blue12

Berta

Carlie, I apprciate this very much. Here ya go. Carlie, yes, viral infections. He always gets a headache when he gets an attack. Docs say this is normal.

Berta, Thanks,you have made my day. I truly hope that others will benefit from what we have learned, and if we can help others, then it is a bonus.

Berta, I am laughing so hard here, I can hardly type this. OKay, so I file a CUE and ask them to fix their own mistakes? I mean, I get it, but here is my not being able to think clearly moment, how the heck did you title the claim? I mean, I can imagine what I would like to say, buuuuut what I would like to title the claim is from what is appropriate. Thanks so much for your input.

Here is the Basis of Claim for the 1151; 1. Failure of the VA to diagnose symptoms of Meniere’s disease from date of retirement from active duty military, effective August 1, 1994 to January 22, 2008, per requirements set forth in 38 USC 5103 - Sec. 5103A. Duty to assist claimants. 2. Failure of duty to assist the veteran in developing a claim for Meniere’s disease from date of retirement from active duty military, effective August 1, 1994, to January 22, 2008, per requirements set forth in 38 USC 5103 - Sec. 5103A. Duty to assist. 3. Failure of duty to assist the veteran in receiving maximum benefits, from date of retirement from active duty military, effective August 1, 1994, to January 22, 2008, per requirements set forth in 38 USC 5103 - Sec. 5103A. Duty to assist claimants; M21-1MB, Chapter 5, Section C, 11©; and M21-1MR, Part 1, Chapter 5, Section C. 4. Failure of VSCM, *********, to perform per the requirements of M21-1MB, Chapter 5, Section C, 11©; failure to appoint an acting DRO during the disqualification of Tom Ransburg, in violation of stated federal regulation. 5. Failure of DRO, **********, to perform per the requirements of M21-1MR, Part 1, Chapter 5, Section 13 © **********, the DRO at de novo hearing on May 5, 2009, was the same DRO that made the decision of which was under review at said hearing, and in violation of stated federal regulation. 6. Failure of DRO, ********** to perform per the requirements of M21-1MR, Part 1, Chapter 5, Section C, 11(; **********, DRO at stated hearing of May 5, 2009, stated on the record that he was the person that had made the decision we were asking for the reconsideration of. The transcript provides that this statement has been removed from the record. 7. Additionally, **********, per federal regulations of M21-1MR, Part 1, Chapter 5, Section C, requires a full consideration of all evidence of record. **********denied an earlier effective date based on an erroneous medical opinion and not the corrected medical opinion of Dr. ********** and the fact that Meniere’s disease was not claimed upon initial application for benefits with the VA upon retirement from active duty military in 1994. 8. Further, *********** stated that I did not claim dizziness as a symptom in 1994. I did. Please refer to Ratings Decision dated 2/1/495, page 4. It was combined with otitis media by the VARO, which constitutes a further violation of federal regulation M21-1MR, Part 1, Chapter 5, Section C. 9. Failure of Veterans Service Representative ******** to object to the DRO De Novo Hearing of May 5, 2009, on grounds of disqualification of presiding DRO. 10. Failure of Veterans Service Representative ********* to maintain and preserve the best interests of the claimant in stated DRO hearing. 11. Claimant would like the record to reflect that ********* was placed on this case the morning of May 5, 2009 DRO hearing by the VARO Indianapolis. ********** knew nothing about my case whatsoever. 12. Award of service connection of a misdiagnosis since 1994. 13. Award of service connection in December, 2008, based on an erroneous medical opinion. 14. Correction of previous award entered by VARO on March 2, 2008, corrected to service connection for Meniere’s with Defective Hearing, of which defective hearing was claimed in 1994. 15. Subsequent denial of earlier effective date based on numerous erroneous facts and errors.

Berta, I am sorry, I quoted the Advisory Opinion below, not the 1151 claim. Question for you. The 1151 claim was filed before I found more things, such as the "underlying disease" portion of his inital claim. Shouldn't all of that be inthe 1151 as well?

