tinnitus Lack Of Evidence For Va Claim

[68mustang]

I filed a VA claim for hearing loss around 1989. The claim was denied all the way to the top. The reason for denial was the lack of proof in my medical files. I had a an audiometric hearing exam at my enlistment, but only had a whisper test at my end of enlistment exam. I was in the Navy from 1967-1971 and worked as boilerman and engineman. Both jobs subjected me to loud noise more so in the boilerman job. There was no hearing conservation program plus there were no hearing protection items to be used. In my VA claim I brought out the fact that my lack of evidence was not through my fault. I stated that the Navy did not provide proper hearing protection or audiometric testing during my service time or at the end of my enlistment. Like I said my claim was denied.

I have now filed another VA claim for tinnitus, which I should have done in 1989. I have had ringing in my ears since the 1980's. My audiologist stated that the tinnitus came from the noise that I endured in my Navy jobs. My job history since I got out of the Navy have been office type jobs, which did not have loud noise. I am afraid that the new VA claim will again be denied due to the lack of evidence from when I was in the Navy. Anyone have any ideas how I can state that the whisper test is not reliable and considering the type of noise I was subjected to, that an audiometeric

should have been used? I know that it will be an uphill battle, but any help anyone could provide would be welomed. Thanks.

[Ricky]

There was a whisper test but no audiometric hearing test and whisper tests are not good indicators of hearing problems

Hmmmm... I am afraid this will not meet the standard required for a CUE. Berta, Vike or one of the other experts should come along and help you with this.

[68mustang]

Hmmmm... I am afraid this will not meet the standard required for a CUE. Berta, Vike or one of the other experts should come along and help you with this.

Thanks for responding. Hope to hear from Berta, Vike or anyone who may be able to help.

68mustang

[Berta]

"I am thankful that a quick decision was made, but is there a way that the effective date can be made retroactive to the date that I originally back in 1989 instead of April 30, 2007?"

It looks like you would have to file a CUE claim on the BVA decision that went to the CAVC.

Can you give us your CAVC Docket Number?

The CUE claim would have to prove legal error on BVA's part.

Also the constructive notice rule in Bell V. Derwinski would possibly come into play regarding the dates involved.

There is a lot of info here as to CUE claims under the search feature at the top and they depend solely on legal error.

Bell V. Derwinski

http://64.233.167.104/custom?q=cache:5dOyC...258583365406322

[68mustang]

"I am thankful that a quick decision was made, but is there a way that the effective date can be made retroactive to the date that I originally back in 1989 instead of April 30, 2007?"

It looks like you would have to file a CUE claim on the BVA decision that went to the CAVC.

Can you give us your CAVC Docket Number?

The CUE claim would have to prove legal error on BVA's part.

Also the constructive notice rule in Bell V. Derwinski would possibly come into play regarding the dates involved.

There is a lot of info here as to CUE claims under the search feature at the top and they depend solely on legal error.

Bell V. Derwinski

http://64.233.167.104/custom?q=cache:5dOyC...258583365406322

Sorry that I had not posted the docket number sooner, but just got back from out of town. The docket number is 90-41-898 with the Board of Veterans Appeals. I thought that it had gone to CAVC, but I can't find any paperwork. Hope this helps. Thanks.

68mustang

[Berta]

I found nothing under that docket number at the BVA-

I suggest that a good service office review the older decision in its entirity to see if CUE had been committed.

"The basis for the denial was that there was no evidence of a hearing loss at the time of discharge according to the VA"

If the SMRs subsequently revealed hearing loss at time of discharge-there could be potential for CUE under Bell V Derwinski.

This would take a thorough review of the past older claim decision that denied -from the BVA.

And the CUE would have to filed with the BVA-not the RO.

As evidence to support this CUE- based on a thorough review-

you could use a print out of the hyperlink I gave you-

it is General Counsel Opinion #022, regarding the interpretation of Bell which, in my opinion, based on what you told us here-would apply to your potential CUE.

This is the constructive notice Rule of Bell regarding evidence in VA's possession at time of alleged CUE.

Edited August 5, 2007 by Berta