Shyne-I

July 13, 2013

Hello Everyone,

I was wondering if anyone can tell me if I have a good chance of winning a CUE based on the following:

I am asking for an earlier effective date of my increase in sinusitis based on a CUE in my May 15,1995 rating decision where in the RO failed to apply the correct statutory and regulatory provisions to the correct and relevant facts.(See Oppenheimer v. Derwinkski, 1 vet. App. 370,372(1992)). While the RO noted that the condition of sinus headache is considered a symptom of sinusitis, they failed to grant me a compensable rating for sinusitis with headaches. 38CFR 4.97 Diagnostic Codes 6510-6514 the law that existed at the time of the prior adjudication in question includes: Chronic sinusitis with only x-ray manifestations and mild or occasional symptoms warrants a noncompensable rating; moderate symptomatology with discharge or crusting or scabbing with infrequent headaches warrants 10 percent . A 30 percent evaluation is warranted for severe impairment manifested by frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence. A 50 percent evaluation is post operative, following a radical operation with chronic osteomyelitis required repeated curettage, or severe symptoms after repeated operation.

Disability evaluations are determined by application of the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity as a result of enumerated disabilities.

38 CFR 4.7 states 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.

The medical evidence of record is as follows:

March 1994 evaluated for complaint of sinus congestion

July 1994 evaluation noted some maxillary sinus tenderness with complaints of left ear pain and drainage, and temporal headaches.

August 1994 evaluation noted complaints of headaches and slight ear pain, examination noted right maxillary sinus tenderness, which required 24 hrs. SIQ.

The separation examination noted history of frequent tension headaches and frequent sinus infections.

VA Examination dated 2/17/95 was reviewed with complaints of sinus headache, chronic sinus problems and post-nasal drip with sore throat. Diagnosis were mild frontal sinusitis, history of UTI, and sinus headaches.

I was assigned a noncompensable rating in May 1995 based on diagnosis of mild frontal sinusitis. My basis for a CUE is that the RO failed to apply the correct statutory and regulatory provisions to the correct and relevant facts. The RO did not correctly apply the facts of the total medical evidence to the correct statutory regulation in 38 CFR 4.97 where my contention is that my symptomatology and disability picture, including the incapacitating episode in August 1994 more nearly approximated the higher rating of at least 10 percent based on 38 CFR 4.7

I would appreciate any and all feedback

Thanks!!

June 26, 2013

Congratulations on your win!!

June 26, 2013

Congratulations!! And you are right...we have to keep fighting to get what we deserve!!

June 25, 2013

WOW!!! This is soooo awesome. That's 4 success stories in the last couple of days!! Makes you want to shout...Praise God!! May you all be blessed.

Shyne-I

June 25, 2013

Congratulations,

It is so good to see so many veterans with success stories here lately!!

June 19, 2013

Hello All,

Just wanted to give another update. My appointment with my rheumatologist didn't go as planned. He was advised by his business office(Baylor Medical System), that legally, he could not provide an Independent Medical Opinion because he was not licensed to do so. He advised me that an Independent Medical Examiner is a licensed profession and you have to be certified as such, in order to an IMO. He told me that he could write a statement of my current condition but that he could not provide a forensic examination of my service medical records to provide an opinion of what my condition was while I was in service. Needless to say, I was thoroughly crushed!!

So...on to round 3, his statement gave me the idea to challenge the opinion given by the VA examiner. So I read the statement by Dr. Bash listed here under IMO forum. He mentions that the VA, in order to save money and time, have started using P.A.'s and N.P.'s to provide opinions. It also mentions that these opinions are normally discounted either on review by the VSCM at the RO or by another opinion given by a physician. So yesterday when I was getting ready to submit my NOD based on this information and to request another opinion, I find out that they have changed the status from reopened under "Administrative Review", back to a "Compensation" claim and that they have determined that my claim needed additional review. I'm not sure if this is because they found an error or if it is because I submitted those missing 7 years of medical records, either way, I still wanted it noted that I wanted the VA examiners opinion discounted.

Either way, I hope that they find the continuity of symptomology throughout my records and do what's right!! I have my fingers crossed and on my knees praying!!

June 17, 2013

Congratulations Tonio,

I have seen you on here giving your well wishes to everyone, and now it's your turn!! Enjoy and I am so happy for you :)

June 7, 2013

Hi Meg,

I have an appointment to meet with him on Tuesday to review my medical records from 1997-2004 and to compose the nexus letter.

