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,

I apprciate this very much. Here ya go.

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 ? Positive. Dated 1-23-08

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 ? 2-14-1995

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.

Carlie- Yes, I know. These are his symptoms. Additionally, the ratings specialist stated he had an underlying disease connected to his tinnitus that was to have been evaluated. And the tinnitus was to have been considered seperately, which was not done. It is my opinion that the disease they were speaking of was Meniere's. They knew the amount of times he had the attacks. It was documented in his service records. I just think they did not want to award it.

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.

Carlie, this was one of two, the second being questionable, ear infections that he was treated for in his 20+ years. He has numerous records of treatment for the same diagnosis with no sign of infection, or he woulod be treated for a viral infection with no sign of infection. This happened all of the time.

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.

Carlie, Yes, I understand that. My argument with this is that they did not read or consider the numerous other medical records where he was diagnosed and treated for ear infections or viral infections countless times, but where the docs messed up at, is there was no sign of infection. Even though they would normally prescribe antibiotics. I have these mistakes in writing from 3 ENT Specialists. Two of which are VA docs and one is an IMO.

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.

Carlie, the prob that we had a heck of a hard time overcoming was that the VA docs kept wanting to say that his Meniere's attacks was not Meniere's but caused by the rupture and otits media.

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.

Carlie, yes, I know. The VA docs wrote in his records at the time of his exam about his vertigo. He was not tested for his claims of vetigo at the C&P exam, and I guess because he walked ok that day was evidence enough for them to make this statement.

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.

Carlie, yes it does.

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.

Carlie, yes, and we have no prob with that at all.

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.

Carlie, this statement about the underlying disease has had me boiling since I saw it and recognized the importance of it. So are you telling me that if they had sc'd him for tinnitus they would have looked for the underlying disease? Or because the test that they did showed him negative for tinnitus, they did not think he had an ear disease? Or am I way off base here?

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.

Carlie, all they had to do was read his service medical records.

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 ?

Carlie, yes, viral infections. He always gets a headache when he gets an attack. Docs say this is normal.

[Berta]

Re: a potential CUE claim here Blue-

I dont know if I explained this well -

a change in diagnosis or a misdiagnosis is not basis for CUE.

But if the VA committed legal error in the earlier denial-those errors are the basis of CUE.

Also the disability has to have raised to a ratable level by medical evidence and this information was known to the VA when they made the CUE.

I hope I presented my CUEs here the way they are.

The CUES I filed are based on my husband's misdiagnosed heart disease and also his misdiagnosed Stroke.

These were established under Sec 1151 as due to VA medical care.

In other words these were misdiagnosed conditions but also established that way by virtue of medical evidence.

The misdiagnoses were not the basis of my CUE claims.

The lack of any diagnostic code and rating whatsoever for my husband's heart disease and then a wrongly coded and rated CVA (both under Sec 1151) and the complete lack of SMC consideration

(1151 disabilities come under SMC too)

are the legal errors they committed and basis for my CUES.

I guess I am just trying to explain this better then I did-

CUE is for legal error- misdiagnosis can lead to legal error but the basis for a CUE for misdiagnosis would be

that established medical evidence (whether misdiagnosis or not)

generated from VA the wrong Diagnostic code or rating percent or some other legal error that manifestly altered the outcome.

In other words the CUE had to cost the vet money.

I too need to echo what Carlie asked:

"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 ? Positive. Dated 1-23-08

carlie "

I too want to be positive on this

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..."

Who is this Chief and where from and can you state exactly what he wrote and where he wrote it-to document what he said- and if the VARO has acknoweledged this medical documentation as evidence?

I think this could be the best evidence you could get.

Edited December 6, 2009 by Berta

[blue12]

Re: a potential CUE claim here Blue-

I dont know if I explained this well -

a change in diagnosis or a misdiagnosis is not basis for CUE.

