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Help Please


carlie
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Question

I am posting my very first Rating Decision here to try and get some opinions and help.

Some of my questions may have been asked before but I can't access certain files so

bear with me. All help and reply's are appreciated.

I will try to post my questions after uploading the three pages of the Rating Decision.

Rating_Decision_VARO_Oct_31_1978.pdf

All claimed disabilities were denied Under Code 8 Non Service Connected

My Questions are:

Evidence shows - "some lom due to pain and mild spasm in the" etc...

Do you feel this evidence should have warranted service connection ?

This Rating Decision states "On Special ear examination...

1. Tinnitus alledged

Do you feel this constitutes an Informal Claim for Tinnitus ?

Thanks to all - I hope the scans came out OK.

carlie

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carlie,i tried but couldn't download rating decision,my computer to slow

mobie

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I think you should have gotten at least 10% for loss of ROM. You should have gotten Sc'ed for the Tintinitus also since the only real test for it is subjective. You can have normal hearing and still have tintinitus as far as I know. If you fired weapons on the rifle range you could have tintinitus. Acustic trauma is what it is. Tankers and artillery guys get it but so do people who just are around any loud noise. Were all these claims filed within one year of discharge? I don't know if there is enough for a CUE, but there might be. It seems to me they mishandled your tintinitus claim and the loss of ROM.

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RE: Tinnutis. I feel that claim should have been decided, buit since it wasn't, that claims remains an open claim and ripe for a formal decision.

If the record shows the veteran made a claim, which was simply overlooked and not decided by the VA, the claim is unadjudicated. That is it was never decided and it remains an open claim. If a veteran files a claim for the same benefit sometimes thereafter, normally by filing new and material evidence which reopens the claim, the effective date for this newly reopened claim relates back to the date of the filing of the prior, unadjudicated claim.

If the VA had ignored a claim which had been raised by the evidence - and not raised by the veteran's actual claim - [as described above] the claim was and remains unadjudicated. As such, the claim is a pending, never-decided, non-final claim.

If a veteran files a claim for the same benefit sometimes thereafter, the effective date for the new claim relates back to the date the evidence first existed in the prior unadjudicated claim's file. That is, although it is a new claim, since it is seeking benefits which are like the benefits the unadjudicated claim's benefits sought [or should have sought if the VA had developed the claim properly when it was raised by the evidence], its effective date relates back to the time when evidence existed in the record which triggered the VA's duty to sympathetically develop that prior claim.

http://209.85.173.104/search?q=cache:MkgzN...;cd=3&gl=us

See also

By sympathetically reading Mr. Roberson’s filings, the Court found a pending, unadjudicated claim, rather than CUE in a decision that had become final. VAOPGCPREC 4-2004

ALSO, The pain may be subjective, but loss of ROM (range of movement) is objective evidence that supports service connection. ~Wings

Edited by Wings
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38 CFR 3.160 Status of claims

The following definitions are applicable to claims for pension, compensation, and dependency and indemnity compensation.

(a) Informal claim. See §3.155.

(b) Original claim. An initial formal application on a form prescribed by the Secretary. (See §§3.151, 3.152).

© Pending claim. An application, formal or informal, which has not been finally adjudicated.

(d) Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. (See §§20.1103 and 20.1104 of this chapter.)

(e) Reopened claim. Any application for a benefit received after final disallowance of an earlier claim, or any application based on additional evidence or a request for a personal hearing submitted more than 90 days following notification to the appellant of the certification of an appeal and transfer of applicable records to the Board of Veterans Appeals which was not considered by the Board in its decision and was referred to the agency of original jurisdiction for consideration as provided in §20.1304(b)(1) of this chapter.

(Authority: 38 U.S.C. 501)

(f) Claim for increase. Any application for an increase in rate of a benefit being paid under a current award, or for resumption of payments previously discontinued.

[27 FR 11887, Dec. 1, 1962, as amended at 31 FR 12056, Sept. 15, 1966; 55 FR 20148, May 15, 1990; 58 FR 32445, June 10, 1993]

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Any opinions as to Evidence that Tinnitus being alleged at Compensation & Pension exam

constitutes an Informal Claim ???

carlie

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