12R3G

Carlie...I was marveling at the VA's ability to weasal out, by adding a note affecting the entire ratings schedule by saying "oh, if we didn't publish a zero rating on something, well, we meant to so lets just pretend like its there (even if its not)." With the exception of getting bonked on the head and your ears ringing for a few days, or some short term disease, tinnitis is pretty much "recurring" in that it doesn't go away--ebbs and fades, but its always there and very annoying. yes, my ears are ringing as we speak. We are agreeing...see what the VA's justification was to grant SC for tinnitis, but at zero percent. I understand they have the out to do it, but how can you have tinnitis (you just have to have it on the recurring--make that permanent--basis) and it not be compensable? They ringy-dingy, or they don't. So, if you grant SC, it should be at 10%. I'd really like to see what the rater's thought process was. Masters? c

Carlie--you are correct, but the VA always gives itself an out: § 4.31 Zero percent evaluations. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. However, you either have tinnitis or you don't. How can you have tinnitis and NOT meet the requirement for a "compensable evaluation"? Masters--this should be an easy kill.

Joey If that were true, then my father in law would not be SC for hearing loss/tinnitis. He was denied 14 years ago because the SMR's did not show any hearing loss. duh. Now with buddy letters and an audiologist report documenting hearing loss and establishing the nexus (acoustic trauma-tanks), he's SC'd. STR didn't change, just his evidence. You might ask the doc who wrote this if he would change "strongly suspect" to either "at least as likely as not" -- 50/50 "more likely than not"--greater than 50%, but less than 100% These are phrases the VA uses and asks the C&P examiners to use. You can even print a portion of the Clinician's Guide (used by C&P examiners) which defines these terms. Good Luck!

yeah, that and the "whisper voice" hearing test at the time was totally lacking in fidelity and when you are 25, you are invincible.

Yeah...that was the real reason for all of this. The 20% is just icing on the cake so to speak. I told him to request a copy of his C-File and get a copy of his VA treatment records next time he's there.

Berta Since I haven't seen the original denial, I'm not sure if there is even a remote possibility of a CUE, but since the denial is based on it not being in his STR, I'm guessing not. Of course, not having seen his STR, I can't say for sure. His MOS--he was an armor officer back in the day before hearing protection was issued. That and doctor IMO/buddy letters describing the hearing loss long before he filed is orginal claim.

He didn't keep a copy of the denial letter (not that they said much back then), but in the rating decision the VA stated his earlier claim was denied because there was no mention of hearing loss in the STR. Not long after he separated (and we are talking 1959), a client--who happened to be an MD--told him he probably had a hearing loss (he was mid-20's at this point) and had him come in to test. Same doc wrote a letter for the reopen. That combined with a buddy letter (for hearing loss prior to filing the orginal claim) and a current IMO from an audiologist got SC.

halos...thanks...I should have mentioned the VA in the Rating Decision he just received stated it was a reopened claim with N&M evidence. Now I'm trying to get 14 years of back pay (although, at 20%, it's not going to be very big payday).

I'm hoping for some help/clarification. I helped by Father in Law finally get a disability rating for hearing and tinnitis. He filed his original claim in 1995 and was denied as hearing loss was not in his STR, and as result he didn't pursue. I convinced him otherwise, and he just got a 20% award and can (finally) get new hearing aids. My question is this...his effective date for the award was the date he filed the claim to reopen with new and material evidence. but, he his original claim was 14 years ago. To make matters a little more interesting, he thinks it was within the 12 months before he filed that he asked his VA doctor about hearing aids. Alll is doc said was he wasn't eligible--he had no SC disability (again, did nothing) Here is where I get confused. Looking at the M-21MR for reopened claims: Para 20 ©: Effective dates are governed by 38 CFR 3.400(q) Para 22. (A): The date of receipt of statements from the claimant that are held to be new and material evidence may constitute an effective date for increased benefits under 38 CFR 3.400(q). 38CFR 3.400(q): (q) New and material evidence (§3.156) other than service department records —(1) Received within appeal period or prior to appellate decision. The effective date will be as though the former decision had not been rendered. See §§20.1103, 20.1104 and 20.1304((1) of this chapter. (2) Received after final disallowance. Date of receipt of new claim or date entitlement arose, whichever is later. But, right below, 38 CFR 3.400®: ® Reopened claims. (§§3.109, 3.156, 3.157, 3.160(e)) Date of receipt of claim or date entitlement arose, whichever is later, except as provided in §20.1304((1) of this chapter. [3.156(D): (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. (The rest don't apply in this case)] So, if the chat with the doc was documented, then that should be an informal claim date provided it was within the year before this latest claim was filed. but, based on the seemingly conflicting information above, can he ultimately preveail in a request for an EED back to his original claim? To further flesh this out, he filed in 1995--about the time he got hearing aids on his own dime. His letters, from friends and both current and former doctors , document hearing loss dating back well before the 1995 original claim was filed. I'm thinking NOD for EED back to original claim... Thanks in advance / Charles

