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[Guest rickb54]

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Edited February 19, 2007 by rickb54 (see edit history)

[Guest jstacy]

Rick you have the same type of CUE I do except except that mine is For Hypertension. I was seen in service 7 times for High Bloodpressure but since the NAvy did not diagnose it they denied it. They said they cold not use the diagnosis ,They needed a Nexus from a VA doctor. (What a croc of bull)

Look at the post service records and look for the following. DX or dx. sunusitis. That means a diagnosis of a condition. Lay the cue back on them and take it to the next level as the claim has fallen on deaf ears at the RO.

Let the BVA or court make that decision as the RO definatly does not want to.

Edited November 19, 2006 by jstacy (see edit history)

[Ricky]

Rick - I don't know much about the claim that you are working on but it seems that cue was not the way to go as it appears that it is an interpertation at question and not law. Looks like they are saying yep he did have sinus problems but the records lack the diagnosis. I have seen a lot of service medical records which say that the symptoms were clogged nasal passages with sinus infection - questionable sinusitis or possible sinusitis or words to that effect. Same with the post treatment records - vet has complaints of sinusitis but dx not clearly listed as sinusitis. I have also seen a lot of exit exams which say things like sinusitis ? follow with va for treatment - this won't get it either without a nexus statement. Did he have a C&P for this? if not why? Just my honest input

ricky

[Guest rickb54]

Yes he had a C/P exam, and the va agrees he had sinus problems post military service. I have gone through this records and not being a rater, I still don't no how they can say he was not diagnosed with sinus problems since he was treated for sinus problems. I do think he will have to get an IMO but only becasue the va is playing blind with the facts.

[Berta]

I agree with Ricky as to the SMRs stating symptoms but not a clear diagnosis.

Sinusitis ratings are found in this BVA case:

http://www.va.gov/vetapp06/files3/0617394.txt

I too think only an IMO that medically associates his inservice records with his present sinusitus is the only way to service connect this.

Did he get a VCAA letter telling him what specific evidence they want?

Does his current sinusitus problems fully fit into the rating criteria?

[Guest jstacy]

Does the Vet have all of his medical records post service. I am willing to bet a Private DOc has the Diagnosis in a record somewhere.

One does not need a diagnosis in service. A Post service may be needed to establish the chronic condition.

B) Chronicity and continuity. With chronic disease shown as such in service (or within the presumptive period under §3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.

Edited November 19, 2006 by jstacy (see edit history)

[Vike17]

Rickb54,

Wow, this is a really good one! Was the veteran actually diagnosed with "sinusitis," or was the veteran seen for a combination of symptoms asociated with possible sinusitis? If the veteran was seen for just some symptoms and the "clinical entity" wasn't stablished, then I could maybe see why service-connection was denied. Does that make sense? I don't think the 21 month lapse in time from discharge to the next post discharge treatment is a problem. If that was an issue, then it would be a judgmental call on the RVSR's part. If the RVSR denied it on the basis of the short time lapse, then there would be a 99.9% chance it would be overturned by a DRO.

Another thing that struck me was the claim was already denied and then appealed on the basis of CUE. That means a number of people have looked at it, such as probably a Coach of the rating activity, a RVSR, a possible second RVSR if the first one isn't authorized to sign a rating by themselves, a DRO, and possibly the Coach of the Appeal Team. That's alot of people that have looked at the claim and the chances are that a blatant error as it appears would have already been caught. I'm not saying that all blatant errors get noticed when you have all these people look at an issue, but some do slip through. I'm willing to bet that there is something that is causing the VA to have to deny this.

Vike 17

Edited November 19, 2006 by Vike17 (see edit history)

[Hoppy]

This is my opinion. The rater is not qualified nor anybody on this board to determine the relevance of the terms used by doctors to describe symptoms. Symptoms and disease entities often have the same name. The rater is playing doctor and should be reprimanded. Only in a situation where the SMR is silent for symptoms and diagnoses should a rater make a denial. This clearly should have been sent to a doctor for an opinion prior to the denial. This same problem occurred with one of my claims prior to the Veterans assistance act of 2001. If he has a post service diagnosis and an in-service record to take to a doctor for a nexus opinion it should be dome without the veteran requesting the exam according to the veteran’s assistance act of 2001. I know the raters have some interpretation of the facts prior to scheduling the exam. However, this is an extreme case of the rater making a decision that has the force of a medical opinion.

