good foundation for building your claim on those.

The court cases can be very helpful in how the law is applied. But first, you need to make sure you are meeting the requirements of the ratings.

[free_spirit_etc]

From what I am getting from you SOC

You first filed a claim for SC for recurring PVCs in 2005. The private treatment records showed a history of PVCs, a normal cardiac ultrasound report (of June 1991) a treadmill test that was negative for angina or ischemic changes (in June 1991), and no diagnosis of coronary artery disease or ischemic heart disease. They denied SC because the evidence didn’t show a relationship between the current condition and the PVCs in service. They denied the claim May 3, 2006.

In January 2007 they did an Arrhythmias exam which showed no PVCs. They denied you again in April 2007.

The next “evidence mentioned is that in a January 2010 conversation, you told them that you were diagnosed with mitral valve prolapse problems. They sent you a letter in February 2010 that asked you to submit evidence:

1. That your mitral valve prolapse existed from service until now.

2. That connects your mitral valve prolapse and your heart condition and your DM II.

They say your treatment records from VA Phoenix do not show any of the above conditions. They also say that an April 2011 examiner stated you do not have a diagnosis of IHD. So they denied SC for PVC for the purpose of retroactive benefits.

It seems like they were right on the denial for retroactive benefits, as those would only be granted for an AO presumptive condition under Nehmer. IHD is AO presumptive. And DM II is AO presumptive. So unless you can show that you have IHD, and that it causes the PVCs, or that your DM II causes your PVCs, they wouldn’t grant retroactive benefits – because even the PVCs were SCed, they wouldn’t be eligible for the purpose of retroactive payments under Nehmer unless they were connected by an AO presumptive. (as far as I know).

As far as the other evidence they asked for – that is what you need to be able to show them. You either need to be able to show them that you have had the mitral valve condition since service (a doctor’s statement to that effect would help – here is where the more likely than not comes in), or you need to show them medical evidence that links the mitral valve to your DM II (or another service connected condition). Again… you would need a doctor to make that link.

I was thinking that you said that you told them you didn’t want to claim the Mitral Valve Prolapse as SC.

So I am really stumped at how to help you with this one.

What might help is if you could clarify - What does your doctor say is causing the PVC's? Does your doctor think this condition started in service?

[MartyL16]

This shows what is needed to go from 60% on DM II to 100% Both ratings, as well as the 20% and 40% ratings take into consideration they require insulin. So there shouldn't be any need to prove how much insulin you take, or how many injections you need. Your rating already takes insulin injections into account. To get an increase, you need to show that you are closer to the 100% rating requirements than you are to the 60% requirements.

7913 Diabetes mellitus

Requiring more than one daily injection of insulin, restricted diet,

and regulation of activities (avoidance of strenuous occupational

and recreational activities) with episodes of ketoacidosis or

hypoglycemic reactions requiring at least three hospitalizations per

HERE--> year or weekly visits to a diabetic care provider, plus either

progressive loss of weight and strength or complications that

would be compensable if separately evaluated ................................................ 100

Requiring insulin, restricted diet, and regulation of activities with

episodes of ketoacidosis or hypoglycemic reactions requiring one

HERE--> or two hospitalizations per year or twice a month visits to a diabetic

care provider, plus complications that would not be compensable

if separately evaluated ....................................................................................... 60

Previously, the 60 had "AND" instead of "OR" and that change came from court decisions recently.

The "or" makes it easier to qualify for the higher rating IF a claimant can satisfy the "Regulation of activities" and the "more than one daily injection of insulin". I have no problem with the multiple injections of insulin per day and when my Internist read the "regulation of activities" he showed me what he already had in the computer all along. I am not worried about the VA interpretation that he will provide for this. There are a few "legal opinions" on the books against the VA always trying to force ALL the symptoms/criteria on the claimant, all the time.

