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]

"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."

You could use this as basis to request that they CUE themselves.

I had similiar situation and they CUED themselves and gave me another DRO review- but it was the Same DRO too and she had not learned how to read since the decision I asked them to CUE-

My rep held her hand on this-

and made sure my claim got messed up that day (as documented in the SSOC)

In other situations when I asked them to CUE themselves it had better results.

Most recently when I told them my award letter was "clearly erroneous" they fixed it in 3 weeks, It was worse than the first one.

I sent it to James Terry BVA, the OGC, the director of the VARO, and also to Sec Shenseki and some other VA people-

I was informed by OGC Friday they will fix it.

Does your rep understand any of this?

[Berta]

PS if you already sent this to them- you will have time to refine the issues separately -

But this will sure give them a knot in their underwear!

[blue12]

Berta,

I am laughing so hard here, I can hardly type this. OKay, so I file a CUE and ask them to fix their own mistakes? I mean, I get it, but here is my not being able to think clearly moment, how the heck did you title the claim? I mean, I can imagine what I would like to say, buuuuut what I would like to title the claim is from what is appropriate.

Thanks so much for your input.

PS if you already sent this to them- you will have time to refine the issues separately -

But this will sure give them a knot in their underwear!

[Berta]

Yep tell them to go CUE themselves-

Actually all I did was send them a letter asking them to call a clear and unmistakable error on their decision dated---- and then I told them why it was wrong.

In 2005 I used a different approach-I sent them an Iris complaint with heading of What the Hell is this-

and then I asked them to CUE the decision .

They immediately pulled my rep into the VARO and then set up the additional DRO review.

You can cite the actual CUE regs -38 CFR , 38 USC ??? I forget what they are- they are here under the CUE forum.

5107 ???? gee- CUE is what I live for and I am too tired to remember the CFR number-

I got the idea for this years ago when I noticed in some claims the VA had called a CUE on itself.

So we can ask them to do it too.

I won a CUE via the regional counsel.

VARO and BVA said I was wrong and then years later the RC said I was right- and told VARO to " send her the money".

You are an asset to this board. You are willing to read and interpret the regs they use.

That can mean all the difference in the world when we fight back any erroneous decision.

[carlie]

blue12,

I'm sure this post is going to be discombobulated as heck but I had to

fly through it. Week-end company is here.

Hope I got some info right.

I do not want to be a pain in the XXX - BUT

are you positive he is SC'd for Meniere's - do you have a Rating

Decision that states so ?

carlie

"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."

blue - What is the date on the very first Rating Decision ?

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.

blue - none of the following four issues mention any

claim for Meniere's.

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.

From the Reasons and Bases Section below I feel SC was granted - and no compensation (zero percent) was awarded due to:

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.

(The above is from 10-17-80 drainage in left ear)

does not support current supperation.

A computerized tomography (CAT) scan of the temporal bones showed no evidence of cholesteatoma. No sustained hearing loss or tinnitus was reported.

There was no evidence of any active ear disease or infectious process going on.

Exam of ear canals noted no significant pathologic findings.

The above is enough to help support a Nexus BUT percentage is granted by current level of residual disability - needs suppuration on VAMC progress notes and at C&P examination.

The medical evidence was enough to grant SC but not enough for compensation.

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.

Showing treatment on active duty helps the doc support a NEXUS -

but it is the residual disability that gets the level of compensation granted.

Over the years the veteran suffered perforation of both tympanic membranes with tympanoplasty performed. Bilateral otitis media was diagnosed.

The above is not of any help except for NEXUS but not compensation.

A computerized tomography (CAT) scan of the temporal bones showed no evidence of cholesteatoma. No sustained hearing loss or tinnitus was reported.

The above states no Tinnitus 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 above is of no help for compensable level of otitis media as it supports no supperation at time of the VA exam.

There was no evidence of vertigo. -

VA would try to apply the above in a denial of any claim for Meniere's.

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.

The above is related to Nexus - perforation is non compensable.

Otitis media is evaluated based on loss of hearing.

To my knowledge of the regs for this - Otitis Media criteria states must have supperation (infectious draining) for a compensable evaluation.

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 shown to warrant a compensable evaluation, but if there were and he also had a SC'd hearing loss it would pay more.

The evidence shows perforation of the tympanic membrane which is assigned a noncompensable evaluation.

Healed Perforation does not comp at an amount.

Tinnitus which is a symptom of a disease will be considered in the evaluation of the underlying disease.

The above means that if there is an SC'd active ear disesae the 10 % compensation

for Tinnitus will be considered in the rating percentage for the SC'd ear disease.

For Tinnitus - there have been at least two reg changes - I don't know the dates of the changes right now.

I do know for some years Tinnitus had to be the result of head trauma, but I think that reg was prior to your husband's Rating Decision.

I think the reason Tinnitus was not granted at 10 % is due to this statement -

"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."

The above provides an Nexus to active duty - but where it states "complained of soe tinnitus" I believe is a typo for the word some.

By rating criteria some Tinnitus = non compensable - must show as RECURRENT.

Diagnosis was status post tympanoplasty, well healed and subjective tinnitus.

The above only states that there is subjective Tinnitus -

Good for Nexus but it requires RECURRENT for a compensable level.

The evidence of record does not show audiometric findings which meet the criteria for a grant of service connection for defective hearing.

Would need the auio measurements from the Audio C&P to know if this is right.

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.

Has a doctor ever written a nexus of what is the cause of the Headaches ?

Edited December 6, 2009 by carlie

[blue12]

Berta,

Thanks,you have made my day.

Yep tell them to go CUE themselves-

This is hysterical. I musta thought about your original post from earlier about a hundred times since you did it, and have laughed every single time.

Actually all I did was send them a letter asking them to call a clear and unmistakable error on their decision dated---- and then I told them why it was wrong.

I think this is the approach that I will take, just submit a letter to them and point out their mistakes and see what comes of it. I have them doing a lot right now claim wise, maybe they will just say, let's get this part over with. I will keep my fingers crossed anyhow. Will drop it off to them on Monday.

In 2005 I used a different approach-I sent them an Iris complaint with heading of What the Hell is this-

and then I asked them to CUE the decision .

They immediately pulled my rep into the VARO and then set up the additional DRO review.

You can cite the actual CUE regs -38 CFR , 38 USC ??? I forget what they are- they are here under the CUE forum.

5107 ???? gee- CUE is what I live for and I am too tired to remember the CFR number-

I got the idea for this years ago when I noticed in some claims the VA had called a CUE on itself.

So we can ask them to do it too.

This is the absolute best idea and apparently it works, as it should. Am so thrilled that you "caught" this in your research.

I won a CUE via the regional counsel.

VARO and BVA said I was wrong and then years later the RC said I was right- and told VARO to " send her the money".

That is terrific. Esp when they tell you that you are wrong. Never stop fighting for what you believe to be right.

You are an asset to this board. You are willing to read and interpret the regs they use.

Thanks, I appreciate that very much. I just have the tendency to ask a lot of questions, and if my who, what, where, when, and why is not answered, I don't stop. Prob a pain in the rear to a lot of folks, esp at the VARO, but they are not in our shoes. I am actually at some point going to start doing claims for our vets. I know what they have put my husband through and he and I have lived the ramifications of their carelessness. Then you throw in what I have seen on here with other vets, and, well, it just seems to be up my alley, so to speak.

That can mean all the difference in the world when we fight back any erroneous decision.

I truly hope that others will benefit from what we have learned, and if we can help others, then it is a bonus.