My recommendation is that he take his SMR to the head of the department that is treating him and have him review the SMR and post service treatment and write a nexus opinion. Do not wait for a C&P. When this happened to me I got a favorable opinion from the head of allergy and immunology at my local VA hospital and was awarded service connection without a C&P.

It appears to me the only justification this rater could cite is that there was no nexus letter in the file. Thus, some one with no ability to make a medical opinion could say the BS that the rater came up with. The bottom line is that there should have been a C&P prior to the denial. This is really old school rater BS that I ran into many years ago.

[Hoppy]

This is my opinion. The rater is not qualified nor anybody on this board to determine the relevance of the terms used by doctors to describe symptoms. Symptoms and disease entities often have the same name. The rater is playing doctor and should be reprimanded. Only in a situation where the SMR is silent for symptoms and diagnoses should a rater make a denial. This clearly should have been sent to a doctor for an opinion prior to the denial. This same problem occurred with one of my claims prior to the Veterans assistance act of 2001. If he has a post service diagnosis and an in-service record to take to a doctor for a nexus opinion it should be dome without the veteran requesting the exam according to the veteran’s assistance act of 2001. I know the raters have some interpretation of the facts prior to scheduling the exam. However, this is an extreme case of the rater making a decision that has the force of a medical opinion.

My recommendation is that he take his SMR to the head of the department that is treating him and have him review the SMR and post service treatment and write a nexus opinion. Do not wait for a C&P. When this happened to me I got a favorable opinion from the head of allergy and immunology at my local VA hospital and was awarded service connection without a C&P.

It appears to me the only justification this rater could cite is that there was no nexus letter in the file. Thus, some one with no ability to make a medical opinion could say the BS that the rater came up with. The bottom line is that there should have been a C&P prior to the denial. This is really old school rater BS that I ran into many years ago.

[Hoppy]

Continued from previous post;

Only a doctor can make an opinion as to the amount of time between inservice symptoms and the first post service treatment as to the relevence to continuity of a chronic condition etc. I made all these arguments on my claim and won. I had a rater that thought he could use his judgment to play doctor and I made him look like an idiot on appeal. These raters need to seek more medical information. I would not give them credit for knowing the difference between a disease entity and the sniffles. These guys should stick to broken bones and when it comes to diseases they should realize their limitations and get medical opinions to establish which symptoms go with which disease. Making a denial because the medical facts do not jump off the page and get them in a strangle hold is not reason to deny a claim. If there are symptoms and diseases being thrown around by many doctor over a period of many years it can only be resolved by a doctor. This kind of crap delayed my claim 8.5 years. I thought then and I think now this is a prime example of a rater seeking delays rather than the truth.

Edited November 19, 2006 by Hoppy (see edit history)

[Guest rickb54]

Lot of good input here.... I love Hadit....

Ok...

I have copies of the active duty medical records in my fat fingers....

I am goting to state exactly what they say as far as diagnoses and treatment you tell me what you think, that is if there is a diagnoses or not.

1. Impr: Asthma, probably at leaste an extrinsic compent sinusitis

Plan: Tedral, Brief couse of ampicillian 500 QID

2. A: URI syndrone with asthma excerbation

P: Qubiron 200 QID, suspherine 0.33 INJ, actifed

3. A: bronical asthma with sinusitis

P. epherfine 0.3, Chest xray, Dinetapp BID (7 days) ampicillian 500 MG 2 x 7days

4. Imp: URI & Sinusis headaches

P: RX CTM 8 MG 1 TID

5. IMP: URI

P: dinetapp 1 TID

6. Asthma attack & URI

P: Therdur 300 TID, Dinetapp 1/1 TID

7: It is recommended at this time that the patient's theophylline leved be placed within therapeutic levels, and the he be started on vancinase for a history of chronic sinusitis.

8. IMP: asthma & sinusitis

P: contuine on thedure and Vancinase

9. Report of Medical History Exam;

Sinusitis - Yes checked-

Doctors notes: ashtma, hay fever, sinusitis, allergies, knee injury

10. Report of Medical exam states;

Doctor notes: bronical asthma, rhinitis, logcconvitis, sinusitis knee pain wiht swelling

11. A: URI, early sinusitis

P: RX ampicillian 500 mg qid x10 d

Thanks guys with your help I might be able to put something together for this veteran.

