Denied Wrong Claimed Condition

[lcpmom]

A Veteran that I am assisting received a denial letter from VA for a condition that he did not apply for. VA stated that the condition *incorrectly claimed) was not shown to be an in service occurence.

I reviewed the Veterans SMRs and discovered that the correct claimed condition is shown to be associated and diagnosed during his active duty service.

She submitted a NOD last year informing VA of the mistake and was notified by her VSO recently that the status database shows that a SOC was being written by the examiner for a VA generic condition that includes her condition.

Very important Question: Can the examiner provide a statement of the case denying the incorrect condition without acknowledging and providing a VCAA notice for the correct claimed condition.

Lois

[jbasser]

I moives this one to claims reaearch.

Only the RO can issue Statements of case. An examiner can only examine you and offer an opinion. As far as a wrong condition claimed or change of diagnisos there is a section in the regs that cover it. I will dig it out and post it.

John

§4.13 Effect of change of diagnosis.

The repercussion upon a current rating of service connection when change is made of a previously assigned diagnosis or etiology must be kept in mind. The aim should be the reconciliation and continuance of the diagnosis or etiology upon which service connection for the disability had been granted. The relevant principle enunciated in §4.125, entitled “Diagnosis of mental disorders,” should have careful attention in this connection. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examination or in use of descriptive terms. This will not, of course, preclude the correction of erroneous ratings, nor will it preclude assignment of a rating in conformity with §4.7

Edited June 6, 2010 by jbasser
added info

[Berta]

"Very important Question: Can the examiner provide a statement of the case denying the incorrect condition without acknowledging and providing a VCAA notice for the correct claimed condition."

No- the VA is mandated to provide a VCAA letter regarding any claimed condition.

"the status database shows that a SOC was being written by the examiner for a VA generic condition that includes her condition."

An SOC tells me they have again denied the claim. It is a Supplemental Statement of the Case (SSOC)-if the VSO interpreted the PC screen correctly.

What is the condition she claimed?

What is the generic condition VA has re -characterized it as?

[Berta]

PS John thanks for that info -I will use it.

I think it applies to me.

In their recent award letter (when they finally got it almost right) the Buffalo VARO still denied my husband SMC as an accrued benefit.I have a CUE that is still pending (it better be I need to check that out) on a 1998 decision regarding same basis.

My husband the veteran was as of the recent award:

100% SC PTSD

100 % as if SC under 1151 for CVA

100% as if SC under 1151 for ischemic heart disease.

The new award grants 100%dead due to SC Diabetes mellitus from AO contributing to all conditions present at death and as listed on death certificate and in autopsy.( multiple cerebral infarctions, (strokes) and cardiovascular disease (IHD)directly due to his misdiagnosed DMII from AO.

SMC is an inferred issue whenever the medical evidence renders it to be considered.It can also be an accrued benefit.

In his case not only has the diagnosis been changed ( per 4.13 CFR)but the new award reflects the true etiology of his death and 1151 FTCA conditions- AO diabetes.

One point the VA made in the decision is ridiculous. They said the veteran had never requested SMC in his lifetime.

As an inferred condition, he didn't have to request it and the extent of malpractice made it impossible for him to claim in his lifetime what he did not know he had (heart disease and DMII)

This is an interesting citation you posted here which could help many.

[john999]

Denying a condition not claimed is a good way for VA to delay a claim. You have to untangle the mess and this takes time. Time is always the vet's enemy especially if they are very sick.

[*Bergie*]

I am in a similar situation. The VARO is trying to rate one of my NOD's as something unrelated to what it actually is. I have submitted numerous documentation to support my arguement, but they say "when they put it into the computer that is what it matches it to." I don't know what to do at this point.

Bergie