Effective Dates For Reopened Claims

[12R3G]

I'm hoping for some help/clarification. I helped by Father in Law finally get a disability rating for hearing and tinnitis. He filed his original claim in 1995 and was denied as hearing loss was not in his STR, and as result he didn't pursue. I convinced him otherwise, and he just got a 20% award and can (finally) get new hearing aids.

My question is this...his effective date for the award was the date he filed the claim to reopen with new and material evidence. but, he his original claim was 14 years ago. To make matters a little more interesting, he thinks it was within the 12 months before he filed that he asked his VA doctor about hearing aids. Alll is doc said was he wasn't eligible--he had no SC disability (again, did nothing)

Here is where I get confused. Looking at the M-21MR for reopened claims:

Para 20 ©: Effective dates are governed by 38 CFR 3.400(q)

Para 22. (A): The date of receipt of statements from the claimant that are held to be new and material evidence may constitute an effective date for increased benefits under 38 CFR 3.400(q).

38CFR 3.400(q): (q) New and material evidence (§3.156) other than service department records —(1) Received within appeal period or prior to appellate decision. The effective date will be as though the former decision had not been rendered. See §§20.1103, 20.1104 and 20.1304((1) of this chapter.

(2) Received after final disallowance. Date of receipt of new claim or date entitlement arose, whichever is later.

But, right below, 38 CFR 3.400®: ® Reopened claims. (§§3.109, 3.156, 3.157, 3.160(e)) Date of receipt of claim or date entitlement arose, whichever is later, except as provided in §20.1304((1) of this chapter.

[3.156(D): (4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. (The rest don't apply in this case)]

So, if the chat with the doc was documented, then that should be an informal claim date provided it was within the year before this latest claim was filed. but, based on the seemingly conflicting information above, can he ultimately preveail in a request for an EED back to his original claim? To further flesh this out, he filed in 1995--about the time he got hearing aids on his own dime. His letters, from friends and both current and former doctors , document hearing loss dating back well before the 1995 original claim was filed.

I'm thinking NOD for EED back to original claim...

Thanks in advance / Charles

[12R3G]

yeah, that and the "whisper voice" hearing test at the time was totally lacking in fidelity and when you are 25, you are invincible.

[Pete53]

Berta

His MOS--he was an armor officer back in the day before hearing protection was issued. That and doctor IMO/buddy letters describing the hearing loss long before he filed is orginal claim.

In 1968 I was issued to little yellow soft plastic things to protect ears. I never saw anyone use them but I had them.

[carlie]

A C&UE claim on a 1995 Rating Decision can only involve

the medical evidence of record at that time and the regulations

in effect at that time.

In 1995, if there was no showing in the SMR's/STR's the VA

famously denied the claim as Not Well Grounded. Once a claim

had the NWG decision on it, VA in 1995, did not have to provide a C&P.

My money's riding on the original rating decision that denied,

will state something to the effect of no mention of hearing loss in the STR,

claim denied as it is Not Well Grounded.

jmho,

carlie

[deltaj]

12RG3,

"his effective date for the award was the date he filed the claim to reopen with new and material evidence. but, he his original claim was 14 years ago".

This sounds right to me, if a factor of the decision to grant the claim

is based on the N&M evidence, which re-opened the claim would be correct.

He had a year to disagree with the rating decision 14 years ago, that rating

decision became final. The only thing that could overcome the ED to go back to

the original claim would be to submit a claim of C&UE (properly) and win.

In my opinion I do not feel he could ultimately preveail in a request for an EED back to his original claim.

"12 months before he filed that he asked his VA doctor about hearing aids".

I do not think this will get a 12 month EED as he simply inquired about

hearing aids.

"His letters, from friends and both current and former doctors , document hearing loss dating back well before the 1995 original claim was filed".

I feel that unless the letters and people above are licensed Audiologist that reviewed his records and provided a medical opinion relating the conditions to active duty, fully supported by medical rationale, then there is no,

medical documentation relating these disabilities, "back to his original claim".

jmho,

carlie

Reading Par 22 in the M-21 about statements from the claimant reminded me of 38 USC 1154 ( B ) but I'm not sure whether this veteran was in combat and whether V.A. received any statements from him other than service department records.

Edited October 25, 2009 by deltaj

[Commander Bob]

Reading Par 22 in the M-21 about statements from the claimant reminded me of 38 USC 1154 ( B ) but I'm not sure whether this veteran was in combat and whether V.A. received any statements from him other than service department records.

38 USC 1154 ( B )

B...In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full.

Edited October 25, 2009 by Commander Bob

[broncovet]

If you dont have the Cfile, and complete medical records, as well as a copy of the original rating decision, you are shooting in the dark. You should obtain those now. I think your best shot is a to 1)Thoroughly go through the SMR, looking for evidence of hearing loss. Also look at the original rating decision, especially reasons for decision. Dont guess..check the records. Also, check your medical records and look for any reference to any medical exam where he said anything about hearing loss. That can be a claim for increase, and an increase, imho, is a claim for SC when you have been denied, tho you may have to try to prove that. Then,

Go ahead and file a NOD on the most recent decision, requesting an EED.

2) File a Cue on the earlier decision, using the regulations, as well as the medical evidence as a basis for both your CUE and NOD.

It is clear to me the Veteran filed for hearing loss many years ago, and the VA is "weaseling out" of paying, hiding behind the 1 year finality of decision, and the difficulty of proving CUE. Dont let em do it. Nail em on the technicalties, like they are doing to you. Find your loophole to their loophole is what it amounts to.