Brocovet...thanks! I added that to my claim as well. Hoppy...it's a recurring complaint in my records, plus I have degenerative arthritis with IVDS and some stenosis in the cervical spine that is SC, also DMII with neuropathy in both feet, so not really a stretch. What I as really after was something to hang my hat on an EED back to my original claim. we'll see...

darkhorse...yeah, never leave it to the VA to do the right thing. I mean, do they really read STRs? I'm thinking--not. Anyway, what I was looking for was a reason to force an EED based on my original claim date. The reasons section notes "...numbness and tingling in the left arm..." documented in STRs in my cervical (now IDD) claim, but didn't rate the arm, just the neck. On a subsequent C&P--to increase the neck rating (successfully)--I mentioned the arm to the doc, who put it in his exam notes. The VA then mentions this in the cover letter to the rating decision, but they aren't sure I'm filing a claim. Now, according to their own manual, I should not have been required to file the claim, they should have rated it to begin with. So, file claim, ask for EED back to original claim which is over a year ago. we'll see.

You know how you can sometimes "find" something when you are not looking? Well, looking for info for my Outlaw's claim, I found what I was looking for. Turns out, it is in the M-21MR, Part IV, Subpart ii, Chapter 2 Section A. Para 1. A. states: Consider service connection for the following disabilities when deciding an original claim for compensation or when additional service treatment records (STRs) are received following promulgation of an original rating decision: -- all claimed disabilities, and -- all chronic disabilities found in the STRs, even if they were not specifically claimed. Furthermore, in a subsequent paragraph dealing with supplemental STRs, the RO is obligated to review and rate any chronic, disabling conditions found even if not previously claimed. So, now we know (and I wasn't going nuts...well, not this time)

Wings... Yes and no. Personnel records and hospital (inpatient records/clinical notes) are still transferred to NPRC. However, beginning in 1992, the Army began transferring records directly to the VA. The remaining services followed suit. So, depending on your branch of service and discharge date, your SMR's could either be at NPRC or post 1992 probably at the VARO where you relocated to at seperation (which is why they have a block for that on the DD-214). Here is the table from the NPRC website: Branch: Status -- Health Record To VA Army: Discharged, retired, or separated from any component -- October 16, 1992 Air Force: Discharged, retired, or separated from Active -- May 1, 1994 Discharged or retired from Reserves or National Guard -- June 1, 1994 Navy: Discharged, retired, or separated from any component -- January 31, 1994 Marine Corps: Discharged, retired, or separated from any component -- May 1, 1994 Coast Guard: Discharged, retired, or separated from Active Duty -- April 1, 1998 Reservists with 90 days active duty for training -- April 1, 1998

Jbasser...thanks, no thankfully, I do not have the conditions that would rate OSA above 50%... bob...I was diagnosed and began treatment while still in service, so SC was pretty much a non-issue for me.

sh Great letter, only thing I would add is what the source of the acoustic trauma (loud noise) was. Aircraft (flying/flighline), weapons firing, armored vehicles, crew-served weapons, etc. Yes, the VA should have this, but don't make the RO search for what the noise exposure was. were you issued hearing protection (I don't think the army began issuing until late 60's--I know I was issued in 1972)? My father-in-law just got SC for hearing (10%) and tinnitis (10%) for service as a tank platoon leader in the late 60's. He had a letter from the audiologist (pretty similar to yours), along with post-service medical records, and statement from a buddy and his former doctor. Side note...he was denied SC in 1995; now he has to NOD for the EED...it's always something. Side note #2...10% more may, or may not, increase your rating. If you are at least 83% (which rounds to 80), another 10% will bring you up to 85% which rounds to 90%.