Berta, I know. I was so thoroughly confused by that statement...Lol. I thought that maybe since it was a double negative she was trying to say it was as least as likely as not!! Lol. I have my first appointment with a VA doctor this Tuesday as well and I was told to bring all of my doctor's progress notes from the last year, including any labs, x-rays, etc. I have like 2 full 3 in., 3 ring binders filled with my C-file and my private medical records!! along with X-rays, sleep studies and MRI results. It's going to be hard trying to lug all of these around the VA hospital!

I'm just so tired of this fight...I have the VA in round 2 and SSA in round 3...Lol. My SSA hearing is scheduled for 8/7, I tried handling them on my on but I didn't know what I was doing. I have a lawyer now and I feel better about the outcome for my SSA disability.

June 6, 2013

Hi T8r,

I may be using 3.317(b) incorrectly. I did not serve overseas, so it's not considered a presumptive for me. I was just referencing the description of the signs and symptoms of Fibromyalgia, to say these are the same symptoms throughout my record over all these years!! Thanks for the well wishes.

June 6, 2013

Hello Everyone,

Just wanted to give an update. I received my Claims folder and there was an addendum to my C & P exam 5 days before they made there denial decision. They forwarded my C-file to the examiner and she had in fact given the above mentioned opinion.

Her rationale was that: " The symptoms mentioned in my file had a clear etiology. While those symptoms can also be part of the multisystem condition of Fibromyalgia, they are also common symptoms with multiple etiologies. Because the multiple symptoms have logical etiology and veterans diagnosis of Fibromyalgia is over 10 years after discharge from the military, it is this providers opinion that the veterans fibromyalgia is not as likely as not due to, caused by or incurred in military service."

My question is "What happened to giving the veteran the benefit of the doubt or at least relative equipoise?" She states that the symptoms could also be part of the multisystem condition of Fibromyalgia, but because they were considered " GERD", or " knee pain due to boot camp", or "URI", "headaches due to sinusitis, or OTM". Under 38 CFR 3.317(b) signs or symptoms of undiagnosed illness and medically unexplained chronic multisystem illnesses. You will find these same illnesses under this listing.

I recently was able to find a big portion (1997 - 2004) of my medical records from my then, primary care physician. I thought the records had been destroyed because the doctor lost his practice. I am wondering, now that I have these records, if I could prove service connection based on "continuity of symptomatology". Any suggestions?

May 26, 2013

Hi Berta,

Thank you for responding, I did not serve in SW Asia, I never went over seas. I actually got the idea to ask them to CUE themselves from your posts!! I will send it in on Tuesday, as well as ask for another C&P exam with C-file. My rheumatologist currently is reviewing my service medical records in order to complete the IMO for me. How long is too long, for an IMO(How many pages)?

By the way, my claim has been Under Administrative Review for a month now, but it says that it was reopened for the Individual Unemployability Claim; which makes no sense to me because I'm currently only rated at 10% because of the denials.

May 25, 2013

Hello all,

I was wondering if it would be a good idea to ask the RO to CUE themselves based on the contradiction of the facts. I went to the VAMC to request another copy of the VA exam just to see if there was an addendum to the C&P exam but there was none. I was wondering if I should do this before I provide a Nexus letter from my Rheumatologist which I was going to send in with my Notice of Disagreement? Any ideas??

May 5, 2013

Basser,

I have been doing some reasearch of CUE claims as well as claims for headaches, and claims not well grounded. One case in particular peaked my interest. The veteran was trying to get a TDIU approved by stating the his sinusitis with headaches caused sever impairment. What I found interesting about this case is the way the VA approached it or classified his claim.

Basically they granted service connection for sinusitis with headaches at a noncompensable evaluation in accordance with 38 C.F.R. Part 4, Diagnostic Codes 8100 and 6514, based on findings in service as well as on an initial post service examination in January 1991. An RO rating decision in August 1993 granted a 10 percent evaluation based upon associated headaches consistent with moderate sinusitis. Back then the the Diagnostic Code 6513 stated that chronic sphenoid sinusitis productive of moderate impairment with manifestations of discharge or crusting or scabbing with infrequent headaches, a 10 percent evaluation is warranted. For severe impairment manifested by frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence, a 30 percent evaluation is warranted.

I thought this was interesting because even though the Diagnostic Code makes references that headaches were a part of the criteria for sinusitis, they gave him a separate diagnostic code of 8100 as well, which is for Migraines. You would think based on the information in my case above that I would have had at least a plausible claim for headaches based on my SMR's, even if they considered the headaches as part of my sinusitis claim, I should have received at least a 10 or percent evaluation for my sinusitis because of the headaches.

