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Va Turned Down Claim

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68mustang

Question

Recently I put in a claim for hearing loss and vertigo. The VA denied the hearing loss, but has let the vertigo claim go forward. The reason the VA stated for denying the hearing loss claim was that last year I had put in a claim for hearing loss, which was denied and that I did not appeal the decision within the one year time limit. I did file a claim for tinnitus, and did not file a hearing loss claim. The tinnitus claim was approved and I received a 10% rating. The award letter states that my tinnitus claim was approved and nowhere in the letter does it state that a hearing loss claim was denied. The VA also states that in order for the hearing loss claim to continue, that I need to provide new evidence which has not been previously used.

The doctor's report that I sent in last year for the tinnitus claim stated the I had tinnitus and hearing loss due to acoustic trauma while in the military.

The doctor's report was used on the tinnitus claim, should that report be allowed to support my hearing loss claim since I had not previously file for hearing loss claim in last years original tinnitus claim?

Any input that you all might have would be appreciated. Thanks.

68mustang

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Could it be that since your Dr said you suffered from hearing loss that is SCd that then the RO "assumed" (wrongly) that you were also filing a claim for that hearing loss....but didn't find either enough evidence or the right paperwork and denied it??

idk...just guessing here

Purple and Larry J thanks for your input. I don't know how an RO could give a denial when there is no claim for hearing loss. I agree that the RO could have made a mistake and wrongly assumed that a claim for hearing loss was made using the doctor's report. I'll also ask to see my c-file and call the 1-800 number for a copy of the alleged claim. Thanks.

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  • HadIt.com Elder

I agree with timetowinarace about a inferred claim. The RO most likely noticed that the audiologist mentioned hearing loss due to noise exposure in the service and opened a claim on your behalf. I so not know about the rule that time mentioned, though. According to M21-1MR, every issue that was in the claim has to be addressed in the decision letter. If they inferred a claim for hearing loss, then that should have been in the decision letter. Go back and re-read that decision letter and be certain it is not in there. If it is not, then I agree with the others about checking your C-file for any information on this. Do it quickly, in case you have to file a NOD. If you do find something in the C-file, but not on the decision letter, you may have a CUE, but you'll have to find the applicable reg and the reason for the denial first.

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During my claims process, I got tired of the years of VA bull and contacted my senator with a hand delivered letter. In that letter I listed all my issues/symptoms so the senator could understand the gravity of my medical situation. In turn, the senator's office forwarded that letter to the RO with his inquiry. The RO contacted me shortly after because they had to consider all of those symptoms as infered claims. My claim could not go forward with 13+ claims added to my file. These were not even medical reports. Just a list of symtoms. I had to write a statement that the list of symtoms was part of the initial claim and that I was dropping them as individual claims.

You do not have to file an official claim form for there to be a claim. That is why you need to view your c-file quickly.

I'll try to reference the decision about not notifying veterans for the deemed denied claims when one claim is rated.

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rental, here it is.

http://www.vawatchdog.org/old%20newsflashe...8-01-2006-1.htm

Larry,

A new case decided on July 27 by the U.S. Court of Appeals for the Federal Circuit (Fed. Cir.) contains a bombshell for veterans and their dependents.

The Fed. Cir. held that "[w]here the veteran files more than one claim with the RO at the same time, and the RO’s decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run." (citing Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005)).

This means, in contravention of 38 U.S.C. Sec. 5104 and 38 U.S.C. Sec. 3.103, that VA does not have to provide the claimant with notice of the claim or claims that have been "deemed denied" or the reasons for the denials, and the period in which to submit a notice of disagreement with the claims "deemed denied" begins to run from the date of the decision on any of the other simultaneously submitted claims.

Thus, an unrepresented or poorly represented claimant could have the time to appeal the "deemed denied" claims run out without even knowing that the claims had been denied!

Here is a link to the case: http://www.fedcir.gov/opinions/05-7155.pdf

Here are 38 U.S.C. Sec. 5104 and 38 U.S.C. Sec. 3.103:

§ 5104. Decisions and notices of decisions

(a) In the case of a decision by the Secretary under section 511 of this title [38 USCS § 511] affecting the provision of benefits to a claimant, the Secretary shall, on a timely basis, provide to the claimant (and to the claimant's representative) notice of such decision. The notice shall include an explanation of the procedure for obtaining review of the decision.

(:lol: In any case where the Secretary denies a benefit sought, the notice required by subsection (a) shall also include (1) a statement of the reasons for the decision, and (2) a summary of the evidence considered by the Secretary.

§ 3.103 Procedural due process and appellate rights.

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

(B) The right to notice -- (1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.

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  • HadIt.com Elder

Mustang68

Did you received a VCAA letter for the claim for hearing loss or tinnitus? If you don't get a VCAA letter on a claim then the VA has violated their own regs. If it was an inferred claim you should have still got a VCAA letter.

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