Any Pending Unadjudicated Claims?

[free_spirit_etc]

I am trying to figure out if my husband had any claims that might be pending and unadjudicated. These are conditions that my husband had claimed due to Desert Storm. As each claim stated it was considered due to undiagnosed illness (with the exception of the one they labeled “trouble sleeping as due to undiagnosed illness and sleep apnea), I am wondering if there would be a base for accrued benefits as the claims were not developed and adjudicated in regard to whether they could be granted on a direct service connection basis.

Some of the conditions note they were not shown to be chronic in service; others don’t mention that. And even the conditions that they state were not shown to be chronic in service aren’t really accurate. For instance, on the breathing difficulty, it says there was no chronic breathing difficulty or respiratory condition during service – but his service records show that he had chronic bronchitis in 1985, and in 1996 had a coughing fit from a bout of bronchitis which caused him to develop rib pain that lasted 6 months. For the sinusitis, it says that wasn’t shown to be chronic in service, but the records show he treated for sinus problems several times and was diagnosed with chronic sinusitis after an x-ray showed ethmoid and maxillary inflammatory changes of the chronic type. So they were just blowing smoke for what the SMRs showed anyway…

But – as a widow, CUE is not an option. I either have to show that claims were pending and not yet adjudicated, or that there were missing service records that were not considered.

I might be able to submit the report on the sinus x-ray, and the chronic bronchitis – and point out that those records apparently weren’t available when they made the decision, otherwise they would not have said that those conditions were not shown to be chronic in service.

Also – they did not provide my husband with a respiratory exam before making a decision in regard to the breathing problems. They did pulmonary function tests in 2002 which showed definite breathing problems, but the so called respiratory “exam” in 2002 was only the VA examiner writing an opinion on whether my husband’s lung cancer was caused by asbestos. They didn’t examine him at all for respiratory problems in 2003 (This claim).

But as far as the diagnosed conditions – can they all be considered pending and nonadjudicated (except the sleep apnea) on the basis of this statement of case – since they just indicated that they were considered in respect to whether they could be granted SC as undiagnosed illnesses?

Or if the ones that the VA noted were not shown to be chronic in service (which was often untrue) are considered adjudicated, could the other ones where they just stated the diagnoses without discussing them further still be considered pending? (Like the emphysema, interstitial fibrosis, depression, cervicogenic headache secondary to hypertrophic degenerative osteoarthritis)?

Or is anything that has to do with joint pain, breathing difficulty, trouble sleeping, feeling tired, and headaches deemed denied and final?

1. Service connection for joint pain is denied.
2. Service connection for short term memory problems is denied.
3. Service connection for breathing difficulty is denied.
4. Service connection for night sweats is denied.
5. Service connection for trouble sleeping is denied.
6. Service connection for constantly feeling tired is denied.
7. Service connection for headaches is denied.

Evidence

1. Letter from veteran received 3/31/03

2. Correspondence sent to the veterans dated 4/24-03 , 6-4-03, and 8-12-03

3. Treatment reports from XXXX Air Force Base dated 8-9-00 to 11-13-03

4. Statements in Support of Claim from the veteran and XXXX dated May 9, 2003 and May 12, 2003.

5. DD Form 214

6. Evidence in the veteran’s claims file including service medical records darted June 1970 to June 1998.

Service connection for joint pain as due to an undiagnosed illness.

We denied service connection for joint pain as due to an undiagnosed illness because the joint pain has been diagnosed as tendonitis of both shoulders and patellofemoral syndrome of both knees. At the VA examination you complained of shoulder pain and knee pain. Examination of the shoulders revealed no gross deformity. Examination of the knees showed no functional impairment. The VA examiner gave a diagnosis of tendonitis of both shoulders and patellofemoral syndrome of both knees. A chronic disability of the shoulders is not shown by service medical records. A chronic disability of the right knee is not shown by the service medical records. Service connection was previously granted for chronomalacia patella of the left knee.

The “Persian Gulf War Veteran’s Benefits Act” authorizes VA to compensate any Gulf veteran suffering from a “qualifying chronic disability,” resulting from an undiagnosed illness or combination of undiagnosed illnesses, appearing during active duty in the Southwest Asia theater of operations during the Gulf War, or to a degree of 10% or more within a presumptive period following service in the theater. Section 202 of the “Veterans Education and Benefits Expansion Act of 2001” expanded the definitions of “qualifying chronic disability” to include (1) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms: and (2) any diagnosed illness that the Secretary of the VA determines in regulations warrants a presumption of service connection.

Service connection for breathing difficulty as due to an undiagnosed illness.

We denied service connection for breathing difficulty due to an undiagnosed illness because the breathing difficulty has been clinically diagnosed as emphysema and/or obstructive sleep apnea., nor is there evidence of a chronic breathing difficulty or respiratory condition during service. A review of the service medical records showed complain of difficulty breathing in May 1971 and impression of upper respiratory infection. The treatment records from XXXAir Force Base showed a diagnosis of non small cell lung cancer and follow-up needed for interstitial fibrosis and emphysema. Lung resection was completed on September 29, 200. VA examination showed you reported your spouse said you snore and on occasion stop breathing. A sleep study showed a sleep efficiency of 80% with REM sleep for 2 hours 42 minutes. On nasal CPAP you had a sleep efficiency of 80% with REM sleep for 2 hours 3 minutes. A CPAP unit was recommended for obstructive sleep apnea. VA examination of March 2002 showed emphysematous changes that were highly suggestive of and consistent with a long history of cigarette smoking.

