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)

[carlie]

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."

blue,

To re-open you must present N&M evidence.

Anytime a claim issue has received a final decision

and you re-open, it creates a new effective date.

carlie

[Berta]

Carlie said:

"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."

This would mean that the diagnostic code and rating in a past final decision was incorrect-thus the CUE- as long as the medical evidence established that it was a misdiagnosis. In my opinion.

It is same basis for the CUE claims I have pending.

Medical evidence established misdiagnosed heart disease from 1988 to 1994.

A VACO report stated that in fact the veteran had undiagnosed and untreated heart attack (which occurred at the VA), subsequent strokes from the ischemic heart attack-and HBP from all of that and his undiagnosed and uintreated conditions (which now include AO DMII) caused his death .1997.

I received an award in 1996 and 1998 that did not acknowledge proper diagnopstic codes and ratings for these disabilities my husband had.

The VA as early as 1995 had my evidence of the mapracticed CVA and heart disease.

The medical evidence was well established in 1995 and I enhanced it until I won FTCA.That is I explained to them what the medical evidence revealed.

There is a wealth of CUE info here under the CUE topic and it should contain everything one needs to know to file a CUE claim.

The legal errors for CUE include any rating percentage error based on wrong DC or the wrong diagnostic code itself.

Or like Myler V Derwinski and my case- he had no rating or DC at all for muscular involvement of GSW.

He won EED back to 1953. The case is here somewhere.I posted it twice or more times.

[carlie]

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.

blue,

Over time the perforation's heal up and can result in hearing loss.

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_____?

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 ?

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.

New medical evidence is not applicable to be factored into a C&UE claim,

even if there was a mis or poor diagnosis.

I'm just sharing the regs with you the way I understand them and

I can surely be incorrecy/wrong.

Believe me - someone will chime in if this is in-correct and these

strictly legal issues, usually result in healthy debate.

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.

jmho,

carlie

[carlie]

Berta,

I have a feeling you and I are going to get to

wreck our brains and have some fun on this one ~ lol.

And you and I both know healthy debate will not interfer with our kinship,

as we are much too close for that.

I also have a feeling I'd better prepare to hang on for a wild ride.

carlie

[carlie]

blue,

From your post,

"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 ?

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 ?

If it has a Narrative or Reasons and Bases Section

can you scan in exactly what it states ?

If you scan be sure to edit out or redact in some way

the personal info such as SSA or SM #, DOB, address.

carlie

[blue12]

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?