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]

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

: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) See your next post

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

Can you attach that here too? I have no way of doing that. I'm sorry.

"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. Exactly what the VACO said.

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. Our contention is that the did use the wrong diagnostic code. Additionally, they did not rate his tinnitus seperately as required. And the last thig is that they reference his having an underlying disease that was going to be addressed. They did not name the disease nor did they do any testing. I know the wrong diagnostic code is CUE as is grouping his tinnitus with otitis media. I don't know if the failure to state the underlying disease is CUE or it is just plain negligence. I do know the VACO was not happy about all of this.

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. Done. Stated he had the symptoms of Meniere's while active duty as evidenced by his service records.

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? Central Office

An Audiologist ? No one has said anything about an audiologist. and it is being done via VA Central Office? Yes.

[blue12]

Berta,

I am sorry, I quoted the Advisory Opinion below, not the 1151 claim. Question for you. The 1151 claim was filed before I found more things, such as the "underlying disease" portion of his inital claim. Shouldn't all of that be inthe 1151 as well?

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?

Berta,

Yes, here it what it says;

" Based on inquiries and statements associated with the denial of entitlement to an earlier effective date of grant of service connection associated with Meniere's Disease, the RO sent your claims file to the C&P Service for an advisory opinion. THis included file review. The determination was that VA?private medical rports may only establish an informal claim for increase pursuant to 38 CFR 3.157 application in compensation cases. The finding was that the evidentiary record clearly disclosed that a claim for compensation for Meniere's Disease wa not received until Jan, 2003, (not a typo on my part)and the clinical impression of Meniere's was not shown until then either. It was also noted that jurisprudence regarding Clear and Unmistakeable Errors (CUE) was instructive in this case. It has been established that after-the-fact resolutions of a previous error such as a misdiagnosis, or chnages in medical knowledge, cannot constitute a CUE,as demonstrating CUE requires finding error based upon the evidence that existed at the time of the alleged erroneous decision.

The other cited statements and evidence also relate to contentions regarding entitlement to an earlier effective date but are not sufficient to change our decision. We are sorry that we could not return a favorable reply.

[blue12]

Here is the Basis of Claim for the 1151;

1. Failure of the VA to diagnose symptoms of Meniere’s disease from date of retirement from active duty military, effective August 1, 1994 to January 22, 2008, per requirements set forth in 38 USC 5103 - Sec. 5103A. Duty to assist claimants.

2. Failure of duty to assist the veteran in developing a claim for Meniere’s disease from date of retirement from active duty military, effective August 1, 1994, to January 22, 2008, per requirements set forth in 38 USC 5103 - Sec. 5103A. Duty to assist.

3. Failure of duty to assist the veteran in receiving maximum benefits, from date of retirement from active duty military, effective August 1, 1994, to January 22, 2008, per requirements set forth in 38 USC 5103 - Sec. 5103A. Duty to assist claimants; M21-1MB, Chapter 5, Section C, 11©; and M21-1MR, Part 1, Chapter 5, Section C.

4. Failure of VSCM, *********, to perform per the requirements of M21-1MB, Chapter 5, Section C, 11©; failure to appoint an acting DRO during the disqualification of Tom Ransburg, in violation of stated federal regulation.

5. Failure of DRO, **********, to perform per the requirements of M21-1MR, Part 1, Chapter 5, Section 13 © **********, the DRO at de novo hearing on May 5, 2009, was the same DRO that made the decision of which was under review at said hearing, and in violation of stated federal regulation.

6. Failure of DRO, ********** to perform per the requirements of M21-1MR, Part 1, Chapter 5, Section C, 11(; **********, DRO at stated hearing of May 5, 2009, stated on the record that he was the person that had made the decision we were asking for the reconsideration of. The transcript provides that this statement has been removed from the record.

7. Additionally, **********, per federal regulations of M21-1MR, Part 1, Chapter 5, Section C, requires a full consideration of all evidence of record. **********denied an earlier effective date based on an erroneous medical opinion and not the corrected medical opinion of Dr. ********** and the fact that Meniere’s disease was not claimed upon initial application for benefits with the VA upon retirement from active duty military in 1994.

8. Further, *********** stated that I did not claim dizziness as a symptom in 1994. I did. Please refer to Ratings Decision dated 2/1/495, page 4. It was combined with otitis media by the VARO, which constitutes a further violation of federal regulation M21-1MR, Part 1, Chapter 5, Section C.

9. Failure of Veterans Service Representative ******** to object to the DRO De Novo Hearing of May 5, 2009, on grounds of disqualification of presiding DRO.

10. Failure of Veterans Service Representative ********* to maintain and preserve the best interests of the claimant in stated DRO hearing.

11. Claimant would like the record to reflect that ********* was placed on this case the morning of May 5, 2009 DRO hearing by the VARO Indianapolis. ********** knew nothing about my case whatsoever.

12. Award of service connection of a misdiagnosis since 1994.

13. Award of service connection in December, 2008, based on an erroneous medical opinion.

14. Correction of previous award entered by VARO on March 2, 2008, corrected to service connection for Meniere’s with Defective Hearing, of which defective hearing was claimed in 1994.

