stillhere

buck, if you are having problems remembering your posts. Just do like me go to your profile and your posts are right the Rest!
 
Stillhere

An expert in SMC is needed! Anyway, as I understand things, there is a potential, with 100% + 70% + 70% to be entitled to a higher rate of SMC than "S".
Since the VA has done such a poor job of even granting or considering SMC when the law and regs require them to do so, it's very likely that they did so again!
There seems to be a whole lot of "wiggle room" in what I've seen in the gory details. and I'd believe that the VA takes advantage of that to a veterans disadvantage.
When ever there are discretionary clauses, it's to be expected that the path of least effort will be taken.

go get them Berta! yea!

I made two claims for reimbursement in November 2014 and in February 2015 using the Claim for Unauthorized Expense form. I did this before when the VA owed me money for dental care they should have provided. It was the same situation this time. I have called numerous times to Fee Base, Congressman, and to the patient advocate to no avail. Finally, today the Fee Base office in Tampa responded to tell me they had no record of my claims. This really burned my azz since they had already acknowledged that they were processing the claims back in March of 2015. Now they can't find them. Thankfully, I have copies of the claims and the evidence I used. It has taken the Fee Base Office 9 months to tell me they lost my claims. Last time I made a claim like this the Fee Base Office just threw them away and admitted it to me when I complained about them taking 6 months to process my claim for reimbursement. I got paid on that one. I will probably have to gather more evidence on the recent reimbursement claims because they will probably lose the evidence, or not connect it to the right claim. They did not have my correct address at the fee base office even though I have been at the same address for 28 years.

How come my credit card company never loses statements? When and if I owe the VA they never lose these records. IRS never loses records of debts. Nobody I owe money to ever loses the records of my debts. The VA loses everything. If you carry it, and put it right into their hands they lose it. This means I must always keep copies of everything I send them and expect them to lose it. I made a complaint to the IG. The only way to get things done right is to devote yourself to seeing a claim is done, and be willing to submit, and resubmit evidence and claim forms over and over again.

I have to pay estimated tax to the IRS every quarter. They never lose my checks. They cash them within days of my sending them. Does he VA log in official claims at the Fee Base Office? Do they log in claims at the VARO? Is this incompetence or just a sinister way of cheating vets by delaying payment. The VA acts like a low life insurance company that wants to delay paying claims as long as possible until you hire a lawyer. I think the VA has lost every claim I ever sent them at least once. Vets and spouses who don't have that much experience with the VA system probably give up on trying to get their claims ever done right. When they screw up every single claim you send to them you have to wonder about a system that is supposed to be helping disabled veterans many of whom are elderly and without resources to fight for years. Enough is enough! What does it take to get the US government to treat us vets like human beings?


John

you got the wrong ideal and calculation on attorneys if that the kind you

got representing you good luck. Attorney accept claims to win benefits

and that anything after an appeal they accept because they think u can win

your claim and if its in appeal you should have some retro because it takes years

for appeals. Some lawyer will and some lawyers wont. Find one you are please with.

Good luck because in the end evidence wins claims not the attorney we hire.

It takes practice to learn how to objectively read a denial, especially when you also are dealing with the emotions involved in being denied. Thinking back, most of the holes I've found in denials, once I settle down enough to dissect the denial into is various parts, are based on the following:

1. Evidence I submitted was not listed on "Evidence" list and not discussed under Reasons and Bases.
2. Evidence I submitted would be listed under "Evidence," but not addressed under the Reasons and Bases section in any way, shape or form.
3. Evidence I submitted would be listed under "Evidence" and "discussed" in Reasons and Bases, but only superficially mentioning its existence, without providing an explanation WHY it was being dismissed.
4. Lack of evidence being treated as negative evidence.
5. C & P exams that are flawed due to the procedures followed or not followed to properly evaluate a condition, or the examiner was not qualified to conduct such an exam.
6. In the case of Board remands, the C & P examiner did not answer the Board's questions, and the Board denies the appeal instead of addressing the fact that the RO didn't follow directions.

