tinnitus Unadjudicated Pending Claims

[free_spirit_etc]

I am trying to decide if:

1. My husband had any unadjudicated pending claims at the time of his death.

2. If he does - if it is worth pursuing them.

I was basing the idea that he might have some unadjudicated claims on the following logic:

http://search.uscourts.cavc.gov/isysquery/e790a225-57bb-4517-9599-b308f6f3e797/49/doc/

"However, notwithstanding the appellant's representation during the development of his claims before VA and at the Court, the appellant is entitled to a liberal reading of his filings. See Robinson,supra. Following the May 2007 VA auditory examiner's opinion, it appears that the facts before the Board were that (1) the appellant had a hearing condition he attributed to noise exposure in service and was "just liv[ing] with this condition," (2) the hearing condition was not bilateral hearing loss, and (3) the appellant had a diagnosis of tinnitus and complained of " static" in his ears. R. at 310, 185. This suggests the strong possibility that the appellant currently has an unadjudicated claim for tinnitus at VA that the Board could have construed as being included in the appellant's claim for hearing loss. Cf. Clemons v. Shinseki, 23 Vet.App. 1, 6 (2009) ("To deny the appellant's claim for lack of a current [] condition would have been entirely contrary to the medical evidence—it clearly shows there is a diagnosed current [] condition."). Although a claim may identify only one diagnosis, it must be considered a claim for any disability that may reasonably be encompassed by factors including(1)the claimant's description of the claim,(2)the symptoms the claimant describes, and (3) the information the claimant submits or that the Secretary obtains in support of the claim. Id. at 5 (2009). Therefore, in recognition of the strong possibility that the appellant currently has an unadjudicated claim for tinnitus at VA, the Court notes that he may seek adjudication of that claim below. See DiCarlo v. Nicholson, 20 Vet.App. 52, 56-57 (2006). Should the
appellant receive a final Board decision regarding a presently unadjudicated claim for tinnitus with which he is not satisfied, he will be free at that time to appeal the Board's decision to this Court."

In looking at my husband's Statement of Case for his 2003 claim for Gulf War (undiagnosed) illnesses - the VA got on the ball and started diagnosing everything. So, of course, they denied all of the conditions because they were not undiagnosed illnesses, as they had been diagnosed. Almost all of the conditions were conditions that my husband claimed when he was discharged (i.e. joint pain, trouble sleeping, fatigue, etc.) A couple conditions were newer (i.e. headaches). But the RO denied the claims, as the illnesses had been diagnosed, without seeming to consider the possibility that the conditions might be SCed as diagnosed illnesses. On some of the conditions, they did mention that a chronic disability for X is not shown by the service medical records. For other conditions, they made no such notation.

So I am not sure if the conditions that they didn't note weren't present in the SMRs could still be considered pending. Or if even the other conditions could still be considered pending because they didn't really develop the part of the claim except to note that a chronic condition wasn't shown in service.

So I am considering asking that those claims still be considered to be pending unadjudicated claims for the purpose of accrued benefits.

BUT -- I am also considering the fact that even if they granted SC for some of them - it wouldn't make a difference $$ for me because of the concurrent receipt issue. He was 10% SC for his left knee and 10% SC for his back. It would take quite a few 10% conditions to bump him over 50%.

I think my intent is mostly an honor thing. I just want to say -- Dang it! His discharge physical is missing. But he told you he hurt - and where he hurt - at the time of his separation from active duty! He reported his symptoms to the VA WHEN he was discharged. And he has medical diagnoses for those symptoms.

But I also don't want to tick the judge off when he is deciding my DIC claim. THAT claim is very important. So I don't want to put it in jeopardy by claiming too much - and appearing greedy. The accrued benefits part isn't even about money - it is about standing up for my husband's honor in his claims.

[broncovet]

I would not worry about "appearing greedy". When you go to the judge, the VA benefits is "all about the money", so it will be handled as such. They see claimants every day, and all of them need money...almost none of them just won the lottery. Ask for all the benefits you feel entitled to, but no more.

As far as the "honor" part of this...this is about you, and what makes you feel honors your late husband. Every man is different and what may be honoring to him, may well be dishonoring to me. When I lost my mother, I noticed that my brother and I, who loved our mother as much as I did, expressed his grief for her very different than what I do. His way is no better than my way, and I am very pleased for the things he does to honor our mother, tho it is very different from the way I would do it.

You know your hubby better than we ever will. Berta seems to find some peace in getting from the VA all her (from him) deserved benefits, and she is very good at fighting for them, and highly successful. She also helps other Vets, one of those is me.

You will see the judge, probably one time in your life, (if at all) and then he will decide your case on its merits. Most of the judges stick to the facts and dont care if you have purple hair or ride a trycicle to the hearing. Hope this helps.

[Philip Rogers]

I agree! File the claim and then get a complete copy of his C-file. Ya never know what you'll find.

pr

[harleyman]

Your claim for DIC is a separate claim than a claim for accrued benefits. Apples and Oranges but both fruit. I would send in a VA Form 21-4138 requesting all pending claims at the time of your husbands death, be reopened. Also, request a complete copy of all records the VARO has in your husbands claim file and all electronic evidence to date regarding your late husband.