15. Subsequent denial of earlier effective date based on numerous erroneous facts and errors.

Berta,

I am sorry, I quoted the Advisory Opinion below, not the 1151 claim. Question for you. The 1151 claim was filed before I found more things, such as the "underlying disease" portion of his inital claim. Shouldn't all of that be inthe 1151 as well?

[Berta]

"Done. Stated he had the symptoms of Meniere's while active duty as evidenced by his service records."

WOW that can be used to support the EED, the CUE claim if needed and the Section 1151 claim in my opinion.

You have done a LOT of legwork here-

Section 1151-there is no time limit for these claims- maybe this will help and you probably wrote the 1151 this way---- I quoted their exact Section 1151 criteria from 38 CFR and then listed the documented evidence of malpractice along with the VA medical records that proved it.

I also used the same statement I put on my SF 95 that their medical treatment from 1988 to 1994 was not medically appropriate and was negligent to the degree that it caused my husband's death when compared to what that treatment would have been in the the standard medical community.

The 1151 award letter said just about the same thing.

But I documented the additional disabilities that the malpractice caused.Were you able to make a statement that covered that in your claim?

Section 1151

1. documented negligence , malpractice or omission of an act that lent to negligence from VA med recs.

2, Additional disability to the veteran directly due to the negligence.(This is what they rate under Sec 1151 if you succeed.

Negligence has to have a cause and affect.

"Shouldn't all of that be in the 1151 as well?"

Yes, In my case my husband had already filed a Section 1151 claim.I went by his exact words he wrote -to re-open it when he died.

I sent them continuous medical evidence for 3 years while also supporting the FTCA case.

I always kept the Section 1151 regs in front of me as I prepared numerous submissions of evidence.

A misdiagnosis often means improper meds were given as well as wrong treatment for the disability.

You need to show them how bad he got when suffering from their negligence. I feel you can sure make that point well.

[blue12]

Here is the Basis of Claim for the 1151;

1. Failure of the VA to diagnose symptoms of Meniere's disease from date of retirement from active duty military, effective August 1, 1994 to January 22, 2008, per requirements set forth in 38 USC 5103 - Sec. 5103A. Duty to assist claimants.

2. Failure of duty to assist the veteran in developing a claim for Meniere's disease from date of retirement from active duty military, effective August 1, 1994, to January 22, 2008, per requirements set forth in 38 USC 5103 - Sec. 5103A. Duty to assist.

3. Failure of duty to assist the veteran in receiving maximum benefits, from date of retirement from active duty military, effective August 1, 1994, to January 22, 2008, per requirements set forth in 38 USC 5103 - Sec. 5103A. Duty to assist claimants; M21-1MB, Chapter 5, Section C, 11©; and M21-1MR, Part 1, Chapter 5, Section C.

4. Failure of VSCM, *********, to perform per the requirements of M21-1MB, Chapter 5, Section C, 11©; failure to appoint an acting DRO during the disqualification of *********, in violation of stated federal regulation.

5. Failure of DRO, **********, to perform per the requirements of M21-1MR, Part 1, Chapter 5, Section 13 © **********, the DRO at de novo hearing on May 5, 2009, was the same DRO that made the decision of which was under review at said hearing, and in violation of stated federal regulation.

6. Failure of DRO, ********** to perform per the requirements of M21-1MR, Part 1, Chapter 5, Section C, 11( ; **********, DRO at stated hearing of May 5, 2009, stated on the record that he was the person that had made the decision we were asking for the reconsideration of. The transcript provides that this statement has been removed from the record.

7. Additionally, **********, per federal regulations of M21-1MR, Part 1, Chapter 5, Section C, requires a full consideration of all evidence of record. **********denied an earlier effective date based on an erroneous medical opinion and not the corrected medical opinion of Dr. ********** and the fact that Meniere's disease was not claimed upon initial application for benefits with the VA upon retirement from active duty military in 1994.

8. Further, *********** stated that I did not claim dizziness as a symptom in 1994. I did. Please refer to Ratings Decision dated 2/1/495, page 4. It was combined with otitis media by the VARO, which constitutes a further violation of federal regulation M21-1MR, Part 1, Chapter 5, Section C.

9. Failure of Veterans Service Representative ******** to object to the DRO De Novo Hearing of May 5, 2009, on grounds of disqualification of presiding DRO.

10. Failure of Veterans Service Representative ********* to maintain and preserve the best interests of the claimant in stated DRO hearing.

11. Claimant would like the record to reflect that ********* was placed on this case the morning of May 5, 2009 DRO hearing by the VARO Indianapolis. ********** knew nothing about my case whatsoever.

12. Award of service connection of a misdiagnosis since 1994.

13. Award of service connection in December, 2008, based on an erroneous medical opinion.

14. Correction of previous award entered by VARO on March 2, 2008, corrected to service connection for Meniere's with Defective Hearing, of which defective hearing was claimed in 1994.

15. Subsequent denial of earlier effective date based on numerous erroneous facts and errors.

[Berta]

Gee we were posting here at the same time-

I just saw the 1151 claim.

You need to keep the focus on that claim separate from any other stuff-and state right at the top- This is a claim under auspices of Section 1151, 38 USC.

BUT good for you to raise the VCAA errors-VCAA was enacted in 2000. I need to read your post over and will get back to you -maybe tomorrow-----

You raised some good arguments here but this is the VA and they can't handle too much at one time.

And it pays to get the important stuff on the first page-written so that it catches their attention.