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      How to get your questions answered. A few observations, and requests of all members. All folks who come here are volunteers who do this on their own time and their own dime.To avoid burning out our best contributors please follow these guidelinesf you are reading a post and it reminds you of a question you want to ask, start a new topic, if you place your question in someone thread it will be difficult to distinguish your question from the original poster, you will get better results posting a new topic with your question. 1. Before Posting please do a search and see if your question has already been answered. If you find the answer print it out and put it in a file to use as a reference file, I find this helpful myself. 2. If you can not find the answer and you do post a question, please print out those answers and refer to them to avoid duplicate questions. 3. Refer to the Frequently Asked Questions4. Duplicate questions will come up from time to time but the keeping them to the minimum will lighten the load on the regular volunteers.5. Respect folks privacy do not request their personal phone numbers for claims help, it is inappropriate and not why they are here.6. Keep the topics focused on veterans issues, in closing Search first Search ... Ask second.it may save a lot of time or at the very least enlighten you.
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    • A bit about Tbird and HadIt.com for those who've asked...

      The following is on my About page, but some have been asking how this all happened. So here is my little story. Tbird US Navy 1983 – 1990 E-6 HadIt.com the website domain registered Jan 20, 1997 the domain is registered and paid for through Jan 21, 2023 at which time I plan to register it for another 15 years Lord willing and the creek don't rise. I guess the best place to start is Jan 1991; I had gotten out of the navy Dec 1990. At my separation seminar, there was a DAV rep Jim Milton he told us to bring our medical records in and he would look through them for us and let us know if we should file a claim with the VA. Well, bless his heart, he opened my medical file, reads the first insert, looks me straight in the eye, and says you will be 50% for the rest of your life and he would file the claim for me. 50% was for surgery I had in the service. True to his word he met with me and talked with me for a long time filled out my paper work and urged me to file for PTSD. I would not file the PTSD claim, nor even discuss it. By Feb 1991 I had moved to the San Francisco bay area and was staying at a friends apartment and pretty much I was just a puddle. In desperation one night I called suicide hot line, I had no job, no idea about going to the VA. They talked with me for a long time and explained to me that I could go to the local VA hospital even if I did not have insurance. Now, I know what you are thinking if I was 50% why didn't I just go to the VA in the first place, two reasons 1, this was Feb 1991 and the 50% didn't come till May and 2, even if it had come through it is unlikely that I would have had the mental acuity at the time to put the two together. I relate this here because it is where so many of our brothers and sisters are coming from, perhaps where you started. Fuzzy and unsure, in pain and sometimes homeless they come to the VA hospital for help. And that is where I ended up. Up to the pysch ward I went, blah, blah, blah, a few days later I was released with a promise of a call from the out patient program, which I would soon be entering. Blah, blah, blah, after many missed communications, and no call backs I was at the Day Hospital everyday M-F. And this brothers and sisters is where I began to learn and formulate my plan for HadIt.com. Veterans, veterans everywhere…I spent a year in the day hospital and about another year at a sheltered workshop before I got back on my feet. So I just talked to veterans everyday waiting for appointments, waiting for prescriptions, waiting for a vet rep and I started to learn the system. While in the navy I was data analyst and had to learn a 5 volume manual and just about anything you were suppose to do was in that manual. So I figured there must be a manual on how to do a VA claim or at the very least regulations. So I found out about the Code of Federal Regulations, United States Code, Veterans Affairs Manuals and so on and so forth. Of course this was 1991/1992 I was living in a tiny studio apartment in a particularly bad neighborhood, working in a sheltered workshop making a nickel per envelope I stuffed throw in PTSD and you will see that it was a difficult task for me to get somewhere where they had copies of these, let alone that they would let me look at. And there was so much knowledge around me, it was like the gold rush in those days, I could just sit on a bench a veteran would sit down next to me a little conversation later I had another nugget, I made copious notes. Phone numbers to call, ask for this guy or that guy he'll give you the straight scoop and they'd slip me a piece of paper with a number on it. You want to read this regulation or that one and another slip of paper into my hand. 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So taking my lesson from the squirrels earlier I started to gather, gather, gather…and learn HTML and work as a marketing systems analyst and work my claim. 1996/1997 major PTSD cork blows and unemployed. Working my claim, working the website. 20 Jan 1997 register HadIt.com domain name right after getting off the phone with the VA and saying I've had it with this. As fate would have it the old DAV board goes down just as mine opens up and folks start to wander in. So HadIt.com has two main components the website which supports the discussion board with links, articles, research resources etc. The website starts to grow, I can't tell you how many times I had to switch servers for space and features. I continue on a downward trend and in 1998 ended up back home in St Louis living in my sisters basement in therapy and working it, I swear I would have swung a dead chicken around my head at midnight naked if I thought it would have helped. The website continued to do great during this time, I just stayed in the basement bought new software, new books, and learned how to make things work and I continued to use this knowledge to make HadIt.com better. My 100% finally came through from the VA and I had a friend who is an advocate who helped me thru my SSDI claim, he was literally at my side thru the entire process and that came through for me. My therapist and sister continued to try and get me to leave the basement, but to no avail. At some point in 1998 or 1999 I put a counter on the website and was shocked to discover how many visitors we were getting. Time goes by my sister gets married and I move from the basement to the upstairs, there is much celebration that Aunt T is living in the light again. More time goes by and I settle into my life in St Louis and spend more time on the site trying new things, finding more information. 2003 I buy my own home VA loan. For years now I have just considered HadIt.com my job and I get up every morning go to the office and work for several hours, take an afternoon break and see where the rest of day takes me. I have a place in the office to use the computer and a comfortable to place to read journals and articles and take notes. Blah, blah, blah so that is my story and HadIt.com's intertwined.
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      VA Training and Fast Letter Forum Index The following is the index with links to the various Training and Fast Letters plus a few miscellaneous. These letters are not necessarily in the original formatting. I have tried to present them in an easy-to-read form instead of some forms as originally presented. Some of the paragraphs were WAAAAYYY too long. lol - HadIt.com Member fanaticbooks Something to be aware.... Some of these letters may be rescinded, outdated, or otherwise no longer viable. I have still included them because sometimes they provide additional insight or just plain more information than the newest version. Use them wisely. The oldest letters will display at the bottom with the latest letters displayed at the top, all in sequential numbers. Coding of the letters... FL = Fast Letter TL = Training Letter First two numbers = last two digits of year of origin Training Letter http://www.hadit.com/forums/index.php?/topic/40694-va-tl-00-07/ http://www.hadit.com/forums/index.php?/topic/40693-va-tl-00-06/ Fast Letter Number Title http://www.hadit.com/forums/index.php?/topic/44262-va-fl-11-15/ http://www.hadit.com/forums/index.php?/topic/44260-va-fl-11-13/ http://www.hadit.com/forums/index.php?/topic/44261-va-fl-11-11/ http://www.hadit.com/forums/index.php?/topic/44310-va-fl-11-09/ http://www.hadit.com/forums/index.php?/topic/42151-va-fl-11-03/ http://www.hadit.com/forums/index.php?/topic/40957-va-fl-10-49/ http://www.hadit.com/forums/index.php?/topic/40958-va-fl-10-46/ http://www.hadit.com/forums/index.php?/topic/40959-va-fl-10-45/ http://www.hadit.com/forums/index.php?/topic/40960-va-fl-10-42/ http://www.hadit.com/forums/index.php?/topic/40961-va-fl-10-39/ http://www.hadit.com/forums/index.php?/topic/40962-va-fl-10-35/ 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Cue Awarded (1990)