Here are a few citations that kind of advise against that:"

2.07 EVALUATION OF EVIDENCE

The rating specialist has responsibility to recognize the need for evidence in relation to a claim. The members have responsibility to determine admissibility of and the weight to be afforded evidence that is presented, the need for additional evidence, and the need for physical examination. If all the evidence is favorable, the claim must be granted. (See Beaty v. Brown, 6 Vet. App. 532 (1994).)

a. Probative Value. The rating specialist will determine the probative value of medical or lay testimony. Accept evidence at face value unless contradicted by other evidence or sound medical or legal principles. In the presence of questionable or conflicting evidence, further development may be needed to corroborate testimony to include, if in order, field examinations and/or social surveys to obtain transcripts of original or other appropriate records. Rating decisions must clearly explain why evidence is found to be persuasive or unpersuasive. Decisions must address all the evidence and all of the claimant's contentions.

b. Medical Opinions. Medical conclusions must be supported by evidence in the file. Rating specialists cannot refute with their own unsubstantiated medical conclusions medical evidence submitted by the claimant. Recognized medical treatises or an independent medical opinion may be cited to support a conclusion. Such evidence, when relied upon, must be identified in the decision.

See 38 C.F.R. § 4.130.

The Veteran is not required to prove the presence of all, most, or even some, of the enumerated symptoms recited under the rating criteria.

See 38 U.S.C. § 7104(d); see also Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001)

(noting that the Board is not required to discuss all evidence of record but must discuss relevant

evidence)

Only reference this citation because of the “official” note below

NOTE:3 Cushing syndrome is "a complex of symptoms caused by hyperadrenocorticism due either to a neoplasm of the adrenal cortex or adenohypophysis, or to excessive intake of glucocorticoids." DORLAND'S at 1852. Hyperadrenocorticism is "abnormally increased secretion of adrenocortical hormones." Id. at 898.

To provide an adequate basis for fair adjudication, the examining physician's report must furnish "in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of disability upon the person's ordinary activity." _CFR_4.10 38 C.F.R. § 4.10 (1991); see also _CFR_4.2 38 C.F.R. § 4.2 , § 4.41 ("it is essential to trace the medical-industrial history of the disabled person from the original injury . . . and the course of recovery to date"), § 4.42 ("when complete examinations are not conducted covering all systems of the body affected by disease or injury, it is impossible to visualize the nature and extent of the service connected disability") (1991).

Or from the "manual"

4.7 - Higher of two evaluations.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.

Actually I think my diabetes is at 20%. I have requested increases but all were ignored and denied. A point I am making in the appeal is: Look at the 2011 rating regarding my A1C and their measured glucose reading as all "normal", the go check those numbers at the American Diabetes Association website, and you will notice they don't reference DORLANDS or any other "source" of their lunacy.

Thanks. Maybe my doctor's statement will help. I showed him the specific "VA SPEAK" and he said "semantics" from them.

Marty

Edited November 3, 2013 by MartyL16

[MartyL16]

I am also in a quandry about the '87 sarcoid rating for reopen on "new material" claiming the lack of any rating to actually refer to '85-'87 in service, and again in '92-95, after service. BTW, the SAME CIGNA records hold the recurrence in '92-95 and actually have PFT EXAMS, one per year, the treatment and the Stage 4 references, or doing a CUE as they never followed my request for reconsideration/increase or anything else. Advice would be appreciated.

Are you still on the prednisone now? For some reason I was thinking you were because your note on the SOC says “Still on…” But now I see it says “Still on 5-10 mg per day prednisone on retirement. So now I am wondering if you meant you were still on it when you retired (but aren’t on it now) or if you were still on it at retirement AND are still on it now. When you put in for an increase, they will see what level you are functioning at that point. So with your current claim for increase, they aren’t going to go back to what your 4 PFTs were in 1990 – 2004. They will go by what the current PFTs show. .. and whether you are on medicine for it now (or since the time you put in for your latest increase).

Retirement was in 1987. The sarcoidosis was still active on the date of my retirement. According to my active duty records, I started with Stage 4 in Sept 1985 and as of days before retirement, I was clinically better but still "about" Stage 1 and on 5-10 mg of prednisone per day, big as a blimp, moonface, hump on back between my shoulders (all caled Cushing's Syndrome).

