I have a BVA decision. Partial grant, TDIU back to July 2009. Partial remand to consider back to first application date October 1987. Partial denial of tinnitus back to July 1974 from October 1987. I never claimed specifically tinnitus. My claim was for loss of hearing (hearing problems which were written down by the clerk as hearing loss) in July of 1974. Tinnitus was granted in October 1987 on a review of the record by an RO. I believe it should have been granted back to the first claim for hearing as hearing is a system. Part of the difficulty hearing is tinnitus and part a high frequency hearing loss.
Also denied was compensation for the wrist because I didn't say specifically the thumb. My contention is that the wrist and the hand are a system. The surgery fused the proximal phalange of the thumb to the carpal bones (used to be greater and lesser multangular but names have changed.) It is a combination loss of use. The thumb and wrist. Dorsa flexion of the wrist is not compensable under the schedule but the loss of use of the thumb which wouldn't be a loss if I had full wrist dorsa flexion. Both claimed in 1974 as "residuals of wrist surgery" to repair an injury. A net 10% increase in back pay.
Do you think an attorney could get a favorable decision? My current Rhode Island VA accredited attorney doesn't want to spend the time doing it because of the difficulty. Because I didn't specifically claim the items which I claim are inclusive in the claim and should be granted under CUE.
The adjudicator in Hawaii who did my 1974 claim did a thorough investigation of my accident injuries for "in the line of duty, not due to misconduct." And granted 0% for hearing, 0% for wrist injury residuals, and 0% for residuals of facial injury and surgery. No examinations were done. It turns out that in 1985 I was diagnosed with traumatic brain disease, 8045-9304, and rated at 30%. My employment record shows that I had continuing problems following discharge. My contention is that this is a CUE by the adjudicator for not following relative 38 CFR articles 4.1; 4.2;4.3; 4.6; especially 4.10; & 4.13; . But because I had no examination I have only the 1969 inpatient records and a couple of 1969 and 1970 Enlisted performance records to prove CUE. Can it be done?
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Lemuel
Also denied was compensation for the wrist because I didn't say specifically the thumb. My contention is that the wrist and the hand are a system. The surgery fused the proximal phalange of the thumb to the carpal bones (used to be greater and lesser multangular but names have changed.) It is a combination loss of use. The thumb and wrist. Dorsa flexion of the wrist is not compensable under the schedule but the loss of use of the thumb which wouldn't be a loss if I had full wrist dorsa flexion. Both claimed in 1974 as "residuals of wrist surgery" to repair an injury. A net 10% increase in back pay.
Do you think an attorney could get a favorable decision? My current Rhode Island VA accredited attorney doesn't want to spend the time doing it because of the difficulty. Because I didn't specifically claim the items which I claim are inclusive in the claim and should be granted under CUE.
The adjudicator in Hawaii who did my 1974 claim did a thorough investigation of my accident injuries for "in the line of duty, not due to misconduct." And granted 0% for hearing, 0% for wrist injury residuals, and 0% for residuals of facial injury and surgery. No examinations were done. It turns out that in 1985 I was diagnosed with traumatic brain disease, 8045-9304, and rated at 30%. My employment record shows that I had continuing problems following discharge. My contention is that this is a CUE by the adjudicator for not following relative 38 CFR articles 4.1; 4.2;4.3; 4.6; especially 4.10; & 4.13; . But because I had no examination I have only the 1969 inpatient records and a couple of 1969 and 1970 Enlisted performance records to prove CUE. Can it be done?
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