free_spirit_etc

Sounds like another good story for CNN... VA accidentally closes someone's file but then puts his claim on the bottom of the pile when they reopen it....

With the decision of July 2013, I don't think that would be a CUE. Granted, they skirted the issue. But now they are saying that even taking the issue into a consideration wouldn't result in a higher rating. Aren't you still within the appeal period? Appeal. Appeal. Appeal.

Sounds like it will be a pretty powerful show.

"I believe a good portion of SSDI claims are won in front of the judge. I went thru the process and understood it could take me till then to win my ssdi, and that is what it took. The appeal on second round was for show I believe, they think people will give up on that round.. I didn't. :/ Its sad the government VA and SSDI believe that denial is the way to go to thin out the claims process, even though you have medical documentation from the start from legitimate doctors. I hope you the best as well in your process." I agree. Most SSDI cases are granted on the upper levels of appeal. Some of that could be because of the "thinning out process." And some of it is because of the different standards at the different levels of appeal. The lower level employees can just go by POMS. To get approved at the lower level you disabilities pretty much have to fit into the neat little boxes they have to put them in. The judges, on the other hand, apply the law. So they can blur the lines of the neat little boxes to make them fit reality a bit more. This can especially helpful when no one disability, in and of itself, it totally disabled -- but a combination of several different disabilities are.

Welcome Fat! There is some info on requesting a copy of your C-file on the resource page: http://www.hadit.com/request_copy_of_va_claims_folder.html

I am sorry to hear about your bad day ping. I hope tomorrow is a bit better.

I seems like they are saying that since they had already granted the full benefits allowed for Tinnitus prior to receiving the statement from Dr. Allen, they did not reopen the claim to take his statement into consideration, because his statement was dated prior to the decision. It sure is worded like this is the first time they are telling you about the evidence not being considered. Was this is in the decision that was dated December 2013? You may be on to something that you submitted new and material evidence about the effective date of your Tinnitus claim within the appeal period for the claim.

"10/31/2011 Tinnitus Claim SC"d for 10% using some new streamline method. Never got the decision letter or findings. 12/06/2011 Filed for an Increase for Hearing Loss. I have not idea who filed, I'm thinking it was my VSO. 06/14/2012 Final decision for Hearing Loss. still at 0%. Never got the decision letter or findings. No Appeal Filed." Did your VSO get a decision letter on these? Can you find out if one was issued? I would not think the appeal period would start until the BVA notified someone of the decision.

Here is another BVA decision: http://www.va.gov/vetapp10/files1/1007499.txt However, in a subsequent case, the United States Court of Appeals for Veterans Claims (Court) clarified the extent of the applicability of Deshotel. See Ingram v. Nicholson, 21 Vet. App. 232 (2007). In this decision the Court made clear that that a claimant must be given adequate notice and opportunity to appeal a decision and that sub silentio denials of claims do not provide adequate notice of the denial of a claim. Id. at 248-49. The Court distinguished Ingram from Deshotel noting that in Deshotel although there was no specific adjudication of the claimed disability in question, that VA provided enough information in its decision for the claimant to know that he would not be awarded benefits for his asserted disability by finding an absence of the claimed psychiatric disability. Id. at 248. Thus, although a claim may not be "specifically addressed" in a rating decision, there must be enough information therein for the claimant to reasonably know that he would not be awarded benefits for the asserted disability. Id. Initially, the Board finds that the Veteran's formal claim coupled with the VA examination report disclosing tinnitus with a reported onset immediately following service constitutes a claim for service connection of tinnitus. A liberal reading of the Veteran's claim for a left ear "hearing condition," along with the evidence noting tinnitus in the left ear since his discharge from service, shows that the Veteran's claim also encompassed tinnitus. The Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). A thorough reading of the April 1994 rating decision fails to disclose any mention of tinnitus. The rating decision only addressed the grant of service connection for left ankle traumatic arthritis with a 10 percent evaluation and the denial of service connection for left ear hearing loss. Accordingly, the Board finds that a claim for service connection of tinnitus was either unadjudicated or adjudicated sub silentio in the April 1994 rating decision. See Deshotel, supra.; see also Ingram, supra. In any event, this claim it remained pending until it was adjudicated in January 2008. See Norris v. West, 12 Vet. App. 413, 422 (1999).

