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How Does 100% For 6 Months Then Re-Evaulation Work?


TiredCoastie

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How does this work? Do I have a leg to stand on should I continue to appeal a DRO decision on an appeal

38 CFR part 4 has several listings in which conditions are to be rated at 100% when they first occur, then evaluated for residuals after 6 months for a final rating. Some examples are the various causes of stroke under 38 CFR 4.124a. There are also a number of heart conditions with 3 or 6 months at 100% then rerated based on specific criteria in 38 CFR 4.104.

So if a veterans has, say, a stroke, then applies for service connection and a disability rating AFTER the stroke has occurred, does the VA then pay the 100% for 6 months then whatever the residuals rating would be? Or, because the veteran applied for disability related to the new condition AFTER the stroke occurred, because the effective date of the disability is AFTER the stroke actually occurred (and likely more than 6 months afterward), does the VA only rate residuals and does not provide the 100% for six months?

Here's why I'm asking. I had a TIA within a year of discharge in 2011, probably 1 or 2 on active duty before then, and probably 1 or 2 after being out a year. After battling the VA for several years, a DRO just granted me 10% and SC for "TIA" based on the one in 2011, which was the clearest case for SC. I cannot argue with the 10% residual rating which I believe is accurate. However, because I first applied for disability related to this condition in 2012, the effective date is beyond 6 months of the 2011 event. The DRO decision did not grant me 100% for 6 months. Rather than certify the appeal and send it onward, the DRO had pulled it back from going to the BVA and decided it "in my favor" instead. As an aside, I provided evidence of an underlying condition which causes cerebral thomboses with that condition starting a couple of years before I discharged which the DRO did not rate but stuck with a condition undefined by 38 CFR part 4 which he or she called "TIA."

Meanwhile, while waiting for a "reconsideration claim" to process in 2013 (don't do one of these reconsideration claims, by the way) after I was initially denied SC for this condition, I was hospitalized for what could have been a TIA. With an effective date of 2012, this event could be rated at 100% without any controversy if I can prove it was a TIA. In fact, I attempted to have this medical evidence considered by passing it through the VAMC but it does not appear that it was considered based on the DRO's decision explanation.

I'm trying to decide if I should submit another Form 9 of the DRO's decision arguing for a clearer SC'd condition based on the evidence I provided as well as 100% for six months based on the 2011 TIAs as well as decide how to handle the 2013 event and could really use some advice. If I've already lost because the 2011 event occcurred prior to the effective date, then maybe I shouldn't waste my time but figure out how to get the 2013 event rated? Would I continue the appeal or submit a new claim?

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I have a similar issue.

In 2012 Nehmer VARO awarded and paid me under 1151, 100% accrued plus SMC and 2 dependents on my deceased husband's catastrophic stroke.Their IHD AO award depened on 2 CUES I had filed (2003=2004) never adjudicated properly and still pending)

But I filed CUE on the award in 2010 of that CUE, as the medical evidence warranted a continuous 100% P & T rating.

I recently got 2 of the most bizarre denials I have ever gotten.

They granted the CUE on the Nehmer award and stated he was 100% under the stroke residuals, then they made 4 CUEs in the decision and said I already got paid the proper accrued amount. HUH?

They still owe me 100% plus SMC for vet,wife, child, for 20 more months as an accrued benefit.

VA Central just got my C file and claims...the RO also buggered a 1151 claim too by trying to go against a VACO review garnered part of my FTCA settlement for wrongful death.

I complained to Ms. Hickey because the RO had not even acknowledged these claims for over 2 1/2 years and things moved fast...

I am glad to be at VACO and just got the email for the guy who is going to get my stuff.

BUT in your case, TIAs do not raise to the level of 100% ratings under stroke.My husband had 6 TIAs and VA misdiagnosed them.all.

It was the catastrophic stroke he had in 2012, that caused h Voc Rehab to find him no longer able to remain in school, and SSDI award that showed he could no longer wotrk.

It is pretty interesting stuff because they ignored a letter from a former Sec stating his stroke was permanent and total , a VA Neuro report saying the same thing, and other similar evidence, and obviously when one has a 100% disability and died, they were permanently and totally disabled by it.

That doesn't really matter because they still have to pay me what they owe me.....they even rated his residuals wrong but added it up to 100% in this recent decision I just got.....

