tinnitus 38 Cfr 3.155

[carlie]

Does this (from a 1978 C&P) qualify as an informal claim for Tinnitus ?

I think it does but have been beaten down so much I question my-self.

Also, FYI, the Parafon Forte was RX'd for Neck & Back pain with and Muscle Spasms --

Parafon Forte is not used as an anti-depressant.

carlie

516 /136B:jmb

VA AMBULATORY CARE CLINIC

St. Petersburg, Fla.

October 5, 1978

SPECIAL EAR EXAMINATION

HISTORY: Hearing loss and otitis media which this veteran developed in February 1978 as shown by ear ache and pain, but no drainage from the ear. She was an Army Radar repair worker who was exposed to loud noisy atmosphere she alleges as well as on the rifle range and PA systems which she repaired, also fired guns in training - M-l6s and so forth, producing hearing loss. Early com­plaints of dizziness and concussion she was subjected to and ringing in the ears and noise in the ears; also for the concussions. She is taking medication in the form of Parafon Forte, is an antidepressant.

EXAMINATION: Reveals clear ear canals, normal drums, no perforation scars or

drainage seen. The drums are healthy looking. Weber is negative. All k tuning forks are heard bilaterally. The Rinne is: RBC=l6, RAC=35, LBC=15,

DIAGNOSIS: 1) Tinnitus alleged.

2) Right ear hearing normal.

3) Left ear hearing normal.

*») Otitis media, not confirmed this examination.

ERNEST F. KISH, M. D.

Edited August 29, 2007 by carlie

[mountain tyme]

hello...

I would say that based on the examination...since the issue was raised regarding the Tinnitus that it was of record...the only problem I see is that the word "alleged" was used and the doctor did not state or make a DX of tinnitus...also the doctor noted that nothing was confirmed at that examination.

In your SMR did you ever have a yearly occupational exam...if so did it include a hearing test?...that showed hearing loss...

if so that would be a great support.

Good luck...

MT

[free_spirit_etc]

Yeah, the use of the word alleged - connected to tinnitus - is not strong - I wonder why the doctor didn't use the word possible. Alleged has a negative connotation - almost like saying "ther person alleges it - but it is not true."

So the use of the word alleged could probably been used as a reason to deny the claim in 1978.

However, I still think the combination of the doctor reporting SYMPTOMS of tinnitus, and the fact that the symptoms are also in the SMR's - an argument could be made that the evidence raised a reasonable claim for tinnitus - that should have been adjudicated.

As the VA did not adjudicate it - it could still be considered pending.

I would think Carlie could be in a stronger position in that case. Had it been denied - it would be hard to argue a CUE - as the word alleged would have given them a "reason" to deny the claim. But since they didn't deny it - it should be still pending. Then they would also have to consider any new evidence as well as the evidence of record at the time of the claim.

This is an interesting case - though it can't be used as a precendent - it refers to cases that state that medical records submitted CAN be considered an informal claim if an underlying claim has been previously denied and the evidence shows new an material evidence to repopen the claim.

That is a little different that they usually state about the medical records only being an informal claim if the condition is already SC and the medical records show a claim for INCREASE in ratings.

I take this case to say - if you have claimed a condition - and it was denied - then a medical record that shows medical evidence for that issue can be an informal claim.

However, even with informal claims - don't you have to follow up with a formal claim within a year? Or is the VA supposed to acknowlege the informal claim - and inform you of what you need to do in order to formalize the claim?

http://search.vetapp.gov/isysquery/61d35d9...f294d217/3/doc/

Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 05-1271

Bradley J. Steinberg, Appellant,

v.

R. James Nicholson,

Secretary of Veterans Affairs, Appellee.

Before GREENE, Chief Judge.