Your Sec 1151 claim might well be the key to proper resolve of all this- Could you post here or attach how you worded the 1151 claim?

Carlie, Here goes; "Husband retires from active duty in mid 1990's, files for benefits with the VA, claims all symptoms related to the the (mis)diagnosis. Receives SC for all with 0% compensation for all symptoms and is still (mis)diagnosed." Do you have a copy of his 21-526 ? No, have requested from RO. Can you scan or list exactly all conditions that were requested to be SC'd from it ? Do you have a copy of his very first Rating Decision ? Yes If it has a Narrative or Reasons and Bases Section can you scan in exactly what it states ? Will type it. First, here are the issues that deal with Meniere's that he filed for. 1. Service connection for otitis media with tinnitus. 2. Service connection for defective hearing. 3. Service connection for headaches. 4. Service connection for vision. Decision: 1. Service connection for otits media with tinnitus granted with a 0 percent evaluation assigned. 2. Service connection for defective hearing denied. 3. Service connection for headaches denied. 4. Service connection for defective vision denied. Reasons and Bases: 1. Service medical records show the veteran was treated for chronic ear infections. The veteran was seen 10-17-80. Diagnosis was serous otitis media with drainage in left ear. Over the years the veteran suffered perforation of both tympanic membranes with tympanoplasty performed. Bilateral otitis media was diagnosed. A computerized tomography (CAT) scan of the temporal bones showed no evidence of cholesteatoma. No sustained hearing loss or tinnitus was reported. The report of the VA examination 11-15-94 was reviewed. VA examination noted the following: Exam of ear canals noted no significant pathologic findings. The veteran walked with a normal gait. There was no evidence of vertigo. The left tympanic membrane was normal. The right ympanic membrane showed evidence of myringosclerosis, with probable area of either a vein patch or fascial graft placed in anterior inferior quadrant. The mastiods palpate to be normal. There was no evidence of any active ear disease or infectious process going on.The veteran complained of soe tinnitus greater on the right side than the left which is constant with a test pattern type noise. He stated that he did have exposure to flight line landing noise.Diagnosis was status post tympanoplasty, well healed and subjective tinnitus. Service connection is granted for bilateral otits media, with bilateral perforation and tinnitus associated to ear disease a the evidence shows onset of the condition(s) during miltary service. Otitis media is evaluated based on loss of hearing. An evaluation of 10 percent will be combined with the evaluation for loss of hearing where there is suppuration. There is no suppuration warranting such evaluation. The evidence shows perforation of the tympanic membrane which is assigned a noncompensable evaluation. Tinnitus which is a symptom of a disease will be considered in the evaluation of the underlying disease. 2. I am going to shorten this to just the findings. The evidence of record does not show audiometric findings which meet the criteria for a grant of service connection for defective hearing. 3. Service medical records show the veteran was treated for occassional tension headaches and headaches associated with viral syndromes. There was no evidence of chronic migraine headaches with prostrating symptoms. The report of the VA examination 10-20-94 was reviewed. No clinical findings of migraine headaches was reported. 4. No clinical findings regarding complaints or visual abnormalities were reported. Although there is is a record of treatment in service for blepharitis - no chronic condition is shown by service medical records or post-service medical records. I am so glad that you asked for this info, Carlie. The statement about the underlying disease associated with tinnitus is huge. I had never caught this before and I have read this a hundred times. Thank you.