[free_spirit_etc]

So isn't the VA required to give you reasons and bases for their determination that the sinutitis that he was treated for in service is not connected to the the sinutitis he now has? Something like medically SOUND reasoning....backed by medical opinion.

Free

[Guest rickb54]

Free Spirit,

Excellent question glad you asked.....

Here is what the va said on the denials:

denial #1:

Service medical records show veteran has complaints of sinusitis, but sinusitis did not occure on active duty

denial #2:

Service medical records show that you were seen on several occasions during service for sinus symptoms, service connection is denied because the evidence does not show sinusitis in service or show the current sinusitis to be the result of service. Sinusitis not actually diagnosed unit 12 Apr 1993, 7 years after discharge.

Seems to me the va is speaking out of both sides of their mouth, I am not sure how to rebut there findings. I don't understand how the va can say there was no active duty diagnose seems to me if he was treated there had to be a diagnoses. What say You.

Edited November 19, 2006 by rickb54 (see edit history)

[free_spirit_etc]

Sounds like my husband's claim for Gulf War syndrome -- when they stated about his headaches :

Service connection is denied for headaches as they have been diagnosed as headaches."

???????????????????????

Yeah..in the sinus thing they are making a leap statement that the sinus problem in service is not the same as the diagnoses after service -- but they didn't give any medically sound reasons for doing so.

Unless they had a doctor who explicitly said the two are not connected AND gave some medically sound reasoning for HIM to make such a statement --- it seems like they are WAY OFF on this one.

Sounds like they are making an UNSUPPORTED medical JUDGEMENT.

I bet you could prove them wrong if you have 10 or 15 years to spare.....

Free

Free Spirit,

Excellent question glad you asked.....

Here is what the va said on the denials:

denial #1:

Service medical records show veteran has complaints of sinusitis, but sinusitis did not occure on active duty

denial #2:

Service medical records show that you were seen on several occasions during service for sinus symptoms, service connection is denied because the evidence does not show sinusitis in service or show the current sinusitis to be the result of service. Sinusitis not actually diagnosed unit 12 Apr 1993, 7 years after discharge.

Seems to me the va is speaking out of both sides of their mouth, I am not sure how to rebut there findings. I don't understand how the va can say there was no active duty diagnose seems to me if he was treated there had to be a diagnoses. What say You.

[Hoppy]

Rick,

A doctor needs to review these reports and make an assessment as to whether or not there is an etiological link between the symptoms in service and the current symptoms. Are the in service symptoms early symptoms of the condition that exists post service or is it actually the same condition in service as post service. If the condition in service is the same as post service was the inservice condition chronic and or do the post service symptoms represent continuity of the inservice disease. There is no medical report making this assessment that I see. Such a report should be necessary and there are probably all kinds of cases you could site. There is no medical report that addresses the etiology of the post service disease that is based on the entire record. The only determination is that the rater could not make a connection based on the medical records. A doctor needs to review the file and the VA should have scheduled a C&P prior to the denial.

This is what all the hype was about in 1999. Thompson went to congress and testified that adjudicators did not need to seek medical opinions prior to a denial. The congress did not buy it and it was my understanding that the intent of the veterans assistance act of 2001 was to cause the raters to schedule a C&P exam any time there was a post service diagnosis that the veteran thought was related to something in the SMR. I did not know that the rater had discretion. I thought discretion was eliminated and a post service diagnosis was cause to schedule a C&P prior to a denial. You should think about getting a senator to look at this case.

Edited November 20, 2006 by Hoppy (see edit history)

[Guest jstacy]

Rick, It appears to me this Vets main problem is Asthma. Is his Asthma service connected to was it pre existing?

This Vet needs a nexus letter as soon as possible.

[Berta]

He might be able to get secondary SC if there is a link of this to this SC asthma-

he could try for both direct and also secondary SC.

Seems to me they diagnosed it right in his SMRs.

Whose SMRs did the VA read?