Asknod has written about these issues in depth.

85% of all claims are denied the first time out. Welcome to the club. "Presume" nothing-ever. Once upon a time in 1970, I "presumed" I was bulletproof. A gook proved that was all wrong.

Well, the VA still owes all of us for the suffering we faced dealing with the claims and health system.

Veterans,

After reading some posts here and other sites and even on some BVA decisions. we veterans need to remind each other that in cases where there is Retro (any amount!) that is money and benefits we should have had all along and not a gift!

In my case like many of the Vietnam generations we wanted nothing from the VA! And basically that is what they gave us, Nothing! Now because of so many of our brothers and sisters dying they were politically forced to recognize that a bunch of us deserve and NEED help. The politically push is what did it after so many dying!

I can remember when I got back from Nam for me it was adios amigo to the Army. Even though when I mustered out I had acquired a significant hearing loss while serving, so much so that they weren't going to let me out without a waiver and keep me for two weeks. I then had no idea what that meant and signed the waiver and got out.

Fast forward 13 years and I am married with a kid just born with a bad heart problem and need constant care and I couldn't hear him when he cried!

So I went to the VA hospital thinking well they will give me some help to fix this problem which had gotten very bad in just 13 years. I asked for help and some how another I ended up in the C&P office to get a hearing test and then they said they would get back to me. I had no idea what that meant? I just wanted some hearing aide help!

Well being as I just started my family money was tight especially with my son's problems and now I needed to buy hearing aides and have a testing done just so I could watch him.

After about oh maybe a month I get this one page letter from the VA saying like 3 words total, No Service Connection found!

Now that really floored me and brought tears to my eyes among other things that I said screw you comes to mind! So I packed up my lost faith and started working two jobs and we finally made it but it was not easy. Even if I just had the money for my aide and the doctors tests that would have helped! I grew very bitter about the VA, Army and Government altogether!

Then comes Agent Orange and all the politics and Computer sites Like Hadit and suddenly the VA was forced to give us our benefits we should have had all along!

Now I have a case for my hearing loss that if approved by the BVA will give me a sizable retro BUT IF they do I will not be half as excited or thankful for their help because they did not help me when I needed it BAD!

I hope everyone on this site and guests reading this post know that I am thank full and would fight again for my Country but bitter tastes are hard to swallow!


Stillhere

Moderators I needed to vent/rant!

Veterans,

After reading some posts here and other sites and even on some BVA decisions. we veterans need to remind each other that in cases where there is Retro (any amount!) that is money and benefits we should have had all along and not a gift!

In my case like many of the Vietnam generations we wanted nothing from the VA! And basically that is what they gave us, Nothing! Now because of so many of our brothers and sisters dying they were politically forced to recognize that a bunch of us deserve and NEED help. The politically push is what did it after so many dying!

I can remember when I got back from Nam for me it was adios amigo to the Army. Even though when I mustered out I had acquired a significant hearing loss while serving, so much so that they weren't going to let me out without a waiver and keep me for two weeks. I then had no idea what that meant and signed the waiver and got out.

Fast forward 13 years and I am married with a kid just born with a bad heart problem and need constant care and I couldn't hear him when he cried!

So I went to the VA hospital thinking well they will give me some help to fix this problem which had gotten very bad in just 13 years. I asked for help and some how another I ended up in the C&P office to get a hearing test and then they said they would get back to me. I had no idea what that meant? I just wanted some hearing aide help!

Well being as I just started my family money was tight especially with my son's problems and now I needed to buy hearing aides and have a testing done just so I could watch him.

After about oh maybe a month I get this one page letter from the VA saying like 3 words total, No Service Connection found!

Now that really floored me and brought tears to my eyes among other things that I said screw you comes to mind! So I packed up my lost faith and started working two jobs and we finally made it but it was not easy. Even if I just had the money for my aide and the doctors tests that would have helped! I grew very bitter about the VA, Army and Government altogether!

