tdiu Claim Advice

[chess]

My Claim is 5 years 2 months old and counting, from Cleveland Regional Office. As many of you know, the VA is to:

, “VA is ‘to fully and sympathetically develop the veteran’s claim to its optimum before deciding it on its merits.’â€ﾝ Roberson, 251 F.3d at 1384 (quoting Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998))

However, The VARO in Cleveland instead choose to deny my Service Connection for hearing loss, then ignore my informal claim for Depression and TDIU. Upon my Successful appeal through the BVA I was awarded a

"complete grant of benefit sought" 3 weeks later the Cleveland RO "implemented" the BVA decision as follows: They defined "complete" as meaning zero% SC for hearing loss and NEVER mentioned claims for Depression, TDIU, or Tinnitus.

A couple years later, after filing for increases, they decided to add depression, and NSC unemployablility (pension), and tinnitus, but NOT to award REtro except to the date of the BVA decision, not the original claim date. The Third RO decision was also flawed in that a) it omitted diagnostic codes B) cited documents not listed as evidence but DID award 40% SC as follows: 0% hearing loss, 10% Tinnitus, 30% Depression secondary to hearing loss. They listed me as single while I am married with 3 kids.

Now I am waiting on another RO decision (for TDIU and increase in depression as well as dependent back pay)

My question is: What can I do to Force the REgional Office to comply with the BVA mandate, "complete grant of benefit sought". I have a lawyer who has agreed to take the case, on a 20% contingency, but hav e not returned the signed paper to the lawyer yet. Reason: I keep thinking any minute the VARO in Cleveland is going to get their act together and do what the BVA said, and award 100% (complete) bennies. I really dont want to pay a lawyer for stuff I have already done. I have been told that my 5 year 2 month old claim is "with top level management" at the VARO in Cleveland. Any suggestions? Thanks.

[Ricky]

Chess I read the docket number you provided. I am sorry but I do not see where you are coming from. This appeal was for entitlement to service connection for bilateral hearing loss. The board did note that you had complained of tinnitus at a 2002 C/P exam and informed you that if you chose to file a claim for this to notify the RO. As far as inferred claims, the board is a very specific body in that if you do not list your desired appealed issues on the form 9 and those listed must have been completed by the RO then their hands are tied and they do not have jursidiction on such items. For them to have commented on depression or any other issue you would have had to brought it forth on the form 9. Then as I stated above if the RO had not completed a claim on it the board would has simply told you to file a claim for the issue as they did on the tinnitus.

You stated: Upon my Successful appeal through the BVA I was awarded a "complete grant of benefit sought" -Although I did not see any such wording in the board decision yes you were awarded a complete grant of benefits sought with that being service connection for bilateral hearing loss. The boards quote in the decision was: Order: Service connection for a bilateral hearing loss disability is

granted. As for the zero percent: The medical evidence provided to the board was that your pure tone threshold levels averaged 52.5 decibels in the right ear and 55 decibels in the left ear. If you will look at the charts provided in CFR 38 part four you will see that pure tones of 52.5 is assigned a III and those of 55 are also assigned a III. Now look at the next chart. When you find a III and follow it over where it intersects with III you will see that a ZERO percent is assigned.

Inferred claims: When a rater is reviewing the medical records and finds medical evidence in the folder of a disability that is not on issue at the time that is an inferred claim. It is not when a veteran simply complains of a disability as there still has to be medical evidence supporting the issue. So if the rater who decided your claim reviewed your medical files there would have to be some medical evidence that says you have depression due to your hearing loss. Outside of that then you must file some form of a formal claim inorder for it to be a claim. As to tdiu - when a veteran meets the requirements, has an approved rated disability that meets the requirements for tdiu the rating decision should include instructions on how to file and the appropriate forms (8940)for filing. You did not meet such requirements with this rating as the only award possible with the medical evidence reviewed was a zero percent rating.

Bottom line is the RO has correctly implemented the order of the BVA on the decision render in 03-09-248. Now if you had an informal claim - a complaint of depression at the RO- then followed it up with a written request for a disability rating and included the required medical evidence to support the claim and the RO did not act then maybe you have a valid claim and we can help you work through it.

I know that you do not want to hear this but based upon what you have posted at this point this is how I see it. Keep in mind this is just my opinion and my opinion has been wrong in the past

of At the time of his July 2002 VA audiological examination, the

veteran complained of periodic tinnitus. If the veteran

desires to pursue a claim of entitlement to benefits based on

such condition he should so inform the RO such that

appropriate action may be taken.

Speech audiometry

revealed speech recognition ability of 96 percent in the

right ear and of 96 percent in the left ear. Thus, the

competent medical evidence of record demonstrates a current

bilateral hearing loss disability as defined by 38 C.F.R.

§ 3.385.

Service connection for a bilateral hearing loss disability is

granted.

THE ISSUE

Entitlement to service connection for bilateral hearing loss.

Edited October 6, 2007 by Pete53

[Ricky]

The post below is for chess and not Kent as indicated (damn missing edit button)!!!! I had someone else on my mind as I was posting. Sorry for the confusion.

Ricky I fixed the first post for you.

Edited October 6, 2007 by Pete53
Fixed from 01.15 AM frior reply

[Ricky]

Thank you sir. You can delete it if you desire.