Anyone out there in hadit land gotten sleep apnea re-rated P&T? Just so I'm not confusing the issue, I'm 50% for OSA and on a CPAP. On my original claim, the RO stated the condition could improve, therefore I am subject to future exams. what I would like is the future exam now and to delete the "could improve" Okay, what I really want is 100% P&T schedular for the Chapter 35 benefits for my daughter (nursing school), and possibly my son (special needs job training). and on that note...do I need to ask for P&T on top of everthing, or will 100% schedular with nothing subject to future exams/improvement automatically give the P&T and the Chapter 35? Thanks

Mags... by local ROI, does that include a VAMC ROI, or does it have to be a VBA office? Thanks

:) Well, in theory...but we know how that works... you are right, the nits aren't the real issue...it's all the vets discharged with a paltry severence pay thanks to a broken PEB process. Getting rated 50/70/100 by the VA a few months later just highlights the problem.

Well, aside from the ethical issue...and the potential legal issues...that is not correct. First, on many bases, the work is done either by government civilians or contractors. Second, the local personnel office has read access to DEERS and can make address changes, update/add dependants, but major changes to the servicemember (current or former) is usually NOT handled at the local level. Finally, in addition to the DD214 and Retirement Certificate (suitable for framing), every retiree has a set of orders transferring him/her from the active list to the retired list, and what the local personnel office wants is the retirement order to submit up the chain.

You are close...technically, with a service-rated disability of at least 30% you are medically retired...20% or less you are discharged. TDRL is the Tempory Duty Retired List and can last as long 5 years (although there are re-evals every 12-18 months); after that you are either fit for duty, medically retired, or discharged with severance pay. The TDRL is for servicemembers who are sick/injured and need extended time away from work in order to stablize their condition. You cannot permanently retire on the TDRL. The services have low-balled servicemembers in the PEB process for years--as I said, cherry picking the lowest rated disability, ignoring the rest, in order to get off with a few thousand $$ in severance pay (as opposed to retirement pay, full TRICARE access, etc.). It was a dollars and cents game. and you thought the VA was bad... So, if you were low-balled during the PEB process, there are two options. 1. If your PEB/discharge was post 9/11, there is a congressionally mandated review panel (see my earlier post below). 2. Or, regardless of when your PEB was, you can petition to your service's Board of Military Corrections (DD Form 149)--only problem here is the longer you wait, the more likely it is the board will not review your case due to the delay.

Or go VFR-Direct (sorry, straight to) the National Personnel Records Center's military records website...see if you records went to VA or NPRC. Download the SF180 or fillout the online records request form (you will need to print and fax/snail mail a separate signature form before they will process the request). http://www.archives.gov/st-louis/military-...d-form-180.html

Vync I assume the statement "In the doctor's opinion, the veteran obviously had allergic problems before entering the service which got worse during service implied by development of asthma in 1991." is from the C&P exam? Also you said "If I had both conditions..."; did you? What does you induction physical say--anything regarding chronic allergic rhinitus or asthma prior to service? Did you make any statments to the effect of having either or both conditions? Finally, how long ago was this original claim decided? If it is less than a year, the you can file a NOD. After a year, you are going to need to either reopen the claim with "new and material evidence" or file a CUE (harder still). Can you get the 10% reduction removed? Yes, but only if the condition(s) did not exist prior to service. Which means that your induction physical and early SMRs would have to be silent regarding rhinitus and asthma, and (obviously) you had not been diagnosed with either condition by your physician prior to entry onto AD. Which means you are going to have to successfully dispute the examiner's statement that you "obviously had allergic problems before...". It would help if you had your complete C-File, including the examiner's report. I know my VARO is about a year behind filling records requests, it would be much faster to make an appointment and go to the VARO in person to review your C-File. Good luck