1 post in this topic

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No. 89-70


1990 U.S. Vet. App. LEXIS 12; 1 Vet. App. 28

July 26, 1990, Argued

September 13, 1990, Decided

September 13, 1990, Filed




Appeal From the Board of Veterans' Appeals.

COUNSEL: Rick Surratt (non-attorney practitioner), for appellant.

Stephen A. Bergquist, with whom Raoul L. Carroll, General Counsel, Andrew J.

Mullen, then Acting Assistant General Counsel, and Pamela L. Wood, Deputy

Assistant General Counsel, were on the brief, for appellee.

JUDGES: NEBEKER, Chief Judge, KRAMER and FARLEY, Associate Judges.


OPINION: Summary

This case involves an appeal by Russell L. Bentley (veteran) from a decision

by the Board of Veterans' Appeals (BVA) which concluded that the rating actions

of February 24 and April 25, 1960, were not clearly and unmistakably erroneous

in failing to assign ratings of-60 percent rather than 40 percent for traumatic

arteriovenous aneurysm under 38 C.F.R. @ 4.104 (1989), Diagnostic Code 7113.

We conclude that, as a matter of law, there was clear and unmistakable error

in not awarding a 60-percent rating on February 24, 1960 and that, as a

consequence, a 40-percent rating could not have properly been assigned on April

25, 1960 without notifying the veteran of a reduction in rating with

opportunity to respond.

The decision of the BVA is reversed and the case remanded to it for further proceedings consistent with this opinion.


The veteran was in active service in the Armed Forces from March 1942 to

October 1945. While serving aboard the U.S.S. S-13, a Navy submarine, he

slipped on a wet deck in April 1944, fracturing his right elbow and dislocating

the bones in his right arm. He underwent treatment for these conditions and

upon discharge in October 1945 had residual limitation of motion.