Cushing syndrome - exogenous

Definition: Exogenous Cushing syndrome is a form of Cushing syndrome that occurs in people taking glucocorticoid (also called corticosteroid) hormones, such as prednisone.

Alternative Names

Cushing syndrome - corticosteroid induced; Corticosteroid-induced Cushing syndrome; Iatrogenic Cushing syndrome; Exogenous Cushing syndrome

Symptoms usually include:

• Upper body obesity (above the waist) and thin arms and legs
• Round, red, full face (moon face)
• Side Effects and Adverse Reactions: The potent effect of corticosteroids can result in serious side effects which mimic Cushing's disease

That 1st rating left me at SC 0 because they ignored ALL that was in my records, didn't do any blood tests (angio tensin..or something close to that), didn't note that I was "still" on prednisone after 2.5 years, and obviously to even the AF doctors, I was still ACTIVE as far as the disease goes. They also ignored the obvious Cushing's Syndrome because I was just interviewed, not examined.

Then again '92-'94 back on "active" sarcoidosis with doctor's notes from CIGNA(the same notes referenced in the ratings, even before the 2011), and documented at STAGE 4. Not on anything today in 2013 except inhaled steroids periodically(that don't qualify as "maintenance doses of steroids".

So the VA has had in it's hands, documented proof of STAGE 4 x-rays from active sarcoidodis from active duty and since then, each and every time I asked for increases and although they have the CIGNA records and Active Duty records they have repeatedly failed to do as the laws and regulations prescribe.

My "citations" (that you saw previously in my posts) are NOT all that I am using as I stated I have hundreds, and in my appeal, I actually state the "relationship" between the rating, their notes, what I believe it should be, my supporting evidence, and "examples" of cases that show STAGE 1 vets getting 30% on discharge or a year later.

ERROR ERROR In 1987, a vet could NOT appeal a rating. That came about in 1988 by law. MY ERROR,

I got this from "someone" many years ago, emphasis on MANY and I apologize for misleading anyone as that was not my intention. When I went researching cases from 1985-1995, as you suggested, it became VERY OBVIOUS that this particular statement was bunco, trash, malarkey, and wrong.

Since I have documented Stage 4 x 2 times, and a "probable" Stage 1 on retirement and on corticol steroids, I want to get them to reevaluate the 87 thru the present.

My pulmonologist gave me a PFT when I started with him after I went on Medicare, and reviewed those same CIGNA records, and found 3 PFT examines from my STAGE 4 attack in '92-95 and in writing stated in "doc speak" that those 3 in reference to his recent show "significant" loss of function, capacity, diffusion, etc. He also, with my written permission, requested copies of the VA raters PFT exams from 2003-2011 that state "no change", or "stable" and has agreed to challenge them in writing. Yes, I will also give him the DBQs that "you guys" have recommended. That will be part of the "new stuff".

I see you referenced SOC as being in existence in the rating but the law says separately.

The appeals process begins with a claimant's filing of an NOD from an RO decision, which triggers VA's duty to issue an SOC. See 38 U.S.C. § 7105(a), (d)(1). Only after an SOC has been issued may a claimant file a Substantive Appeal to the Board. See 38 U.S.C. § 7105(d)(1). If the Secretary fails to act on a claim or if he fails to provide the veteran with information or material critical to the appeal, that claim remains pending. See Cook v. Principi, 318 F.3d 1340, 1334 (2002) (citing Hauck v. Brown, 6 Vet.App. 518 (1994)); Norris v. West, 12 Vet.App. 413, 422 (1999); see also 38 C.F.R. § 3.160© (2008) (defining a "pending claim" as "[a]n application, formal or informal, which has not been finally adjudicated").

So I am sorry if I misunderstood what you said and led you to believe you should have a higher rating now if you really aren’t on medicine now and your PFTs now are not showing decreased function.

Read above please. I didn't see your comment until I read down thge page.

You may be able to file a CUE on the initial claim if the evidence shows that you were on predisone at that time to control it and they granted you zero percent anyway IF the rating schedules were the same back then. Rating schedules change from time to time, so you would need to find out what the rating schedule was for sarcoidosis in 1987 before filing a CUE on it.