"Here's why I'm asking. I had a TIA within a year of discharge in 2011, probably 1 or 2 on active duty before then, and probably 1 or 2 after being out a year. After battling the VA for several years, a DRO just granted me 10% and SC for "TIA" based on the one in 2011, which was the clearest case for SC. I cannot argue with the 10% residual rating which I believe is accurate. However, because I first applied for disability related to this condition in 2012, the effective date is beyond 6 months of the 2011 event. The DRO decision did not grant me 100% for 6 months. Rather than certify the appeal and send it onward, the DRO had pulled it back from going to the BVA and decided it "in my favor" instead. As an aside, I provided evidence of an underlying condition which causes cerebral thomboses with that condition starting a couple of years before I discharged which the DRO did not rate but stuck with a condition undefined by 38 CFR part 4 which he or she called "TIA."

"does the VA then pay the 100% for 6 months then whatever the residuals rating would be?"
Yes.But they can do that wrong.As I stated I found 4 CUEs in that decision.last week and asked the director to CUE themselves but she instead decided to send my 2 claims to VACO.

(which is sure OK by me)

"Or, because the veteran applied for disability related to the new condition AFTER the stroke occurred,"
My husband never knew he had a 1151 stroke, I claimed it as his widow.

We knew he had been misdiagnosed for 3 weeks with it, but felt they had mitigated those errors by sending him to SYracuse. EWe were wrong. They messed him up even more there.

because the effective date of the disability is AFTER the stroke actually occurred (and likely more than 6 months afterward),
does the VA only rate residuals and does not provide the 100% for six months?

They rated the residuals in my case at 100% , plus SMC, and 2 dependents but I dont understand what you mean by "because the effective date is AFTER the stroke"

In my case, the veteran died, due to VA malpractice, AO IHD, AO DMII, HBP, with TIAs and stroke as contributing factors.My accrued claim determined the EED.of my 1151 award on this.

In your case, so I understabnd you filed the claim due to a disability that appeared within one year after your discharge?

"
I had a TIA within a year of discharge in 2011, probably 1 or 2 on active duty before then, and probably 1 or 2 after being out a year. After battling the VA for several years, a DRO just granted me 10% and SC for "TIA" based on the one in 2011, which was the clearest case for SC."


How do you know that was the clearest case?

Heck,the VA tried to get out of my similar claim.......but I made "the clearest case" I could based on their own medical records, that they tried to cover up at Syracuse..

However I didnt formally claim the TIAs, I claimed the manifestation of them, as a stroke follows TIA events.that is a well known fact in the medical community.

I hope many others chime in here.....

I am pressed for time these days and maybe didnt understand all this correctly.

Also what does the 2012 hospitalization reveal?

They called my husband's 1992 hospitalization for 3 weeks, an inner ear infection,but It was a full blown stroke.

When they realized it was a stroke they shipped him to Syracuse VA for another 5 weeks or so, diagnosing him properly with CVA but covering up the other VAMCs malpractice and not giving him properly care.

His TIAs ( we made many ER trips to the local VAMC, they diagnosed as sinus infection. He had no sinus problems at all.)

I proved these were TIAs,but you might have problems doing that,if that is what you feel you need to do.

I dont think TIAs are ratable at much more than 10% ,but were considered quite a lot in my FTCA settlement negotiations.







Edited by Berta (see edit history)
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Thanks, Berta. I appreciate your experience. It seems like I may have an argument for 100% for 6 months based on the 2011 TIA.

JMHO in my case, but the RO should have found SC for cerebral thombosis which is a defined condition in 38 CFR 4.124a. Having looked at 4.124a quite a bit, there is no condition labeled as "stroke" and certainly not for "TIA." 4.124a lists two other major causes of stroke - cerebral hemmorage and cerebral anuerism - and handles them with thrombosis all the same way. You know this but others reading may not - a cerebral thombosis can cause either a temporary stroke (TIA) or a permanent one. If the clot clears quickly enough to not do any permanent or detectable damage, it's a TIA. If not and permanent damage is done, then it's a stroke. NO KIDDING that EVERYONE knows that TIAs are a major indication that a stroke is on the way! How any doctor could ignore that commonly known medical fact is beyond comprehension.

SO...if you have one of those three major underlying conditions that cause stroke but there is no permanent damage or "residuals," the minimum rating is 10%. I have no permenant residual as far as the VA is concerned, so 10% is appropriate. In fact, I may have a small residual but not enough to be noticable. I'm happy with the 10% rating as it stands today. Again, the big question is what about the 100% for 6 months?

I battled them over this underlying condition issue for several years, with your help as you'll recall. In the recent DRO's decision, the DRO did not acknowledge the DBQ from the hematologist who diagnosed me with cerebral thrombosis starting in 2008, two years before I discharged. If he had, then I would have a clear diagnosis from a 4.124a standpoint and it would be clearer that 100% for 6 months would be due having suffered a thrombosis in my brain.

My timeline is this:

I woke up one morning with half of my bottom lip numb in 2008. It felt like I slept on it wrong, if you know what I mean having ever woken up with your arm or hand numb from having slept on it. My wife insisted I visit the local ER. They said, "Mrs. X, your husband isn't having a stroke right now, but if he has [list of standard stroke warning signs], get him to the hospital immediately."

Then we were back East visiting family a few weeks later when I had a severe confusion episode. In the end, I was back in a different ER and burned three days of leave in the hospital. They declared me to have suffered a migraine after extensive testing. I'd never had migraines before, and I think it was the result of whatever had happened less than a month before when I awoke with a numb lip. And...TIAs leave no tracks... I think they missed it.

Shortly after discharge, I started getting tingling and numbness episodes in the lower left part of my face. Sometimes it would be my lip. Sometimes my cheek. We were moving to an area with top notch medical so I waited until we moved to begin to determine what was happening.

Just before a year passed since discharge, in August 2011, I wound up in the ER when the tingling and numbness got worse one night and I got scared. I had a nuerologist appointment within a week, so the ER released me and insisted I follow up. Diagnosis - TIA. This was what the RO used to SC me.

Then I had another bad episode a month or so later when the hemotologists took me off of my blood thinners, that I'd just started, to do a platelet aggregation test to try to find the underlying reason I have "sticky platelets." I almost had a stroke within 48 hours. The hematologists declared they had what they needed, put me back on blood thinners, and I haven't been off since. This one happened after my year was up.

Meanwhile, my migraines were getting worse. Some of my symptoms could be explained by migraine, including the strange numbness in my face, but not all of the episodes and the symptoms all the time.

I applied for disability related to this condition in June 2012. SC was just awarded back to 1 July 2012 through the DRO's decision.

In July 2013, I had a severe dizziness episode and wound up hospitalized. By this point, my ill advised "reconsideration request" was in the system running like a snail in slow motion. The neurologist who saw me in the hospital was unclear if the episode was a TIA or a migraine. Follow up exams by a variety of doctors gave mixed results. This would be an uphill battle to prove either way but would be worth 100% for 6 months seeing as this episode occurred after the recent decision to SC back a year previous.

To keep from slowing down the reconsideration request because I'd dumped a ton of N&ME on them and *thought* that I had an FDC and expected a decision any minute, per my VSO, I did not want to do anything to cause it to become a traditional claim. (As it turned out, a decision finally came 9 months later.) In an effort to prevent that from triggering, I got the hospital records to the VAMC where they were uploaded and available to the RO who was supposed to check what the VAMC thought as part of their decision. So...my request for a copy of my C-file has been on hold for over a year...and I need to get off my butt and get over to the RO and just look at it...

The blood thinners do help my symptoms quite a bit, which is my own major argument for thrombosis/TIA beyond the specialists who have weighed in on my behalf.

Do you think there is a difference between an 1151 claim based on malpractice and a regular SC disability claim in terms of how the 100% would work? I can see it being handled differently. Because the VA has never done anything medically for my neurological conditions...we have outside insurance and will use that instead to get the best care...I don't have an 1151 avenue (thank God) to pursue.

My biggest reason to ensure this is right is to prevent a situation like yours from occurring to my wife. While we might get some retro in the shorter term, what I've really got is a life insurance policy that should guarentee DIC should the unthinkable happen. At least, it's a lot closer with a SC "condition" of sorts.

Having run through this thought process a few times thanks to just having the conversation, I think I've got to go back to the RO and see if I can get this fixed. I don't know if I'll receive any retro or not for two events in 2011 or the one in 2013, but at least the condition needs to be right. And I was very plain, straight forward, and direct in my Form 9 that the RO had blown off the DBQ on cerebral thombosis and should have rated that underlying condition. But at least I got the VA to acknowledge that I've had at least one TIA, and that's a good starting spot to move forward to get it fixed.

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Thanks, Berta, for helping me think through this. I sent the RO a letter asking that they reopen my appeal, correct the analogous rating (38 CFR 4.20) to the right one listed in 38 CFR 4.124a and pay me 100% retro for 6 months from each TIA. Because the award letter said that I need to file a NOD (rather than a Form 9) and there are new rules about how to do that, it would not be surprising to get a response that I need to formally file a NOD via the form despite the decision being old enough to be grandfathered.

I really hope that they rethink their decision without a lot more effort.

In thinking through 38 CFR part 4, it would seem that the VA should pay 100% retro for SC disabilities for 4 or 6 months no matter when the condition was SC. However, the only way to find out is to formally ask and then wait for the response.

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The 100 6 month temp only applies to a few scenarios ike Stroke and also prostate cancer residuals, etc.

It is based on medical evidence of 6 months at 100% that they have. (such as an SSA award or clear medical opinions with full rationale that they have)

"Do you think there is a difference between an 1151 claim based on malpractice and a regular SC disability claim in terms of how the 100% would work? "

In my case they paid not only 100% posthumously for my husband's 100% SC PTSD, they also paid in 2012, under 1151 part of the 100% P & T accrued benefit they owed me.

My claim for that was sent to VACO by the RO Director.

100% SC plus 100% 'as if SC under Section 1151, 38 USC equals two separtte 100% awards and payments.

The regs are here somewhere on that.

"I can see it being handled differently. Because the VA has never done anything medically for my neurological conditions...we have outside insurance and will use that instead to get the best care...I don't have an 1151 avenue (thank God) to pursue. "

That is great.

VA fights 1151s aggressively .They denied a 1151 HBP claim I had recently That too was sent by the RO director to VACO.

My evidence was from a Top Cardiologist who prepared one of the Peer Review Reports for my FTCA /1151 award. Her culliculum vitae at heathgrades is fabulous, noting all of her cardio specialitys include HBP.

and I got a medical 'review' ( the director said she sent off the file before she could make a copy of the exam for me...yeah right)

was prepared with every statement being totally erroneous in regard to the medical evidence they had.

So I had positive VACO Cardio opinion (requested by OGC for my FTCA case) that dealt in part with my charges regarding the HBP issue and agreed with the malpractice

weighed with a negative opinion some clown at Buffalo prepared, who seemed to have NO medical background at all to me,

one positive, and one lousy equals Benefit of Doubt but VA also made a CUE (I filed already)in failing to make the critical BOD Relative Equipoise statement, in the decision when they deny and do not extend BOD....they must give a full rationale .

I have never seen in over 20 years a VA RO examiner trying to over rule an opinion from an expert cardio who still works at VACO, an opinion that was part of the opinions involving my while FTCA settelement case.

I raised a ruckus on both of these claims.

Hopefully VACO (they contacted me that they received all of my stiuff last Thursday) will rectify this situation.

I also griped to VA OGC and to the Regional Counsel here in NY.

Next thing I know ,they will try to opine that my husband really isn't dead.

If that were true they would have owed him more than he ever saw in his lifetime.He died at 30%for PTSD

I proved it was 100%.SC for PTSD a ..posthumous award.

Plus the AO IHD award 20 years after his death

Plus the AO DMII award 20 years after his death

and the 2012 6 months 100% P & T plus SMC, vet and 2 dependents, award 20 years after he had this 1151 stroke

And none of that did him , in his lifetime, any good at all........

The bastards

Edited by Berta (see edit history)
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Sounds like an uphill battle, but 38 CFR 4.124a seems pretty clear in terms of the 3 major causes of stroke. If a veteran has one of those incidents as shown by competent medical evidence and is SC, no matter how severe or permanent, it appears that 100% for 6 months is warranted. My plan is to make them tell me "no" with some sort of explaination the RO and I can argue about further. Or they can agree, pay me, and I'll go away quietly and happy.

I hope and pray you'll see some final resolution on your and your husband's situation soon. It's hard to imagine that this is still going on after all these years.

Edited by TiredCoastie (see edit history)
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Yes the regs are quite clear.

They rated for 100% P & T for 6 months in 2010 and paid me 6 months plus SMC as accrued.August 9 1992 to March 1993

(I dont know how that adds up to 6 months)

due to a CUE claim I filed in 2003. Finally adjudicated 2012...

I cued the CUE award in 2012.

Last week the granted the CUE, and rated the residuals at 100% from March 1993, to October 1994, with SMC, and I think they mentioned the 2 dependents for accrued. 20 more months granted.

But after they agreed with my evidence and made that favorable statement they said I was already paid under accrued regs.

and that the payment would remain the same.

They only paid for 6 months at 100% Aug 1992- to 3 March 1993.

I Cued it again last week. The director tried to tell me this was a temporary rating issue, as an excuse for no accrued. paid..

I said 'heck all ratings are ,in essense, temporary unless the medical evidence (which I sent to them) warrants a P & T designation.'

My first piece of evidence (13 pieces in all, they didnt read) was from a former VA Secretary which verified my husband's stroke was Permanent and Total.

I also had to explain to the RO director that when a vet has a 100% SC rating for Anything and dies, the veteran had not only a total l00 % rating but that his or her death made that 100% a Permanent rating.

That is why survivors of 100% SC vets , get the P & T designation if they are eligible for CHAMPVA or Chap 35.

if the CUE had no monetary value they would have never granted the additional 1151 ratings.

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