Chronic Sinunitis

[spike]

I have not been able in 5 years been able to find out how to SC sinunitis....I have been shown many things that I was treated for it several times in the Marines. I have shown I was in a warehouse exposed to a lot of things. I even indicated to the VA that I was exposed to petro exposure for 4 years. Yet they say they cant prove SC for this. I know I only suffered from this since i was in the USMC and I dont know how to prove it. Please help.

[Hoppy]

Spike,

You did say you wanted to put the sinusitis on the back burner until your IU is determined. However, it is not a bad idea to work on both just in case there is a problem with the IU. I have more to say about your situation. However, before I get going it is still important for me to know if a sinusitis claim was filed and if it was denied. If so, what year was it denied.

[spike]

yes my entrance physical showed i had no problems, now the sinus condition really reduces the sense of smell, headaches, etc. I show being treated in the service many times, but no indication of how it came about. I might be able to get a few buddies statements.

[spike]

ive applied twice and been denied twice...it was before I knew about cues or appeals. It was before I became knowledgable in the realms of VA

[Hoppy]

Spike,

Were both of these denials prior to 2000? Also, did they deny the claims without a C&P exam? Did you get a VCAA letter? I am trying to develop an argument to reopen this claim using the same logic that was used by the congress to make some of the changes for the VCAA.

The logic behind the VCAA was very powerful and the VA was required to re-adjudicate claims for service conection denied between approx. 1995 and 2000. Re-adjudication was not automatic and had to be requested by the veteran or the POA.

[spike]

I don't remember getting a VCAA notice until 2005. I submited both my claims in 2004 and 2005. I do believe that they did not provide me a VCAA notice. I am in the rating board for I/U right now. Will it make a difference? Will they retro?

[Hoppy]

Spike,

I am not sure if the retro you refer to is about the IU or the sinusitis. Berta would no more about the VCAA letter problem than me. I think she put up a post that faliure to provide a VCAA letter is not a CUE.

I am working on the assumption you never had a C&P. Also, I do not recall anything about a BVA denial. Which means that it was not appealed or the appeal is pending. The goal at this time is to get them to schedule a C&P exam. It would be better to get a nexus letter from a treating VA doctor. However, I am not sure that they would get involve since the RO is supossed to schedule a C&P when there is both a post service and inservice diagnosis.

Whether retro would apply depends on the staus of appeals. Were they filed? Are they pending or not? I was denied twice and kept up the appeals. I got 6.5 years of retro. The RO failed and refused when requested to schedule a C&P for 5.5 years. Eventually, I got a VA doctor to write a favorable note in my treatment record which I submitted to the RO and was awarded by a DRO based on the treatmentr notes.

I find it interesting that Rickey made a response to this thread about the BVA. My SO was a rating specialist at an RO for twenty years an was of the opinion that it was hard to get a fair deal from the RO's on some claims. He thought the BVA would do a much better job. There was a time when the RO's were using the BVA to handle complex claims just by dening them. The BVA eventually took a stand and told the RO's to quit denyng claims just becuse they thought the BVA should handle the claim.

Rickey pointed out that the BVA used attorneys with staff's. I did not know this. However, I read 100's of BVA decisions when researching several of my claims. I did notice that the quality of the investigations (development) and the logic and writing skills of the BVA was far superior than what I was seeing in my denials from the RO. Also, they have a slightly different angle for claims that involve an actual inservice diagnosis then I ever heard on hadit. I have seen claims where the BVA waived the nexus requirement and where they gave greater weight to the lack of evidence showing that an idiopathic condition or its underlying cause that had onset in the military had resolved rather than saying that the veteran had to prove continuity of treatment.

I will continue to work on a plan of attack. Or as I call it a "position paper". I really feel that your claim for sinusitis has not been properly developed and that the RO as failed in their duty to assist. If you have not appealed the denials and still can then get an appeal in. Otherwise, if the claims were closed they will need to be re-opened.

[sixthscents]

Not to be a downer, but I have won maybe 2 claims for sinusitis, out of probably 25. It just seems to me that IBS, and sinusitis are both really hard to get the VA to come clean on.... I dont know why, but there it is.

Bob Smith

[Hoppy]

Bob,

Do you work for a national VSO organization? 25 cases is a lot of cases.