Here is a BVA case: http://www.va.gov/vetapp13/Files2/1316590.txt In an October 1958 rating decision, the RO denied the Veteran's service connection claim. A review of that decision reveals that although the RO characterized the Veteran's claim as service connection for an ear condition, it denied service connection for "hearing loss, left, not found on examination." Notably, the RO did not discuss the Veteran's diagnosis of tinnitus, other than to state that the Veteran had complained of ringing in his ear in service. The Veteran did not file a notice of disagreement (NOD) as to that decision and the October 1958 RO decision therefore became final. See VA Regulation 1330 (1958). Turning to the proper effective date for the Veteran's award of service connection for tinnitus, the Board notes that in filing for VA disability compensation in March 1958, the Veteran's specific application was not limited to left-ear hearing loss, which was the disability for which service connection was explicitly denied by the RO in October 1958. Rather, the Veteran's claim was couched in general terms as one for an ear condition. Notably, the evidence developed in connection with his claim contained a diagnosis of tinnitus, which the VA examiner seemingly related to the Veteran's reported history of acoustic trauma. Despite this evidence, the RO stated that the examination report revealed nothing remarkable physically and noted that the Veteran's hearing was within normal ranges at the conversational frequencies. In consideration of the non-specific nature of the Veteran's claim filed in March 1958, the evidence developed in support of that claim, and the fact that VA is obligated to sympathetically construe an application for benefits to encompass every reasonably raised benefit to which a claimant may be entitled, the Board finds that the Veteran's initial claim for an ear condition encompassed a claim of service connection for tinnitus. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that VA must construe a claim for service connection to include any disability that may reasonably be encompassed by the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or the Secretary obtains in support of the claim); Bradley v. Peake, 22 Vet. App. 280, 294 (2008) ("The Secretary is required to maximize benefits...."); Ephraim v. Brown, 5 Vet .App. 549, 553 (1993) (holding that VA is "required to consider the veteran's entitlement, on any basis consistent with the claim, to any benefit which could flow from a determination of service connection and to which entitlement is reasonably raised on the record."); see also 38 C.F.R. § 3.103(a) (2012) ("It is the obligation of VA . . . to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government."); VA Regulations Compensation & Pension Transmittal Sheet 494 at 1 (July 18, 1972) (explaining that VA codified 38 C.F.R. § 3.103(a) "primarily for the purpose of placing certain longstanding policies and procedures in a medium more available to the public" and noting that the codification of that section "provides little in the way of substantive change [from those policies and procedures] as, for the most part, [§ 3.103(a) ] has been gleaned from other VA directives"). The Board also finds that the Veteran's claim of service connection for tinnitus remained pending since it was initially filed in March 1958 until it was granted in July 2011, as the RO has never explicitly denied service connection for tinnitus and neither the October 1958 nor the November 2001 RO decision can be read as resulting in an implicit denial of that claim. See Adams v. Shinseki, 568 F.3d 956, 960 (Fed.Cir.2009) ("A claim for benefits, whether formal or informal, remains pending until it is finally adjudicated."); Id. at 961 ("The 'implicit denial' rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if [VA] did not expressly address that claim in its decision."); Cogburn v. Shinseki, 24 Vet. App. 205, 210-13 (2010) (outlining the factors for determining its applicability). Accordingly, having determined that the Veteran's initial claim of service connection for an ear condition, which was filed within a year of discharge from service, encompassed tinnitus and remained pending and unadjudicated from March 1958 until July 2011, the Board finds that the Veteran is entitled to an effective date for his award of service connection for tinnitus back to February 12, 1958, the day after his discharge from service. See 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2).