Carlie, Thanks for replying to my post. Can't tell you how invaluable yours and everone else's input is to us. "Over time the perforation's heal up and can result in hearing loss." Yes, we know this, and he does have a hearing loss on top of the Meniere's, and it is sc'd. You posted, "And he does have the sc for otitis media w/perforation and the one for Meniere's." This is confusing, is he SC'd for Meniere's now, yes____, no_____? Sorry for the confusion. Yes, he does have a sc for Meniere's now. From your prior posts, "The Chief said the same thing at about the same time I found it. He ordered hubby's med records and called me back and said that he was positive that he had Meniere's and that it went back to the mid 1980's and that he had been misdiagnosed this whole time. The Chief then told me that hopefully hubby's symptoms could be contr..." If hubby did not have a claim in for Meniere's all those years ago, and if he has gotten or eventually gets SC'd for Meniere's, I do not see any grant for an EED for it. Even if a C&UE claim is filed on a prior Final Rating Decision , was the disability that was requested and/or denied on that Rating Decision specifically for Meniere's ? No, it was not specifically for Meniere's on his initial rating decision. "A decision maker can not grant a C&UE claim for EED of a disability due to a newly found mis-diagnosis of a prior SC'd disability. The C&UE must only involve the medical evidence of record at the time of the Rating Decision and even if the medical evidence was a mis or poor diagnosis - that is the medical evidence the decision maker has to go by at that time." Yes, I understand that. This is the same medical evidence only with a new name added to it and a prescription to boot. "New medical evidence is not applicable to be factored into a C&UE claim, even if there was a mis or poor diagnosis." But, is this really new medical evidence or is it just the progression of the original claim? "Believe me - someone will chime in if this is in-correct and these strictly legal issues, usually result in healthy debate." Lol....Well, you know the old saying two heads are better than one, which is why I am pickin everyone's brain here. That,and hopefully this helps someone else too. Annnd, I love to debate. So when I answer back, please don't hold back if I am wrong or there is another angle I need to be looking at. The regs are mind boggling. I feel like I am putting a giant puzzle together here, and I keep getting the pieces and having to shuffle them till they fit. I hope that makes sense. And then of course, knowledge is power, and boy, am I ever getting schooled. But it is sooooo appreciated. "A claim of C&UE is strictly a legal issue and has to spell out exactly the regs that were not applied or followed. A weighing of the evidence, difference in opinion, change in diagnosis and until very recently most DTA regs, simply do not apply to a C&UE. Please don't shoot the messenger." Would never even wanna do that...lol. I understand exactly what you are saying. It just seems to me that there has to be CUE here on the initial claims. I mean, if the diagnosis is wrong, which means the regs for the resulting sc were wrong/ misapplied, wouldn't that constitute a CUE?

Carlie, The prob was that he was being treated for otitis media with no signs of infection or for a virus he was coming down with for years. A VAMC Specialist is the one that took the time to go back through his medical records and determine he had no infections and no signs of a virus, yet was treated for and given meds for both numerous times.This was put into a statement by the same VAMC doc and given to the RO. In my opinion, it was a fast and easy medical opinion to render on a soldier as his symptoms would leave within hours or a day or so at that point. What complicated the matter was when he got a perforated eardrum while active duty. (The probs he was having started way before the perforation). The miltary docs and the VAMC docs used it as a crutch instead of taking the time to properly diagnose him, and he suffered for it. Unfortunately. And he does have the sc for otitis media w/perforation and the one for Meniere's.

Berta, Thanks again for responding so fast. Can't tell you how much I appreciate it. So I can file CUE on the original claims, even though they were for the symptoms? I had brought this up to the RO manager and was told that there had to be fault with the RO original decision and that the misdiagnosis is the prob of the MC, that the RO goes strictly by what the MC says. And actually, I just looked at the SSOC and they put the info about the CUE in there and it states that I have to identify/describe specific rating decision errors that I am CUE'ing. It also states about being contacted about the 1151 in the near future. I told the VACO the other day that I would file to reopen the original claims the next day if I need to, and still will. Their reply was "It won't get you any more money." I said, "Not the point. His original claims are going to lead you to his Meneire's and will establish the connection and the medical history to boot. So what do you want me to do?" He stated, "You don't need to reopen the original claims."