MEMORANDUM DECISION

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

claim for service connection for schizophrenia. In his May 1994

statement, Mr. Steinberg reported that he had fallen and experienced

multiple seizures while stationed overseas, but that his service medical

records failed to document any head injury. R. at 416. He also reported

that he had received treatment for a nervous disorder at the Tahoma,

Wisconsin, VA Medical Center. R. at 417. He then stated: "I don't know

if you can help me with this but I know that I will be d[y]ing a lot

younger because of all of this." Id. This document does not mention

schizophrenia or indicate an intent to reopen his previously denied

service-connection claim . Nor did Mr. Steinberg submit evidence along

with the May 1994 statement that could indicate an intent to reopen his

schizophrenia claim . See Criswell, 20 Vet.App. at 502 (submission of

medical records may be construed as informal claim "when an underlying

claim has been denied and the medical records evidence new and material

evidence to reopen the claim "); cf. Voracek v. Nicholson, 421 F.3d

1299, 1304-05 (Fed. Cir. 2005) (deciding as a matter of law that

appellant's statement was not material because a "single statement that

his condition 'worsened' does not, on its face, relate in any way to his

condition during the pendency of his original claim "). Without the

submission of medical evidence or any mention of schizophrenia, a claim

to reopen Mr. Steinberg's previously denied service-connection claim

cannot be reasonably construed from the May 1994 document. See

Criswell, supra. Further, the Court notes that Mr. Steinberg raises

the question of whether the May 1994 statement can be construed as an

informal claim to reopen for the first time on this appeal to the Court,

despite the fact that he has received continual representation throughout

the pendency of his appeal and that this matter has twice been remanded by

the Court specifically for the Board to consider whether certain evidence

constituted informal claims to reopen.

hello...

I would say that based on the examination...since the issue was raised regarding the Tinnitus that it was of record...the only problem I see is that the word "alleged" was used and the doctor did not state or make a DX of tinnitus...also the doctor noted that nothing was confirmed at that examination.

In your SMR did you ever have a yearly occupational exam...if so did it include a hearing test?...that showed hearing loss...

if so that would be a great support.

Good luck...

MT

[free_spirit_etc]

Carlie, This case is somewhat similar to your case. It is claiming that info in the doctor report should have been construed as an informal claim - and it is a case dating back to 1978.

The court says that the medical report isn't an informal claim because it was not submitted by the vet, friend, member of Congress, etc. communicating an intent to file a claim. And it also says that the statement on the doctors report couldn't be an informal claim because at that time his claim with the VA was pending - and had not been granted.

The promising part of this for you is where it says "The Board also noted that it was VA's procedure in 1978 to include on a rating decision other conditions that VA was aware of even though no claim for a benefit was made in relation to those conditions."

So they did NOT follow that procedure with you.

Your case differs from this case. In this case - it states that though the doctor had stated the vet was sterile - the VA had no reason to know that the vet was alleging he was sterile from a surgery performed by the VA UNTIL he stated the fact in 1994. So just because the doctor noted he was sterile - the VA had no reasonable reason to realize that was a claim for benefits because no one had informed them the sterility was the result of a VA surgery until 1994.

In your case - even if the VA would say the doctor's record of tinnitus would not be an informal claim because:

1. You case was still pending with the VA.

2. It was not submitted by you, a friend, member of Congress, etc.

It looks like you could have a STRONG argument that the Claim was not adjudicated properly under VA 1978 procedures because the "VA's procedure in 1978 to include on a rating decision other conditions that VA was aware of even though no claim for a benefit was made in relation to those conditions."

This isn't a case where they would have no reason to know the tinnitus was not reasonably raised. The SMR's reveal symptoms of tinnitus.

So - if their procedure was to include other conditions they were aware of - regardless of whether the vet raised them - they should have considered the tinnitus - and should not have required that you specifically filed for tinnitus either formally or informally.

So you might also want to consider building an argument in THAT direction. If you just try to establish the doctor report was an informal claim - then they might spout a bunch of stuff to argue that it wasn't.

But if you can build a strong argument that the VA should have adjudicate the issue - as it was reasonably raised by the evidence - they can go on all the want about how you didn't file a formal or informal claim for tinnitus - but that shouldn't matter, if the 1978 VA procedures were that you didn't HAVE to file such a claim if the record reasonably raised the issue.

Free

http://search.vetapp.gov/isysquery/61d35d9...f294d217/5/doc/

Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 04-0355

Tony R. Haskins, Appellant,

v.

R. James Nicholson,

Secretary of Veterans Affairs, Appellee.

Before LANCE, Judge.

O R D E R

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

The pro se appellant appeals a January 15, 2004, Board of Veterans'

Appeals (Board) decision that denied entitlement to an effective date

earlier than November 16, 1994, for the grant of compensation benefits

under 38 U.S.C. 1151. Record (R.) at 1-17. This appeal is timely,

and the Court has jurisdiction pursuant to 38 U.S.C. 7252(a) and 7266(a

). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1

Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will

affirm the January 15, 2004, decision.