This abstract might help:

It shows a definite relationship between asthma and sinusitus:

http://www.postgradmed.com/issues/2000/10_00/muller.htm

He could also go another way too- a veteran can suggest to VA any potential way at all to get service connection-

he could potentially claim that his SC asthma aggravated and excerbated his NSC sinusitis, thus service connection on that basis too would be warranted.

[Hoppy]

Berta,

They did the same thing to me on my angioedema claim. First denial they said I was not treated in the military for the disease. I was in fact treated in the military and it was noted as chronic on my discharge exam. The rater did not use an ICD-9 and he could not figure out the numerous differnet diagnostic terms used for the same condition. On the second denial they claimed that the disease did not manifest until after my discharge. This was a hard one to overcome. How can I have the disease in the miliotary and then they say it did not manifest until after my discharge. I requested a C&P for five years and never got one. In 1996 I could not get a VA doctor to write a nexus letter. The VA where I sought treatment had a policy of not allowing doctors to write letters when requested by the veteran, They only wrote reports for the RO when asked by the RO. It took me five years to finally get a nexus letter after the VA mandated doctors to write letters for veterans in 1999. There was an addditional two year delay because the doctors were not trained on adjudication proceedure and tried to tell me the diagnosis in the military was not accurate and at the same time they told me I did have the disease that I sought SC for. These idiot doctors were contacted by the RO and told to tell me this. I was able to determine that the RO was talking to my treating doctors by using a technique I was taught in private investigator school called mis information.

Eventually, I got an appointment with a specialist and the head of the department at another hospital who read the SMR and wrote a report that the disease I had in the military had no known cure and it is the same disease I asked to have service connected. The guy was a board certified immunologist and department head at a VA hospital for thiry years. The VA could not get around this and I was SC'd. I was SC'd by a DRO based only on the existing evidence and my arguments showing them there errors of there ways. No new medical evidence was introduced between the second denial and the decision by the DRO.

Rick,

What RO is this. I am serious this is as bad as what I went through. After I beat them they then started falsifying evidence and stated that the record clearly indicated the disease was the result of post service employment. Not one medical report in the file even addressed the issue of this disease being the result of post service employnment. Once they make a big mistake like this they will run it into the ground rather than admitt they screwed up. You really need to get a Senator involved as to why a C&P was not scheduled prior to the denial and let this rater know he is being watched.

I have to wonder if sinusitus is another disease with no cure or requires surgery for a cure. They said the disease did not start until years after his discharge. What medical report did they cite. The idiot rater who denied me said that the medical reports indicated that the first angioedema reaction occurred 7 years after my discharge. When you read the report cited by the adjudicator the doctor did not determine that the first reaction occured 7 years after my discharge. My subjective statement to the doctor which he wrote in the report was that the first severe angioedema reaction occured 7 years after discharge. Thus the rater cited my subjective non medical opinion about a disease I knew little about as having the force of the doctor making the statement as the result of his medial findings. The rater confused the issues on numerous aspects of my claim. The medical record clearly indicated that I had minor chronic angioedema when I was in the military. It was true I was not admitted to an ER and told that I was near death until 7 years after my discharge.

Edited November 20, 2006 by Hoppy (see edit history)

[Hoppy]

Rick

It sounds like the same thing I went through. The first vist to a doctor doing a history by writing the patients recollection of treatment history The doctor probably did not reference any medical documents reviewed. You need to dispute this report based on the fact that the doctor was not inpossesion of the entire medical record when making the assessment. Then take the entire medical history to a doctor and get an opinion from him. A VA doctor worked for me. Got service connected without a C&P. Or wait for a C&P. I waited 5 years and never got a C&P

It still bothers me that no C&P was scheduled. This was a huge issue in the veterans assistance act. They wanted raters to quit making decisions without an initial C&P. The congress claimed the VA had the horse before the cart. Without the initial C&P a veteran was put in a place where he had to prove the claim prior to the VA scheduling a C&P. The congress wanted to stop this practice. Thompson went to congress and sited some statistics that cases that were denied without a C&P were only reversed less that 1% of the time and said it would cost to much. The congress did not care about the expense and wrote in the the veterans assistance act that a post service diagnosis was sufficient to schedule a C&P.

[Hoppy]

Rick,

Continuation of previous post.