Then comes Agent Orange and all the politics and Computer sites Like Hadit and suddenly the VA was forced to give us our benefits we should have had all along!

Now I have a case for my hearing loss that if approved by the BVA will give me a sizable retro BUT IF they do I will not be half as excited or thankful for their help because they did not help me when I needed it BAD!

I hope everyone on this site and guests reading this post know that I am thank full and would fight again for my Country but bitter tastes are hard to swallow!


Stillhere

Moderators I needed to vent/rant!

Veterans,

After reading some posts here and other sites and even on some BVA decisions. we veterans need to remind each other that in cases where there is Retro (any amount!) that is money and benefits we should have had all along and not a gift!

In my case like many of the Vietnam generations we wanted nothing from the VA! And basically that is what they gave us, Nothing! Now because of so many of our brothers and sisters dying they were politically forced to recognize that a bunch of us deserve and NEED help. The politically push is what did it after so many dying!

I can remember when I got back from Nam for me it was adios amigo to the Army. Even though when I mustered out I had acquired a significant hearing loss while serving, so much so that they weren't going to let me out without a waiver and keep me for two weeks. I then had no idea what that meant and signed the waiver and got out.

Fast forward 13 years and I am married with a kid just born with a bad heart problem and need constant care and I couldn't hear him when he cried!

So I went to the VA hospital thinking well they will give me some help to fix this problem which had gotten very bad in just 13 years. I asked for help and some how another I ended up in the C&P office to get a hearing test and then they said they would get back to me. I had no idea what that meant? I just wanted some hearing aide help!

Well being as I just started my family money was tight especially with my son's problems and now I needed to buy hearing aides and have a testing done just so I could watch him.

After about oh maybe a month I get this one page letter from the VA saying like 3 words total, No Service Connection found!

Now that really floored me and brought tears to my eyes among other things that I said screw you comes to mind! So I packed up my lost faith and started working two jobs and we finally made it but it was not easy. Even if I just had the money for my aide and the doctors tests that would have helped! I grew very bitter about the VA, Army and Government altogether!

Then comes Agent Orange and all the politics and Computer sites Like Hadit and suddenly the VA was forced to give us our benefits we should have had all along!

Now I have a case for my hearing loss that if approved by the BVA will give me a sizable retro BUT IF they do I will not be half as excited or thankful for their help because they did not help me when I needed it BAD!

I hope everyone on this site and guests reading this post know that I am thank full and would fight again for my Country but bitter tastes are hard to swallow!


Stillhere

Moderators I needed to vent/rant!

Yeah those waivers were phony most of the time....

They tried to get the vet to believe they had to sign the waiver and also believe they could not ever claim for comp for whatever the waiver disability involved.

What a crock of crap.

You are right Compensation is not a gift.
It is payment from our grateful nation for your sacrifice of mind or body,,solely due to your military service.

I think that fact alludes most of the people in the VA system.





.

.

Veterans,

After reading some posts here and other sites and even on some BVA decisions. we veterans need to remind each other that in cases where there is Retro (any amount!) that is money and benefits we should have had all along and not a gift!

In my case like many of the Vietnam generations we wanted nothing from the VA! And basically that is what they gave us, Nothing! Now because of so many of our brothers and sisters dying they were politically forced to recognize that a bunch of us deserve and NEED help. The politically push is what did it after so many dying!

I can remember when I got back from Nam for me it was adios amigo to the Army. Even though when I mustered out I had acquired a significant hearing loss while serving, so much so that they weren't going to let me out without a waiver and keep me for two weeks. I then had no idea what that meant and signed the waiver and got out.

Fast forward 13 years and I am married with a kid just born with a bad heart problem and need constant care and I couldn't hear him when he cried!

So I went to the VA hospital thinking well they will give me some help to fix this problem which had gotten very bad in just 13 years. I asked for help and some how another I ended up in the C&P office to get a hearing test and then they said they would get back to me. I had no idea what that meant? I just wanted some hearing aide help!

