Legal Reviewing Rating Award

[tom91]

I've been following up on my claim related to hearing. They shared with me this week that the lawyers/legal group is reviewing the rating. On my previous claims, they informed me at one point that the claim was sent to the rating board and later the approval board. What does it mean by the legal area reviewing the rating? Is that what they mean by the rating board or ...?? Anybody experienced this?

[Berta]

That isnt my take on this reg at all-exceot for the last part of what you said

it isnt exactly a new reg- it is an old one that the VA stated better-

http://www.va.gov/vetapp08/files3/0819858.txt

In part:

"Another exception regards reconsideration of decisions on the

basis of newly discovered service department records. It is

noted that during the pendency of the appeal, revisions were

made to 38 C.F.R. §§ 3.156© and 3.400(q), effective on

October 6, 2006. 38 C.F.R. § 3.156© was revised to

establish clearer rules regarding reconsideration of

decisions on the basis of newly discovered service department

records. The substance of 38 C.F.R. § 3.400(q)(2) is now

included in the revised § 3.156©. Prior to the revision,

38 C.F.R. § 3.400(q)(2) governed the effective date of

benefits awarded when VA reconsidered a claim based on newly

discovered service department records. The prior 38 C.F.R. §

3.400(q)(1) is redesignated as new § 3.400(q)(1) and (2)

without substantive change. See 70 Fed. Reg. 35388 (2005).

The Board therefore finds there is no prejudice to the

veteran in considering the revised 38 C.F.R. § 3.156© prior

to giving the RO an opportunity to review the appeal. 38

C.F.R. § 19.31."

[jbasser]

This wasn't submitted as a CUE claim; however, the issue does date back to 91 when I was dismissed from the military due to other disabilities. There is record of the military dr stating 'this soldier displays hearing loss and needs further evaluation' yet it never occurred. I have submitted claims 2-3 times over the past 17 years and was denied but I never appealed. This particular claim I did extensive research and provided documentation from my military records and subsequent dr's audiology tests that show I have tinnitus and hearing loss. The last exam I had before I submitted the claim goes on to say that my hearing loss/tinn was obviously due to loud exposure in the army given my job assignment. Since they referrenced legal, I can't help but be curious as to whether this is because they want to make sure they're covered in denying me again or if in fact it boils down to a CUE claim.

This may be the VA getting an opinion from legal trying to conjur up a way to deny this. They may be seeking guidance. Your ears should be classified as an inferred claim since the Doc suggested you may have a problem.

You should investigate filing a cue claim since the Military docs reccommendation suggested your ears be evaluated and you have the record.

If you meet the criteria and met it back then and the regs were in place at the time the original decision was made, and the VA denied it, Then the VA failed to correctly apply the regulations to your claim.

In order to suggest filing a CUE I would have to know what the original denial said. A Cue must be a legal attack on a final decision that would alter the decision. That really means that the va cheated you out of money because they failed to do their job correctly.

Newly discovered service department records may not apply since the Docs recommendation is in the file.

It only applies to records that are found at a later date and can alter a decision. This is not a cue but is admissible.

A good example is the old addage that the VA makes an attempt or says they do to get your records when you originally file a claim. Then they deny it after 1 year.

five years later they have received the service record and lord and behold your evidence is in there. This would reopen the claim with an EED to the original date.

Good luck.

Edited October 12, 2008 by jbasser

[tom91]

The original claim in 1991, immediately following my discharge earlier the same yr, states "sc for hearing loss must be disallowed as the vet's hearing is shown to be within normal limits, for which sc can be established."

I filed claims again in 2001,2003, and this year. The discharge exam in 1991 has audio results that show significant changes in the 6000 range which is where high pitch range defiencies will show; however, the military and VA only base their sc on 1000-4000. The audio tests was supported by an attached medical record by the military dr. that included the reference 'soldier appears to have hearing loss and requires further evaluation'. In the previous claims, the record with the reference was not provided by me in the claim as I did not obtain it until this yr.

This is two items that remain outstanding within the original claim filed in 2008. The response I received was 'the audio eval provided evidence of bilaterl mild sensorineural hearing loss with speech recognition scores which meet VA's criteria regarding impaired hearing. We are deferring rendering a decision on sc pending outcome of a VA exam to establish link between loss and mil sv'. Of course, that exam has since been done and I'm awaiting the outcome.

Even the 1999 exam performed by the VA for my claim at that time states 'slight hearing loss at 4000 in rt ear.....patient has essentially normal hrg bilat except for mild loss at 4000 in rt ear.' Yet I was denied at that time.

There is reference by an outside dr in my claim of 2001 that my hearing loss can be worsened by noise and that I worked in a high noise environment. The VA of course leveraged that against me but in the 2008 claim, I further provided letters to support that our facility is approved within OSHA guidelines and does not require a hearing conservation program.

Not sure just how this will pan out but very anxious to get it.

[Ricky]

On the bright side it could be the VAOIG taking a look during one of these inspections they are doing.

[tom91]

I'm still awaiting final reply on my claim; however, my rep advised me last week that the file is in the last authorization phase and thus far, approved for tinnitus but denied for hearing loss. He said it could still change but if it does remain, I'm anxious to see how they could deny hearing loss as they now recognize the tinnitus is from my service and hearing loss is a result of the tinnitus.

I'm also real anxious to see how far back they go with backpay. I requested it as far back as 91, with subsequent claims several times through the years and was denied. I wasn't smart enough to follow through with an appeal. Do you think they'll go back or just go back to the date of this claim? Anybody with experience on this?

[jbasser]

Tom, if you did nit appeal all these years the only recourse is to find a CUE in thr otiginal decision.

A Cue is a hard thing to prove but it can be done.

Good luck. If you find a way to get the crickets ut of your ears let me know.

J

Edited October 26, 2008 by jbasser