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)

[HvyGns38]

I hope it works out well for you. I will be watching this thread closely becuase I have a claim in for Menier's disease.

[blue12]

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?

[Berta]

"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."

Yippee!

Here is the EED reg:

The effective date of an award of disability compensation based on an original claim is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2008). The effective date of an award of compensation based on direct service connection is the date following separation from service, if the claim is received within one year of that date. Otherwise, the effective date is the date VA receives the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), ((1) (West 2002); 38 C.F.R. § 3.400(B)(2).

I never see them go back further than a year prior to claim date but maybe that happens.

Alsoif denied in the past a veteran can file CUE claim to sometimes recover EED retro.

Personal example of how the above reg works-

My husband filed for higher PTSD rating in late 1992 and Sec 1151 in 1994.

I continued these claims when he died.

In 1997 VA made posthumous 100% P & T PTSD award with EED of Nov 1991.

This was the correct EED-the date entitlement arose by medical evidence.

It was the same date of his SSA award for PTSD.

His SSA award was based solely on VA medical records.

Even without the SSA records, that should have been his entitlement date.

I had considerable other evidence from VA as his employer, the EEOC, and also Dept of Labor- besides the SSA award to support the EED they gave him.

I dont really know how far back they can go in determining the date "entitlement arose". Hope others chime in here too.

Edited December 3, 2009 by Berta

[carlie]

blue12,

If he has already been SC'd for Otitis Media at zero

percent that means it was not suppurative upon the C&P examination.

A person can easiy have both 1) Otitis Media and 2) Meniere's.

They both require distinct diagnosis, which he now has.

I hope he has specifically applied for Meniere's and VA

also rates him under the proper DC as such.

jmho,

carlie

Edited December 3, 2009 by carlie
sp

[blue12]

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."

[blue12]

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.