Well being as I just started my family money was tight especially with my son's problems and now I needed to buy hearing aides and have a testing done just so I could watch him.

After about oh maybe a month I get this one page letter from the VA saying like 3 words total, No Service Connection found!

Now that really floored me and brought tears to my eyes among other things that I said screw you comes to mind! So I packed up my lost faith and started working two jobs and we finally made it but it was not easy. Even if I just had the money for my aide and the doctors tests that would have helped! I grew very bitter about the VA, Army and Government altogether!

Then comes Agent Orange and all the politics and Computer sites Like Hadit and suddenly the VA was forced to give us our benefits we should have had all along!

Now I have a case for my hearing loss that if approved by the BVA will give me a sizable retro BUT IF they do I will not be half as excited or thankful for their help because they did not help me when I needed it BAD!

I hope everyone on this site and guests reading this post know that I am thank full and would fight again for my Country but bitter tastes are hard to swallow!


Stillhere

Moderators I needed to vent/rant!

Veterans,

After reading some posts here and other sites and even on some BVA decisions. we veterans need to remind each other that in cases where there is Retro (any amount!) that is money and benefits we should have had all along and not a gift!

In my case like many of the Vietnam generations we wanted nothing from the VA! And basically that is what they gave us, Nothing! Now because of so many of our brothers and sisters dying they were politically forced to recognize that a bunch of us deserve and NEED help. The politically push is what did it after so many dying!

I can remember when I got back from Nam for me it was adios amigo to the Army. Even though when I mustered out I had acquired a significant hearing loss while serving, so much so that they weren't going to let me out without a waiver and keep me for two weeks. I then had no idea what that meant and signed the waiver and got out.

Fast forward 13 years and I am married with a kid just born with a bad heart problem and need constant care and I couldn't hear him when he cried!

So I went to the VA hospital thinking well they will give me some help to fix this problem which had gotten very bad in just 13 years. I asked for help and some how another I ended up in the C&P office to get a hearing test and then they said they would get back to me. I had no idea what that meant? I just wanted some hearing aide help!

Well being as I just started my family money was tight especially with my son's problems and now I needed to buy hearing aides and have a testing done just so I could watch him.

After about oh maybe a month I get this one page letter from the VA saying like 3 words total, No Service Connection found!

Now that really floored me and brought tears to my eyes among other things that I said screw you comes to mind! So I packed up my lost faith and started working two jobs and we finally made it but it was not easy. Even if I just had the money for my aide and the doctors tests that would have helped! I grew very bitter about the VA, Army and Government altogether!

Then comes Agent Orange and all the politics and Computer sites Like Hadit and suddenly the VA was forced to give us our benefits we should have had all along!

Now I have a case for my hearing loss that if approved by the BVA will give me a sizable retro BUT IF they do I will not be half as excited or thankful for their help because they did not help me when I needed it BAD!

I hope everyone on this site and guests reading this post know that I am thank full and would fight again for my Country but bitter tastes are hard to swallow!


Stillhere

Moderators I needed to vent/rant!

Veterans,

After reading some posts here and other sites and even on some BVA decisions. we veterans need to remind each other that in cases where there is Retro (any amount!) that is money and benefits we should have had all along and not a gift!

In my case like many of the Vietnam generations we wanted nothing from the VA! And basically that is what they gave us, Nothing! Now because of so many of our brothers and sisters dying they were politically forced to recognize that a bunch of us deserve and NEED help. The politically push is what did it after so many dying!

I can remember when I got back from Nam for me it was adios amigo to the Army. Even though when I mustered out I had acquired a significant hearing loss while serving, so much so that they weren't going to let me out without a waiver and keep me for two weeks. I then had no idea what that meant and signed the waiver and got out.

Fast forward 13 years and I am married with a kid just born with a bad heart problem and need constant care and I couldn't hear him when he cried!

So I went to the VA hospital thinking well they will give me some help to fix this problem which had gotten very bad in just 13 years. I asked for help and some how another I ended up in the C&P office to get a hearing test and then they said they would get back to me. I had no idea what that meant? I just wanted some hearing aide help!

