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Another error with my Rating possibly

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ROMAD

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Ok here is a question for all of you that are smarter than me. I have a 50% SCD for Cluster Headaches. One of the major symptoms is my right nostril closes completely during the attacks. This is well documented in my STR's as well as all VA Records. These symptoms have occurred since 1983. Here is the question recently I was asked why the VA never rated my Vasomotor Rhinitis? I did not have an answer other than I did not know it had a name. Should this have been something they rated under a duty to infer or duty to assist? How do I go back and have it rated from when my Cluster Headaches were rated? They never used the term Vasomotor Rhinitis but it was clear in my records what was happening. So CUE? Is it my fault? Inquiring mind wants to know.

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This BVA decision contains the rating for vasomotor rhinitus

.https://www.va.gov/vetapp19/files8/19160495.txt

However it is not a CUE if the VA is unaware of the medical name for the actual disability and if it was not formally claimed.

You could claim it now but your EED will be the date of the claim for this disability.

 

 

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Thanks for the response Berta, is that very likely they did not know the proper name for a symptom? I know it is in the rating guide, and the symptom is very prominent through out my STR and appears at least 10 times and always related to my Cluster Headaches. I would hate to think they were not that bright... just because it took me 15 years to learn the name, but I'm not a Doctor 🙂

 

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You will likely need to file it under secondary conditions, and, I agree with Berta that you probably wont get an effective date back to the old claim, rather when you apply for secondary conditions, but read below for a possible CUE.  

The VA does have something called analgous ratings, however, even if they dont have a name for it, or if it does not come into the CFR's.  The CFR's dont claim to rate all conditions.  

Remember, tho, we are rated (once SC) for "symptoms", not diseases.  One example may be "cancer". If we have no symptoms of cancer, then VA will gladly put our rating to zero, and they insist on so doing, if we have cancer but no symptoms.    Veterans often make the mistake of thinking VA should have rated you for such and such disorder even tho you were diagnosed but had no symptoms.  You wont be getting compensation for disorders (regardless of the name of the disorder) if you have no symptoms.   

Thus, "difficulty breathing" (when your right nostril closes) is a "symptom", and, VA should have included all symptoms when they rated you that were of record.  In your decision was it included that it includes that?     In other words "Vasomotor rhinitis" is the name of the disease, by your "symptom" may well be you cant breathe.  Its a very big deal not to be able to breathe!!!  It could cause more symptoms, such as a panic attack becase you cant breathe.   So, its possible or even likely that a Veteran friendly decision maker could have included your inability to breathe when you were rated since it was documented in your records and its even possible to get it back dated.  

I dont know how frequent or severe your conditions are, but if it affected your work, then it may be worth fighting for.

Deluca ruled that pain must be considered, and its got to be painful not to be able to breathe.  So, "failure of the VA to rate on the full documented symptoms" MAY be a Cue potential, even if YOUR symptom(s) are not one of those normally considered by the CFR's.  Is it your fault the CFR's did not include your symptom?  I dont think so.  The VA has a responsibility to maximize your rating and "ignoring" a major symptom of not being able to breathe "could" be clear error.  

     There is a possibility that someone like CCK or Ken Carpenter may be willing to represent you, and fight to get us rated for "all documented symptoms" not just those which fall into the CFR categories, which are "normal" for those disorders.  

     A VA "failure to recocgnize and rate on all symptoms" sounds like clear error to me. 

Edited by broncovet
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  • Content Curator/HadIt.com Elder

I agree with the responses from Berta and Broncovet.

I'm SC for 6522 and included the rating criteria below. It is very straightforward and the same criteria was in effect since 1996.

§4.97   Schedule of ratings—respiratory system.

Quote
6522   Allergic or vasomotor rhinitis:  
With polyps 30
Without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side 10

When you file for it, they will likely do a C&P exam and a CT scan of your sinuses to see if you have polyps. They may also consider sinusitis depending on your situation and medical history.

The VA prefers veterans request SC (direct or secondary) in writing. The VA often overlooks considering determining SC status for symptoms or other diagnosis determined during C&P exams. Back in the 80s and 90s, this was common practice. Nowadays they are supposed to assume you are requesting maximum benefits and may factor in secondaries. Pro-veteran C&P docs may actually explore the potential secondaries which surface during C&P's and make SC opinions on them, but you never know. It really could go either way.

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Yea I should have mentioned it is in the CFR. In the rating decision, my MEB that put me out of the AF , and in my service treatment records they all mention: nose becomes stuffed, nostril is stuffy, right nose becomes stuffed, etc. They just never use the medical term. And yes it is severe it last as long as several hours and can continue off and on for months at a time. It coincides with the headaches. They are not painful, I just cant breath through my nose. And at night when I use my cpap it is especially annoying. So extensive records of the "symptom" does not necessarily require the VA to maximize the claim via a duty to infer since it is clearly noted in my records, just with a different term.

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