Jump to content



Search



Toggle shoutbox Shoutbox Open the Shoutbox in a popup

@  chuck57thSig : (30 October 2014 - 05:51 PM) Sarti07, It's Under (Va Claims And Research) Http://www.hadit.com/forums/topic/59064-Prep-For-Decision-Phaseprovisional-Rating/
@  sarti07 : (30 October 2014 - 02:43 PM) Hello, I Just Posted A Topic About Prep For Decision.. I Have No Idea Where To Find It! Lol
@  carlie : (28 October 2014 - 03:42 PM) Reelnrod - Just Pick A Topic That Corresponds To Your Stuff And Post It
@  reelnrod : (28 October 2014 - 10:11 AM) So, How Do I Post A Topic?
@  Thadine : (28 October 2014 - 08:21 AM) Irrrl
@  Thadine : (28 October 2014 - 08:18 AM) Fishing License
@  Thadine : (28 October 2014 - 08:14 AM) Thadine Quick
@  red : (27 October 2014 - 12:14 PM) Anyone Heard Any Updates On Flying Space A For 100% Disabled Vets?
@  maxwell18 : (27 October 2014 - 10:49 AM) I Did Contact My Congressman Jeff Miller, Let's See What Will Happen
@  maxwell18 : (27 October 2014 - 10:48 AM) @britton
@  Tbird : (27 October 2014 - 04:26 AM) Thank You Larry S For Your Contribution To Our Funding Campaign
@  britton : (26 October 2014 - 07:33 PM) Everyone (Veteran's) Should Recive A Memo From The Dept Of Veterans Affairs ****notification Of Medication Scheduling Change****
@  britton : (26 October 2014 - 07:24 PM) Meds That Are Consider To Be Schedule Ii Narcotic...pain Meds Like Hydrocodone Ectt Ect,,
@  britton : (26 October 2014 - 07:22 PM) As I Understand We Only Can See The Va Dr's Every 28 Days To Renew Our Prescription Meds A New Law Went Into Effect Oct 6Th 2014....i Only See Problems Problems Problems With This...grrrrr
@  maxwell18 : (26 October 2014 - 03:52 PM) This Is Maxwell18 Would The Person Who Contacted Me (Vern2) Please Contact Me Again, I Attemped To E Mail You It Returned No Reply. Thanks
@  Tbird : (26 October 2014 - 05:12 AM) Thank You Maxwell18 For Your Contribution To Our Funding Campaign.
@  Notorious Kelly : (25 October 2014 - 07:53 PM) Max- Contact Your Congressman- Dea Has Got Docs So Cowed They're Afraid To Dispense Tylenol
@  maxwell18 : (25 October 2014 - 07:10 PM) Anybody Having Problems Getting Pain Pills (Norco) Filled Us Navy Base (Nas Whiting Fld Milton Fl). Had A Prescription For 90 Norco Pills For 30 Days, 3 A Day For Pain, Got 30 For 30 Days. That Will Last Me 10 Days. Another Thing That Our Government Is Screwing With Us. I Don't Know What To Do, Don't Want To To The Va, Don't Know What They Will Either. Anybody Goy Any Ideas. 
@  Burt : (25 October 2014 - 10:28 AM) Does Anyone Else Here Wear A Don Joy Armor Knee Brace From The Va?
@  red : (24 October 2014 - 10:10 AM) Any News On Space A Flying?

Photo
- - - - -

Sinus, Is This A Cue


This topic has been archived. This means that you cannot reply to this topic.
34 replies to this topic

#1 Reddit

 
Reddit

    E-5 Petty Officer 2nd Class

  • First Class Petty Officer
  • PipPipPipPipPip
  • 154 posts
 

Posted 01 February 2011 - 12:48 PM

Hello, everyone,
Getting ready to send this information, to back up my cue.
i know this is long, but please help
I am currently evaluated at 10 percent Disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 6513 (2010)

Whether a December 23, 1999, decision of Notice of Disagreement denying entitlement to a compensable rating for 10 percent under Diagnostic Code 6513(199) should be revised or reversed based on clear and unmistakable error

(CUE).



In the December 23, 1999, rating decision at issue, the RO granted service connection and assigned a noncompensable rating for sinus disability, effective December 11, 1997, the date after my discharge from the military. I did not appeal the assigned rating. Hence, unless one of the exceptions to finality applies, that decision is final based on the evidence then of record. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2004).I seek an earlier effective date for the award of the 10 percent rating for sinus disability on the basis of error in the RO's award of an initial noncompensable rating for that disability. In this respect, I allege that the RO did not properly evaluate the medical evidence of record at the time and made a decision in improper applications of 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.97, Diagnostic Code 6513 (1997), of the December 23, 1999, rating decision. Thus, as a means of establishing CUE, I am contending that the December 23, 1999, rating decision was clearly and unmistakably erroneous. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error. However, if the evidence establishes clear and unmistakable error, the prior decision will be reversed and amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision.In determining whether a prior determination involves CUE, the United States Court of Appeals for Veterans Claims (the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 314 (1992). Clear and unmistakable error is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40,43-44 (1993).

The RO's decision reflects its consideration of findings reported in the veteran's service medical records. Which was not complete at the time.


Sinusitis
Here is a list and copies of my service treatment records (note that I do not have them all). The RO should have had these and my service treatment records.

They are dated from June 1989 through February 1993.

`

In June 1989, I was diagnosed with sinusitis and it was detected by x-ray.



On February 11, 1991, I reported to Emergency Room Naval Hospital Pensacola, FL. with temperature 101.2, complaints sore throat, coughing, vomiting and body aches. Diagnose was Bronchitis and pharyngitts. Sick in quarters (incapacitated) 24 hours –Roger Mason, MDxxxxx8645



On February 12, 1991 I reported to military sick call for follow on Bronchitis. I stated was not feeling any better. The doctor findings were temperature 100.8, cough with greenish sputum, fever, chills, sore throat, body aches. Diagnose Bronchitis, Medication; erythromycin, Entex, Terpin Hydrate with codeine, Tylenol. Sick in quarters (SIQ)(incapacitated)24 hours



On July 9, 1991, I reported to military sick call with complaints of cold symptoms. I had a temperature was 99.2. I stated that the last sinus infection was about 6 month ago and sinuses colds about 1 -2 times per year. The doctor noted maxillary sinus tenderness, nasal edema: The diagnosis was sinusitis; medication was, Batrim D.S. BID x 14 days, Entex LA po BID sick in quarters (SIQ) (incapacitated) 72hrs. ----Allen M. Williams/LT/MC/USNR/xxxxx3606/ intern



On July 10, 1991, I reported to military sick call for follow-up on sinusitis x 3 days; My temperature was 99.8; I had no relief of prior systems of nasal congestion and also productive cough and pain between the shoulder blade in back. The doctor noted maxillary sinus tender/throat, continue medication, diagnosed sinusitis/ pharngitis; sick in quarters (SIQ) (incapacitated) 48hr-----M.M.Quigley/LT/MC/USNR/xxxxxx7615



On October 8, 1992, I reported to military sick call with complaints of sore throat and ear ache x 7 days. My diagnose was R/O Eustachian tube dysfunction and medication was Entex LA BID ---Susan Breedlove/FNP-C-CW,C/S/xxxxx5901



On October 9, 1992, I reported to military sick call, for follow-up on throat and ear pain. The doctor findings were no voice, and I was diagnosed with URI (upper respiratory infection) with bacterial infection. I was told to continue medication and given Erythymicin -----CDR Ang-Rabanes/MC/USN/xxxxx5305



On January 4, 1993, I reported to military sick call with complaints of having a sore throat, ear aches, cough productive of phlegm and headache (HA) some diarrhea. My temperature was: 99.2. The diagnosis was URI (upper respiratory infection) probable viral. I was given the medication Tylenol 325mg, Robitussion, and Sudafed 60 mg, Sick in Quarters (SIQ) (incapacitated) 24 hours.