The appellant served on active duty in the U.S. Army from January

1970 to July 1970, and from June 1975 to May 1976. R. at 21, 22. The

record reflects that in July 1974 the appellant underwent an open revision

of bladder neck contraction and panendoscopy. R. at 30-31. In February

2000, the Board awarded VA compensation benefits under 38 U.S.C. 1151

for sterility related to the 1974 surgery. This appeal stems from the

appellant's disagreement with his effective date. Under 38 U.S.C. 5110

, "nless specifically provided otherwise . . . , the effective date of

an award based on an original claim . . . shall be fixed in accordance

with the facts found, but shall not be earlier than the date of receipt of

application therefor." See 38 C.F.R. 3.400 (2005). A Board

determination of the proper effective date is a finding of fact that the

Court reviews under the "clearly erroneous" standard set forth in 38 U.S.C

. 7261(a)(4). See Evans v. West, 12 Vet.App. 396, 401 (1999); Hanson v.

Brown, 9 Vet.App. 29, 32 (1996). "A factual finding 'is "clearly

erroneous" when although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm conviction

that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91,

94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364 (1948

)).

The appellant asserts that he is entitled to an effective date back

to 1978 because he made a claim for benefits related to his sterility in

1978 and VA failed to adjudicate that claim. See generally Ingram v.

Nicholson, __ Vet.App. __, No. 03-2196 (July 12, 2006). The Secretary

argues that the Court should affirm the Board's decision because there is

a plausible basis in the record for the Board's determination that the

first evidence of record that could be construed as an informal claim for

section 1151 benefits for sterility is the appellant's November 1994

statement.

VA is required, with respect to all pro se pleadings, to

sympathetically read the claimant's filings to determine if a claim has

been raised. See Ingram, __ Vet. App. at __, slip op. at 5 (citing

Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004)). "[T]he question of

whether a sympathetic reading of prior filings raises an informal claim

for benefits is essentially a factual inquiry." Beverly v. Nicholson, 19

Vet.App. 394, 405 (2005) (citing Moody v. Principi, 360 F.3d 1306, 1310 (

Fed. Cir. 2004)). In the decision on appeal, the Board extensively

discussed and reviewed what the appellant had submitted since 1978.

Initially, the Board correctly noted that the appellant did not file a

claim for section 1151 benefits within one year of having undergone the

surgery in 1974, and, therefore, he was not entitled to an effective date

back to 1974 on this basis. See 38 U.S.C. 5110©. The Board then

considered the appellant's contention that an August 1978 VA examination

report constituted an informal claim for compensation benefits because the

VA doctor recorded the appellant's history of sterility since the 1974

surgery. The Board determined that the examination report did not meet

the criteria for an informal claim because it was not a communication from

the veteran, his representative, a Member of Congress, or an agent

communicating an intent to file a claim for compensation benefits. See 38

C.F.R. 3.1(p), 3.155(a), (:) (2005). The Board also found that the

August 1978 VA medical examination could not constitute an informal claim

for benefits under the provisions of 38 C.F.R. 3.157 (2005) because at

that time the appellant's claim for compensation had not yet been granted.

See Lalonde v. West, 12 Vet.App. 377, 382 (1999); Crawford v. Brown, 5 Vet.

App. 33, 35-36 (1993). The Board correctly observed that "[t]he mere

presence of the medical evidence does not establish an intent on the part

of the veteran to seek . . . service connection." Brannon v. West, 12 Vet.

App. 32, 35 (1998). For these same reasons, the Board also concluded that

an April 1986 VA examination report could not constitute an informal claim

for section 1151 benefits.