I am currently seeing a Neurologist who told me that he believes that the headaches that I had during service were migraine headaches. I'm afraid that if I get him to write my IMO that the VA will say that the diagnosis has changed and then I wouldn't be able to receive any retro pay. I don't know which way to approach this...any ideas?

May 5, 2013

Hi Everyone,

Could anyone tell me if I could possibly claim a CUE for the denial of service connection for headaches based on the fact that I believe that the claim is well grounded.

A well-grounded claim is a plausile claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A $5107(a). Murphy v. Derwinski, 1 Vet. App. 78,81(1990).

My service medical records do show treatment for headaches and I also reported sinus headache on my VA examination. My concern or argument would be that I complained of headaches in service as a part of a constellation of complaints and a specific disorder manifest by headaches were never diagnosed before a July 1994 assessment of tension headaches. There was also complaints of frequent tension headaches noted on my separation examination. The 1995 VA examination shows my complaint of sinus headache and the diagnoses were mild frontal sinusitis, history of UTI, and sinus headaches. With using this a my contention for a CUE, does anyone think that I have a chance of winning? I was also thinking about the fact that they did not supply me with a statement in the Reason and Bases section as to why it was not a well grounded claim. Any thoughts or opinions??

ISSUE:

1. Service connection for sinusitis.

2. Whether the claim for headaches, and urinary tract infection is well grounded.

EVIDENCE:

Service Medical Records November 1993 to November 1994

VA Examination dated 02-17-95 from VA Medical Center Lake City FL.

DECISION:

1. Service connection for sinusitis is granted with a 0 percent (noncompensable) evaluation assigned.

2. The claim for headaches, and urinary tract infection is not well grounded.

REASONS AND BASES:

The veteran contends that service connection should be granted for headaches, sinus condition, and urinary tract infection, based on onset of the conditions during service.

Service medical records were reviewed and considered. Enlistment examination 11-18-93, noted no abnormal findings regarding claimed conditions.

The veteran was evaluated in March 1994 for complaint of sinus congestion. Assessment was upper respiratory infection. Evaluation in July 1994 noted some maxillary sinus tenderness with complaints of left ear pain and drainage, and temporal headaches. Evaluation in August 1994 noted complaints of headaches and slight ear pain. Examination noted right maxillary sinus tenderness. Assessment was allergies.

The veteran was evaluated in July 1994 for complaint of headaches. Assessment was tension headaches.

Service medical records indicate treatment for a urinary tract infection in May 1994.

Separation examination 11-18-94, noted history of frequent tension headaches and frequent sinus infections.

The report of the VA examination 02-17-95 was received. The veteran complained of sinus headache, chronic sinus problems, and post-nasal drip with sore throat. She reported that this condition has existed since 1993. She also gives history of upper urinary tract infection in May 1994 that resolved with treatment.

VA examination noted the following: There was some slight tenderness over the right maxillary sinus and right frontal sinus area. The nasal passages were slightly congested. X-ray examination of the sinuses showed clouding of the frontal sinuses suggestive of frontal sinusitis. Urinalysis was normal. Diagnoses were mild frontal sinusitis, history of urinary tract infection, and sinus headache.

Service connection for sinusitis.

Service connection is granted for sinusitis as the evidence shos onset of the condition(s) during military service.

May 1, 2013

Hello All,

As an update to my earlier post:

As of today, my RO started an Administrative Review. They reopened my claim for Individual Unemployability. I don't understand why they would reopen the claim if they denied all of my contentions; which were Fibromyalgia, depression secondary to Fibromyalgia, and Individual Unemployability. Does anyone have an idea of what the VARO is trying to do here?

April 28, 2013

Hi W4LNY,

I believe that if you mention anything about your disability affecting your job or if they make any concessions or adjustment to your work schedule because of that disability; the VA will automatically apply Unemployability to your claim. They did the same to me when I wrote a statement saying that my disability affected my ability to work long hours and in stressful or in a non-temperature controlled environment.

April 26, 2013

Congratulations 71M10!! It's so encouraging to hear stories like yours.

