[Really Need Help]

Berta

[Really Need Help]

Re: a potential CUE claim here Blue-

I dont know if I explained this well -

a change in diagnosis or a misdiagnosis is not basis for CUE.

I know that it is not. My point is that that they failed to assign a diagnosis code for the Meniere's. They had all of the medical evidence in hand for years prior to his retirement. They were just negligent in the fact that no doctor while active duty went back through his history to make the determination. I know how we were treated my military docs. It was a get him and and out attitude. He always presented with symptoms of either otitis media and viral infection but didn't have any signs off infection to support the diagnosis. So, docs always said he was coming down with either diagnosis. Then when he retired, the VA never went back through his medical history prior to 1991 when he had the perforated eardrum because of a diving accident. I have numerous accounts of this happening and we are trying to get it all corrected. Then if you take into account the misdiagnosis of otitis media, then the the sc rating for otitis media is incorrect. Additionally, the tinnitus should have been rated seperately and was not. The VAMC's diagnosis of subjective tinnitus only strengthens the claim of Meniere's.

But if the VA committed legal error in the earlier denial-those errors are the basis of CUE.

Also the disability has to have raised to a ratable level by medical evidence and this information was known to the VA when they made the CUE.

I hope I presented my CUEs here the way they are.

The CUES I filed are based on my husband's misdiagnosed heart disease and also his misdiagnosed Stroke.

These were established under Sec 1151 as due to VA medical care.

In other words these were misdiagnosed conditions but also established that way by virtue of medical evidence.

The misdiagnoses were not the basis of my CUE claims.

I am aware that a CUE based on misdiagnosis is not CUE at all.

The lack of any diagnostic code and rating whatsoever for my husband's heart disease and then a wrongly coded and rated CVA (both under Sec 1151) and the complete lack of SMC consideration

(1151 disabilities come under SMC too)

are the legal errors they committed and basis for my CUES.

It appears to me that our case is the same as yours, of course a diff diagnosis.

I guess I am just trying to explain this better then I did- You explained it well I thought.

CUE is for legal error- misdiagnosis can lead to legal error but the basis for a CUE for misdiagnosis would be

that established medical evidence (whether misdiagnosis or not)

generated from VA the wrong Diagnostic code or rating percent or some other legal error that manifestly altered the outcome.

In other words the CUE had to cost the vet money.

I too need to echo what Carlie asked:

"I do not want to be a pain in the XXX - BUT

are you positive he is SC'd for Meniere's - do you have a Rating

Decision that states so ? Positive. Dated 1-23-08

carlie "

I too want to be positive on this

Absolutely 100% positive he has this sc for Meniere's.

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..."

Who is this Chief and where from and can you state exactly what he wrote and where he wrote it-to document what he said- and if the VARO has acknoweledged this medical documentation as evidence?

They did acknowledge his statement as medical evidence in their sc for Meniere's.

I think this could be the best evidence you could get.

To reiterate, I have a VA ENT Specialist, at the request of the VARO, stating in a written medical opinion that he had the symptoms of Meniere's while active duty and had been misdiagnosed with otitis media from the mid-1980's while active duty through Jan, 2008. This was November, 2008.

I also have an IMO stating the same thing.

I also have his VA PCP stating the same, as well as another VA ENT doc, and then the Chief of ENT at the VAMC.

So am I way off base here in my thoughts on the CUE? I have been arguing the sc for otitis media was rated with the wrong diagnostic code, that his Meniere's was not rated at all even though the medical evidence supported it, and the tinnitus was not rated seperately as required.

[Really Need Help]

Carlie,

I apprciate this very much. Here ya go.

blue12,

I'm sure this post is going to be discombobulated as heck but I had to

fly through it. Week-end company is here.

Hope I got some info right.

I do not want to be a pain in the XXX - BUT

are you positive he is SC'd for Meniere's - do you have a Rating

Decision that states so ? Positive. Dated 1-23-08

carlie

"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."

blue - What is the date on the very first Rating Decision ? 2-14-1995

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.

blue - none of the following four issues mention any

claim for Meniere's.

Carlie- Yes, I know. These are his symptoms. Additionally, the ratings specialist stated he had an underlying disease connected to his tinnitus that was to have been evaluated. And the tinnitus was to have been considered seperately, which was not done. It is my opinion that the disease they were speaking of was Meniere's. They knew the amount of times he had the attacks. It was documented in his service records. I just think they did not want to award it.

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.

From the Reasons and Bases Section below I feel SC was granted - and no compensation (zero percent) was awarded due to:

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.

(The above is from 10-17-80 drainage in left ear)

does not support current supperation.

Carlie, this was one of two, the second being questionable, ear infections that he was treated for in his 20+ years. He has numerous records of treatment for the same diagnosis with no sign of infection, or he woulod be treated for a viral infection with no sign of infection. This happened all of the time.

A computerized tomography (CAT) scan of the temporal bones showed no evidence of cholesteatoma. No sustained hearing loss or tinnitus was reported.

There was no evidence of any active ear disease or infectious process going on.

Exam of ear canals noted no significant pathologic findings.

The above is enough to help support a Nexus BUT percentage is granted by current level of residual disability - needs suppuration on VAMC progress notes and at C&P examination.

The medical evidence was enough to grant SC but not enough for compensation.

Carlie, Yes, I understand that. My argument with this is that they did not read or consider the numerous other medical records where he was diagnosed and treated for ear infections or viral infections countless times, but where the docs messed up at, is there was no sign of infection. Even though they would normally prescribe antibiotics. I have these mistakes in writing from 3 ENT Specialists. Two of which are VA docs and one is an IMO.

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.

Showing treatment on active duty helps the doc support a NEXUS -

but it is the residual disability that gets the level of compensation granted.

Over the years the veteran suffered perforation of both tympanic membranes with tympanoplasty performed. Bilateral otitis media was diagnosed.

The above is not of any help except for NEXUS but not compensation.

Carlie, the prob that we had a heck of a hard time overcoming was that the VA docs kept wanting to say that his Meniere's attacks was not Meniere's but caused by the rupture and otits media.

A computerized tomography (CAT) scan of the temporal bones showed no evidence of cholesteatoma. No sustained hearing loss or tinnitus was reported.

The above states no Tinnitus 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 above is of no help for compensable level of otitis media as it supports no supperation at time of the VA exam.

There was no evidence of vertigo. -

VA would try to apply the above in a denial of any claim for Meniere's.

Carlie, yes, I know. The VA docs wrote in his records at the time of his exam about his vertigo. He was not tested for his claims of vetigo at the C&P exam, and I guess because he walked ok that day was evidence enough for them to make this statement.

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.

The above is related to Nexus - perforation is non compensable.

Otitis media is evaluated based on loss of hearing.

To my knowledge of the regs for this - Otitis Media criteria states must have supperation (infectious draining) for a compensable evaluation.

Carlie, yes it does.

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 shown to warrant a compensable evaluation, but if there were and he also had a SC'd hearing loss it would pay more.

The evidence shows perforation of the tympanic membrane which is assigned a noncompensable evaluation.

Healed Perforation does not comp at an amount.

Carlie, yes, and we have no prob with that at all.

Tinnitus which is a symptom of a disease will be considered in the evaluation of the underlying disease.

The above means that if there is an SC'd active ear disesae the 10 % compensation

for Tinnitus will be considered in the rating percentage for the SC'd ear disease.

Carlie, this statement about the underlying disease has had me boiling since I saw it and recognized the importance of it. So are you telling me that if they had sc'd him for tinnitus they would have looked for the underlying disease? Or because the test that they did showed him negative for tinnitus, they did not think he had an ear disease? Or am I way off base here?

For Tinnitus - there have been at least two reg changes - I don't know the dates of the changes right now.

I do know for some years Tinnitus had to be the result of head trauma, but I think that reg was prior to your husband's Rating Decision.

I think the reason Tinnitus was not granted at 10 % is due to this statement -

"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."

The above provides an Nexus to active duty - but where it states "complained of soe tinnitus" I believe is a typo for the word some.

By rating criteria some Tinnitus = non compensable - must show as RECURRENT.

Carlie, all they had to do was read his service medical records.

Diagnosis was status post tympanoplasty, well healed and subjective tinnitus.

The above only states that there is subjective Tinnitus -

Good for Nexus but it requires RECURRENT for a compensable level.

The evidence of record does not show audiometric findings which meet the criteria for a grant of service connection for defective hearing.

Would need the auio measurements from the Audio C&P to know if this is right.

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.

Has a doctor ever written a nexus of what is the cause of the Headaches ?

Carlie, yes, viral infections. He always gets a headache when he gets an attack. Docs say this is normal.

[Really Need Help]

Berta,

Thanks,you have made my day.

Yep tell them to go CUE themselves-

This is hysterical. I musta thought about your original post from earlier about a hundred times since you did it, and have laughed every single time.

Actually all I did was send them a letter asking them to call a clear and unmistakable error on their decision dated---- and then I told them why it was wrong.

I think this is the approach that I will take, just submit a letter to them and point out their mistakes and see what comes of it. I have them doing a lot right now claim wise, maybe they will just say, let's get this part over with. I will keep my fingers crossed anyhow. Will drop it off to them on Monday.

In 2005 I used a different approach-I sent them an Iris complaint with heading of What the Hell is this-

and then I asked them to CUE the decision .

They immediately pulled my rep into the VARO and then set up the additional DRO review.

You can cite the actual CUE regs -38 CFR , 38 USC ??? I forget what they are- they are here under the CUE forum.

5107 ???? gee- CUE is what I live for and I am too tired to remember the CFR number-

I got the idea for this years ago when I noticed in some claims the VA had called a CUE on itself.

So we can ask them to do it too.

This is the absolute best idea and apparently it works, as it should. Am so thrilled that you "caught" this in your research.

I won a CUE via the regional counsel.

VARO and BVA said I was wrong and then years later the RC said I was right- and told VARO to " send her the money".

That is terrific. Esp when they tell you that you are wrong. Never stop fighting for what you believe to be right.

You are an asset to this board. You are willing to read and interpret the regs they use.

Thanks, I appreciate that very much. I just have the tendency to ask a lot of questions, and if my who, what, where, when, and why is not answered, I don't stop. Prob a pain in the rear to a lot of folks, esp at the VARO, but they are not in our shoes. I am actually at some point going to start doing claims for our vets. I know what they have put my husband through and he and I have lived the ramifications of their carelessness. Then you throw in what I have seen on here with other vets, and, well, it just seems to be up my alley, so to speak.

That can mean all the difference in the world when we fight back any erroneous decision.

I truly hope that others will benefit from what we have learned, and if we can help others, then it is a bonus.

[Really Need Help]

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.

PS if you already sent this to them- you will have time to refine the issues separately -

But this will sure give them a knot in their underwear!

[Really Need Help]

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 *********, 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.

[Really Need Help]

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?

[Really Need Help]

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?

Berta,

Yes, here it what it says;

" Based on inquiries and statements associated with the denial of entitlement to an earlier effective date of grant of service connection associated with Meniere's Disease, the RO sent your claims file to the C&P Service for an advisory opinion. THis included file review. The determination was that VA?private medical rports may only establish an informal claim for increase pursuant to 38 CFR 3.157 application in compensation cases. The finding was that the evidentiary record clearly disclosed that a claim for compensation for Meniere's Disease wa not received until Jan, 2003, (not a typo on my part)and the clinical impression of Meniere's was not shown until then either. It was also noted that jurisprudence regarding Clear and Unmistakeable Errors (CUE) was instructive in this case. It has been established that after-the-fact resolutions of a previous error such as a misdiagnosis, or chnages in medical knowledge, cannot constitute a CUE,as demonstrating CUE requires finding error based upon the evidence that existed at the time of the alleged erroneous decision.

The other cited statements and evidence also relate to contentions regarding entitlement to an earlier effective date but are not sufficient to change our decision. We are sorry that we could not return a favorable reply.

[Really Need Help]

Do you have all of his medical records and copies of his SMRS? Yes

:e 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."

Do you have copy of this that you could scan and attach here-(cover personal stuff) See your next post

Do you have copy of his last audio exam-the one with the decibal and Hertz finds? Yes

Can you attach that here too? I have no way of doing that. I'm sorry.

"At hearing, almost at the end, the DRO stated that he was the one that had denied my husbands reconsideration.O I think they committed a CUE here- the DRO's job description is here at hadit-

I don't think they are allowed to review or have hearing on anything they themselves already denied. Exactly what the VACO said.

I have CUE claim pending on 2 misdiagnosed conditions as they made my husband eligible for SMC.

The established medical evidence along with reports from OGC and VA Strategic Health Team review as well as his 2 SSA awards etc etc , one or 2 OGC Prec Ops and 4 BVA decision that interpret SMC laws and regs and other evidence supports my CUE claims.

I filed those claims in 2004 and they are still at the RO-and oddly enough- being worked on now so they say-

If the medical evidence at time of past denials established he was at ratable level you could file CUE as they used the wrong diagnostic code and/or percentage from 38 CFR and that is where the CUE lies- as legal error. Our contention is that the did use the wrong diagnostic code. Additionally, they did not rate his tinnitus seperately as required. And the last thig is that they reference his having an underlying disease that was going to be addressed. They did not name the disease nor did they do any testing. I know the wrong diagnostic code is CUE as is grouping his tinnitus with otitis media. I don't know if the failure to state the underlying disease is CUE or it is just plain negligence. I do know the VACO was not happy about all of this.

I think you should go back to his VCAA letter-it should have contained an underlined statement as to what they needed.

You certainly need to consider getting an Independent medical opinion. Done. Stated he had the symptoms of Meniere's while active duty as evidenced by his service records.

These opinions can be costly and one can never know what the results will be.

I have IMO criteria here under the IMO forum.The IMO doc should also have the audio criteria for ratings that Carlie posted here.

My IMOs supported misdiagnosis in my husband's 1151 and SC issues back to 1988.

You did file a Section 1151 claim which will gain their attention and :

"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."

The hard part is knowing what the RO will 'forget' to send them so be sure they have- from you- the main evidence to support the claim.

I went through this same rigamorale long ago-they could still deny but then you need to consider the CUE claim-

and then again- they have a 1151 claim there too on this that they need to take seriously.

Who is doing the Advisory review on this? Central Office

An Audiologist ? No one has said anything about an audiologist. and it is being done via VA Central Office? Yes.

[Really Need Help]

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?

[Really Need Help]

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.

[Really Need Help]

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?

[Really Need Help]

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.

[Really Need Help]

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."

[Really Need Help]

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?

[Really Need Help]

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.

[Really Need Help]

If the VA left out evidence, you might have grounds for a CUE claim. Berta posted info explaining how evidence in her claim was overlooked repeatedly. She had to escalate the beans out of it in order to get someone to look at it. There's lots of room for error at the BVA.

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

[Really Need Help]

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)

[Dro Disqualification]

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.