The Board also looked at two written statements submitted by the

appellant in support of his 1978 claim for an increased disability rating

for his service-connected conditions. R. at 39, 41. The Board found that

there was no intent expressed in either statement to claim section 1151

benefits for his sterility because neither statement mentioned his

sterility. Both statements were expressly limited to his service-

connected disabilities (hearing loss, otitis media, and lumbar strain) for

which he was seeking a higher rating. Hence, the Board also rejected the

appellant's alternative suggestion that the October 1978 rating decision

on his increased rating claims also adjudicated a claim for compensation

benefits for his sterility and failed to notify him of the denial. In

this regard, the appellant pointed to the following entry on the rating

decision: "8. NSC - 7527 [postoperative] suprapubic prostate resection

with epididymitis obstruction and sterility." R. at 53. The Board

rejected the appellant's suggestion that a claim was adjudicated on the

basis that nothing in the rating decision indicated an intent to

adjudicate such a claim. The Board noted that the issue before the

1978 rating board was an increased evaluation for service-connected

disabilities and nothing in the body of the rating decision addressed a

claim for sterility. The Board also noted that it was VA's procedure in

1978 to include on a rating decision other conditions that VA was aware of

even though no claim for a benefit was made in relation to those

conditions. Hence, the Board concluded that the record and the law

supported a finding that no claim was filed or adjudicated in 1978.

Finally, the Board considered whether the appellant's February 1986

application for pension benefits could have been construed as a claim for

compensation under 38 C.F.R. 3.151 (1986) (claim by a veteran for

pension may be considered to be a claim for compensation). Although the

Secretary's regulation permits him to consider a claim for pension as a

claim for compensation, the Court has held that the Secretary is not

required to treat every pension claim as also being a claim for

compensation, but must "exercise his discretion under the regulation in

accordance with the contents of the application and the evidence in

support of it." See Stewart v. Brown, 10 Vet. App. 15, 18 (1997).

In the instant case, the Board found that the February 1986

statement, and VA Form 21-527 submitted along with it, failed to imply any

intent to seek compensation benefits under section 1151 because neither

document contained any allegation pertaining to the appellant's sterility

or the surgery he previously underwent in 1974. Given the absence of any

reference to the appellant's disability or the surgery alleged to have

caused that disability, the Court concludes that the Board did not err in

its determination that the record in 1986 failed to support a claim for

section 1151 benefits based on the appellant's sterility. Although the

Secretary has a duty to sympathetically read a pro se claimant's

submissions, see Ingram and Szemraj, both supra, he is not obligated "

to read the mind of the[] veteran." See Cintron v. West, 13 Vet.App.

251, 259 (1999). Without any reference to the claimed disability or the

alleged cause, nothing suggested to the Secretary that the appellant was

seeking any such benefit.

In the instant case, the Board reviewed what the appellant had

submitted since 1978 and determined that the appellant had not filed a

formal or informal claim for section 1151 benefits prior to November 1994.

Upon review of the record and the parties' briefs, the Court finds that

the Board's determination in this matter is plausible, supported by an

adequate statement of reasons or bases, and, therefore, cannot be said to

be clearly erroneous. See 38 U.S.C. 7261(a)(4), 7104(d)(1). The

Board correctly determined that the appellant's November 1994 statement

met all of the requirements of an informal claim because it was a

statement submitted by the veteran, and it communicated an intent to apply

for section 1151 benefits because "the veteran was very detailed in

complaining about the residuals from the prostate surgery . . . [and h]e

further stated that he had been fertile prior to undergoing the surgery

and then was infertile coming out of the surgery." R. at 16, 97-100; see

38 C.F.R. 3.155(a). Accordingly, because the appellant's November

1994 statement is the first communication that can be construed as an

informal claim for benefits, the Board's conclusion that the criteria for

an earlier effective date had not been met cannot be said to be clearly

erroneous. See 38 U.S.C. 7261(a)(4), 5110; see also Evans and Hanson,

both supra; 38 C.F.R. 3.400.

Upon consideration of the foregoing, it is

ORDERED that the January 15, 2004, Board decision is AFFIRMED.

DATED: July 25, 2006 BY THE COURT:

[free_spirit_etc]

Carlie,

Here is a link the to BVA decision connected to the court case I posted. It doesn't look very promising. It seems they don't take information in the C&P exams to be informal claims - unless it is for an increase or a reopening of a claim. It says the standard procedure in 1978 was to note all disabilities on the rating form - whether they were claimed or not. However, it doesn't say they had to be rated - or that the vet had to be informed of them if they were not rated.

It looks like the vets medical record DID say that he had major problems since his prostate surgery - but the VA says he didn't claim it.

http://www.va.gov/vetapp04/files/0401520.txt

I am not sure of all the specifics of your case - but this looks like it is similar in many ways.

Not sure if it helps or not.

Free