I know that it is not. My point is that that they failed to assign a diagnosis code for the Meniere's. They had all of the medical evidence in hand for years prior to his retirement. They were just negligent in the fact that no doctor while active duty went back through his history to make the determination. I know how we were treated my military docs. It was a get him and and out attitude. He always presented with symptoms of either otitis media and viral infection but didn't have any signs off infection to support the diagnosis. So, docs always said he was coming down with either diagnosis. Then when he retired, the VA never went back through his medical history prior to 1991 when he had the perforated eardrum because of a diving accident. I have numerous accounts of this happening and we are trying to get it all corrected. Then if you take into account the misdiagnosis of otitis media, then the the sc rating for otitis media is incorrect. Additionally, the tinnitus should have been rated seperately and was not. The VAMC's diagnosis of subjective tinnitus only strengthens the claim of Meniere's.

But if the VA committed legal error in the earlier denial-those errors are the basis of CUE.

Also the disability has to have raised to a ratable level by medical evidence and this information was known to the VA when they made the CUE.

I hope I presented my CUEs here the way they are.

The CUES I filed are based on my husband's misdiagnosed heart disease and also his misdiagnosed Stroke.

These were established under Sec 1151 as due to VA medical care.

In other words these were misdiagnosed conditions but also established that way by virtue of medical evidence.

The misdiagnoses were not the basis of my CUE claims.

I am aware that a CUE based on misdiagnosis is not CUE at all.

The lack of any diagnostic code and rating whatsoever for my husband's heart disease and then a wrongly coded and rated CVA (both under Sec 1151) and the complete lack of SMC consideration

(1151 disabilities come under SMC too)

are the legal errors they committed and basis for my CUES.

It appears to me that our case is the same as yours, of course a diff diagnosis.

I guess I am just trying to explain this better then I did- You explained it well I thought.

CUE is for legal error- misdiagnosis can lead to legal error but the basis for a CUE for misdiagnosis would be

that established medical evidence (whether misdiagnosis or not)

generated from VA the wrong Diagnostic code or rating percent or some other legal error that manifestly altered the outcome.

In other words the CUE had to cost the vet money.

I too need to echo what Carlie asked:

"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 ? Positive. Dated 1-23-08

carlie "

I too want to be positive on this

Absolutely 100% positive he has this sc for Meniere's.

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..."

Who is this Chief and where from and can you state exactly what he wrote and where he wrote it-to document what he said- and if the VARO has acknoweledged this medical documentation as evidence?

They did acknowledge his statement as medical evidence in their sc for Meniere's.

I think this could be the best evidence you could get.

To reiterate, I have a VA ENT Specialist, at the request of the VARO, stating in a written medical opinion that he had the symptoms of Meniere's while active duty and had been misdiagnosed with otitis media from the mid-1980's while active duty through Jan, 2008. This was November, 2008.

I also have an IMO stating the same thing.

I also have his VA PCP stating the same, as well as another VA ENT doc, and then the Chief of ENT at the VAMC.

So am I way off base here in my thoughts on the CUE? I have been arguing the sc for otitis media was rated with the wrong diagnostic code, that his Meniere's was not rated at all even though the medical evidence supported it, and the tinnitus was not rated seperately as required.

[blue12]

Berta

[Berta]

I see the CUE the same way as you stated it here.

We have considerable info and CUE claims in the CUE forum here-

They are often the best way to determine how to shape a CUE and what legal errors to use. learned a lot on CUE from the VBM as well.

Yes-my CUE claims are basically same as yours-failure to assign proper diagnostic code and failure rate properly.Heart disease,

strokes and now diabetes mellitus,

Filed in 2004- I have gotten multiple SSOCs which still fail to recognize and address my legal evidence.They even re characterized the CUE issues and none of that made sense.

It even appears they are holding the claims for the new AO ischemic regs to kick in- but the award from BVA (which they are unable to read) covers that.

Is your vet rep supportive of the CUE claim you have?

All of the evidence I have is from 38 CFR, M21-1 and General Counsel.

I asked for DRO review and also filed an I-9 too- and have made it very clear to them that these CUE claims have been rendered moot by my recent award as soon as the VA infers SMC by statute and makes a proper accrued rating of the veterans SMC.

I told them they cannot send the claims to the BVA with the considerable erroneous errors they have made in the SSOCs.As well as fact that BVA awarded these SMC conditions as directly due to AO and they have to be rated anyhow.