tinnitus Va Turned Down Claim

[68mustang]

Recently I put in a claim for hearing loss and vertigo. The VA denied the hearing loss, but has let the vertigo claim go forward. The reason the VA stated for denying the hearing loss claim was that last year I had put in a claim for hearing loss, which was denied and that I did not appeal the decision within the one year time limit. I did file a claim for tinnitus, and did not file a hearing loss claim. The tinnitus claim was approved and I received a 10% rating. The award letter states that my tinnitus claim was approved and nowhere in the letter does it state that a hearing loss claim was denied. The VA also states that in order for the hearing loss claim to continue, that I need to provide new evidence which has not been previously used.

The doctor's report that I sent in last year for the tinnitus claim stated the I had tinnitus and hearing loss due to acoustic trauma while in the military.

The doctor's report was used on the tinnitus claim, should that report be allowed to support my hearing loss claim since I had not previously file for hearing loss claim in last years original tinnitus claim?

Any input that you all might have would be appreciated. Thanks.

68mustang

[vaf]

Mustang, I don't know for sure about your VARO, but the one in Louisiana would not accept a request for a C-file through IRIS. They insisted on written notification, not electronic. You may want to call and check, but I'd do it via certified mail if I were you. The reason for that is that when the file never arrived after almost a year, I had to send copies of the green card that verified the VARO received the request, and the date they received it, to the Office of the General Counsel. I also included printouts of follow-up IRIS inquiries over eleven months in which the VA confirmed they had the request and would get around to sending it when they're not too busy, etc.

Even then, when I reviewed the file when it finally got here, the OGC wrote to the VARO that the veteran "allegedly" requested the file in January 2007. There was no "allegedly" about it, the black and white evidence was staring them in the face.

[68mustang]

Mustang, I don't know for sure about your VARO, but the one in Louisiana would not accept a request for a C-file through IRIS. They insisted on written notification, not electronic. You may want to call and check, but I'd do it via certified mail if I were you. The reason for that is that when the file never arrived after almost a year, I had to send copies of the green card that verified the VARO received the request, and the date they received it, to the Office of the General Counsel. I also included printouts of follow-up IRIS inquiries over eleven months in which the VA confirmed they had the request and would get around to sending it when they're not too busy, etc.

Even then, when I reviewed the file when it finally got here, the OGC wrote to the VARO that the veteran "allegedly" requested the file in January 2007. There was no "allegedly" about it, the black and white evidence was staring them in the face.

Thanks vaf. You are right I should request it by certified mail. I did know that it might have to be requested by mail. Lets see what the response is through IRIS. I am still within the time limits to file an NOD if I have to.

68mustang

[timetowinarace]

It's not a CAVC opinion, it's a Federal Court of Appeals decision; one step higher than CAVC. Be sure to remember this the next time you vote for US Representatives, US Senators and the President. They are the ones who appoint these morons who think it is ok to legislate from the bench.

Yep, contact Reps and Senators. But the focus should be on getting them to re-write the law and include terminlogy to it that the veteran must be notified of ALL denials. The new law should be retro-active to include past claims.

No denial letter should = no denial.

[68mustang]

Yep, contact Reps and Senators. But the focus should be on getting them to re-write the law and include terminlogy to it that the veteran must be notified of ALL denials. The new law should be retro-active to include past claims.

No denial letter should = no denial.

See if you all can open the following report at this web site:

http://www.va.gov/Vetapp/ChairRpt/BVA2007AR.pdf

Board of Veterans' Appeals

Report of The Chairman

Fiscal Year 2007

Read page eight it addresses the issue of claims being "deemed denied". Please let me know after you read it what you think. Thanks.

68mustang

[cowgirl]

I think that happened to me before. Years ago, I had filed a claim through a vso who 'generically' used cover all wording 'just in case' a related condition or unidentified condition existed and was found during a c&p. The claim submmitted was for 'Back and leg problems' I didnt think about it until va titled the 'claim for 'lumbar' . Yup, changed words. Lumbar 0%, legs ignored. Both are SC now. I had to learn the hard way to 'tell the va what I am claiming for' One' condition at a time, medical term 'simplicity', 'lumbar', 'veins', depression' etc. Newer Vso has submitted two claims (different conditions) for me within a few weeks, sayin' 'they dont read minds' or know current health. true, both worked.

Best to ya,

Back to reading my Cfile, again,

Cg'up2009

Larry J to answer your questions below. The denial that I received this past month mentions that I had previously file for hearing loss in 2007 . I never filed for hearing loss at that time. In 2007 I for filed tinnitus and not for hearing loss. The tinnitus claim was awarded and the award letter did not make any mention of a denial for hearing loss. If there had been documentation of a denial for hearing loss I would have quickly file an NOD. I believe the VA has made a mistake in saying that a non existent hearing loss claim from 2007 precludes me from using the doctor's report that was used for tinnitus in 2007.

Edited January 6, 2009 by cowgirl

[LarryJ]

See if you all can open the following report at this web site:

http://www.va.gov/Vetapp/ChairRpt/BVA2007AR.pdf

Board of Veterans' Appeals

Report of The Chairman

Fiscal Year 2007

Read page eight it addresses the issue of claims being "deemed denied". Please let me know after you read it what you think. Thanks.

68mustang

After reading it, it appears to me that they are stating that a claim cannot be deemed denied until it actually IS denied by the RO in communications with the claimant, and reverses the prior ruling.

"The CAVC reasoned that if a claim could be

denied sub silentio by failing to be addressed by VA when deciding other contemporaneous

claims, the veteran would have no reason to know that the claim had been decided. As

such, the CAVC interpreted Deshotel to mean that an RO decision may only constitute an

adjudication of a claim where the RO decision addresses the claim “in a manner sufficient for

a claimant to deduce that the claim was adjudicated.”Consequently, the CAVC held that a reasonably raised claim remains pending “until there is

either recognition of the substance of the claim in an RO decision from which a claimant could

deduce that the claim was adjudicated or an explicit adjudication of a subsequent “claim” for

the same disability.”"