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)

[Berta]

"he VA have had, by established medical evidence, prove of actual EED at a ratable percentag"

I said that wrong- the VA had to have evidence of a ratable SC disability-in order to rate a SC disability.

You mention misdiagnosis and even the IMO doctor supported it.

If the VA misdiagnosed him and -due to that medical error- he gained additional disabilities -that is basis for a Sec 1151 claim. Did he ever file Sec 1151 claim in the past?

Filing one at this point would not help with the EED however.

I might be looking at this all wrong:

""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."

When was the first claim filed on the same disability?

Is this an Agent Orange claim?

"The VARO filed for an Advisiory Opinion"

The Advisory Opinion- did you yourself submit the medical evidence to them?

I had to breathe down their necks to get them in VACO to properly read the evidence for my case.For an advisory opinion from their CHief CArdiologist in the VA.

Only to find out that VARO had removed the critical stuff from the records they sent to VACO- this was years ago.

When I found out what was missing and faxed ot to VACO I succeeded on the claim (FTCA)

What contact did you have with them, (I assume it was VACO) and how did you respond to their negative opinion?.

Who exactly in VACO did this letter come from-can you scan and attach here? (cover personal stuff)

[Vync]

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!

Cowgirl,

Do you think that some of the adjudicators in the VA have fifth grade reading skills too?

[carlie]

[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.

allan,

I kind of had the same thing happen.

In 1978 I filed my original claim - it was denied by a VA adjudicator named XX Woodall.

I filed a NOD - the claim continued to be denied by XX Woodall.

I filed for a local hearing 1979. At this time there was nothing

such as a de novo or a DRO in existence yet.

In 1980 what I had was a VARO 5 member panel hearing.

One issue of the claim was granted back to day following separation

and all other issues were denied.

The "Chairman" of this 5 member panel hearing was XX Woodall.

Go figure.

carlie

[carlie]

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.

blue12,

There maybe a way to get an earlier effective date but I do not

know how you would go about it.

I do not think an EED could be won by a claim of C&UE due to

the mis-diagnosis, as the decision maker is supposed to go by

the medical evidence of record - even if the medical evidence was a

mis-diagnosis by the doctor.

I'm going to send a shout out to another Hadit member for your post.

Something that did jump out at me was you posted,

"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."

I'm not experienced with military retirement pay CRDP, or

what-ever the heck it's called - but that may affect what I'm about to post here.

When a vet has more than one SC'd disability that is rated at

zero percent AND has no other compensable SC disability,

VA should then pay the vet 10% for multiple zero percent ratings.

I'll send that shout out - maybe some more help there.

jmho,

carlie

[blue12]

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.

[Berta]

"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."

Do you mean this will be a VA Central Office Review?

Do you have copy of his complete medical records? and his C file?

"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?

Did his medication profile as well as other medical evidence in his records show he was being treated at that point for Meniere's?

"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."

Did he have consistent VA medical attention prior to the ENT? For how long?

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.

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.

Make sure that they (VACO)have the Pertinent info from you!

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.

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.

Edited December 3, 2009 by Berta