That is the question... how do I find what the rating criteria was in 1987?????

I am not sure what you mean by they never followed your request for reconsideration / increase. Are you saying you have appealed previous denials and they didn’t respond to the appeal? Or that you file for increase before and they did not adjudicate it?

Even in previous "requests" for increases over the years, In writing, I have told them the same things as now and then. Look in my ACTIVE DUTY" medical records, look in my CIGNA records, which I obviously gave them signed releases(read multiple releases because this was from 1990-2003.), and most probably, month and years of "attack". This included mutiple doctor's reports, radiologist reports, PFT exams(remember I said 3 above).

I have never had a VSO that actually said other than" you cannot get an increase on sarcoidosis UNLESS you are on a "maintenence dose of corticol steroids, taken orally". I was way too depressed at those times to know where to turn, so I went to othger VSOs and they all did the same, no help, no advice, like look here, or consider this or that.

So that was then and this is now. I can read regs, laws, manuals, rules, etc. and understand and comprehend almost 100%. What I obviously have trouble doing is fighting the VA system because they actually have a documented history in the courts of "violating their own laws", as I am sure all of you know.

So presenting this stuff "here" is giving me insight(your collective answers), and direction. Please assume that when I say they failed, or ignored, or were wrong because of this and that, it is because there are so many court cases, legal opinions, proposed rule, procedue, and law changes that show the "error of their ways", force the courts to "remand often", or "vacate" BVA/RO ratings that I am hoping, with "your" help, to maybe enable me (and others), to preclude some of this from getting that far.

My appeal document has specific case references per rating item. I show citations that actually reflect cases that "mirror" my rating denials but are actually "awarded" and mine are denied. Like someone getting 30% at discharge for STAGE 1 SARCOIDOSIS without a reference to prednisone, corroborating evidence like PFT exam info. These are vets with less than 3 years active duty, from the "middle east" conflicts, sometimes with references to 20mg during their treatment, rarely 60mg, and never 100mg like me for 2.5 years and again with 60mg for 3 years, and NOBODY listed as still on a "maintenance dose". Actually, my pulmonologist says prednisone is antiquated and there are many other oral steroids that are "not as damaging" and don't involve a lot og "body parts", and are considered "systemics". That is how the case references fit into my plan.

You are giving me other, and maybe better ideas and maybe my verbose explanations are sometimes confusing. Maybe the VA raters, the DRO, and others will also get confused. When I read contracts, Statement of Work, other binding Agreements, I read it all, make notes and go back and look for answers, or affirmations.

I want the DRO, the Raters, the Examiners to understand that I may have read the rules and according to the courts, when these "guys" rate these wrong(I mean not in accordance with law), I have included the rules for their edification and enjoyment. Historically, they can see(by my lack of appeals), that I was NOT a "fighter" and the facts are that the RO I was actually inside of, showed me their "statistics" board. A few of the obvious "stats" that were missing was how many of their "ratings" were actually "appealed", how many were "remanded" back to RO, or vacated because of law, procedure, or other reasons. How do I know this, because I was an employee there. BTW, ratings were always rated by the same individual, at least at this RO.

The question is: how do I get them to read this "stuff" when they haven't read it over the years????????

Marty

Edited November 4, 2013 by MartyL16

[free_spirit_etc]

http://www.healthvermont.gov/prevent/Sarcoidosis.aspx

What are the signs and symptoms?

Many people who have sarcoidosis have no symptoms. Often, the condition is discovered by accident only because a person has a chest x ray for another reason, such as a pre-employment x ray.Some people have very few symptoms, but others have many. Symptoms usually depend on which organs the disease affects. Symptoms from sarcoidosis in the lungs and lymph nodes include shortness of breath, a dry cough, wheezing, and enlarged and sometimes tender lymph nodes. Changes in sarcoidosis usually occur slowly (e.g., over months). Sarcoidosis does not usually cause sudden illness. However, some symptoms may occur suddenly. They include:

• Disturbed heart rhythms
• Arthritis in the ankles
• Eye symptoms.