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Is A 10% Rating For Ventricular Arrhythmia With Aicd Cue?


PintoRacer

Question

I am working with a friend and co-worker on what I believe is a CUE in a previous rating decision of 10% for ventricular arrhythmia with AICD. He was service connected for this disability via Agent Orange presumption in a June 2013 decision. The decision letter specifically notes "ventricular arrhythmia with AICD" however they indicate the 10% rating was based only on the use of "continuous medication", but also lists METS and Ejection Fractions.

The text below my name is what I wrote for him. Am I correct in my belief that this a CUE? If so, they owe him retro back to the original claim date in 2012.

Any and all opinions are welcome.

Thanks,

Dean

********************

Claim of Clear and Unmistakable Error in a prior decision dated XXX,XX 2013.

A CUE determination must be based on the record and the law that existed at the time of the prior decision. It was clearly erroneous to rate my Ventricular Arrhythmia with an implantable AICD at 10% disabling. Section 4.100 clearly states MET criteria is NOT required for rating purposes “When a 100% evaluation can be assigned on another basis”. Diagnostic code 7011 is very specific and requires the adjudicator to rate ventricular arrhythmia with an implantable AICD at 100% disabling. To rate this disability at 10% only on the basis of it “requiring continuous medication”, MET values, or ejection fractions is a Clear and Unmistakable Error (CUE) in the prior adjudication based on the medical records showing an implanted AICD and law in existence at the time of the prior rating decision. This error is undebatable and reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. I therefore request the 100% rating be retroactively applied to the original effective date of October XX. 2012 because the Department of Veterans Affairs (VA) failed to follow a procedural directives (legal error) listed in CFR 4.100 and specific rating requirement listed in diagnostic code 7011 (adjudication error).

§4.100 Application of the evaluation criteria for diagnostic codes 7000-7007, 7011, and 7015-7020.

(a) Whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication must be ascertained in all cases.
(b) Even if the requirement for a 10% (based on the need for continuous medication) or 30% (based on the presence of cardiac hypertrophy or dilatation) evaluation is met, METs testing is required in all cases except:

  1. When there is a medical contraindication.
  2. When the left ventricular ejection fraction has been measured and is 50% or less.
  3. When chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year.
  4. When a 100% evaluation can be assigned on another basis.

© If left ventricular ejection fraction (LVEF) testing is not of record, evaluate based on the alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the veteran's cardiovascular disability

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%

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  • HadIt.com Elder

Show the legal error they made and the harm they caused. The Error was in fact a misapplication of the part4.

The Harm was lost retro and compensation.

Good write up.

Go get them.

Basser

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I helped this veteran with a similar CUE AICD issue :



more to it in past discussions here:




I think I suggested that he ask them to CUE themselves on his Award letter....but forget.....he did use my CUE template.

Jbasser is right. he is our cardio GURU...go for it.


The only thing I would add is to start the claim with:

This is a claim under CUE, 38 USC, 5109A.

(That way although they have not done the claim right per the regs, it shows you are citing the regulation that gives you the right to call CUE on them ) :smile:

AND, I would puit the exact date of the decision being cued and then add, copy enclosed, and attach that decision to the CUE claim.Actually you might only need to attach the rating sheet.

For my pending CUE I on my Nehmer award, I attached only the cover page of the award and then page 7 I think it was forget.....

and I highlighted the specific statement I called CUE on.


I think one of m,y CUE templates is here:


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One other point, did he ever file a claim for IHD or CAD before, that VA had denied?

If so are you familiar with Footnote One of the Nehmer decision?

It is explained here in the AO forum.

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One other point....the Thailand AO vet claim did not fall under Nehmer but I am sure it was a GCY claim *( meaning a cue filed within the appelate period on a decision)

This type of CUE does not stop the appeal period for filing a timely NOD.

It is discussed more here:

There is no regulations for a GCY claim ( go Cue yourself VA) filed within the appeal period, I made this tactic up and it has sure been working for me ever since.

Of course both a CUE claim within the appeal period and a timely NOD can be filed.

I filed my pending CUE first on one statement in my Nehmer award letter ( they awarded past CUE claims I had on a 1151 non Nehmer issue but one of those CUEs was contingent on a proper AO IHD award)).

Then , to CMA, I filed a timely NOD as well as an request of extension of NOD timeframe for good cause.

I call that my PAKITU tactic.(put a knot in their underwear)

And I raised the legal point that when a recent decision contains a valid CUE , we are legally prevented from preparing a timely and adequate NOD

I also added that, if their CUE decision is not favorable I can appeal the NOD extension request to the BVA.

VA doesn't want that kind of stuff to get to the BVA.

They are working on my CUE claim now and the VA said 'it would go fast' .......whatever fast means.

Edited by Berta (see edit history)
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  • HadIt.com Elder

What amazes me about this is how the RO can make a decision like this and keep a straight face. To be blunt, this is a low ball and the rater and his manager should both be fired.

Poster, what RO did this decision?

J

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This decision came out of the Denver RO. I put in XXXX for the dates, but the real ones are in the letter we mailed. We also included the original decision letter as an enclosure showing the award with an AICD specifically listed. If he had been within the appeal period we would have filed a NOD. He just accepted the VA rating as being correct, not knowing how to read or interpret the regulations. But since he was outside that period I suggested we go the CUE route as it was clearly a mistake to rate it at 10%. I would expect this happens more than I would like to think.

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Question, Nor sure how to ask this?

IF veteran was rated 0% SC for a disability and was awarded 50% three or four years later for that same disability and nothing was mention about the 0%rating from the rater.....would that veteran qualify for retro back to the 0%rating? based on the wrong rating at 0% to 50% and was getting the 50% for a few year forward?

sorry pinto didn't mean to hi-jack your thread here buddy!

Buck!

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  • HadIt.com Elder

Buck it depends on 2 things.

The condition had not become worse and the regs in effect at the time of the original decision.

There is a chance. You may have to review the decision and look for the rating criteria. If it was not applied correctly then a cue may be the cause.

Basser

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PAKITU. I just love that, Berta! With your permission, I'm going to borrow that, as it's so applicable to other situations, and no one will really understand what it means unless I tell them. It's almost like swearing under your breath in a foreign language, which I do sometimes, but this is safer!

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Gotcha Jbasser,

Thanks for the info!

I appreciate it.

Buck!

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