This is a little long. I hope it shows just how far some of these idiots will go to deny a claim. My SO had worked as a rating specialist for the VA for 20 years prior to becoming an SO. My SO agreed that the RO had improperly trained adjudicators and that I obviously ran into some. He became an SO when he could not take the under training and improper training that was happening at his RO. They grasp at straws. They site irrelevant opinions based on subjective statements of veterans even when they know that veterans can not be the source of diagnostic and etiological arguments. They make denials when they should be seeking clarifications. They throw out favorable reports for the same flaws as the reports they use as the basis for the denial. They ignore the duty to assist. I used to go in and tell the SO that the RO was inventing false evidence and should be prosecuted. If we were in civil court they would be sanctioned and jailed for the degree of incompetence that they used in my claim. I wrote all my own arguments and took them to my SO. My SO thought I did a good enough job and just signed them and turned them in to the RO.

In my arguments I explained that I saw a doctor who wrote a report that was based on my subjective recollection of a disease that I knew little about. I explained that the doctor who wrote the report they cited never saw active symptoms of the disease at any time and his report specifically states this. The rater cited this report as indicating the disease began 7 years after discharge because I told this doctor that a severe reaction first occurred 7 years after my discharge. I appealed this denial explaining that the report they cited was based on my subjective recollection of a disease I knew little about. I explained that I had both severe symptoms and minor symptoms on an ongoing basis for over 20+ years and that the minor symptoms started in the military. I submitted hospital reports indicating events with minor symptoms and other events with severe symptoms and showing the same diagnosis as the one given while in the military. Additionally, I finally got a report from the head of immunology at my new VA hospital indicating that the disease I had in the military had no known cure and was the same as the disease I requested to have service connected. I submitted about 20 post service reports and explained that I had twenty more if they wanted them.

Would you believe they denied it again. They stated that the doctor who wrote the favorable report was not adequate for adjudication because he did not read the report written by the doctor indicating the disease "BEGAN" 7 years after service and was the result of post service employment. On appeal I pointed out that the word "BEGAN" does not appear anywhere in the post service report and that there is no reference to employment or work. I explained that the report has no Workers comp appeals board numbers or identification on the letter. I sent them a Workers comp report to show them the difference the doctors report they cited and a real comp report. I requested that they provide me with the so called medical report indicating the disease was the result of post service employment.

I explained that the doctor who wrote the report indicating the first severe reaction 7 years after discharge did not review the SMR. Thus, this report is not adequate for adjudication. I explained that the doctor who wrote the favorable report reviewed the SMR and indicated such. Also, the doctor did in fact read the report written by the doctor indicating the first severe reaction was seven years after discharge but obviously felt it had no impact on the issue of service connection and failed to cite it in his decision. I explained that considering the strength of the favorable report they should have sought a clarification of the reports he read rather than deny the claim.

To ad insult to injury the rater went on to say that the doctor who wrote the favorable report based his decision on my subjective comments. I had to dispute this as a factual error. The doctor who wrote the favorable report specifically noted that he based his decision on review of the SMR and the medical history indicating recent and numerous lab work and blood studies indicating "normal compliment" and negative allergy results. The doctor who wrote the favorable report was the head of the department and knew how to write a report. I have to wonder if the rater thought that people were giving me normal compliments so I was not sick. I would not give this rater credit for having a clue as to how much work and thought went into this report. Normal compliment is a reference to the fact that hereditary angioedema had been ruled out. Blood compliment is a term used to explain proteins in the blood. Negative allergy testing ruled out IGE angioedema. There are at least five known causes of the disease. The form I have is considered an occupational illness and the VA had been service connecting it for decades.

I thought the determination that the doctor who wrote the favorable report based his decision on my subjective statements and the determination that there was "strong evidence in the file" indicating the disease first occurred in the course and scope of post service employment went beyond errors in the interpretation of the documents and contradicted the facts and thus were fraud. When I went to PI school (insurance fraud investigations) we were taught that if you make a statement as to the existence of evidence in a insurance dispute and your statements contradict the facts that you will be prosecuted for fraud.

The DRO saw through the BS and SC'd the claim. He actually made comments to my SO at a hearing that things had really gotten bad at this RO.

Edited November 22, 2006 by Hoppy (see edit history)