Well being as I just started my family money was tight especially with my son's problems and now I needed to buy hearing aides and have a testing done just so I could watch him.

After about oh maybe a month I get this one page letter from the VA saying like 3 words total, No Service Connection found!

Now that really floored me and brought tears to my eyes among other things that I said screw you comes to mind! So I packed up my lost faith and started working two jobs and we finally made it but it was not easy. Even if I just had the money for my aide and the doctors tests that would have helped! I grew very bitter about the VA, Army and Government altogether!

Then comes Agent Orange and all the politics and Computer sites Like Hadit and suddenly the VA was forced to give us our benefits we should have had all along!

Now I have a case for my hearing loss that if approved by the BVA will give me a sizable retro BUT IF they do I will not be half as excited or thankful for their help because they did not help me when I needed it BAD!

I hope everyone on this site and guests reading this post know that I am thank full and would fight again for my Country but bitter tastes are hard to swallow!


Stillhere

Moderators I needed to vent/rant!

If your service connected disability makes it difficult to stay employed you might consider filing for
Social Security Disability (SSD). SSD pays more than SSI.

Were you terminated because of your disability? If so then you might have another fight on your hands.

Get something that says you were let go because of your disabled back and the VA should put you at IU.


Stillhere

Buck,
I have been having hearing problems since I was on AD and have been wearing an aide since 83! Filed for it in 84 and was denied but have stayed with it and finally won SC with a rating of 70% + 10 for T. But have an appeal in now for an EED.

The numbers for your friend shows at least 70% and maybe more. There is a chart were you cam input those numbers that another member posted I think it was Husky but not sure. If I find it I will get it to you.


Stillhere

The "crew' is a group of paralegals who help the VLJ lawyers prepare valid decisions at the BVA ..

Of course some BVA decisions are overturned by the CAVC.

But one thing I am sure of...the BVA will read every single piece of evidence you have.

The decision will usually have a statement as to the probative value of the evidence,or what they did not find probative.

Decisions usually don't contain a full rhetoric on all of the evidence they consider..I sure wish my 2009 BVA decision did as it could help others.They focus on the most probative evidence first.

They even acknowledged all of the stuff my VARO never did

The VLJs are lawyers and lawyers Love evidence.

And also any claimant can , at any time prior to the BVA decision, send the BVA more evidence.

I'm not good at dealing with death/loss. My tendency is to put it aside and move-on, something I learned and needed in VN. I haven't been able to change that part of me. Stretch will be greatly missed!!! He no longer has to fight the VA. I personally will miss his great sense of humor!

pr

We had a "Special Ops" 'vet' here a few years ago and right away PR and I knew something was fishy.

We asked a few pertinent questions and he never came back to hadit.

Stillhere, I realized that when a vet asks for help and they do not follow through on valid suggestions, and expect the person helping them to try to do too much, it probably means they are a wannabee.

I have no reason to believe that the vet Buck is helping isnt a real Spec Ops vet.

But I sure have had some surprises, particularly even from a few widows who came here over the years, thinking their spouse had
combat or exemplary non combat service and they only found out the truth when the vet died and they tried to get DIC

Years ago I asked one widow to email me a copy of her spouses DD 214 and found out he had been incarcerated when he died, because he stole lots of cash from the Army., and he had gotten a dishonorable discharge.

And other widows were not even 'widows' of the veteran they claimed to be,so wannabes are not limited to 'veterans' at all.

It is FL 10-35 :


It involves any MOS that definitely caused HL but says this:

"A Veteran is competent to report symptoms of hearing loss and/or tinnitus as a
disability because symptoms of hearing loss and tinnitus are capable of lay
observation. See Charles v. Principi, 16 Vet. App. 370 (2002); Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). Consequently, a Veteran’s testimony
regarding hearing loss and/or tinnitus is sufficient to serve as evidence that the
disability(ies) currently exists."