The “Persian Gulf War Veteran’s Benefits Act” authorizes VA to compensate any Gulf veteran suffering from a “qualifying chronic disability,” resulting from an undiagnosed illness or combination of undiagnosed illnesses, appearing during active duty in the Southwest Asia theater of operations during the Gulf War, or to a degree of 10% or more within a presumptive period following service in the theater. Section 202 of the “Veterans Education and Benefits Expansion Act of 2001” expanded the definitions of “qualifying chronic disability” to include (1) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms: and (2) any diagnosed illness that the Secretary of the VA determines in regulations warrants a presumption of service connection.

5. Service connection for trouble sleeping as due to undiagnosed illness and sleep apnea.

We denied service connection for trouble sleeping as due to an

undiagnosed illness because the evidence shows a diagnosis of sleep apnea, nor is there evidence of diagnosis of sleep apnea or chronic disability associated with trouble sleeping during military service. The treatment records from XXXX Air Force Base showed complaints of difficulty sleeping. VA examination showed you reported that your spouse said you snore and on occasion, stop breathing. A sleep study showed a sleep efficiency of 39% with 14% rem sleep for 2 hours 42 minutes. On nasal CPAP you had a sleep efficiency of 80% with REM sleep for 2 hours 3 minutes. A CPAP unit was recommended for obstructive sleep apnea.

The “Persian Gulf War Veteran’s Benefits Act” authorizes VA to compensate any Gulf veteran suffering from a “qualifying chronic disability,” resulting from an undiagnosed illness or combination of undiagnosed illnesses, appearing during active duty in the Southwest Asia theater of operations during the Gulf War, or to a degree of 10% or more within a presumptive period following service in the theater. Section 202 of the “Veterans Education and Benefits Expansion Act of 2001” expanded the definitions of “qualifying chronic disability” to include (1) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms: and (2) any diagnosed illness that the Secretary of the VA determines in regulations warrants a presumption of service connection.

Service connection for constantly feeling tired as due to an undiagnosed illness.

We denied service connection for constantly feeling tired as due to undiagnosed illness because the evidence showed a diagnosis of chronic fatigue syndrome, more likely than not secondary to depression. The current evidence showed complaints of extreme fatigue. VA examinations showed you reported you are tired all the time. You reported that your fatigue came on gradually. You denied any fatigue lasting 24 hours or longer after exercise. You denied any incapacitating episodes that require bed rest. VA examination showed a diagnosis of chronic fatigue syndrome, most likely than not secondary to depression.

The “Persian Gulf War Veteran’s Benefits Act” authorizes VA to compensate any Gulf veteran suffering from a “qualifying chronic disability,” resulting from an undiagnosed illness or combination of undiagnosed illnesses, appearing during active duty in the Southwest Asia theater of operations during the Gulf War, or to a degree of 10% or more within a presumptive period following service in the theater. Section 202 of the “Veterans Education and Benefits Expansion Act of 2001” expanded the definitions of “qualifying chronic disability” to include (1) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms: and (2) any diagnosed illness that the Secretary of the VA determines in regulations warrants a presumption of service connection.

We previously denied service connection for chronic fatigue syndrome in the Rating Decision dated July 2, 1999. Service connection for chronic fatigue syndrome was denied because the evidence did not show diagnosis of chronic fatigue syndrome during service or a current diagnosis of chronic fatigue syndrome at that time. Although VA examination shows a diagnosis of chronic fatigue syndrome at this time, it is shown more likely than not secondary to depression.

6. Service connection for headaches as due to an undiagnosed illness.

We denied service connection for headaches as due to an undiagnosed illness, because the headaches have been clinically diagnosed as headaches, nor Is there evidence of chronic disability of headaches during military service. A review of the service medical records showed complaints of headaches o November 2, 1970 and July 5, 1974. A review of treatment records from XXXX Air Force Base did not show any specific complaints for headache. At the VA examination you described headaches that start over the right eye, and have sense of pressure radiating to the right cheek. You also described a second type of headache that which begins at the back of the neck and radiates to the temples. You described this headache as sharp in nature and fluctuant. You stated that the first headache has been present for many years while the second headache began in the early 1990s. The first headache is seasonable occurring in spring and fall at which time it occurs two or three times per month. The second headache occurs throughout the year at a frequency of once a week. You stated that you take aspirin or Naproxen which have been reasonably effective. X-rays of the paranasal sinuses showed possible ethmoid sinusitis. The VA examiner gave a diagnosis of chronic sinus disease and cervicogenic headache secondary to hypertrophic degenerative osteoarthritis of modest degree. A review of service medical records showed diagnosis of sinusitis in September 1982. A chronic disability associated with sinusitis is not shown by service medical records.

The “Persian Gulf War Veteran’s Benefits Act” authorizes VA to compensate any Gulf veteran suffering from a “qualifying chronic disability,” resulting from an undiagnosed illness or combination of undiagnosed illnesses, appearing during active duty in the Southwest Asia theater of operations during the Gulf War, or to a degree of 10% or more within a presumptive period following service in the theater. Section 202 of the “Veterans Education and Benefits Expansion Act of 2001” expanded the definitions of “qualifying chronic disability” to include (1) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms: and (2) any diagnosed illness that the Secretary of the VA determines in regulations warrants a presumption of service connection.

[free_spirit_etc]

I want to clarify the part about the CUE claim. I understand that if the VA makes a clear and unmistakable error in MY claim that I can file a CUE. But as a widow, I cannot claim that I am entitled to benefits, or an earlier effective date, on the basis of a CUE committed in MY HUSBAND'S claims.

Sorry I wasn't clear on that.

Edited October 5, 2013 by free_spirit_etc