April 18, 2013

Hi all,

Does anyone have any idea why I was denied service connection for the headaches?? I tried to find out if the criteria for headaches was different back in 1995 but I couldn't find a change in the regulations, but I know that the only evaluation they have for headaches is for "Migraines". I am assuming that this would have fallen under an Analogous rating even in 1995?? The tension headache that they list under the Reason and Bases section actually required 1 day SIQ which should qualify as a prostrating attack shouldn't it?

April 16, 2013

Hi Hollis,

I had both types of C&P exams done, meaning one with a contractor for the VA and one through a VA Outpatient Clinic. I was able to get the one from the outpatient clinic from my local VA hospital here in Dallas. The one that was completed by the contractor, I had to request from my regional office in Waco. My question is, who is telling you that they can't release a copy to you? The next issue is if the exam contains some sensitive information that may by detrimental to you or more exact, to your health, sometimes they won't release that information to you. The only time that I have seen that happen is when it has to deal with Mental Health Issues. I'm not sure if that goes for the VA as well but, I know that in some public health facilities(mental health), they may do this. Anyone else feel free to chime in with help.

April 16, 2013

^{Congratulations on your Outstanding Victory!!}

April 16, 2013

Congratulations!! God is indeed good, all the time.

April 16, 2013

Good morning all,

I would like to ask if anyone can suggest what I need to do from here.

I requested a copy of my C&P exam for Fibromyalgia from my local VA hospital on March 4, 2013. My exam was done on Nov 05, 2012. In reading my exam, it shows that:

2. Medical record review--- Indicate medical records reviewed in preparation of this report: [X] C-file (VA only); but once it gets to 8. Remarks, if any: C-File Not Available- Veteran sees outside Rheumatologist-Baylor Texas Arthritis Center. Unable to confirm information in DBQ without C-File.

On the Medical Opinion portion it states:

2. Restatement of requested opinion---

a. Insert requested opinion from general remarks: UNABLE TO PROVIDE OPINION WITHOUT C-FILE

b. Indicate type of exam for which opinion has been requested (e.g. Skin Deseases) : FIBROMYALGIA

3. Evidence review---

Was the Veteran's VA claims file reviewed?

[ ] Yes [X] No

Everything else in the exam (The Diagnosis, Medical history, Findings, signs, and symptoms,and the Functional impact) was favorable and an accurate portrayal of my current disability.

I received my decision in the mail yesterday and I was denied. The Denial Reasons:

- The evidence does not show an event, disease or injury in service.

- We did not find a link between Fibromyalgia and military service.

Explanation:

The VA medical opinion from Fort Worth VA Outpatient Clinic found no link between your diagnosed medical condition and military service. We received your medical evidence from Fort Worth VA Outpatient Clinic, Dr. Andrea V. Brown and Dr. Robert Jenkins which discusses the symptoms of your medical condition. Your service treatment records do not contain complaints, treatment, or diagnosis for this condition.

Because the multiple symptoms found in service have an etiology unrelated to fibromyalgia, and because you were not provided with a diagnosis of such condition until about 15 years subsequent to discharge from service, the VA examiner opined that fibromyalgia is less likely than not incurred in or caused by military service.

My objections to this denial and explanation are as follows:

1. I provided the VA with a DBQ filled out by my Rheumatologist on Aug 23, 2012 and although they mention this in the Evidence portion of my letter, they did not state that it was received and used as evidence. My Rheumatologist's name is not mentioned in the above explanation nor is the DBQ that he provided.

2. The multiple symptoms that they are referring to having an etiology unrelated to fibromyalgia, are actually listed by the Arthritis Foundation as being Non- defining symptoms associated w/fibromyalgia. They also did not mention my exit examination that listed: swollen or painful joints, frequent or severe headache, ear, nose, or throat trouble, sinusitis, shortness of breath, or palpitation or pounding heart. There was not any where on the exam to list fatigue which I also experienced during service.

3. The most disturbing thing to me about this explanation is that they mention an opinion from the VA examiner but on the copy of the C&P Exam I received, there was no medical opinion listed. The fact that they said that I was not provided with a diagnosis until about 15 years subsequent to discharge also bothers me because it took doctors that long to diagnose me. Through out the years I was being treated for the individual symptoms and no one every looked at them as a whole. I was given vitamin B injections for fatigue. I was given naproxen for swollen and painful joints. Headaches were being treated as tension headaches and so on!!

I know that I will most likely need an IMO from my Rheumatologist and possibly my Neurologist but it concerns me because of the so-called opinion "they say" was provided by the VA examiner!!

Any suggestions?? and sorry this was so long.

April 14, 2013

Hi Berta,

I just decided to type it in: