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tinnitus Unadjudicated Pending Claims
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Question
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.
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