Revew every page and every complaint your husband had while in service. You didn't mention when your husband served, however, there are many illnesses that are presumptive to certain periods of service. This is important for determining if your husbands death was due to a condition that should have been service connected.

YOU ARE NOT GREEDY to want what is your or your late husbands entitlement. Open your claims. Stay close to the Hadit forum as there will be lots of help availabe to you ...for FREE. You will be surprised as to the knowledge of the members here both individually and collectively. Wish you the best.- Harleyman

Edited September 22, 2013 by harleyman

[free_spirit_etc]

Thanks everyone! I have a copy of the C-file (as far as I know). And I have already had my hearing (ugh.... judge was nice - bad VSO). And I kind of held a spot open for accrued benefits for other conditions in my substantive appeal, stating "In regard to entitlement for accrued benefits, the Supplemental Statement of Case indicates my husband had an active claim for adenocarcinoma pending at his death, it does not indicate that any other claims, reasonably raised by the evidence of record, would also be pending. These claims include, but are not limited to, other respiratory illnesses and increased ratings for conditions for which my husband was already service connected at the time of his death.

These conditions would include, but are not limited to, chronic bronchitis, chronic sinusitis, cervical strain, and increased rating for arthritis of the joints."

But I wasn't sure what direction to move because widows don't have the right to claim a CUE for accrued benefits. They can claim a CUE on their own claims, but they can't claim that their was a CUE involved in one of their husband' previous decisions, in order to get accrued benefits.

I am thinking that if I could ever get my hands on my husband's discharge physical, they might have to readjudicate the claims though. I really don't think they have ever had a copy of that in the file. It seems very odd that no one talked about it. They always just say "your service medical records don't show this or that..." but they don't refer to his discharge physical.

The best bet I seem to have is to find claims that the judge might consider unadjudicated. That would pretty much be the symptoms that were reported to the VA at the time my husband retired, that were later denied SC as due to undiagnosed illnesses, but not really adjudicated to see if they could be otherwise SCed. For some of them, the VA did briefly mention that that the record didn't show chronic ___ (whatever the condition was) in service. But others do not mention that. As long as that was stated - the judge might say the claim for it was adjudicated. But just mentioning that the records don't show chronic whatever in service doesn't seem like a full adjudication, unless a doctor had actually stated the condition was not service related because of that.

As far as the law on unadjudicated claims, there seems to be decisions in both directions, so the judge could find precedents to back his decision no matter which direction he went with it. I have to stay away from errors, because CUE is not available to widows. I have to focus on whether any of the claims can be considered unadjudicated (and thus still pending).

We were aware that some of these conditions should have been SCed during my husband's lifetime. However, most people advised to not bring them up yet, because it would slow down the lung cancer claim. In retrospect, that might not be the best advice for someone with a terminal illness. Probably the best advice is to not file them yet, as they might slow down the claim -- but prepare them, and have them ready to file on a moments notice. And if your condition starts going downhill, get those filed - so they will be filed during your lifetime, and thus, a pending claim upon your death.

As far as greedy - I was just reading about how you shouldn't file too many claims at once, or the judge will be more likely just think you are being greedy, and deny them. But as I have already had my hearing, it is kind of now or never time for me. I have about two more months left to submit other evidence in support of my claim.

[free_spirit_etc]

Your claim for DIC is a separate claim than a claim for accrued benefits. Apples and Oranges but both fruit. I would send in a VA Form 21-4138 requesting all pending claims at the time of your husbands death, be reopened. ​Would I do this even if I have already had my hearing?

Also, request a complete copy of all records the VARO has in your husbands claim file and all electronic evidence to date regarding your late husband.

Hmmm. I am not sure I have electronic evidence. I just have a copy of the C-file. His C-file is at the BVA now.

Revew every page and every complaint your husband had while in service. You didn't mention when your husband served, however, there are many illnesses that are presumptive to certain periods of service. This is important for determining if your husbands death was due to a condition that should have been service connected.

My husband served from 1970 - 1998. He did not have boots on the ground in Vietnam. He did serve 186 days in Desert Storm. He has filed for undiagnosed illnesses, and they decided to diagnose them. :) So the best basis of a claim I have right now is that some of these conditions should be SCed based on the diagnoses. He claimed them at the time of his discharge and reopend the claim in 2003. He did get a SOC in 2004, denying them all as due to undiagnosed illness. But he did not appeal at that time. I am just trying to see if I can get some of them to be consider unadjudicated, and pending.

YOU ARE NOT GREEDY to want what is your or your late husbands entitlement. Open your claims. Stay close to the Hadit forum as there will be lots of help availabe to you ...for FREE. You will be surprised as to the knowledge of the members here both individually and collectively. Wish you the best.- Harleyman

My husband died in 2007. I think the regulations for accrued benefits have changed since that time. I am under the regulations where the widow pretty much has to show the claim was pending at the time of the veteran's death - and it has to be decided based on the record at the time of the veteran's death.

[free_spirit_etc]

This is what is important -- implicit denial doctrine.

So it would be whether the Board considered the claims to be implicitly denied. It does look like as long as they mention it, they often consider it implicitly denied.