"I dont know why, but there it is." --- Is this all the better you can explain the logic behind some of the denials. Unless you come clean with a better rational for your post, you are being a downer. Citing your own little statistical survey is pretty weak without any supporting logic. It reminds me of an RO denial without supporting rational. Which we all know does not meet VA standards and usually results in a remand.

As far as I am concerned this is a case where the RO made a denial without ever getting a medical opinion. The congress made specific attempts to stop the RO's from shooting from the hips and making denials without a medical opinion when the veteran had both an inservice diagnosis and a post service diagnosis.

Edited April 24, 2007 by Hoppy (see edit history)

[Hoppy]

Spike,

I know you want to put this on the back burner until the TDIU is resolved. After reading some of the medical history and learning more about sinusitis I have decided it is much like angioedema. Both conditions have numerous causes and it takes a close investigation by a doctor to figure it out. I doubt the RO gave it much thought. They did not give my angioedema condition much thought on the first two denials either. Additionally, the sleep apnea and headaches have a potential for adding on as secondary conditions.

The following issues were addressed by me on my angioedema claims. I eliminated any evidence of irritant symptoms, virus symptoms, frontal head injuries, non allergic causes, hereditary forms of the disease (which are known to exist) and argued that the condition was allergic. I had both in-service and post service diagnoses of the allergic form of the disease. Eventually, I was service connected for "Idiopathic Angioedema" by a DRO. The etiology of the disease was a very complex issue. Considering you have already had two denials, you need a more in depth approach.

All you have to do is show that the evidence in favor of service connection out weighs the evidence against service connection or an equipoise which is awarded by the "benefit of the doubt rule" The benefit of the doubt rule was used by the DRO on my award. Sinusitis has all these same issues. One exception is that angioedema can and does kill people. Sometimes you have to do the work for the RO or at least show them you are on top of the medical issues and are not going away.

One negative is the deviated septum. This needs to be eliminated as a negative. The RO could have seen this and just wrote off the claim. Here are some questions. You say everything on the pre-induction showed no problems. Do you know when the septum became deviated? Did any doctor note the deviated septum at any time in your life prior to the military? Is there any record showing you deviated the septum in the military?

If the septum had been deviated many years prior to the onset of the sinusitis, then a doctor could address the probability that the sinusitis was not secondary to the deviated septum. Thus, eliminating an issue that would confuse the claim and make service connection difficult.

Another issue is colds an infection. If your SMR is silent for any noted symptoms of infection, colds or flu prior to the symptoms of sinusitis, then there is no evidence that the in-service condition was secondary to infection or colds.

Did you have any frontal injuries at any time in your life? Are there any reports from doctors indicating such. If not, then nerve slowing to the sinus area can be eliminated as a cause.

If the doctors did not mention or there is no indication of known irritant causes then you can argue at least an equipoise on this issue.

I wrote a position paper indicating all the issues that could be problematic and indicated that there was no evidence confusing service connection. I had a doctor address as many issues as he could. Unfortunately, the doctor did not address everything. However, he did cover the important issues and the combination of my position paper and the doctors report won the claim. It took me 7.5 years. I had two denials and two lazy SO's drop a claim with a potential for 100%. My last SO was convinced that I had a slam dunk winner. The last SO got me 100% from a DRO.

Getting a C&P and taking your notes to the exam would be the best way to go. If you go to an IMO he needs to know how to write reports for the VA. I would launch an all out war to get a C&P. I would notify the RO that there denial did not include logic that a reasonable assessment of the claim occurred. The fact that a C&P was not scheduled in effect allowed the adjudicator to make a medical determination that the condition was not service connectable and it resulted in a denial. Adjudicators can not make medical determinations. I used this argument to cause the VA to schedule a C&P in the event they found the notes in my file made by the doctor who I got to write a nexus letter inadequate.

My claim was processed at a time when doctors were first required to write nexus letters and the format used by the VA was bogus and they used their own bogus format as a technicality to deny my claim. I did everything they told me to do in getting the nexus letter then they said I did not do enough. Hopefully now that the C&P are supposed to be scheduled in cases where there is both an in-service diagnosis and a post service diagnosis they will get the message and give you a C&P. If not I would get in touch with a U.S. Senator and let them know. After all it was their idea to cause adjudication to schedule a C&P when there was both an in-service and post service diagnosis when they were debating the VCAA, which eventually became law.

Edited April 27, 2007 by Hoppy (see edit history)