elcamino, I had some cases pulled up on Tinnitus somewhere. I will see if I can find anything. I pulled them up when I was investigating my husband's claims. In my husband's case - he filed for hearing loss upon discharge. He was given zero percent hearing loss. However, the C&P examiner also gave him a diagnosis of Tinnitus. I think that my husband might very well have a pending unadjudicated claim for Tinnitus since his discharge. I have not addressed that yet. I just kind of kicked that one down the road a bit by asking the Board to remand the other claims my husband may have had pending at the time of his death (aside from his cancer claim) as these had not yet been adjudicated by the RO. But the difference in my husband's case was that they had never addressed, or issued a decision, on the Tinnitus. In your case, they have. So a lot of the stuff I found might not apply to your case. But then again, it might.

I think you may well have had an inferred claim for Tinnitus. I think it would have been stronger if the C&P doctor had actually written Tinnitus as a diagnosis, instead of just writing that you reported you had Tinnitus. But until 2011, you might have a good argument that Tinnitus was a pending unajudicated claim from your date of discharge. There are several cases where it was decided that a claim for hearing loss was also a claim for Tinnitus -- and since the Tinnitus had not been addressed, that it remained pending and unadjudicated. But as Tinnitus was SCed in 2011, it has now been adjudicated. So I am not clear how you could create an argument for an earlier effective date on the issue now (on the basis that it was unadjudicated between discharge and 2011). The only way I see going for an earlier effective date would be to argue a CUE. And I am not quite sure what that CUE would be. Failure of duty to assist can not be a basis for a CUE claim. You would have to argue that the VA made a decision on your original hearing loss claim that was clearly erroneous. Of course, that is just my opinion at the moment. And I could very well be wrong.

Good luck on your exam!

" it's unbelievable to me how easy it is to get ssdi for depression, which is what I should have done, but a physical back problem is almost impossible." I am not sure it is that easy to get SSDI for depression. However, they should take into consideration all of your disabilities combined.

I agree with TiredCoastie. You will have to wait and see, and be prepared to appeal if necessary. The fact that you have medical evidence in support of your claim and a Neuro exam in support of your claim will help a lot. I am sorry you have to deal with a totally inaccurate C&P.

" I had a neuro c and p a week later and he actually wrote that my migraines are completely and frequently prostrating and severe, He even linked to my stressor with an as least as likely as not statement. " This sounds very positive for your claim.

"I was discharged Nov of 1995, Feb of 1996 I was given a Audio C&P Examination in whch I was found SC for Hearing loss. In that Audio C&P Examination, the examinor made the following statement: He reported progressive bilateral hearing loss and occasional bilateral tinnitus, onset 1993 or 1994." Did the C&P examiner give you a diagnosis of Tinnitus? Or did he just report that you reported Tinnitus?

When were you granted SC for Tinnitus? Being granted Tinnitus means the Tinnitus claim is no longer unadjudicated. So I am not seeing a way to go back on an unadjudicated informal claim. Are you still within the appeal period on the Tinnitus claim?