Joe the date the VA wrote the rating decision started a 1-year clock. You must "appeal" within that timeframe, otherwise your claim is final. It can be reopened, but the the standard is higher than starting the timely appeal process. don't let that date go by! Since you are probably within 6 months or so, I would be ready to prepare a NOD, even if it is last minute. You need your sleep doc to state that your OSA began during you military service using one of 3 precise, exact phrases: ...is due to... (100%) ...is more likely than not... (>50% but <100%) ...is at least as likely as not... (50%--and the min standard for the VA) As you alluded, you will need him/her to state that in his/her professional opinion, your OSA could not have manifested itself to the degree you have it in the short time between retirement and sleep study. Include a personal lay statement describing your symptoms as you mentioned them below, particularly the daytime sleepiness, and why it never manifested itself to the degree it did during service. Have your spouse write a letter explaining how badly you snored, how long (years), how loud, and most importantly the part about the silence of not breathing followed by the gasping for air and the violent reactions you had. As a layperson you can't provide medical opinion or diagnosis, but you can describe classic symptoms in detail, as can your spouse. If there are others that can describe similar episodes, so much the better. Appeals take as long as the VA wants them to take. You might want to gather additional evidence (doctor statement, etc) and file a request for reconsideration. That will be quicker (I use the term rather loosely) than a NOD, but if you are coming up on the 1-year anniversary of your claim letter, go ahead and file a NOD to protect your appeal rights. If the reconsideration is successful, then the NOD becomes moot; otherwise you are now in the appeal process (which means any decision in your favor requires backpay dating from the original claim date). Charles

Purple...but it is the issue. For years, each of the services had it's own rules on how to establish and run the PEB process. Each service also wrote and applied it's own version of the VASRD--the ratings schedule. Ratings were different (usually lower) and the standard was more in line with workmen's compensation in the civilian world, that is your disability was rated against your ability to perform your job, not on the broader standard the VA uses (more quality of life and earning ability). To make matters worse, where the VA is required to rate ALL disabilities deemed service connected, the PEB was allowed to "cherry pick" the single, lowest rated, disability to determine fitness for duty and disability rating. Lower that 30% equaled discharge, severance pay, and a referral to the VA. The public scandal over the Walter Reid fiasco was but the tip of the iceburg, and in reality nothing but a sideshow. The real issue was veterans who were found unfit for duty, discharged with a paltry severence pay, and turned over to the VA for lifetime care. This same veteran, rated 0/10/20% was examined by the VA and rated much higher and in all too many cases rated at 100%. Now how can the AF say you are unfit for military service with a less than 30% disability and subsequent be rated as totally disabled...for the SAME DISABLING CONDITION(S)? The NDAA of 2008 directed SECDEF to establish a Physical Disability Board of Review (http://www.health.mil/Pages/Page.aspx?ID=19) to review/correct PEB discharge ratings since 9/11/01. It's not automatic, you have to apply. Again, DoD is interpreting the law to its advantage to the detriment of the veteran. Currently, the PDBR is only allowed to reconsider what was presented to the PEB, anything left out, ignored, or simply not available at the time of the PEB is not under consideration. Several options...you can apply for reconsideration of your lowballed PEB rating (and you thought only the VA did that) to the PDBR. or, you can apply to the AFBMR using DD form 149. You can write your representative, the President, and can file in federal court if administrative remedies are unsuccessful. Why go through the pain? You would get a new DD214, a Blue--retiree--ID card, access to DoD installation worldwide including MWR, BX/Commissary (except overseas), etc. You get TRICARE and reaching 65 with Medicare, TRICARE for Life. Okay, at 100%, you get most of these already, but the one additional perk you get is retired pay in addition to your VA compensation. I forget the formula, but it's based on years of service and disability percentage. Charles

Berta--if you are retired, then you get a blue (used to be gray) id card that is indefinate and says "US Air Force Retired" (or whatever branch of service you retired from). Dependants continue to get the tan dependants id card that expires every 3 years or so, except that over 75, or permanently disabled at any age can apply for an indefinate dependant id card. As a retiree (dependant), you are able to get base stickers (everyone but AF), shop the commissary and BX, and use pretty much any service or facility on the base. Purple...If I understand correctly, you were on the TDRL. At some point, you were judged to be "stablized" (as in not getting better, and not eligible to remain on AD) and subsequently medically discharged? I take it your service modified disability rating was less than 30%--meaning you were simply discharged, and not Chap 61 retired, as in no TRICARE and no retired pay? If that is the case, then you should have gotten a revised DD214. You can petition the Board of Military Corrections, but not sure its worth the hassle as long as what you have indicates "Honorable" vs any other classification (on copy 4--member's copy). Regardless of what your DD214 says, your ability to obtain a retiree id card and TRICARE is determined in DEERS. You can call or visit any RAPIDS site to see if you are registered in DEERS and what your status is. If you were rated less than 30% by the PEB, are you eligible to apply for reconsideration? Charles