By VA rating board action of November 1945, the veteran was awarded a

10-percent service-connected disability for residuals of a healed fracture of

the right arm. In August and September 1947, the veteran received hospital care

from the Veterans' Administration (VA) for further right arm injury incurred

while lifting a heavy object at work. Thereafter, he lost most of the use of

the forearm, and elbow motion was about 50 percent of normal. Although there

were significant physical symptoms, it was concluded by the VA, after orthopedic

and neurosurgical consultations, that such symptoms were not of an organic

basis. The veteran was discharged with a diagnosis of bone malunion due

to right arm fracture.

A statement of October 1947 from J. R. Briscoe, M.D., a private physician,

concluded that the veteran had nerve damage as a result of the right arm injury.

The veteran underwent further examinations at a VA hospital in November 1947.

After psychiatric and neurologic evaluation, it was concluded that the

neurological findings were most consistent with hysteria, and a diagnosis of

conversion reaction manifested by complete paralysis of the right arm was made.

The case was reviewed by a VA rating board in January 1948, and a 70-percent

rating was assigned for paralysis of the right upper arm with conversion

reaction, residuals of old bone fracture, and traumatic arthritis of the right


Following another VA hospitalization from April 26 to May 25, 1948, during

which the veteran underwent diagnostic testing, a VA regional office in January

1949 reduced the rating from 70 percent to 50 percent.

In a statement dated July 7, 1959, E. H. Schaper, M.D., a private physician,

related that a recent examination revealed an arteriovenous aneurysm requiring

surgical correction and evidence of hypertensive cardiovascular disease.

In a letter dated July 27, 1959, Dr. Briscoe stated his opinion that the

veteran had had a post-traumatic aneurysm of the brachial artery since the time

of his discharge from the service.

In August-September 1959, the veteran was hospitalized in the VA Hospital in

St. Louis, Missouri. During the hospitalization, excision of the aneurysm was

performed. The narrative summary of the hospitalization stated that the veteran

had incipient congestive heart failure, shortness of breath at night, and Grade

III aortic systolic murmur, and needed to use digitalis.

A rating board memorandum prepared by the St. Louis Regional Office on

October 29, 1959 concluded that the veteran's disability should be characterized

as an arteriovenous fistula which had its inception in April 1944. The

memorandum further concluded that the veteran had never been properly examined

and, thus, the correct diagnosis had not been made.

On January 28, 1960, the Director of the VA Compensation and Pension Service

at VA Central Office, Washington, D.C., based on the narrative summary of the

August-September hospitalization, directed the assignment for a period of ninety

days of a temporary 100-percent rating for arteriovenous aneurysm,

traumatic, with cardiac involvement, to be followed by a 40-percent rating for

arteriovenous aneurysm with cardiac involvement under Diagnostic Code 7113.

These ratings were effectuated by a rating board on February 24, 1960. The

veteran was examined by the VA on March 15, 1960. There was a Grade I systolic

murmur, tachycardia, and blood pressure readings of 170/80, 170/90, and

150/100. The examiner concluded that: there was no current evidence of an

arteriovenous aneurysm; a diagnosis of hypertension was not justified although

there might have been masking of hypertension by the drugs being taken;

tachycardia could not be explained on an organic basis; and there was no heart


In a statement dated March 28, 1960, Dr. Briscoe stated that since the

surgery for removal of the aneurysm, the veteran had been under his continuous

supervision for hypertensive heart disease which was only partially relieved by

the use of digitalis and reduced activity.

In a rating decision dated April 11, 1960, the VA continued the February 24,

1960 rating of 40 percent for arteriovenous aneurysm with cardiac involvement,

noting that the March 15, 1960 examination revealed the absence of

hypertension, cardiac insufficiency and heart disease.

On June 30, 1980 and September 18, 1984, the veteran underwent additional

examinations at the VA Medical Center in St. Louis, regarding his aneurysm and

its effect upon him.

Following an onset of chest pain and labored breathing on exertion,

angioplasty was performed in January 1988. The veteran was hospitalized during

the last week in May 1988 at the St. Louis VA Medical Center for coronary artery

disease at which time it was determined that he had significant arterial

obstruction. From June 7, 1988 to June 18, 1988, he was hospitalized for

coronary artery disease at the VA Medical Center in Chicago, Illinois.

On November 1, 1988, a rating decision continued the veteran's rating for his


The veteran, through his representative, then asked that the VA

review its February 24, 1960 rating decision on the theory of clear and

unmistakable error in that the minimum rating for an aneurysm with cardiac

involvement is 60 percent.

By rating decision of November 21, 1988, the VA determined that there was no clear and unmistakable error in the February 24, 1960 rating. The BVA in its decision of November 16, 1989 affirmed this determination, and the veteran appealed to the Court.