http://search.uscourts.cavc.gov/isysquery/f2c18aaa-2631-4f62-9680-1ad6f1c2e9d9/1/doc/ElmoreRL_09-1011.pdf#xml=http://cavc-isys1.cavc.adir/isysquery/f2c18aaa-2631-4f62-9680-1ad6f1c2e9d9/1/hilite/ UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-1011 RONNIE L. ELMORE, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before MOORMAN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. II. ANALYSIS A. Hearing Loss The appellant argues that the Board erred in failing to recognize a claim for tinnitus that was reasonably raised in the record. Appellant's (App.) Brief (Br.) at 7-9. The Court observes that the appellant's current counsel apparently filed his August 2007 NOD (R. at 142-55) and November 2007 Substantive Appeal (R. at 83-94) but failed to evidence any intent to apply for compensation for tinnitus. In his reply brief, counsel for the appellant conceded that "the better practice would have been to plead entitlement to service connection for bilateral constant tinnitus." App. Reply Br. at 4. Notwithstanding the appellant's representation during the development of his claims before VA and at the Court, the appellant is entitled to a liberal reading of his filings. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (holding that "n direct appeals, all filings must be read 'in a liberal manner' whether or not the veteran is represented" quoting 38 C.F.R. § 20.202). However, the mere existence of medical records cannot be construed as an informal claim for benefits absent an intent by the appellant to apply for such a benefit. See MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006); Brannon v. West, 12 Vet.App. 32, 35 (1998) ("While the Board must interpret the appellant's submissions broadly, the Board is not required to conjure up issues that were not raised by the appellant."). Here, the appellant contends that his claim for service connection for hearing loss should have been construed as an informal claim for tinnitus given his description of noise exposure in combat and his diagnosis of bilateral tinnitus in a May 2007 VA auditory examination. App. Br. at 7-9. However, an informal claim requires a "communication or action, indicating an intent to apply for one or more benefits" and which adequately "identif[ies] the benefit sought." 38 C.F.R. § 3.155(a) (2010). The May 2007 VA examination contains a diagnosis of bilateral tinnitus and the appellant's contention that he "has noticed a high-frequency 'static' in quiet listening situations." R. at 185. Moreover, the appellant twice expressly denied that he suffered from tinnitus. R. at 199, 236-37. Accordingly, the Court holds that the Board did not err in failing to recognize and address the appellant's claim for hearing loss and subsequent diagnosis of tinnitus as an informal claim for tinnitus. See MacPhee and Brannon, both supra. Additionally, the appellant's argument that the May 2007 VA examination was inadequate because it failed to provide a nexus opinion for tinnitus is meritless as there was no claim, formal or informal, for tinnitus. To the extent that the appellant argues that the Board erred in denying the appellant's claim for service connection for bilateral hearing loss because the May 2007 VA auditory examination was inadequate, the Court is not persuaded. See Hilkert v. West, 12 Vet.App 145, 151 (1999) ("An appellant bears the burden of persuasion on appeals to this Court."). The Court does not find error in the Board's reliance on the May 2007 examiner's opinion that the appellant had "normal hearing status." R. at 186. Further, the Board provided an adequate statement of reasons or bases for the Court to review the Board's determinations. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992). Therefore, the Court will affirm the Board's denial of the appellant's claim for hearing loss. B. Tinnitus The record before the Court raises the question of whether the appellant has a pending unadjudicated claim for tinnitus raised below. Although the appellant twice denied tinnitus, he clearly expressed in his original claim for compensation for a hearing condition that he was exposed to weapons fire during combat and has a hearing condition as a result of that exposure: "I was around 105 Howitzer when it was fired, M60, and rifles. . . . I have a hearing loss and request a VA examination. I have just lived with this condition." R. at 310. Thus, VA was aware that the appellant was experiencing some hearing condition that the appellant related to service when itB. Tinnitus The record before the Court raises the question of whether the appellant has a pending unadjudicated claim for tinnitus raised below. Although the appellant twice denied tinnitus, he clearly expressed in his original claim for compensation for a hearing condition that he was exposed to weapons fire during combat and has a hearing condition as a result of that exposure: "I was around 105 Howitzer when it was fired, M60, and rifles. . . . I have a hearing loss and request a VA examination. I have just lived with this condition." R. at 310. Thus, VA was aware that the appellant was experiencing some hearing condition that the appellant related to service when itB. Tinnitus The record before the Court raises the question of whether the appellant has a pending unadjudicated claim for tinnitus raised below. Although the appellant twice denied tinnitus, he clearly expressed in his original claim for compensation for a hearing condition that he was exposed to weapons fire during combat and has a hearing condition as a result of that exposure: "I was around 105 Howitzer when it was fired, M60, and rifles. . . . I have a hearing loss and request a VA examination. I have just lived with this condition." R. at 310. Thus, VA was aware that the appellant was experiencing some hearing condition that the appellant related to service when itB. Tinnitus The record before the Court raises the question of whether the appellant has a pending unadjudicated claim for tinnitus raised below. Although the appellant twice denied tinnitus, he clearly expressed in his original claim for compensation for a hearing condition that he was exposed to weapons fire during combat and has a hearing condition as a result of that exposure: "I was around 105 Howitzer when it was fired, M60, and rifles. . . . I have a hearing loss and request a VA examination. I have just lived with this condition." R. at 310. Thus, VA was aware that the appellant was experiencing some hearing condition that the appellant related to service when it ordered the auditory examination. The May 2007 VA auditory examiner ruled out bilateral hearing loss as a diagnosis, but it is clear from reading the examination report that the appellant received a diagnosis of bilateral tinnitus. R. at 185. The appellant and his counsel had ample opportunity to express an intention to seek entitlement to service connection for tinnitus with even the threshold requirements of an informal claim pursuant to 38 C.F.R. § 3.155(a), but failed to do so as discussed above. However, notwithstanding the appellant's representation during the development of his claims before VA and at the Court, the appellant is entitled to a liberal reading of his filings. See Robinson, supra. Following the May 2007 VA auditory examiner's opinion, it appears that the facts before the Board were that (1) the appellant had a hearing condition he attributed to noise exposure inservice and was "just liv[ing] with this condition," (2) the hearing condition was not bilateral hearing loss, and (3) the appellant had a diagnosis of tinnitus and complained of "static" in his ears. R. at 310, 185. This suggests the strong possibility that the appellant currently has an unadjudicated claim for tinnitus at VA that the Board could have construed as being included in the appellant's claim for hearing loss. Cf. Clemons v. Shinseki, 23 Vet.App. 1, 6 (2009) ("To deny the appellant's claim for lack of a current [] condition would have been entirely contrary to the medical evidence—it clearly shows there is a diagnosed current [] condition."). Although a claim may identify only one diagnosis, it must be considered a claim for any disability that may reasonably be encompassed by factors including (1) the claimant's description of the claim, (2) the symptoms the claimant describes, and (3) the information the claimant submits or that the Secretary obtains in support of the claim. Id. at 5 (2009). Therefore, in recognition of the strong possibility that the appellant currently has an unadjudicated claim for tinnitus at VA, the Court notes that he may seek adjudication of that claim below. See DiCarlo v. Nicholson, 20 Vet.App. 52, 56-57 (2006). Should the appellant receive a final Board decision regarding a presently unadjudicated claim for tinnitus with which he is not satisfied, he will be free at that time to appeal the Board's decision to this Court.