On January 5, 1993, I reported to military sick call for follow-up on viral syndrome. The doctor diagnosed was no improvement and viral syndrome; still have cough productive of yellow sputum. Sick in Quarters (SIQ) (incapacitated) x 24 hours; Thompson, Gary/LT/MC/USNR/xxxxxx1076



On January 6, 1993, I reported to military sick call for follow-up on viral syndrome. I stated that I feels somewhat better, still cough up yellow phlegm; I was diagnosed this time with viral URI (upper respiratory Infection), sick in quarters (SIQ) (incapacitating) x 24, Thompson, Gary, LT/MC/USNR/xxxxxxx1076



On January 11, 1993, I reported to military sick call for follow-up on viral syndrome, findings: pt still cough at time, productive yellow phlegm, febrile, nausea/vomiting with cough; diagnosis; Sino bronchial Infection, Medication: Septra, Entex, Robutission; Robert Marchiano/D.O.Civ, C/Sxxxxx5952



On January 12, 1993, I returned to military sick call for follow-up on headache, stomach, nausea, vomiting; diagnose; URI(upper respiratory infection) with PND(SINBRONCHIAL)with N/V(nausea and vomiting)CBC:10.1 hemoglobin, 31.2 hemacrit, sick in quarters(SIQ)(incapacitated) x 48 hours, Robert E. Marchiano, D.O. civ C/S/xxxxx5952



On January 14, 1993, I reported to military sick call for follow-up on Upper Respiratory Infection; finding; Sinus X-ray (Muc, Maxillary sinus esp. L plus edema; diagnoses Slow resolving Sino bronchial Infection; Robert Machiano/D.O.Civ,C/S xxxxx5952



On February 17, 1993, I reported to military sick call with complaints of Migraine, findings: temp.101.6, body malaise, non-productive cough; Diagnose-Combination of Viral Infection and acute Migraine Ha, pulse Tilt; medication fionial, compaxine, sick in quarters(SIQ)(incapacitated) x 48 hours Jose Ang-Rabanes/CDR/MC/USN xxxx5305



On February 19, 1993, I returned military sick call for follow up on viral infection and migraine headache; diagnose; migraine resolved, viral infection improved, return to duty Ang-Rabanes/CDR/MC/USN xxxx5305



Here is a list of diagnose from my private doctor:



March 30, 1999—seen in Palmyra Hospital, PO Box 1908/2000, Palmyra Road, Albany, Ga. 31702 for fever (TEMP 103.9) cough body aches and chills



April 05, 1999----complaints-ill for 8 days, cold, chills and body aches; findings –respiratory distress, swollen nasal turbinates; diagnose; Bronchospasms, Post influenza bronchitis vs. pneumonia, Dr. Grady Thompson



April 05, 1999---I had to report to Palmyra Emergency Room via Dr. Thompson for difficulty breathing, history asthma, treatment; neb.tx. x 3times per v.o. Dr. Mankin/per Dr. Grady Thompson



April 19, 1999---Palmyra Medical Center (emergency room) complaints sore throat, cough and body ache Temp. 100.1 diagnosis; Acute Sinusitis, medication z-pak and endal HD; Dr. James Thomas





The rating decision on December 23, 1999, for maxillary sinus stated that,

Service medical records show that the veteran was treated for sinus and nasal congestion beginning in June 1989. X-Rays in 1989 and 1991 reveal thickening of the maxillary sinuses and maxillary sinusitis was diagnosed. At the May 1998 VA examination the veteran reported a history of allergic rhinitis with episodes of stuffy nose. Examination of the nose and sinuses was within normal limits.


“The RO wrote that service medical records for the period of May 1988 to September 1993 were use. Service medical records for the period September 1993 to December 1997 could not be obtained for review. The RO also, wrote that if these records are located at a later date, this decision will be reconsidered. If a different decision results, that decision will be effective as of the date of the original claim”.


This favorable decision is considered to have resolved the issues of service connection for sinusitis and allergic rhinitis under appeal.





.

An improper applications of 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.97, Diagnostic
Code 6513 (1997)


38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2004).


Based on the medical evidence of record at the time of question regarding the maxillary sinusitis and the general rating formula for sinusitis



Chronic Sinusitis



My sinus disability has been rated 10 percent disabling under DC 6513. Diagnostic Code 6513 pertains to chronic maxillary sinusitis. 38 C.F.R. § 4.71a, DC 6513.



Diagnostic Codes 6510 through 6514 pertain to various types of sinusitis, each of which is rated pursuant to a general formula for sinusitis set forth in the rating schedule following DC 6514. This general rating formula for sinusitis applies in all circumstances in which VA is to evaluate the severity of sinusitis, no matter the particular diagnosis.





Under the General Rating Formula for Sinusitis, chronic maxillary sinusitis detected by x-ray only warrants a noncompensable disability evaluation; one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of Sinusitis characterized by headaches, pain, and purulent discharge or crusting warrants a 10 percent disability evaluation; three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting warrants a 30 percent disability evaluation; following radical surgery with chronic osteomyelitis, or; near constant sinusitis, characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries warrants a 50 percent disability evaluation. An Incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6513 (2003).



Under the schedule ratings for Sinusitis and allergic Rhinitis:

Diagnostic code 6513 Sinusitis, maxillary chronic;



It stated that chronic maxillary sinusitis detected by x-ray only warrants a noncompensable: which was detected in 1989, 1991, 1993 and a disability evaluation of one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of

Sinusitis characterized by headaches, pain, and purulent discharge or crusting warrants a 10 percent disability evaluation;



My service treatment record stated that, I was diagnosed with sinus in June 1989, July 1991, January 12, 1993, April 19, 1999(Acute Sinusitis).

On July 9, 1991, I reported to military sick call and complained of runny nose, post nasal drip, congested, sinuses and non productive cough. I stated that the last time that I had a sinus infection was about 6 months ago. I said that I have sinus colds about 1-2 times per year (see SF 600 dated July 9, 1991, LT Allen M. Williams, MC. USNR).The doctor noted that I had maxillary sinus tenderness, bilateral nasal edema and bilateral TM’s dull with air bubbles. I was diagnosed was Sinusitis, and given the medication Bactrim D.S. x14 days and Entex LA. Again on July 10, 1991, I reported to military sick call for follow-up on sinusitis x 3 days; my temperature was 99.8; I had no relief of prior systems of nasal congestion and also productive cough and pain between the shoulder blade in back. The doctor noted maxillary sinus tender/throat, continue medication, diagnosed sinusitis/ pharngitis; sick in quarters (SIQ) (incapacitated) 48hr-----M.M.Quigley/LT/MC/USNR/xxxxxx7615



Then on January 11, 1993 for follow-up on viral syndrome and then my diagnose change to Sino Bronchial (sinus and Bronchitis together) (see SF 600 dated January 11, 1993 I was place on the medication septra D.S, Entex, and Robitusson, and then the next day on January 12, 1993, I reported to military sick call with a follow-up on headache, stomach pain, and nausea and vomiting. I was diagnosed with URI with PND (SINO BRONCHIAL) with n/v (nausea and vomiting) see SF 600 dated 12 January 1993), placed sick in quarters for 48 hours, by Dr. Robert Marciano. On January 14, 1993, I reported to military sick call for follow-up on Upper Respiratory Infection; finding; Sinus X-ray (Muc, Maxillary sinus esp. L plus edema; diagnoses Slow resolving Sino bronchial Infection; Robert Machiano/D.O.Civ,C/S xxxxx5952.



My private medical treatment records shows that I was treated on March 30, 1999, at Palmyra Medical Hospital, PO Box 1908/2000 Palmyra Road, Albany, Ga. 31702 for fever (TEMP 103.9) cough body aches and chills. I was also seen on April 05, 1999 for complaints of illness for 8 days, cold, chills and body aches; The diagnosed was respiratory distress, swollen nasal turbinates; diagnose; Bronchospasms, Post influenza bronchitis vs. pneumonia, Dr. Grady Thompson, then I reported to Palmyra Emergency Room via Dr. Thompson for difficulty breathing, history asthma, treatment; neb.tx. X 3 times per v.o. Dr. Mankin/per Dr. Grady Thompson. Then place on bed rest.



I was seen later that month on April 19, 1999, at Palmyra Medical Center (emergency room) complaints sore throat, cough and body ache Temp. 100.1 diagnosis; Acute Sinusitis, medication z-pak and endal HD, place on bed rest; Dr. James Thomas.



I was diagnosed with sinus and given antibiotics in 1989, 1991, and 1993. I was place sick in quarters (incapacitated) several times. After I was discharge in 1997, I was diagnosed again in 1999 with acute sinusitis and given antibiotics while my claim was in appeal status. I met the criteria for a 10 percent evaluation for maxillary sinusitis from December 11, 1997. Which is for disability evaluation of one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of?

Sinusitis characterized by headaches, pain, and purulent discharge or crusting warrants a 10 percent disability evaluation;

38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, Part 4, Diagnostic Code 6513.









In December `16, 2008, Huntington, WV,(Atlanta, GA), RO confirmed and continued a noncompensable disability rating.



November 01, 2001, chief complain- ill since last night with cough, , chills, n/v(nausea and vomiting) H?A (headache) chills; finding(pink and swollen nasal turbinate, throat red, medication—endal hd, tamiflu, bed rest until 11/05/01 diagnose flu, recheck on 11-05-01



November 05, 2001- patient feels better, return to work in a.m.(11/06/2001)

December 25, 2001—pt. seen at Phoebe East for cold symptoms,

January 07. 2002—chief complaint—cold symptoms, headaches, cough prod. Of white and yellow sputum. Medication—endal hd, diagnosis; Asthma Bronchitis and Influenza, return to work after 8 hr. appt. 1/23/02 Dr. Grady Thompson



January 21, 2004—complaints cough, body aches, productive cough white/yellow phlen diagnosis; flu, medication z-pack, endal hd and tamiflu, bed rest, return to work 1/28/04



January 28, 2004—palmrya Medical Center—chief complaint, flu symptoms, vomiting



May 04, 2005—chief complaint- cold temp. 101.2, diagnose URI(upper respiratory infection, bronchitis. Medication-Maxifed, attusans



May 02,2008—chief complaints—headache, nausea and vomiting; diagnoses-sinusitis, headaches, nausea and vomiting(N/V)











In December 16, 2008, Huntington, WV,(Atlanta, GA), RO confirmed and continued a noncompensable disability rating.



This is what the reason for the decision stated for December 2008:

The evaluation of maxillary sinuses is confirmed and continued as 0 percent disabling. Review of outpatient treatment reports revealed treatment for sinusitis, May 2008; treatment consisted of antibody therapy, flonase nasal spray and Allegra-D.

During Va examination, your history of recurrent sinusitis, confirmed by x-ray, was noted. You stated that the last episode for which you received treatment began in April 2008. Sinusitis episodes occur about 2 to 3 times yearly, with symptoms to include post nasal drip, nasal congestion, rhinorrhea, headaches, you reported no significant occupational effects from sinusitis. Physical evaluation reveals no signs of obstruction, nasal polyps, or hypertrophy of turbinate, and sinus e-ray showed no significant abnormalities: diagnosis was chronic maxillary sinusitis



The non compesable evaluation of 0 percent was assigned for maxillary sinusitis, from December 11,1997, BECAUSE EVIDENCE AT THAT TIME SHOW 0NE OR TWO INCAPACIATING EPISODES PER YEAR OF SINUSITIS requiring prolonge(lasting four to six weeks) antibotic treatment or three to six non-incapaciting episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting. Because evidence does not demonstrate a schedular increase in maxillary sinusitis, the current evaluation of 0 percent is continued.



I feel that I cue was also made in December 2008. I feel that I met the criteria for a 10 percent rating for sinuis under Diagnostic Code 6513

The criteria for a 10 percent rating for sinusitis have

been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 6513 (1997). I was seen on November 01, 2001, for been ill since last night with cough, chills, n/v (nausea and vomiting) H/A (headache) chill. The doctor finding was (pink and swollen nasal turbinate, throat red. The medication I was given was endal hd, Tami flu, bed rest until November 5,2001 I was diagnose with the flu, recheck on November 5,2001.I was seen again on November 05, 2001. I stated that I felt better. I return to work in a.m. (11/06/2001).

I was seen again on December 25, 2001 at Phoebe East for cold symptoms and on January 07, 2002, I was seen for cold symptoms, headaches, cough productive of white and yellow sputum. I was given the medication endal hd, diagnosis; Asthma Bronchitis and Influenza, return to work after 8 hr. appt. 1/23/02 Dr. Grady Thompson



Then on January 21, 2004, I complaint of cough, body aches, productive cough white/yellow phlegm. I was diagnosis with the flu. I was given the medication z-pack, endal hd and tamiflu. I placed on bed rest and to return to work on 1/28/04. I was seen by Dr. Grady Thompson.



On January 28, 2004, I was seen at Palmyra Medical Center for flu symptoms and vomiting. I was place on bed rest.



On May 04, 2005, I was seen for cold symptoms. I had a temperature of 101.2. I had sinus pain/pressure nasal drainage, ear and eye pain, sore throat, a nonproductive cough, wheezing, fever, dizziness and headache. The diagnosed me with URI (upper respiratory infection) and bronchitis. I was placed on the medication-Maxifed, attusans. I was seen by Dr. Michael Raines of Medical Associates of Albany, Georgia.



I was seen again on May 02, 2008, at Palmyra Medical Center, Albany, Ga.31702, for headache, dizziness, nausea and vomiting; I was diagnosed with sinusitis, headaches, nausea and vomiting (N/V). I was already on bed rest.



During Va examination, my sinusitis was, confirmed by x-ray, and review of my outpatient treatment reports revealed treatment for sinusitis, May 2008; treatment consisted of antibody therapy, flonase nasal spray and Allegra-D. I was diagnosed with chronic maxillary sinusitis, but I still received a non compensable evaulation of 0 percent.





Once again I met the criteria for a 10 percent rating for sinusitis. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 6513 (1997).

I did not received the 10 percent rating instead it was continue at 0 percent.



This is what the reason for the decision stated for December 2008:

The evaluation of maxillary sinuses is confirmed and continued as 0 percent disabling. Review of outpatient treatment reports revealed treatment for sinusitis in May 2008; treatment consisted of antibody therapy, flonase nasal spray and Allegra-D.



During Va examination, my history of recurrent sinusitis, confirmed by x-ray, was noted. I stated that the last episode for which I received treatment began in April 2008. Sinusitis episodes occur about 2 to 3 times yearly, with symptoms to include post nasal drip, nasal congestion, rhinorrhea, headaches, you reported no significant occupational effects from sinusitis. Physical evaluation reveals no signs of obstruction, nasal polyps, or hypertrophy of turbinate, and sinus e-ray showed no significant abnormalities: diagnosis was chronic maxillary sinusitis



The non compesable evaluation of 0 percent was assigned for maxillary sinusitis, from December 11,1997, BECAUSE EVIDENCE AT THAT TIME SHOW 0NE OR TWO INCAPACIATING EPISODES PER YEAR OF SINUSITIS requiring prolonge(lasting four to six weeks) antibotic treatment or three to six non-incapaciting episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting. Because evidence does not demonstrate a schedular increase in maxillary sinusitis, the current evaluation of 0 percent is continued.







I file a claim for an increased for maxillary sinus on February 22, 2010.





On August 31, 2010 Cleveland Regional VA Office (Atlanta, GA) evaluation of maxillary sinus, which was currently at 0 percent disabling, increased to 10 percent effective February 22, 2010.



The evaluation of maxillary sinusitis is increased to 10% percent disabling effective 2/22/2010. That date the claim was received. An evaluation of 10 percent is assigned from 2/22/2010.An evaluation of 10 percent is assigned whenever there is evidence of 0ne or two incapacitating episodes per year of sinus requiring prolonged(lasting four to six weeks) antibiotic treatment, or three to six non -incapacitating episodes per year.

At the VA examination, you reported continued sinus problems over the years, progressively worse. Your treatment is Levaquin 500 mg daily for 7 days at a time, Maxifed as needed, Aleve Sinus and Headache as needed and Mucinex. (I had this with me at the C&P exam). You had just finished treatment of Levaquin. You reported incapacitating episodes requiring 4-6 weeks of antibiotic treatment. You reported non-incapacitating episodes with headache, fever, purulent drainage and sinus pain, more than six per year lasting 7 to 14 days. You reported nasal congestion, excess nasal mucous, itchy nose, watery eyes, sneezing, purulent discharge, headaches, and sinus pain and sinus tenderness.

On examination, there was no evidence of active disease or speech impairment. There was no sign of nasal obstruction, nasal polyps, septal deviation, and permanent hypertrophy of turbinates or granulomatous infection. The diagnosis was possible hypopneumatization of the sinuses and that the frontal, sphenoidal and ethmoidal sinuses appeared clear. Medical evidence in support of your claim has not been received showing evidence of three or more incapacitating episodes per year of sinusitis or requiring prolonged antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting and higher evaluation is not warranted.<BR style="mso-special-character: line-break"><BR style="mso-special-character: line-break">


<BR style="mso-special-character: line-break"><BR style="mso-special-character: line-break">

Here is the medical evidence that I need to support my claim for a higher rating of 30 percent.Medical evidence in support of my claim is listed below .This evidence shows three or more incapacitating episodes per year of sinusitis or requiring prolonged antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting and higher evaluation is not warranted.<BR style="mso-special-character: line-break"><BR style="mso-special-character: line-break">

These are the diagnoses that I have had this year along.

On March 22, 2010, I was seen for cold and respiratory symptoms. I complain of productive cough, chest congestion, head congestion, sore throat and fever. Diagnosis -Acute Bronchitis medication- Levaquin 500 mg, maxifed dm Motrin/Tylenol for pain



October 4, 2010, I was seen for sinus congestion, pressure and pain, mild cough, chest congestion, sore throat. Finding; nose-red and stuffy, diagnoses—acute sinusitis, medication; maxified, lauquan---David Fischer, MD, of Medial Associates of Albany, Georgia.



October 21, 2010, I was seen for sinus congestion and sinus pressure. I was diagnosed with allergic rhinitis by Dr. Deville Young, MD, of Medial Associates of Albany, Georgia. I was given antibiotics that he administered in his office.





#2 jbasser

 
jbasser

    Moderator/HadIt.com Elder/SVR Radio Panelist

  • Admin
  • PipPipPipPipPipPipPipPipPip
  • 6262 posts
 

Posted 01 February 2011 - 01:03 PM

Your cue is very simple. The VA failed to apply the regs to the newly discovered service department records.

Good preperation. I like your style.

JBasser

#3 Reddit

 
Reddit

    E-5 Petty Officer 2nd Class

  • First Class Petty Officer
  • PipPipPipPipPip
  • 154 posts
 

Posted 01 February 2011 - 02:57 PM

So, do you think I will win this cue?

#4 bakerkd

 
bakerkd

    E-5 Petty Officer 2nd Class

  • Second Class Petty Officers
  • PipPipPipPipPip
  • 91 posts
 

Posted 01 February 2011 - 05:48 PM

Maybe? When I did my C&P exam they wanted to know how many times I had been treated with a course of antibiotics (4-6 weeks) for my Chronic Sinusitis.

Your records show a lot of fever and common cold symptoms, not trying to be a downer, but most people get colds a few times a year. I'm betting the rater just based it on the X-ray evidence and assumed the rest were colds/UGI's.

Eustachian tube pain,UGI, common cold with fever and headache are not necessarily sinusitis. The only thing I can see in those treatment records that indicates chronic sinusitis is 1989 diagnosis and xray showing thickening of maxillary sinus

#5 carlie

 
carlie

    Moderator/Admin/HadIt.com Elder/SVR Radio Panelist

  • Admin
  • PipPipPipPipPipPipPipPipPipPip
  • 22213 posts
 

Posted 01 February 2011 - 08:12 PM

Reddit,

Your claim of cue is not clear to me.
Can you post the shortened version.

I am claiming a cue was made on rating decision dated XX/XX/XXXX.

This rating decision granted - denied - lowballed the disability of XXXXXXX.

By doing/not doing XXXXX the VARO broke the 38 CFR reg of XXXXX.

#6 Reddit

 
Reddit

    E-5 Petty Officer 2nd Class

  • First Class Petty Officer
  • PipPipPipPipPip
  • 154 posts
 

Posted 02 February 2011 - 05:49 AM

Your claim of cue is not clear to me.
Can you post the shortened version.

I am claiming a cue was made on rating decision dated 12/23/1999

This rating decision granted - denied - maxillary sinuis.

By not following the regulation for 38 C.F.R. § 4.71a, Diagnostic Code 6513 (1997)
An improper applications of 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.97, Diagnostic
Code 6513 (1997)


38 C.F.R. §§ 3.104(a), 20.302, 20.1103 .


#7 carlie

 
carlie

    Moderator/Admin/HadIt.com Elder/SVR Radio Panelist

  • Admin
  • PipPipPipPipPipPipPipPipPipPip
  • 22213 posts
 

Posted 02 February 2011 - 11:37 AM

Reddit,
I still do not see a claim for cue regarding a zero % SC versus a 10% SC.
Once SC is granted they are to adjudicate the current level of disability at that time.
In most cases the medical reports from active duty are not considered for the percentage level.
An exception to this can be when an effective date is awarded back to day following separation.

Example :

Veteran is discharged in 2000
Vet files claim in 2002 for Migraines.
VBA adjudicates claim in 2003 and issues rating decision stating,

SC for Migraines is granted and a zero percent evaluation is assigned.

SMR's show veteran's complaints of Migraines on:
Jan 3, 1994, prostrating Migraine six times in Feb 1994 again shown in SMR's
June 1995 with nausea and light sensitivity, 12 times in 1997, profile for six consecutive days
of bed rest due to prostrating Migraines in 1999.

8100 Migraine:

With very frequent completely prostrating and prolonged - - 50
attacks productive of severe economic inadaptability


With characteristic prostrating attacks occurring on an - - 30
average once a month over last several months

With characteristic prostrating attacks averaging one in 2 - - 10
months over last several months

With less frequent attacks.................. 0

In 2002 VBA grants SC for Migraines (DC 8100) at zero % and the rating decision refers to all of the active dutymedical evidence of record but the current level of medical evidence does not show any prostrating attacks within the past six months - so they grant it at zero percent.

This is not a cue and wouldn't meet the requirements for a higher percentage,because the level of disability is not necessarily adjudicated by what the evidence shows on active duty but pertains to the current level of disability.

Of course this is only the way I am seeing this as I understand it.


#8 Reddit

 
Reddit

    E-5 Petty Officer 2nd Class

  • First Class Petty Officer
  • PipPipPipPipPip
  • 154 posts
 

Posted 02 February 2011 - 03:21 PM

ok, let me see if I got this right.

I file a claim, after I was discharge. results came back 12/23/1999

0 % sc for maxillary sinus(should take care of allerigic rhinitis)
sc for asthma and bronchettis was denied.( what do I do about this.

diagnosed on activie duty, in 1989, 1991 ( RO did not have my complete service records) only up till sept. 1993 Ro stated that they would revisted this claim when records are relocated. well, they have them now. what do I do.
on active duty diagnose Sino bronchial Infection in 1993.( i am only missing 1992, and 1990 for a sinus infection.

while claim was in appeal I was diagnose with Acute Sinusitis in 1999
April 05, 1999----complaints-ill for 8 days, cold, chills and body aches; findings –respiratory distress, swollen nasal turbinates; diagnose; Bronchospasms, Post influenza bronchitis vs. pneumonia, Dr. Grady Thompson
April 05, 1999---I had to report to Palmyra Emergency Room via Dr. Thompson for difficulty breathing, history asthma, treatment; neb.tx. x 3times per v.o. Dr. Mankin/per Dr. Grady Thompson

April 19, 1999---Palmyra Medical Center (emergency room) complaints sore throat, cough and body ache Temp. 100.1 diagnosis; Acute Sinusitis, medication z-pak and endal HD; Dr. James Thomas

Carlie, Is this what I need.




#9 bakerkd

 
bakerkd

    E-5 Petty Officer 2nd Class

  • Second Class Petty Officers
  • PipPipPipPipPip
  • 91 posts
 

Posted 02 February 2011 - 03:57 PM

The rating criteria states the following;

"one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of Sinusitis characterized by headaches, pain, and purulent discharge or crusting warrants a 10 percent disability evaluation" ( I added emphasis to requiring)

You have indicated that you feel you met the incapacitating episode criteria by being placed on Quarters. Does it state in your records that you required prolonged antibiotic treatment lasting 4-6 weeks? I didn't see it. I also didn't see 3-6 non-incapacitating episodes per year

You stated in your response below that;

"Here is the medical evidence that I need to support my claim for a higher rating of 30 percent. Medical evidence in support of my claim is listed below .This evidence shows three or more incapacitating episodes per year of sinusitis or requiring prolonged antibiotic treatment,..."

I added the emphasis on the word or in your statement. The rating criteria doesnt state "or" it states requiring



#10 carlie

 
carlie

    Moderator/Admin/HadIt.com Elder/SVR Radio Panelist

  • Admin
  • PipPipPipPipPipPipPipPipPipPip
  • 22213 posts
 

Posted 02 February 2011 - 05:54 PM


Carlie, Is this what I need.


Reddit,
Please clarify for me:


You are stating:


you feel you met the requirements for a ____% evaluation for DC ______,


as of rating decision dated __________


due to the medical evidence dated ___________,


that states exactly _____________.


The rating decision referred to above states ______________________ (from the reasons and bases section).


I am not questioning your claim, just trying to get my head wrapped around it first.
I do have some cognitive disability's.

#11 Reddit

 
Reddit

    E-5 Petty Officer 2nd Class

  • First Class Petty Officer
  • PipPipPipPipPip
  • 154 posts
 

Posted 03 February 2011 - 07:00 AM

Ok let me try this a gain.


you feel you met the requirements for a ____% evaluation for DC ______,.
I felt I met the requirements for a 10% evaluation for DC 6513.


as of rating decision dated __________
December 23, 1999

due to the medical evidence dated ___________,
The medical evidence that is dated June 1989, July, 1991 and April 19, 1999.


that states exactly _____________.
It states for July 1991 that I was diagnosed with sinusitis/pharygitis.II had bilateral nasal edema, maxillary sinus tenderness and that i stated that i had my last sinus infection 6 months ago and I get a sinus infection 1-2 times a year. II complained of runny nose, post nasal drip and congested sinus was placed sick in quartes for 48 hours(SIQ) meaning incapicated. Place on the medication Bactrium D.S.(Sulfamethoxazole and trimethoprim are both antibiotics that treat different types of infection caused by bacteria.) and terpin Hydrate with codeine.
On January 11-14, 1993 it stated that i was diagnosed with URI withPND(SINO BRONCHIAL INFECTION) which is Sino-bronchial syndrome (SBS) is a new name for
rhinitis causing sinusitis which causes post-nasal drainage (PND) which leads to chronic throat-clearing and cough. Sinusitis can be confirmed by a sinus CT scan, but PND and sinusitis symptoms are usually enough evidence to confirm sinusitis. sick in quartes for 72hours, and placed on the medication Humbid LA which is (Sulfamethoxazole and trimethoprim are both antibiotics that treat different types of infection caused by bacteria.) sinus detected on x-rays.
Then on April 1999, seen in emergency room tem. 100.1 diagnoses with acute sinusitis, and given the medication z-pak and endal hd, which is antibotic and decongestion.


The rating decision referred to above states ______________________ (from the reasons and bases section).
This is how my reasons and bases section starts off and it is stated again in the evidence section. (So what do I do):rolleyes: :excl:
It stated that: the prior rating decision of December 30, 1998 considered service connction for the conditions at issues in the absence of service medical records. We have now recieved and reviewed service medical reords for the period MAY 1988 and through September 1993. Service medical records for the period Septembet 1993 to December 1997 could not be obtained for review. IF THESE RECORDS ARE LOCATED AT A LATER DATE, THIS DECISION WILL BE RECONSIDERED. IF A DIFFERENT DECISION RESULTS, THAT DECISION WILL BE EFFECTIVE AS OF THE DATE OF THE ORIGINAL CLAIM.
Service medical records shows that the veteran was treated for sinus and nasal congestion beginning in June 1989. X-rays in 1989 and 1991 revealed thickening of the maxillary sinuses, and maxillary sinusitis was diagnosed. At the May 1998 Va examination, the veteran reported a history of allergic rhinitis with episodes of stuffy nose. Examination of the nose and sinuses was within normal limits.
This favorable decision is consideded to have resolved the issuses of service connection for sinusitis and allergic rhinitis under appeal.

At, this C&P exam, I had know x-rays of my sinus, but at all my c&P exam after my first one., I have., and all the x-rays I have taken at the C&P exam confirmed the sinusitis and diagnose was chronic maxillary sinus.


I am not questioning your claim, just trying to get my head wrapped around it first.
I do have some cognitive disability's.

#12 Reddit

 
Reddit

    E-5 Petty Officer 2nd Class

  • First Class Petty Officer
  • PipPipPipPipPip
  • 154 posts
 

Posted 03 February 2011 - 09:01 AM

The rating criteria states the following;

"one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of Sinusitis characterized by headaches, pain, and purulent discharge or crusting warrants a 10 percent disability evaluation" ( I added emphasis to requiring)

You have indicated that you feel you met the incapacitating episode criteria by being placed on Quarters. Does it state in your records that you required prolonged antibiotic treatment lasting 4-6 weeks? I didn't see it. I also didn't see 3-6 non-incapacitating episodes per year

You stated in your response below that;

"Here is the medical evidence that I need to support my claim for a higher rating of 30 percent. Medical evidence in support of my claim is listed below .This evidence shows three or more incapacitating episodes per year of sinusitis or requiring prolonged antibiotic treatment,..."

I added the emphasis on the word or in your statement. The rating criteria doesnt state "or" it states requiring

ok I see what you are talking about.
I have been treated for sinus , bronchitis and allergy rhinettis all in the last six months. Sinus and allergic rhinettis comes under the same dc code 6513 and 6514. I have been place on the same medication for the sinus and bronchitis( which was an antibotic) and for the allergic rhinetitis I was given an antibotic to take right there in front of the dr. and given the medical to take twice a da singulair and nasal spray Astepro)

I really think that i have to d/c codes going on, but I don't know what it is. Because I was treat and diagnose with viral syndrome and acute upper respiratory infection through out my miltary career. I alwasy caught the cold and flu that the patient had because I work in military sick call and pediatric clinic.



#13 carlie

 
carlie

    Moderator/Admin/HadIt.com Elder/SVR Radio Panelist

  • Admin
  • PipPipPipPipPipPipPipPipPipPip
  • 22213 posts
 

Posted 03 February 2011 - 09:11 AM


Reddit,

OK here's my understanding,

You were honorably separated from active duty on Dec 11, 1997.

You filed a claim for Sinusitis - 6513.

Rating Decision dated Dec 23,1999 the RO granted Sinusitis (DC 6513) as service connected

at zero percent.


Your active duty medical records from July 1991 provide support, only useful for a service connected status.

Apparently the sinus condition was treated and resolved for now.


Your active duty medical records from Jan 11-14 1993 provide support,only useful for a service connected status.

Apparently the sinus condition was treated and resolved for now.

In regards to the Dec 1999 Rating Decision:

the medical records above are good for you in the way that they show a chronic condition,

and support the fact that service connection should be granted.

They are way too old to use in adjudicating a current percentage level of disability in 1999

or support that upon discharge, this condition met the criteria for a 10 percent evaluation.

I see no medical evidence from 1993 to 1997, day following separation that would support your

condition continued to meet the 10 percent level during those years.

Your post active duty medical records from April 19, 1999 provides support that you continue to have

sinus problems (continuity of care) that are associated with active duty.

This record continues to provide support for service connection.


The post active duty, 1999 medical record, (although it does state "acute sinusitis") does not provide

medical evidence that would support the higher rating of 10 %, at this time.


This is my understanding of the evidence considered and how VA applied it to adjudicate

service connection at zero percent.

In relation to the above I do not see any evidence to support a claim for CUE.

Also, with full consideration of the SMR (active duty) medical evidence that was not of record in the

Dec 1999 Rating Decision (38CFR 3.156 ©

I do not see any evidence that would support an earlier effective date (day following separation)

for a 10 percent evaluation.

JMHO

#14 bakerkd

 
bakerkd

    E-5 Petty Officer 2nd Class

  • Second Class Petty Officers
  • PipPipPipPipPip
  • 91 posts
 

Posted 03 February 2011 - 10:14 AM

Reddit,
I have dealt with Chronic Sinusitis for years much like yourself. I have a large maxillary sinus cyst and polyp. When I did my C&P for it I stated that I had one bout of it in the past year treated with antibiotics. My antibiotic treatment was only for two weeks. It does not meet the criteria for incapacitating (felt like it though) nor do I have enough instances of Nonincapacitating to get anything more than a 0%. At raters now and I fully expect a 0%

#15 Reddit

 
Reddit

    E-5 Petty Officer 2nd Class

  • First Class Petty Officer
  • PipPipPipPipPip
  • 154 posts
 

Posted 03 February 2011 - 11:39 AM


Reddit,

OK here's my understanding,

You were honorably separated from active duty on Dec 11, 1997.

You filed a claim for Sinusitis - 6513.

Rating Decision dated Dec 23,1999 the RO granted Sinusitis (DC 6513) as service connected

at zero percent.


Your active duty medical records from July 1991 provide support, only useful for a service connected status.

Apparently the sinus condition was treated and resolved for now.


Your active duty medical records from Jan 11-14 1993 provide support,only useful for a service connected status.

Apparently the sinus condition was treated and resolved for now.

In regards to the Dec 1999 Rating Decision:

the medical records above are good for you in the way that they show a chronic condition,

and support the fact that service connection should be granted.

They are way too old to use in adjudicating a current percentage level of disability in 1999

or support that upon discharge, this condition met the criteria for a 10 percent evaluation.

I see no medical evidence from 1993 to 1997, day following separation that would support your

condition continued to meet the 10 percent level during those years.

Your post active duty medical records from April 19, 1999 provides support that you continue to have

sinus problems (continuity of care) that are associated with active duty.

This record continues to provide support for service connection.


The post active duty, 1999 medical record, (although it does state "acute sinusitis") does not provide

medical evidence that would support the higher rating of 10 %, at this time.


This is my understanding of the evidence considered and how VA applied it to adjudicate

service connection at zero percent.

In relation to the above I do not see any evidence to support a claim for CUE.

Also, with full consideration of the SMR (active duty) medical evidence that was not of record in the

Dec 1999 Rating Decision (38CFR 3.156 ©

I do not see any evidence that would support an earlier effective date (day following separation)

for a 10 percent evaluation.

JMHO



ok let me explain this.
The resaon there is no evidence to support for 1993-1997 is because the RO/or VA con not located my medical records at that time, and that is why you only see up until 1991.
1999 is from when i was off of active duty.
HISTORY; when i first got off of active duty in december 1997, i filed for disability. They could not located my treatment record at that time, ( so they denied me because of no treatment record.)so I sent them my copy( but I only had from 1988-1993). and that is when they gave me the rating for service connected for sinus.

since then I have filed a claim in 2008; and this is what it said in the reason and bases.
The evaluation of maxillary sinuses is confirmed and continued as 0 percent disabling. Review of outpatient treatment reports revealed treatment for sinusitis, May 2008; treatment consisted of antibody therapy, flonase nasal spray and Allegra-D.

During Va examination, your history of recurrent sinusitis, confirmed by x-ray, was noted. You stated that the last episode for which you received treatment began in April 2008. Sinusitis episodes occur about 2 to 3 times yearly, with symptoms to include post nasal drip, nasal congestion, rhinorrhea, headaches, you reported no significant occupational effects from sinusitis. Physical evaluation reveals no signs of obstruction, nasal polyps, or hypertrophy of turbinate, and sinus e-ray showed no significant abnormalities: diagnosis was chronic maxillary sinusitis.
It also state that the noncompensable evaulation of o percent was assigned for maxillary sinusitis ,from december 11, 1997, because evidence at that time showed one or two incapacitating epsiodes per year of sinusitis requiring prolonged(lasting four to six weeks)antibotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purlent dischage or crusting. Because evidence does not demonstrate a schedular increase in maxillary sinusitis, the current evaluation of o percent is continued(CARLIE WHAT DOES THIS LAST STATEMENT MEANS)
Right here they did not use my treatment records. Just the last time i had been to the doctor.

ok, then i filed in 2010 and I got 10 percent for.

The evaluation of maxillary sinusitis is increased to 10% percent disabling effective 2/22/2010. That date the claim was received. An evaluation of 10 percent is assigned from 2/22/2010.An evaluation of 10 percent is assigned whenever there is evidence of 0ne or two incapacitating episodes per year of sinus requiring prolonged(lasting four to six weeks) antibiotic treatment, or three to six non -incapacitating episodes per year.

At the VA examination, you reported continued sinus problems over the years, progressively worse. Your treatment is Levaquin 500 mg daily for 7 days at a time, Maxi fed as need,aleve Sinus and Headache as needed and Muncie. (I had this with me at the c&P exam). You had just finished treatment of Levaquin. You reported incapacitating episodes requiring 4-6 weeks of antibiotic treatment. You reported non-incapacitating episodes with headache, fever, purulent drainage and sinus pain, more than six per year lasting 7 to 14 days. You reported nasal congestion, excess nasal mucous, itchy nose, watery eyes, sneezing, purulent discharge, headaches, and sinus pain and sinus tenderness.

On examination, there was no evidence of active disease or speech impairment. There was no sign of nasal obstruction, nasal polyps, septal deviation, and permanent hypertrophy of turbinates or granulomatous infection. The diagnosis was possible hypopneumatization of the sinuses and that the frontal, sphenoidal and ethmoidal sinuses appeared clear. Medical evidence in support of your claim has not been received showing evidence of three or more incapacitating episodes per year of sinusitis or requiring prolonged antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting and higher evaluation is not warranted.<BR style="mso-special-character: line-break">
This is why I think I have a cue. this time they use my full service treatment records.
<BR style="mso-special-character: line-break">



#16 Reddit

 
Reddit

    E-5 Petty Officer 2nd Class

  • First Class Petty Officer
  • PipPipPipPipPip
  • 154 posts
 

Posted 03 February 2011 - 11:41 AM

Reddit,
I have dealt with Chronic Sinusitis for years much like yourself. I have a large maxillary sinus cyst and polyp. When I did my C&P for it I stated that I had one bout of it in the past year treated with antibiotics. My antibiotic treatment was only for two weeks. It does not meet the criteria for incapacitating (felt like it though) nor do I have enough instances of Nonincapacitating to get anything more than a 0%. At raters now and I fully expect a 0%


I have 10 percent for this, I am trying to find out do I have a cue, because i really haven't sent in anything new, just a C&P exam and showed the doctor my medicatation.

#17 carlie

 
carlie

    Moderator/Admin/HadIt.com Elder/SVR Radio Panelist

  • Admin
  • PipPipPipPipPipPipPipPipPipPip
  • 22213 posts
 

Posted 03 February 2011 - 04:11 PM

This is why I think I have a cue. this time they use my full service treatment records.


Reddit,


The ONLY thing I see that is helpful to you in the SMR's/STR's is evidence
that supports granting SC.


Where you posted,
" In the December 23, 1999, rating decision at issue, the RO granted service connection and assigned a noncompensable rating for sinus disability, effective December 11, 1997, the date after my discharge from the military. I did not appeal the assigned rating."
" I seek an earlier effective date for the award of the 10 percent rating for sinus disability on the basis of error in the RO's award of an initial noncompensable rating for that disability. In this respect, I allege that the RO did not properly evaluate the medical evidence of record at the time and made a decision in improper applications of ......"


Unless you had current medical evidence that met the 10 % rating criteria - then you had nothing with merit
to disagree with on the zero % rating.



The medical evidence in STR/SMR's back 1989 thru 1993 - can not be used to assign a percentage
for the December 23, 1999 rating decision.



You posted,
"I met the criteria for a 10 percent evaluation for maxillary sinusitis from December 11, 1997."
I do not see medical evidence that shows this ?
Any and all medical evidence produced after the Dec 23, 1999 Rating Decision can not
be used for consideration in your CUE.







#18 Reddit

 
Reddit

    E-5 Petty Officer 2nd Class

  • First Class Petty Officer
  • PipPipPipPipPip
  • 154 posts
 

Posted 04 February 2011 - 05:51 AM

Reddit,


The ONLY thing I see that is helpful to you in the SMR's/STR's is evidence
that supports granting SC.


Where you posted,
" In the December 23, 1999, rating decision at issue, the RO granted service connection and assigned a noncompensable rating for sinus disability, effective December 11, 1997, the date after my discharge from the military. I did not appeal the assigned rating."
" I seek an earlier effective date for the award of the 10 percent rating for sinus disability on the basis of error in the RO's award of an initial noncompensable rating for that disability. In this respect, I allege that the RO did not properly evaluate the medical evidence of record at the time and made a decision in improper applications of ......"


Unless you had current medical evidence that met the 10 % rating criteria - then you had nothing with merit
to disagree with on the zero % rating.



The medical evidence in STR/SMR's back 1989 thru 1993 - can not be used to assign a percentage
for the December 23, 1999 rating decision.



You posted,
"I met the criteria for a 10 percent evaluation for maxillary sinusitis from December 11, 1997."
I do not see medical evidence that shows this ?
Any and all medical evidence produced after the Dec 23, 1999 Rating Decision can not
be used for consideration in your CUE.




okay let me see if I got this right.
The treatment record is use to establish serivce connecttion right and then if you have a current diagnose for the illness or injury that you are claiming will determine if you get a percentage for payment. is this correct.

So for example:
I filed a claim for sinus, receive non compensable because I have documentation that I had been seen a couple of times for sinus, but because it does not show that I have sinusistis at the time of the C&P exam, but it was detected on x-ray, I recieved the non compesable evaulation.
\But when I file the NOD, and got the appeal for service connected, and while wating on the appeal process. again, I was diagnosed with acute sinus infection and bronchetis and asthma(treated for and place incapacitated) I can not use this because it happen in MAR99 and April 99., but the appeal was processed on Dec. 23, 1999.
So, Carlie, that would make me have at least the one sinus infection per year and place on antibotic and incapacitated.

not, trying to be a dead horse, just trying to understand., where I fall., and what are my chances., because here at the local va office and congressman office (that help with disability) they think I have a cue. that all

I know you all look at these things all the time and know what they are looking for.:rolleyes:



#19 bakerkd

 
bakerkd

    E-5 Petty Officer 2nd Class

  • Second Class Petty Officers
  • PipPipPipPipPip
  • 91 posts
 

Posted 04 February 2011 - 07:00 AM

Not as simple as that. It is a chronic condition, you don't actually have to be symptomatic at the time of the C&P to get a rating over 0%. The rating criteria states how many times you were treated in the past year. On your intitial awarding of 0% you didnt meet the criteria for 10% for the year prior to the C&P. Because there is evidence in your SMR that you were diagnosed and it was confirmned by x-ray you were SC'd. When you got the increase years later to 10% you met the criteria for the year prior to THAT C&P exam.

#20 Reddit

 
Reddit

    E-5 Petty Officer 2nd Class

  • First Class Petty Officer
  • PipPipPipPipPip
  • 154 posts
 

Posted 04 February 2011 - 08:40 AM

Not as simple as that. It is a chronic condition, you don't actually have to be symptomatic at the time of the C&P to get a rating over 0%. The rating criteria states how many times you were treated in the past year. On your intitial awarding of 0% you didnt meet the criteria for 10% for the year prior to the C&P. Because there is evidence in your SMR that you were diagnosed and it was confirmned by x-ray you were SC'd. When you got the increase years later to 10% you met the criteria for the year prior to THAT C&P exam.

okay, now I got it.
So, if that the case I should have gotten the 10 percent for 2008. because I had documentation that I had been treated for sinus in May 2008.

and this is what came back.


The evaluation of maxillary sinuses is confirmed and continued as 0 percent disabling. Review of outpatient treatment reports revealed treatment for sinusitis, May 2008; treatment consisted of antibody therapy, flonase nasal spray and Allegra-D.

During Va examination, your history of recurrent sinusitis, confirmed by x-ray, was noted. You stated that the last episode for which you received treatment began in April 2008. Sinusitis episodes occur about 2 to 3 times yearly, with symptoms to include post nasal drip, nasal congestion, rhinorrhea, headaches, you reported no significant occupational effects from sinusitis. Physical evaluation reveals no signs of obstruction, nasal polyps, or hypertrophy of turbinate, and sinus e-ray showed no significant abnormalities: diagnosis was chronic maxillary sinusitis.

And this is what was in my records at the time.


November 01, 2001, chief complain- ill since last night with cough, , chills, n/v(nausea and vomiting) H?A (headache) chills; finding(pink and swollen nasal turbinate, throat red, medication—endal hd, tamiflu, bed rest until 11/05/01 diagnose flu, recheck on 11-05-01



November 05, 2001- patient feels better, return to work in a.m.(11/06/2001)

December 25, 2001—pt. seen at Phoebe East for cold symptoms,

January 07. 2002—chief complaint—cold symptoms, headaches, cough prod. Of white and yellow sputum. Medication—endal hd, diagnosis; Asthma Bronchitis and Influenza, return to work after 8 hr. appt. 1/23/02 Dr. Grady Thompson



January 21, 2004—complaints cough, body aches, productive cough white/yellow phlen diagnosis; flu, medication z-pack, endal hd and tamiflu, bed rest, return to work 1/28/04



January 28, 2004—palmrya Medical Center—chief complaint, flu symptoms, vomiting



May 04, 2005—chief complaint- cold temp. 101.2, diagnose URI(upper respiratory infection, bronchitis. Medication-Maxifed, attusans

and at the va clinic May 5, 2005 for acute sinusitis



May 02,2008—chief complaints—headache, nausea and vomiting; diagnoses-sinusitis, headaches, nausea and vomiting(N/V)

now do i have some thing here.:mellow:




#21 broncovet

 
broncovet

    E-9 Master Chief Petty Officer

  • Master Chief Petty Officer
  • PipPipPipPipPipPipPipPipPip
  • 3676 posts
 

Posted 04 February 2011 - 09:11 AM

Man, I hate to be the bearer of bad news, but a disagreement in the way something was rated is not Cue, and I agree with Carlie on that. Even tho you did have quite a few colds, whether these are colds that everyone gets or whether they are related to sinisutis are a debatable issue, and Cue has to be undebatable.

I would not however, throw in the towel just yet until the CAVC judge sings. Rather than do that I would try this:
Look up your VCAA letter and see if it mentions you are seeking disability COMPENSATION. If you VCAA letter says you are seeking service connection ONLY, that is different..you got your service connection. Key word compensation. If you apply for COMPENSATion and they and they award NON compensation, it is reasonable that you are still expecting a compensation award, since you did not get it. It is entirely plausable that some VA benefits involve compensation while others do not. This may make your claim Pending, and you can appeal the effective date for compensation, not for service connection. The VA has benefits that are non compensatory so if you ask for money and they say, well we have a pile of NON money here to give you. Now you can say, ok, good...but where is my decision for compensation?

Bottom LIne: NAIL them on what they say. They can not dispute ONE word they say, but they can dispute every thing you say. So, you can ask, well now that you ruled on non-compensatory benefits, where is the decision on compensation, since these are not the same thing. One is money the other is not.

I have no idea if this will work or not...but I am working on something similar. I applied for service connected compensation benefits, which were denied. I appealed to the BVA which awarded as such. The RO says I deserve 0 percent. I say..read my application over again, your VCAA letter says I am seeking compensation, not empty lolipop sticks. So when I appealed, I was appealing compensation not service connection. Remember...this is what YOUR letter (the VCAA letter) says...so you owe me money not service connection.

#22 bakerkd

 
bakerkd

    E-5 Petty Officer 2nd Class

  • Second Class Petty Officers
  • PipPipPipPipPip
  • 91 posts
 

Posted 04 February 2011 - 09:21 AM

In my opinion, as a layperson. Feel grateful for the 10% from 2010. I don't think the VA made a "clear and unmistakeable error" in service connecting you at a noncompensable rate prior to 2010. As I said earlier, alot of the treatment records show cold and flu symptoms which are not chronic sinusitis. Everyone gets colds they are not a disability related to or aggravated by military service. Back when my daughter was 2 she would have easily met 30% rating if cold symptoms counted. There are several mentions of acute sinusitis, there is a difference between acute and chronic sinusitis. Virtually everyone will eventually have at least one bout of acute sinusitis, it can usually be treated with a 10 day course on antibiotics. Chronic Sinusitis will usually last for weeks and requires "Prolonged" antibiotic treatment. people who have suffered from chronic sinusitis for years usually develop cysts/polyps and often there is something else going on that is causing the chronicity such as deviated septum. Again, just my 2 cents. take it for what its worth

#23 broncovet

 
broncovet

    E-9 Master Chief Petty Officer

  • Master Chief Petty Officer
  • PipPipPipPipPipPipPipPipPip
  • 3676 posts
 

Posted 04 February 2011 - 09:36 AM

Baker's point is a good thing. You do want to be generous and graceful. You could also go to your boss and say, you know, boss, this is a tough economy, and I know you are struggling too. Instead of paying me the usual 20 per hour, I think you should reduce that to 10 per hour as my wife and I figured out we could survive on less.

You can also do that with the VA. Not me. For examample, If I had a job, I would ask the boss to raise my 20 per hour because I am doing a great job saving the company money, and I have not gotten a raise since 2006. While both of the above may be true...that I could live on 10 per hour, but I would also like a raise, I am not going to mention to my boss that my wife thinks we could live on 10 per hour, because she may have forgotten about some expenses..and so might have I. Instead, I am going to tell my boss the reasons which support my position, and if he thinks I can survive on 10 per hour, that is not information he will get from me. If my boss confronted me and said, "I heard you can live on 10 per hour"...I would not lie, but I would not lay out my "poker hand" either. Instead, I would say something like, "Really? Where would you get an idea like that?"
If he said he heard my wife say it, then I would say, "Gee, I need to have a talk with her...she still beleives Cinderalla will be delivered by the fairy godmother on a coach that looks like a pumpkin Tho I do love her optimism, it is I who has to pay the bills, and I can tell you for sure that if you give me the raise, we are much more likely to be able to live comfortably next year than if you reduce it to 10 per hour. "

Instead, I say get every benefit legally due to you, then be generous with the money to the homeless and needy, and your church.

Years ago Gomer Pyle "gave back" something like $10 of his paycheck, because he thought he had an easy week and did not earn it. It was hilarious, and you have to love Gomer. The military was shocked and it went up to the pentagon, if I recall. No one had ever heard of someone refusing part of their pay. I think it turned into a fiasco, and Gomer probably cost the government way more than 10 dollars with all those generals scratching their head at the Pentagon trying to figure out what to do. I dont rememeber what happened.