Berta, Thanks for your quick response. Do you mean this will be a VA Central Office Review? Yes Do you have copy of his complete medical records? Yes and his C file? Filed for not received yet "The Chief said the same thing at about the same time I found it. He ordered hubby's med records and called me back and said that he was positive that he had Meniere's and that it went back to the mid 1980's and that he had been misdiagnosed this whole time. The Chief then told me that hopefully hubby's symptoms could be contr..." Was this noted in his medical records? Yes. When this has been referred to, the RO has toned it down to a "person" instead of Chief, as if to make it invalid, for lack of a better term. Did his medication profile as well as other medical evidence in his records show he was being treated at that point for Meniere's? Yes Did he have consistent VA medical attention prior to the ENT? For how long? He has for the last 15+ years. The problem is that this disease has always been put to him as otitis media or a virus. So the majority of the time, he would suffer, unless it was a bad one. They told me my husband had labyrithitus ( an inner ear problem) but it was a major stroke.I thought he was dying too and even a VA nurse told me to get him out of there before they killed him-that occurred minutes after I threathened to call my COngressman because they said their CT scan was broke.What a lie.Bath VAMC. They "fixed" the CT scan in 15 minutes and another VA read the results- major CVA. His idiot doctor then came into his room and told him he was going to Syracuse VA to have brain surgery. It took me some time to explain to him that this was NOT a surgical situation. Wow, Berta, I am so sorry. I feel your frustration and maybe you should file a Section 1151 claim if the VA advisory review is deficient.It would depend on whether he got VA treatment and care all this time up to the proper diagnosis.Hard to say at this point. We did file an 1151 on this. the RO says they will be in contact with us over it. That was two weeks ago. I know they were upset that I had filed the claim, but they are not in our shoes and are the ones causing such extensive problems. And I am not gonna quit fighting cause the bully on the block doesn't like something. Make sure that they (VACO)have the Pertinent info from you! Yes, we are. Last time, we were not given the opportunity. This time, we have made sure that we are completely involved in the whole process with them. Do not depend on the VARO to send them the medical records they need.That is when the MF shows up- MF Mysterious force who removes the most important stuff from the record.And puts it back when the VACO denies. That is exactly what we have found out here. The VACO knew that docs were missing and even verbally stated that hubby is entitled to EED. That was yesterday. Been there on that one myself with a VA Advisory opinion from Strategic Health Team VACO.And then I got another favorable opinion right away as I knew by then what the MF had removed from the med recs and C file at the RO. The most important evidence I had.I faxed it all to VACO and immediately won that case. VACO stated that we can fax to them also. They are going to go over the entire case with us and go through the evidence with us. I have everything listed to ensure it is all there when we do this. I really need laws that apply to ths situation. I know they have the catch-all law to deny deny deny, but do you know of any I can use to back the EED up to VACO?

Thanks to everyone for all your input. Here is the "rest of the story". In early 1980's Hubby was going to the military docs while active duty with feelings of fullness in his ears, ringing in the ears, hearing loss and dizziness. He would be diagnosed as having an ear infection or viral infection and would be prescribed antibiotics. He was having these problems at least a couple of times a week. The attacks usually did not last over a few hours tho a couple lasted for a day or day and a half. And as time went on, the attacks became longer in duration and more severe. Becasue of the fluctuation and duration of the symptoms, he was labeled as a "sick call solier" wanting to get out of work, which was not true. He even had people (military) come to our home in the middle of the night, early evenings and during the day when he would be sent home from work, to make sure he was both at home and in bed. No joke. In the early 1990's he was involved in a diving accident, which caused a perforated eardrum. He had to have it patched a couple of times. So he retires from active duty and applies for his sc with the VA. He claimed all of the symptoms he was having and got his sc for them all. Still diagnosed as otitis media. Over the years, his symptoms continued to get gradullay worse to the point that he was having the attacks for days and could not function. He applied for an increase in hearing loss, which was denied of course. He applied for an increase in tinnitus and finally got a 10%, I believe. Well, about 2 years ago now, he had a really severe attack. Could not get out of bed, could not eat, could not hear at all. He was grey. Looked terrible. I thought I was losing him and I had had enough. I called the VAMC here and spoke to the Chief of ENT and told him what was going on. And while I was talking to him I was putting his symptoms into google. Up popped Meneire's Disease. The Chief said the same thing at about the same time I found it. He ordered hubby's med records and called me back and said that he was positive that he had Meniere's and that it went back to the mid 1980's and that he had been misdiagnosed this whole time. The Chief then told me that hopefully hubby's symptoms could be controlled or lessened with medication. He said that we needed to file a claim with the VARO and that he needed to see the doc. We did all of this. The initial claim was denied. And this is where I think my original post pretty much starts. Now here is the update about the Advisory Opinion, which I finally have. It states that the claim on the issue of EED based on the assignment of sc for Meniere's Disease was based on the application of 38 CFR 3.157. The opinion goes into detail but leaves out crucial evidence that is in the file. Additionally, there is a doctors visit in 07 that never occurred in which they found eustachian tube dysfunction due to retraction of both tympanic membranes. Remember he only had ONE perforated eardrum, not both. We filed for the sc of Meniere's in Jan 08. It states that the first clinical diagnosis of Meniere's was not until Jan08, which is not true. I hope this helps in figuring this out. I am trying everything I can think of to get him what he is due from the VA. No more and no less. Just what he should get, or should have. If this turns out that he is not entitled to an EED, then that is fine, but I am going to fight until it is proven to me otherwise. I saw him suffer all of those years and the humiliation he suffered becasue of it. Our lives have been permanently altered becasue of this disease. On a good day, you would not know anything is wrong at all. Oh, and I am having the office that issued the advisory opinion re-evaluate this claim. They are requesting his complete file. I spoke at length with them. I am allowed to submit to them any documentation that they do not get from the VARO. So I am keeping my fingers crossed on this. Concerning the Notice of Disagreement over the SSOC, I filed the notice the next day.

Thanks, Vync. I am looking at Berta's info now.

Hello, all. I am new here at posting tho I am a regular who appreciates all I learned from everyone. My husband and I are going at it with our VARO over ann EED but it gets complicated. While active duty husband has chronic complaints and is (mis)diagnosed. All documented in his service records, including receiving medication for infection when ther were no signs of infection on numerous occassions. Making matters worse, he suffered an injury while active duty just prior to retirement. Husband retires from active duty in mid 1990's, files for benefits with the VA, claims all symptoms related to the the (mis)diagnosis. Receives SC for all with 0% compensation for all symptoms and is still (mis)diagnosed. His symptoms worsen over the years to the point that I thought he was dying. At this point our local VA hospital finally diagnoses him correctly. YEAH! (No, he was not dying but he does have a disease that is managed with the proper medication). We filed a claim with the VARO. It was initally denied. Got an IMO which was very favorable for us. The doc even stated that hubby's active duty medical records clearly showed that he had been misdiagnosed since the 1980's. We turned the IMO in to the VARO. They sent it to the VA hospital for a written medical opinion. A VA specialist initally wrote a medical opinion. I called her to ensure that she had read his medical records back to the mid-1980's, which she stated she had not. She asked a lot of questions which I answered. She then told me that she was restating her inital opinion as she had only went to the date of the injury just prior to my husbands retirement. She stated that his records clearly showed that he had been misdiagnosed by both active duty doctors and by the VA doctors as well. She restated her initial medical opinion and corrected it to the propre diagnosis and documented the years long misdiagnosis. This resulted in a SC for 60% on the correct diagnosis but the ED is for Jan 08, when we filed the claim on the correct diagnosis. We filed for a reconsideration as the VARO did not consider the VA specialists corrected medical opinion. We were denied. We filed for an in-person de novo with a DRO. Here is the kicker; We went to the de novo. At hearing, almost at the end, the DRO stated that he was the one that had denied my husbands reconsideration. We received another denial of EED, of course. The VARO filed for an Advisiory Opinion. And you probabaly guessed it, the evidence submitted by the VARO was not factual and they left out the amended medical opinion and did not submit the medical records from dating back to the 1980's. What steps do we take? Is he eligible for an EED or are we just wishful thinkers? Any help is very much appreciated. B)

Hello all. Need some advice here. I filed a NOD on a decision that denied an earlier effective date. The RO held a DRO De Novo hearing. At hearing, we found out that the hearing officer was the one that had made the denial. It did not hit home that he should not have been officiating the hearing. A few weeks later, we received a denial by the DRO. We immediately filed for an appeal with video hearing. This past week, after a lot of research in preparation for our appeal, I stumbled across the requirements of M21-1MR, Part 1, Chapter 5, Section 13 ©, which stipulates that the DRO that made the decision of which was under review at said hearing could not officaite this hearing. This was the proverbial last straw. I wrote an application for a 1151 Claim, stating, 1. Failure of the VA to diagnose symptoms of ******* from date of retirement from active duty military, effective August 1, 1994 to January 22, 2008, per requirements set forth in 38 USC 5103 - Sec. 5103A. Duty to assist claimants. 2. Failure of duty to assist the veteran in developing a claim for ******** from date of retirement from active duty military, effective August 1, 1994, to January 22, 2008, per requirements set forth in 38 USC 5103 - Sec. 5103A. Duty to assist. 3. Failure of duty to assist the veteran in receiving maximum benefits, from date of retirement from active duty military, effective August 1, 1994, to January 22, 2008, per requirements set forth in 38 USC 5103 - Sec. 5103A. Duty to assist claimants; M21-1MB, Chapter 5, Section C, 11©; and M21-1MR, Part 1, Chapter 5, Section C. 4. Failure of VSCM, ********** *******, to perform per the requirements of M21-1MB, Chapter 5, Section C, 11©; failure to appoint an acting DRO during the disqualification of ***** *******, in violation of stated federal regulation. 5. Failure of DRO, ***** ******, to perform per the requirements of M21-1MR, Part 1, Chapter 5, Section 13 © Mr. *******, the DRO at de novo hearing on May 5, 2009, was the same DRO that made the decision of which was under review at said hearing, and in violation of stated federal regulation. 6. Failure of DRO, ***** ******, to perform per the requirements of M21-1MR, Part 1, Chapter 5, Section C, 11(:P; Mr. *******, DRO at stated hearing of May 5, 2009, stated on the record that he was the person that had made the decision we were asking for the reconsideration of. The transcript provides that this statement has been removed from the record. 7. Additionally, Mr. ******, per federal regulations of M21-1MR, Part 1, Chapter 5, Section C, requires a full consideration of all evidence of record. Mr. ****** denied an earlier effective date based on an erroneous medical opinion and not the corrected medical opinion of Dr. ***** ******, and the fact that ******* was not claimed upon initial application for benefits with the VA upon retirement from active duty military in 1994. 8. Further, Mr. ****** stated that I did not claim dizziness as a symptom in 1994. I did. Please refer to Ratings Decision dated 2/1/495, page 4. It was combined with **** ****** by the VARO, which constitutes a further violation of federal regulation M21-1MR, Part 1, Chapter 5, Section C. 9. Failure of Veterans Service Representative **** ***** to object to the DRO De Novo Hearing of May 5, 2009, on grounds of disqualification of presiding DRO. 10. Failure of Veterans Service Representative **** ***** to maintain and preserve the best interests of the claimant in stated DRO hearing. 11. Claimant would like the record to reflect that Mr. ***** was placed on this case the morning of May 5, 2009 DRO hearing by the VARO. Mr.***** knew nothing about my case whatsoever. (We also used to work together in the late 80's...I knew this guy....now works for the RO) 12. I was awarded a service connection for the misdiadignoses disease in 1994. 13. Award of service connection in December, 2008, based on an erroneous medical opinion. 14. Correction of previous award entered by VARO on March 2, 2008, corrected to 100% service connection for ***** , of which ***** was claimed in 1994. 15. Subsequent denial of earlier effective date based on numerous erroneous facts and errors. This was filed with the RO this past week. My problem is that I don't know what to expect now. What should our next step be? What happens to the DRO? The RO administrator stated that they are doing a review of the case now and are going to have a different DRO review it. I want to make sure that I am doing everything correctly and would appreciate any feedback. It would be most appreciated.