I couldnt find it yesterday here and I thought it didn't provide retro past the FL date but apparently that 1992 CAVC decision would cover you

I just remembered something funny..... many years ago someone here 'chastised' me for telling vets to cite the regulations in their NODs and stuff. even CAVC precedent decisions.

They said I had a lot of nerve suggesting the VA would not know their own regulations.

HA HA...I have a stack of personal decisions that show they DONT know their own regulations.

But actually I think citing proper regulations (I have used M21-1MR too) helps the VA more then we know.

I would have been spinning on my thumbs for years over the last 2 claims I had, until I told VA the regs they broke.and they fixed them .... almost.......still waiting for them to read my evidence on the main CUE claim which they awarded ,but they gave a ridiculous reason why they don't owe me any accrued money.
They awarded 100% under 1151 from Aug 1992 to Oct 1994.

They paid me 6 months of that accrued in 2012 but have no regulation whatsoever for not paying me the rest.

Maybe they will make up a regulation like they tried to do in my SMC CUE claim but that didn't work.
It was the SMC CUE that garnered the 6 months of 100% under 1151.

If I was eligible for that accrued payment ,under CUE award, where is the cash for the rest of it?????

sorry I am again griping over their stupidity.

We MUST fight back every way we can.

Good Afternoon Everybody.

Here recently My EED for Tinntius was changed to a CUE case by my VARO and I was awarded an earlier effective date but not to my date of discharge date when I was diagnosed at my C&P Exam. I was told over the phone by the VARO that if I disagreed with their findings, it would be best to file a Motion to Reconsider as a BVA would take around two years to complete. That later I could still appeal if I felt it nessessary. I have written a rebuttal concerning my Tinnitus which I'm posting here for review as my VSO is useless.

Thanks,
Bill


BENEFITS SOUGHT: RECONSIDERATION OF APR 7, 2015 VARO DECISION
An Earlier Effective Date of November 13, 1995.

PURPOSE OF CORRESPONDENCE:
Submission of material regarding Benefits Sought for said Tinnitus Service Connection.

On 7 April 2015, the Atlanta VARO made a determination of my case concerning my Tinnitus as follows:
Entitlement to an earlier effective date for service connection of tinnitus is granted because a clear and unmistakable error was made; therefore, a 10 percent evaluation is assigned effective May 10, 2005.

The statement made in “Reason for Decision:”
“Therefore, entitlement to an earlier effective date for service connection of tinnitus is granted because a clear and unmistakable error was made and a 10 percent evaluation is assigned effective May 10, 2005, which is the date of the letter we received from you where you first explicitly claimed tinnitus (ringing in ears).”

This was not the case:
On 12 Nov 1995, I was discharged from the Marine Corps. On 06 Dec 1995, the Veterans Administration received my application for benefits. In my Audio C&P Exam Report dated on 02 Feb 1996, it was reported by my Examiner:
“Veteran was seen for an audiologic compensation and pension evaluation on January 27, 1996. He reported progressive bilateral hearing loss and occasional bilateral tinnitus, onset 1993 or 1994.”

Due to my 27 Jan 1996 Audio C&P Exam, I was service connected for Hearing Loss Left Ear. However, the ringing in my ears, diagnosed by the Examiner as Tinnitus, was not addressed.

(Note in 2011, I was service connected for Hearing Loss Right Ear with a EED of 13Nov1995)

The Doctor’s written statement was the result of a direct statement I made to the doctor stating that I had ringing in my ears while I was describing the symptoms of my hearing loss to ensure that this was also considered in my hearing claim.

The CAVC has stated that an informal claim for VA benefits requires:
1. An intent to apply for benefits,
2. An identification of the benefits sought, and
3. A communication in writing.
- Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009);
- See also 38 C.F.R. § 3.155(a) (stating that an informal claim must “identify the benefit sought”).
- CAVC, quoting its decision in Brokowski, went on to state that “[A] claimant's identification of the benefit sought does not require any technical precision.”
- CAVC stated that a claimant sufficiently identifies the benefit sought “by referring to a body part or system that is disabled or by describing symptoms of the disability.”

All three of the CAVA requirements for an informal claim were met on 06 Dec 1995 when the Veterans Administration received my application for benefits which included a claim for hearing loss.

In Clemons, the CAVC held that even though vet claimed SC for a specific condition, VA may be obligated to consider SC for other diagnosed conditions as well if the vet mentions or if the vet’s records relate symptoms of the other conditions.

A claimant "[does] not file a claim to receive benefits only for a particular diagnosis, but for the affliction his . . . condition, whatever that is, causes him." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Consequently, VA "should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim," taking into consideration "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Id. VA commits error "when it fail to weigh and assess the nature of the current condition the appellant suffer when determining the breadth of the claim before it." Id. at 6.

When a veteran files a claim, the VA is obligated to not only consider the claims specifically mentioned by the veteran, but also all benefits to which the veteran might be entitled that are supported by evidence of record.
See 38 C.F.R § 3.103(a) (2012) (“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.”)

Once a claim is received, VA must review the claim, supporting documents, and oral testimony in a liberal manner.

In Robinette v. Brown, 8 Vet. App. 69, 76 (1995), the Court held that claim documents must be read in a liberal manner so as to identify and carry out the required adjudication of all claims that are reasonably raised by the evidence of record whether or not formally claimed in a VA application.

Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) - holding VA has a duty to determine all potential claims raised by the evidence, applying all relevant laws and regulations.

The Federal Circuit has held on several occasions (Andrews, Moody, and Szemraj cases) that VA is required to:
Give sympathetic reading to the veteran’s filings
Determine all potential claims raised by evidence
Apply all relevant laws and regulations.

M21-1 DUTY TO CONSIDER NOTED DISABILITIES, EVEN IF NOT CLAIMED
Manual M21-1, Ch. 46.02, Change 400, 3/28/85,
DISPOSITION OF DISABILITIES NOTED OR CLAIMED:
a. Compensation Ratings. All disabilities claimed will be given consideration as to service connection and be coded as a disability rating on VA Form 21-6796.…Any additional disabilities noted will be coded, except:
(1) Acute transitory conditions that leave no residuals.
(2) Noncompensable residuals of venereal disease.
(3) Disabilities noted only on the induction examination, or conditions recorded by history only.
(4) Disabilities found by authorization to have not been incurred “in line of duty”.
b. Pension Ratings. Code all claimed or noted disabilities on VA Form 21-6796 and show the percent of disablement for each unless the disabilities have been held to be due to the claimant’s own willful misconduct by Administrative Decision….
c. Supplemental Ratings. (1) All previously rated serviceconnected and nonservice-connected disabilities must be brought forward on supplemental ratings on VA Form 21-6796….

If a disability was coded or should have been coded in a rating decision – there is a potential claim that should have been adjudicated.
A disability should have been coded in a rating decision if it was “noted.” In other words:
If during the development of a claim for service connection for Disability A, VA obtained a diagnosis of Disability B, then Disability B should have been coded in the rating decision for Disability A.

CURRENT M21-1MR PROVISIONS
There are several directives in the VA Adjudication Procedures Manual, M21-1 Manual Rewrite (Manual M21-1MR) that stress that all inferred issues also must be adjudicated.

Manual M21-1MR, Part III, subpart iv, 6.B.2. states:
When preparing a rating decision, the Rating Veterans Service Representative (RVSR) must recognize, develop, clarify and/or decide all issues and claims…
Whether they are expressly claimed issues, reasonably raised claims, or unclaimed subordinate issues and ancillary benefits.

Manual M21-1MR, Part III, subpart iv. 6.B.3. states:
A subordinate issue is derived from the consideration or outcome of related issues.
Often the primary and subordinate issues share the same fact pattern.

HARRIS v. SHINSEKI, No. 2012-7111 (Fed. Cir. Jan. 4, 2013) Addresses the analysis that VA must undertake – in determining whether an earlier effective date is warranted – whether a veteran has filed a claim for VA benefits.
The Federal Circuit determined that the CAVC failed to apply the proper legal standard for determining whether the BVA correctly determined the earliest possible date for vet’s benefits.

In the Federal Circuit Decision:
• Court said that under its cases, pro se pleadings (vet not represented by atty) must be read liberally –
• Roberson - VA has duty to fully develop any filing made by a pro se vet by determining all potential claims raised by the evidence.
- Szemraj – VA must generously construe a pro se veteran's filing to discern all possible claims raised by the evidence.
- Moody - Any ambiguity in a pro se filing that could be construed as an informal claim must be resolved in the veteran's favor.
- The Federal Circuit determined that the CAVC failed to apply the proper legal standard for determining whether the BVA correctly determined the earliest possible date for vet’s benefits.
- Federal Circuit stated that under its cases, pro se pleadings must be read liberally – Moody, zemraj, Roberson.
- Court stated that even though three cited cases involved CUE appeals, rather than direct appeals, the VA’s duty to read pro se filings liberally is equally applicable to CUE claims and direct appeals.

My Service Medical Record SF600 Dated 19 Nov 1990 stating:
“Ringing in the ears with upper freq testing.”
These Service Medical Records show relate symptoms that were never considered by the VA and therefore would constitute grounds for an Earlier Effective Date.

The CAVC has held even though a vet claimed SC for a specific condition, VA may be obligated to consider SC for other diagnosed conditions as well if the vet mentions or if the vet’s records relate symptoms of the other conditions. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).

In Summary:
On 06 Dec 1995, the Veterans Administration received my application for benefits. In my Audio C&P Exam Report dated on 02 Feb 1996, it was reported by my Examiner:
“Veteran was seen for an audiologic compensation and pension evaluation on January 27, 1996. He reported progressive bilateral hearing loss and occasional bilateral tinnitus, onset 1993 or 1994.”

According to the M21-1 Manual, Ch. 46.02, Change 400, 3/28/85, the Diagnoses of Tinnitus made by the Doctor during my C&P Examination should have been coded since it was identified and required adjudication as all claims that are reasonably raised by the evidence of record whether or not formally claimed in a VA application.

Manual M21-1MR, Part III, subpart iv, 6.B.2. states:
When preparing a rating decision, the Rating Veterans Service Representative (RVSR) must recognize, develop, clarify and/or decide all issues and claims…Whether they are expressly claimed issues, reasonably raised claims, or unclaimed subordinate issues and ancillary benefits.

The assumption by VARO Atlanta that an Earlier Effective Date for Tinnitus did not exist until May 10, 2005 because it wasn’t written is in error.

The VA committed error when it failed to weigh, assess, and take into consideration the nature of the current condition and symptoms that I described during this C&P Exam. This was included in the information the VA obtained in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009)

HARRIS v. SHINSEKI, No. 2012-7111 (Fed. Cir. Jan. 4, 2013) Addresses the analysis that VA must undertake – in determining whether an earlier effective date is warranted – whether a veteran has filed a claim for VA benefits.

The Federal Circuit determined that the CAVC failed to apply the proper legal standard for determining whether the BVA correctly determined the earliest possible date for vet’s benefits.

In Federal Circuit Decisions, the Court has held:
Pro se pleadings must be read liberally –
VA has duty to fully develop any filing by determining all potential claims raised by the evidence.
VA must generously discern all possible claims raised by the evidence.
Any ambiguity that could be construed as an informal claim must be resolved in the veteran's favor.

Pete,

My appeal for hearing loss will stand the test of what you have stated as I have evidence in my C-file of it and my SMR while I served and a doctors notation of hearing loss that I showed the judge during my appearance in court. I certainly hope you are right because there was other evidence in my file to support an earlier date

RSG

Sorry it is taking you so long on your retro and word from your RO but I have heard awards like this take a while. How long who knows but I hope soon! Also I might suggest you contact your congress critters to see if they can speed it up for you.

Stillhere