Really Need Help

[blue12]

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)

[Vync]

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.

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.

[LarryJ]

1. The DRO should NOT have also been the original decision-maker. The DRO review is SUPPOSED to be conducted by a VA employee who had NOTHING to do with the origianl DENIED decision. They (the VA) are in obvious contravention of their own rules/regs.

2. Yes, from what you have told us, your husband should be eligible for an Earlier Effective Date, dating back to when he ORIGINALLY FILED for the condition that he winds up with the 60%, whenever that date was.

3. On a VA Form #21-4138, Statement In Support of Claim, state that you are filing a Notice of Disagreement, state what you disagree with, and request that another review be conducted, NOT by the self-same denier, and WITH the new (and material) evidence (the stuff that they should have looked at and apparently didn't) that you are going to attach to this form 21-4138.

I also think, and this is just a personal opinion, that I'd send a letter to my U.S. Representative, outlining everything that has occurred. You'll need to send them a POA, also, which they usually have available on their website.

Is your husband now working?

If not, is it because of his SC'ed disability?

Bear in mind, the clock is ticking.

[blue12]

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.

[cowgirl]

Blue, good that you posted. Getting the right effective date is very important. I'll keep an eye to see how it goes for you.

When I applied for my earlier effective date - I used a clear copy of the in service diagnosis, VA diagnosis, private diagnosis and submitted it with the rating criteria for the specific sc condition. Guess I learned to keep it simple, 'dismiss' personal gripes, read alot, ask alot and get the medical evidence to prove it all up.

Yes timing is of the utmost just now. Heard not too long ago VA's been guided to use fifth grade language skills when writing to us veterans. You did well explaining it here on the board, so I have a good feeling for you both. Do thank him for his service and he's lucky to have a dedicated wife such as you!

All the best,

Cowgirl'up2009!

[allan]

[The DRO should NOT have also been the original decision-maker]

Larry,

He was in my case also.

He was promoted to DRO position after he already gave the RO level denial.

Blue,

hang in there.

Your getting the stall tactics the RO's, AMC pulls on us.

Edited December 2, 2009 by allan

[Berta]

Blue 12-

"his 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 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."

Yeah I know exactly how that goes-

you need to continue to appeal this- was this last denial in a SSOC?

SSOC unlike SOCs have only 30 days in which to respond.

Everytime the VA failed to consider my evidence I sent it to them again with a full response to the SSOC.

Did the IMO doctor support a better EED?

And you willing to get another IMO to fight the EED.

The VA have had, by established medical evidence, prove of actual EED at a ratable percentage.

Did VA Central Office do the advisory opinion? Was it on the EED?

Can you scan it and attach that opinion here (cover the personal stuff)

The date is a claim usually controls the EED.

WHat is his SC disability?

WHat was it misdiagnosed as?