Hearing Loss & Tinnitus Granted For Navy Vet I'm Assisting; Question On Effective Date

[MRRRR5]

Hello Hadit Family.

VARO granted the following effective 26 December 2012 on a request to reopen a previously denied claim:

1. 10% for Tinnitus Associated with bi-lateral hearing loss; and

2. 0% for Bi-lateral hearing loss.

The approval reason in part reads, "Service connection is warranted because your service treatment records (STR) show your hearing loss began in-service. In addition, your military occupational specialty (MOS) of non-nuclear welder is consistent with acoustic trauma and your hearing loss has been linked to that acoustic trauma".

In the original claim sent to the VARO they received on 9 May 2011, the denial reason states: "Efforts to obtain STR from all potential sources were unsuccessful. 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 this pending claim."

He did not have access to his STR at the time his VSO representative, the American Legion, assisted him with this initial claim. The underline part above is where my question comes in: should his effective date go back to 9 May 2011?

I don't wont to advise him incorrectly that 9 May 2011 should be his effective date and the VA owes him more than just a year's retro, which they have already sent him before I know for sure.

Just trying to see if I should have him to ask for the EED based on the VA's own response in the original denial; thanks.

[carlie]

Hello Hadit Family.

VARO granted the following effective 26 December 2012 on a request to reopen a previously denied claim:

1. 10% for Tinnitus Associated with bi-lateral hearing loss; and

2. 0% for Bi-lateral hearing loss.

The approval reason in part reads, "Service connection is warranted because your service treatment records (STR) show your hearing loss began in-service. In addition, your military occupational specialty (MOS) of non-nuclear welder is consistent with acoustic trauma and your hearing loss has been linked to that acoustic trauma".

In the original claim sent to the VARO they received on 9 May 2011, the denial reason states: "Efforts to obtain STR from all potential sources were unsuccessful. 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 this pending claim."

He did not have access to his STR at the time his VSO representative, the American Legion, assisted him with this initial claim. The underline part above is where my question comes in: should his effective date go back to 9 May 2011?

I don't wont to advise him incorrectly that 9 May 2011 should be his effective date and the VA owes him more than just a year's retro, which they have already sent him before I know for sure.

Just trying to see if I should have him to ask for the EED based on the VA's own response in the original denial; thanks.

You would have to study the evidence sections to see

if STR's that became available after the original denial

were the reason the reopened claim was granted.

38 CFR 3.156c.

Congrats on helping another vet have a win !

[MRRRR5]

Thanks for responding Carlie.

The STR is listed in the "Evidence" section, although they have the dates wrong (only covers 10 months, Sep 1991 to July 1992; should be 1981).

Also, the grant reason states verbatim for Tinnitus and hearing loss:

"The effective date of this grant is December 26 2012. Service connection has been established from the day VA received your claim. When a claim of service connection is received more than one year after discharge from active duty, the effective date is the date VA received the claim".

This is why I'm thinking the effective date should be the original filed dated of 9 May 2011.

[TiredCoastie]

This is a great question. It would seem from the dates of the original claim and the two notifications you're quoting that less than a year passed between the time the original claim was denied and a new claim was opened with the missing STRs. My understanding, which may not be accurate, is that if a veteran submits new and material evidence -- like the missing STRs -- within that year timeframe, the original denial has not yet been finalized and the evidence applies to the original claim date. So if my brainbox is screwed down tight today and the dates are what they seem at least to me, you may well have an argument. I recommend submitting a NOD on the effective date of the claim. It's not a huge amount of money in terms of backpay but it's probably significant - and based on wherever he falls in the income determination, that's useful money to pay the VAMC co-pays with primary care to get to see the free audiologist. Hopefully your friend will be able to enjoy the benefits of some VA issued hearing aids.

Can you post the dates of the first denial and when the second claim was submitted?

[MRRRR5]

TiredCoastie,

The first denial decision received is dated 1 November 2011.

The second claim was submitted and received by the VA on 26 December 2012.

[TiredCoastie]

Even though more than a year went past, check out 38 CFR 3.156( c ) regarding new and material evidence found in service department records that were not findable or provided earlier:

( c ) Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph ( c ) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ( c )(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ( c )(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

This is probably the supporting regulation behind the statement in the original denial letter you quoted above. Instead, it appears that the VA decided that the STRs either should have been provided within a year or that the new and material evidence you and the vet submitted from the STRs weren't "service department records." Take a look through the CFR and ensure this is right before you go forward, but it seems to me, off the cuff, that you've got a pretty good argument for an earlier claim date. It would have been easier if the second claim was filed on or before 01 November 2012, but sometimes there's nothing you can do to make it happen earlier.

My guess is the best and only avenue to do this is via the appeals process, starting with a Notice of Disagreement.

Edited January 1, 2014 by TiredCoastie