If your medical evidence shows your condition has worsened, you have two solid feet to stand on in filing an appeal.

Congrats!!!!!!!!

That is a nice statement to have in his medical records. My personal opinion is that though this is supportive of your husband's claim, it might not be strong enough standing alone. It certainly helps, but the "there is some evidence in the literature of an association between hydrocarbon exposure and development of membranous glomerulonephritis." is not particularly strong. It is good, but could easily be defeated by a doctor intent on working against the claim. The fact it is in the medical record is a really good thing. And doctors are not generally going to write detailed opinions in the doctors' notes. But depending on where your husband is in the claims process, I would still keep following up on the possibility of getting a strong IMO, or having the VA doctor write a more detailed statement for you.

In addition to this, you can send a message through IRIS that reports what you sent -- On ___, I sent the following by certified mail receipt XXXXXXXXX 1. My Notice of Disagreement to _____ dated ____. 2. A copy of _____ (2 pages) 3. A copy of ____ (1 page) That way, if they deny getting something, you have another record of what was sent (and more importantly, a record that you told them at the time)

Since you have supporting evidence from your own doctors, then getting an IMO from someone who is more skilled at writing a nexus statement would most likely strengthen your claim. It would still be good if you can get your treating physicians to explicitly state that your PAD is related to your SC DM II. But having an IMO that supports those statements, and gives a more detailed analysis than some treating physicians are willing to write, may help your claim. I am not sure that there is any such thing as a "no brainer" with the VA.

If the VA is denying you then having medical evidence in your favor is much better than not having medical evidence in your favor. If possible, I think it would be better to get an opinion from a doctor who has examined you.