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)

[blue12]

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.

[carlie]

blue12,

I don't have much time now but

want to post that evidence considered by VBA as

"CUMULATIVE" - is not N&M.

Anything that states an added diagnosis would not be "CUMULATIVE",

it in my opinion would be N&M.

I will try to get back here tonight.

carlie

[carlie]

Berta,

Where are you?

blue12,

I don't know if you have the Schedule for Ratings - Ear

http://ecfr.gpoaccess.gov/cgi/t/text/text-....38&idno=38

6200

Chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination):

During suppuration, or with aural polyps 10

Note: Evaluate hearing impairment, and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of skull, separately.

6201

Chronic nonsuppurative otitis media with effusion (serous otitis media):

Rate hearing impairment

6204

Peripheral vestibular disorders:

Dizziness and occasional staggering 30

Occasional dizziness 10

Note: Objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined.

6205

Meniere's syndrome (endolymphatic hydrops):

Hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus 100

Hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus 60

Hearing impairment with vertigo less than once a month, with or without tinnitus 30

Note: Evaluate Meniere's syndrome either under these criteria or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. But do not combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under diagnostic code 6205.

6210

Chronic otitis externa:

Swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment 10

6211

Tympanic membrane, perforation of 0

6260

Tinnitus, recurrent 10

Note (1): A separate evaluation for tinnitus may be combined with an evaluation under diagnostic codes 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports an evaluation under one of those diagnostic codes.

Note (2): Assign only a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head.

Note (3): Do not evaluate objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) under this diagnostic code, but evaluate it as part of any underlying condition causing it.

[Berta]

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

: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)

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

Can you attach that here too?

"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.

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.

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.

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?

An Audiologist ? and it is being done via VA Central Office?

[Berta]

Sorry I asked you to post lots of stuff but I think we just need to know the results of the review of the negative advisory opinion-----I am getting copngfused-it isnt you- just much going on here-

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?

[blue12]

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?