Edited by broncovet, 04 February 2011 - 09:58 AM.


#24 bakerkd

 
bakerkd

    E-5 Petty Officer 2nd Class

  • Second Class Petty Officers
  • PipPipPipPipPip
  • 91 posts
 

Posted 04 February 2011 - 10:01 AM

Broncovet stated "... I say get every benefit legally due to you". I whole heartedly agree with that. The question here is are you legally entiltled to a higher rating for the previous decision you are calling a "CLEAR AND UNMISTAKABLE ERROR".

The raters subjectively applied their educated opinion on what your level of disability was based on the evidence at hand and the CFR. I'm not a rater but I looked at the evidence you provided and then the CFR and I came up with a 0% rating for the same period in question, I certainly didnt see any CLEAR/UNMISTAKABLE error in how they came up with that. You came up with records that they didn't have available but even those don't support a higher rating and they continued your 0%.

Keep fighting.. its your right, fight vigorously. Just remember never giving up the fight makes you resilient, but it doesn't make the VA wrong



#25 broncovet

 
broncovet

    E-9 Master Chief Petty Officer

  • Master Chief Petty Officer
  • PipPipPipPipPipPipPipPipPip
  • 3676 posts
 

Posted 04 February 2011 - 10:47 AM

Ok, Baker.
If you go to the store to get eggs, and then they give you Walnuts instead, cant you go back to the store and get the eggs you paid for?
Something went wrong at the store. You dont need to figure it out. Let the store figure out what went wrong. Hand them the receipt for eggs and show em the walnuts. I am not recommending lying, EVER. But if you did not get what you asked for (money) then their free calendars and bouncy balls with the Vets hotline number on it dont count, and the letter they gave you said nothing about compensation, they just talked about SERVice connection, then tell them that you appreciate the free calendars and medical checkups because you are service connected, but you still want a decision about the MONEY. Service connection and service connected compensation are not the same thing. If your VCAA letter says you asked for compensation while they give you free calendars, you can still ask for your money.
I am suggesting the possibility the VEt asked for compensation. MONEY. So the VA gives the Vet free calendars, and a nice letter instead. Great. But you forgot, I asked for MONEY, so I need a decision from you on money. I think they must have been out of calendars and "hotline boucy balls" but I am not all that concerned about them any way. I did not ask for walnuts, I asked for eggs. Tho these walnuts are fine, good quality, etc, I was unable to make an omlet with them. It was still a CUE error, because even those those walnuts are the best I ever ate, I was buying eggs for an omlet.

Edited by broncovet, 04 February 2011 - 10:50 AM.


#26 Chu Lai69

 
Chu Lai69

    E-5 Petty Officer 2nd Class

  • First Class Petty Officer
  • PipPipPipPipPip
  • 154 posts
 

Posted 04 February 2011 - 11:15 AM

Ok, Baker.
If you go to the store to get eggs, and then they give you Walnuts instead, cant you go back to the store and get the eggs you paid for?
Something went wrong at the store. You dont need to figure it out. Let the store figure out what went wrong. Hand them the receipt for eggs and show em the walnuts. I am not recommending lying, EVER. But if you did not get what you asked for (money) then their free calendars and bouncy balls with the Vets hotline number on it dont count, and the letter they gave you said nothing about compensation, they just talked about SERVice connection, then tell them that you appreciate the free calendars and medical checkups because you are service connected, but you still want a decision about the MONEY. Service connection and service connected compensation are not the same thing. If your VCAA letter says you asked for compensation while they give you free calendars, you can still ask for your money.
I am suggesting the possibility the VEt asked for compensation. MONEY. So the VA gives the Vet free calendars, and a nice letter instead. Great. But you forgot, I asked for MONEY, so I need a decision from you on money. I think they must have been out of calendars and "hotline boucy balls" but I am not all that concerned about them any way. I did not ask for walnuts, I asked for eggs. Tho these walnuts are fine, good quality, etc, I was unable to make an omlet with them. It was still a CUE error, because even those those walnuts are the best I ever ate, I was buying eggs for an omlet.

Huh??

#27 bakerkd

 
bakerkd

    E-5 Petty Officer 2nd Class

  • Second Class Petty Officers
  • PipPipPipPipPip
  • 91 posts
 

Posted 04 February 2011 - 11:27 AM

Huh??


I was just getting ready to reply with the same statement Huh?
Egss, Walnuts ,lollipop sticks, calenders.....uh whatever. 0% pays at $0 so he is due his backpay of $0 compounded to infinity which is $0. If he'd like I could just write him a big fat check for $0.01 which is more than he has coming to him in backpay. In this instance walnuts would be overpaying as well since walnuts are actually worth more than $0. File the CUE. It doesnt change anything in my opinion. Just because you ask the government for money doesn't mean they OWE it to you.

#28 bakerkd

 
bakerkd

    E-5 Petty Officer 2nd Class

  • Second Class Petty Officers
  • PipPipPipPipPip
  • 91 posts
 

Posted 04 February 2011 - 11:58 AM

My apologies Reddit I have been refering to you as him and I now realize that you are in fact a her.

#29 Reddit

 
Reddit

    E-5 Petty Officer 2nd Class

  • First Class Petty Officer
  • PipPipPipPipPip
  • 154 posts
 

Posted 04 February 2011 - 01:02 PM

not a problem, just trying to stay focus. did you check out the one on anemia. i will love to hear what you have to say.



all is good.:rolleyes:



#30 Reddit

 
Reddit

    E-5 Petty Officer 2nd Class

  • First Class Petty Officer
  • PipPipPipPipPip
  • 154 posts
 

Posted 07 February 2011 - 12:06 PM

My apologies Reddit I have been refering to you as him and I now realize that you are in fact a her.



Baker,kd,
How do they know what the examier ask you. and what did you say. I know now they type in what you are saying and have a copy ready the next day., but what about back in timt., like 1980 and 1990.

#31 bakerkd

 
bakerkd

    E-5 Petty Officer 2nd Class

  • Second Class Petty Officers
  • PipPipPipPipPip
  • 91 posts
 

Posted 07 February 2011 - 01:10 PM

Reddit,
I'm not sure if this answers your question or not but here goes. When I had my C&P exam it was a General Medical so they addressed a number of disabilities off of one long questionnaire, basically covered the whole body. Normally I would assume they would use the checklist for Sinus exam. You can find those check lists in the C&P forum on this site. I'm not sure how different they are now from what they were back then but that is what they are using at this point in time. You should be able to access your C&P exam notes through the VAMC's Release of Information Office.

#32 Reddit

 
Reddit

    E-5 Petty Officer 2nd Class

  • First Class Petty Officer
  • PipPipPipPipPip
  • 154 posts
 

Posted 08 February 2011 - 06:26 AM

Reddit,
I'm not sure if this answers your question or not but here goes. When I had my C&P exam it was a General Medical so they addressed a number of disabilities off of one long questionnaire, basically covered the whole body. Normally I would assume they would use the checklist for Sinus exam. You can find those check lists in the C&P forum on this site. I'm not sure how different they are now from what they were back then but that is what they are using at this point in time. You should be able to access your C&P exam notes through the VAMC's Release of Information Office.

i have every copy of my C&P exam except the first one, that was done in1998. they said they didn't keep a copy of those or put them in the computer at the time, they sent them to the Reginal office :rolleyes:

#33 broncovet

 
broncovet

    E-9 Master Chief Petty Officer

  • Master Chief Petty Officer
  • PipPipPipPipPipPipPipPipPip
  • 3676 posts
 

Posted 08 February 2011 - 07:40 AM

Ok. To explain:
You are looking for a CUE error. If you ask the VA for money, and they give you free calendars instead (zero percent compensation), I am alleging that is CUE. Remember, your VCAA letter needs to state that you are asking for compensation (money), for this to work.
It wont work if your VCAA letter says you are seeking "service connection" and they award "service connection".

#34 john999

 
john999

    HadIt.com Elder

  • HadIt.com Elder
  • PipPipPipPipPipPipPipPipPipPip
  • 22269 posts
 

Posted 08 February 2011 - 08:01 AM

If any of your CUE even hints at the reweighing of evidence your claim dies.

#35 Reddit

 
Reddit

    E-5 Petty Officer 2nd Class

  • First Class Petty Officer
  • PipPipPipPipPip
  • 154 posts
 

Posted 08 February 2011 - 09:00 AM

The appeal letter is the one that states that they will revisit or reconsider the claim once the medical records are located. so, do I file for them to do that or what?:rolleyes: