38 CFR in previous years

[Atlcocky]

Hello Veterans,

I have been looking for the 1996 version of the 38 CFR, especially Book C. I am trying to research whether or not I have a valid CUE claim. The original decision was in 1996 and I need to find out the rules at the time of my denial. I have looked online but, maybe I am not very good at the search.

 

Thank you for your help

[Atlcocky]

I am not sure which code fits best but, I believe it will be either be 7007 - Hypertensive Heart Disease or the catch all 7020 - Cardiomyopathy. They both seem to have the same rating system associated with them, which is, enlarged heart is a 30% rating. It does say that to award this rating you need the enlarged heart medically documented AND a METs test or EF Test. The VA did not order either. 

[Atlcocky]

Hello again all,

I finally got my big claim together for the VA and will submit it by the end of next week. This allow me to reread and hopefully better explain what I think I see on potential CUE in my heart condition claim. 

OK, here you go...In my original decision letter that denied the claim for heart condition, it stated "In 4-95 the veteran was noted to have slight cardiac enlargement on chest x-ray. The remaining records were negative for any further finding concerning a heart condition."  

Sooooo....

There is evidence further in my medical record.  On May 12, 1995, there is a Echocardiogram report that shows a "mildly dilated left atrium and top NL wall thickness". 

Does the fact that this evidence was ignored, missed or disregarded indicated a CUE claim? I believe that if it does, all of the other aspects of proving a CUE will be met. Based on this law:

The majority of heart conditions are rated based on a set rating system. All the conditions will be listed below along with any deviations from this rating system.

Note: It is very important that the physician performing your exam gets an MET (metabolic equivalent of task) test done for ANY heart condition. An MET test, more often known as an exercise test, checks for how much oxygen is being used by the body to perform increasingly strenuous tasks. 1 MET equals the amount of oxygen a person uses when at rest. There are a very few cases where an MET test is not required, but the majority of the time it is essential to getting a proper heart rating. Be proactive and make sure an MET test is done!

The basic rating system:

A 30% rating is given if there is one or more of the following:

1) The condition scores 6 or 7 METs on an MET test and causes shortness of breath, fatigue, chest pain,
dizziness or fainting
2) Evidence (x-ray, electro-cardiogram, or echocardiogram) of hypertrophy or dilation. An electro-
cardiogram by itself can prove hypertrophy, but is not enough to prove dilation.

this seems to met the 30% level because the evidence was met in #2. The only thing that I am not sure about is, it does state in the notes that even if this evidence is available, that MET testing should be done. In my case, it was not done. Obviously, that leads to the question, since the VA did not order the necessary test during the initial exam, can they use that to deny the CUE since the rule of 'duty to assist" does not apply? or would the flexibility in the term 'should' allow them to rule in my favor? or could this be one of the 'very few' cases?

I read back thru this entire thread and I understand that it is a HIGH hurdle to jump. I want to understand and explore this to the fullest before I move to the next step. I think this explains it as well as I can. Between this and the previous post, I believe the story is now on here to be looked at.

 

Thanks all.

[Atlcocky]

On 10/4/2017 at 12:10 PM, Berta said:

I dont see evidence of any CUE in the decision.

But by all means re open the claim with New and Material evidence if they are documented  as  permanent residuals or chronic disabilitys, as the decision states.

Others might see the decision differently than I do and they will chime in.

Hello again Berta. Will you review the last bit of information I posted on this thread. I believe that this could potentially far under 38 CFR 4.6. I read you post from a few years ago and it seems that this may fit. 

Please advise.

[Berta]

I re-read the decision and still find no evidence of any legal error (CUE).

If you do succeed on a re -open for  your heart condition, and if it was at a ratable level in the older decision ( I saw no rating as NSC at all there) you  might have a CUE basis.....might....but I dont think it was at a ratable level in the older decision. 

The best thing you can do is re=open with N & M evidence,which I would think would include any past ECHOs and make sure your service nexus is clear to the VA.

 

[broncovet]

I agree with Berta.  You need to understand that CUE:

1.  Is a "standard of review".   Most errors are not CUE, but must meet specific criteria to raise to the cue standard of review.  

2.  Is all about effective dates.  Otherwise, you simply re apply.   If you meet the cue standard of review, then you should have little problem with the "benefit of the doubt" standard, when you re apply.  I think the best time to file a cue is after you have been awarded the benefit, at an incorrect effective date.  

[Atlcocky]

51 minutes ago, Berta said:

I re-read the decision and still find no evidence of any legal error (CUE).

If you do succeed on a re -open for  your heart condition, and if it was at a ratable level in the older decision ( I saw no rating as NSC at all there) you  might have a CUE basis.....might....but I dont think it was at a ratable level in the older decision. 

The best thing you can do is re=open with N & M evidence,which I would think would include any past ECHOs and make sure your service nexus is clear to the VA.

 

 

42 minutes ago, broncovet said:

I agree with Berta.  You need to understand that CUE:

1.  Is a "standard of review".   Most errors are not CUE, but must meet specific criteria to raise to the cue standard of review.  

2.  Is all about effective dates.  Otherwise, you simply re apply.   If you meet the cue standard of review, then you should have little problem with the "benefit of the doubt" standard, when you re apply.  I think the best time to file a cue is after you have been awarded the benefit, at an incorrect effective date.  

Berta and Bronco,

I really appreciate the time you both put into reviewing and letting me know what y'all think. Thank you for all you do on this board.