The issue for decision here is whether the BVA was correct in determining

that there was not "clear and unmistakable error" in the 40-percent rating

decisions of February and April 1960. Pursuant to 38 C.F.R. @ 3.105(a) (1989),

promulgated under the authority of 38 U.S.C. @ 4005© (1982), "previous

determinations upon which an action was predicated, including . . . degree of

disability . . . will be accepted as correct in the absence of clear and

unmistakable error. Where evidence establishes such error, the prior decision

will be reversed or amended."

Under 38 C.F.R. @ 4.104 (1989), Diagnostic Code 7113, a traumatic arteriovenous aneurysm with cardiac involvement is to have a minimum rating of 60 percent and a traumatic arteriovenous aneurysm involving an upper extremity with marked vascular symptoms without cardiac involvement is to have a 40-percent rating.

It is not disputed that the February 1960 rating for the veteran's aneurysm

"with cardiac involvement" was 40 percent, and that such a rating is not

authorized by the Schedule. The Secretary of Veterans Affairs contends

on appeal, however, that including the phrase "with cardiac involvement" was

simply clerical error and that the veteran's condition did not warrant such


The BVA decision states that:

The 40 percent rating for arteriovenous aneurysm 'with cardiac involvement' was

assigned by the Rating Board at the instruction of the Director of the

Compensation and pension [sic] Service following a review of the hospitalization

report and statements from two private physicians one of which contained a

reference to hypertensive cardiovascular disease. Since Diagnostic Code 7113

requires 60 percent or higher for cardiac manifestations the 40 percent would

appear to be incorrect on its face. . . Russell L. Bentley, loc. no. C5629676, at 7 (BVA Nov. 16, 1989).

In this statement, the BVA itself finds error in the February 1960 rating.

While never specifically discussing its failure to thus award a 60-percent

rating in February 1960, it attempts to use the basis of the results of a VA

medical examination the following month to justify this error.

After-the-fact justification of a past error cannot make right that which was already wrong.

The Board itself stated that the Director of the Compensation and

Pension Service directed the use of the phrase "with cardiac involvement" after

reviewing certain documents. Our review of the record reveals that the Director

specifically relied on the narrative summary of the veteran's 1959

hospitalization in making his determination, and, as indicated above, this

summary referenced incipient congestive heart failure, shortness of breath at

night, Grade III aortic systolic murmur, and the need to use digitalis.

With regard to the February 1960 rating, we hold that the veteran was

entitled, under the Schedule, to a 60-percent rating for arteriovenous aneurysm,

traumatic, with cardiac involvement.

To have provided the veteran with a 40-percent rating for this condition constitutes clear and unmistakable error, pursuant to 38 C.F.R. @ 3.105(a). As a matter of law, pursuant to 38 U.S.C. @@ 4061(a)(3)(A), (b), (1988), reversal is mandated.

With regard to the April 1960 rating, we render no opinion on the substantive

merit of such action. However, if the veteran had been properly awarded a

60-percent rating in February 1960 to which he was entitled, a reduction to a

40-percent rating could not have properly taken place in April 1960

without certain procedural safeguards being followed. The regulation then in

effect, 38 C.F.R. @ 3.9(e) (1957), required that a reduction not be effected

until written notice of reduction and an opportunity to respond had been given.

This obviously did not take place. The failure to follow the requirements of

this regulation constitutes, as a matter of law, clear and unmistakable error,

prejudicial to the veteran, pursuant to 38 U.S.C.A. @@ 4061(a)(3)(A), (D), (b),

and 38 C.F.R. @ 3.105(a).

One other issue needs to be addressed, that of coronary artery disease. It

appears that the first time this issue was ever raised was not by the veteran

but by the BVA itself, at page 8 of its decision. It did so only in the context

of stating that the veteran's present coronary artery disease has not been

established as being service-connected. As a consequence of this BVA statement,

the veteran presents the argument on appeal that he is entitled to

service-connection for his coronary artery disease. The Secretary responds by

stating that this disease is a separate disease process unrelated to the

service-connected aneurysm.

Nothing in the record prior to the BVA statement indicates that the issue of service-connection for coronary artery disease had ever been raised or considered, or that the veteran had been given an opportunity to be heard on it. Under 38 U.S.C. @ 4005(d)(1) (1988), a Statement of the Case (SOC) is required to discuss fully each issue.

Here, however, the SOC, dated June 19, 1989, was totally silent on the issue of

coronary artery disease. Thus, it appears from this record that the issue of

any entitlement that the veteran might have for coronary artery disease was not

properly before the BVA for decision. Therefore, the BVA decision does not

constitute any binding resolution of this issue and, hence, the issue of

entitlement is not properly before this Court.


For the reasons stated above, the decision of the BVA is reversed and the

case remanded to it with directions to: award a 60-percent rating effective

February 24, 1960 for arteriovenous aneurysm, traumatic, with cardiac

involvement, and vacate the April 1960 40-percent rating for this condition.

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