tinnitus Eed For Tinnitus

[elcamino_77us]

Good Morning,

From everything I've read in here on EED's, reading Claims, and the Regs, The following holds true:

1. Once a Informal Claim has been made, the VA has to send the Veteran a form to fill out.

2. The Veteran has one year to fill out the form and submit the Claim.

After reading Berta's Post "Eed Back To Date Entitlement"

I've come up with the following concerning my Case.

I was discharged Nov of 1995, Feb of 1996 I was given a Audio C&P Examination in whch I was found SC for Hearing loss. In that Audio C&P Examination, the examinor made the following statement:

He reported progressive bilateral hearing loss and occasional bilateral tinnitus, onset 1993 or 1994.

At the time I didn't know the Tinnitus and Hearing Loss were two seperate claims. I've since been service connected for Tinnitus.

The VA didn't bother to tell me nor did my VSO. The VA never sent me a form to fill out and file. Failure to Assist. Therefore, the one year limit doesn't apply in this case.

That exam along with two entries for Tinnitus in my Service Medical Records, should give me an Earlier Effective Date to date of Discharge.

Any Thoughts

Bill

[Berta]

What is the status of the hearing loss claim? or did they SC the hearing loss?

"That exam along with two entries for Tinnitus in my Service Medical Records, should give me an Earlier Effective Date to date of Discharge. "

How so...I dont catch your drift.

"I've since been service connected for Tinnitus. "

Did you appeal the decision as to the EED? Or ask for a Reconsideration of the EED?

When was the tinnitus claim filed and was it denied originally?

Sorry I dont understand this statement either:

"The VA never sent me a form to fill out and file. Failure to Assist. Therefore, the one year limit doesn't apply in this case."

What form?

Edited May 23, 2014 by Berta

[elcamino_77us]

Good Morning Berta,

Thanks for answering.

What is the status of the hearing loss claim? or did they SC the hearing loss?

I was service connected from the date of my discharge in 1995 for Left ear Hearing Loss.

"That exam along with two entries for Tinnitus in my Service Medical Records, should give me an Earlier Effective Date to date of Discharge. "

How so...I dont catch your drift.

From what I’ve read, I believe in here, That if you are SC’sd for a condition and can show where you have a previously claim which has never been (can’t think of real term) addressed, along with documented military treatment, you can get a EED.

"I've since been service connected for Tinnitus. "

Did you appeal the decision as to the EED? Or ask for a Reconsideration of the EED?

When was the tinnitus claim filed and was it denied originally?

The Tinnitus Claim was filed in 2011 and since I was already SC’d for hearing loss, they just signed off on the Tinnitus. Unfortunately No, I was still both Naive and relying on my VSO concerning my cases. However, I have learned a lot trying to fix this mess.

Sorry I dont understand this statement either:

"The VA never sent me a form to fill out and file. Failure to Assist. Therefore, the one year limit doesn't apply in this case."

What form?

I highlighted the section.

§3.155 Informal claims.

(a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.

(b) A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written.

© When a claim has been filed which meets the requirements of §3.151 or §3.152, an informal request for increase or reopening will be accepted as a claim.

Cross References: State Department as agent of VA. See §3.108. Report of examination or hospitalization—as claim for increase or to reopen. See §3.157.

[26 FR 1570, Feb. 24, 1961, as amended at 52 FR 27340, July 21, 1987]

Berta, in one of the links you posted I found this:

The Veteran underwent a VA examination on December 21, 1999.

At the examination the Veteran asserted that he was unable to work due to his service-connected lumbar spine disability.

The Board interprets this statement to be an informal claim

for TDIU. See Roberson, supra.

I need to find and read Roberson, However, this tells me that my C&P Exam had an informal claim and that I should be able to get an EED as according to the Regulation above, the VA was supposed to send me a Claims Form but failed to do so. Therefore, the year limit on that never started.

Thanks Bill

[Berta]

You certainly have done some good VAOLA homework Bill.....

A more favorable EED can often be obtained via 'newly discovered service records. It is discussed here under 38 CFR 3.156

I discussed that reg at a hadit radio show and in a follow post here:

Discussion here too:

Or of course under CUE a veteran can also recover a very favorable EED....

My SMC CUE is in the CUE forum.

Final decision never appealed 1998

CUE claim filed on three separate CUE bases 2003 and 2004

Awarded via Nehmer in 2012. 5 figure award. (it is still wrong and I have another cue pending on that (that VA said they lost) They will find it.

If you were denied for tinnitus that is one thing, but it appears you might have CUE basis under the reg you posted as well as under 38 CFR 3.156.

But I am anxious to see how others here view this and determine the best course of action.

I dontthink I have ever seen a CUE under the 38 CFR 3.155 reg.

However Nothing is Impossible.

[Berta]

http://www.purpleheart.org/serviceprogram/Training2013/19-T-Effective%20dates-Ron.pdf

(A long rendition but worth it to read)

and Yow:

The veteran claimed retro back to 1947 as well as to 1989 and raised 38 CFR 3.156:

"The Board finds that the March 9, 1989
letter meets the requirements set forth under 38 C.F.R.
3.155(a) (2003) as the veteran identified the benefits
sought-namely, service-connected benefits for a back
disorder. "

ORDER

An earlier effective date of March 9, 1989 for the grant of
service connection of spinal spondylosis of the lumbar spine
is granted.

http://www.va.gov/vetapp03/files/0326235.txt

There might well be something there to help you. 14 years of retro is a nice chunk of change.

[elcamino_77us]

Thanks Berta,

I appreciate all of your help.

Bill

[free_spirit_etc]

http://search.uscourts.cavc.gov/isysquery/f2c18aaa-2631-4f62-9680-1ad6f1c2e9d9/1/doc/ElmoreRL_09-1011.pdf#xml=http://cavc-isys1.cavc.adir/isysquery/f2c18aaa-2631-4f62-9680-1ad6f1c2e9d9/1/hilite/

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 09-1011

RONNIE L. ELMORE, APPELLANT,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before MOORMAN, Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

II. ANALYSIS

A. Hearing Loss

The appellant argues that the Board erred in failing to recognize a claim for tinnitus that was

reasonably raised in the record. Appellant's (App.) Brief (Br.) at 7-9. The Court observes that the

appellant's current counsel apparently filed his August 2007 NOD (R. at 142-55) and November

2007 Substantive Appeal (R. at 83-94) but failed to evidence any intent to apply for compensation

for tinnitus. In his reply brief, counsel for the appellant conceded that "the better practice would

have been to plead entitlement to service connection for bilateral constant tinnitus." App. Reply Br.

at 4. 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 v. Shinseki,

557 F.3d 1355, 1361 (Fed. Cir. 2009) (holding that "n direct appeals, all filings must be read 'in

a liberal manner' whether or not the veteran is represented" quoting 38 C.F.R. § 20.202).

However, the mere existence of medical records cannot be construed as an informal claim

for benefits absent an intent by the appellant to apply for such a benefit. See MacPhee v. Nicholson,

459 F.3d 1323, 1326 (Fed. Cir. 2006); Brannon v. West, 12 Vet.App. 32, 35 (1998) ("While the

Board must interpret the appellant's submissions broadly, the Board is not required to conjure up

issues that were not raised by the appellant."). Here, the appellant contends that his claim for service

connection for hearing loss should have been construed as an informal claim for tinnitus given his description of

noise exposure in combat and his diagnosis of bilateral tinnitus in a May 2007 VA auditory examination. App. Br. at 7-9.

However, an informal claim requires a "communication or

action, indicating an intent to apply for one or more benefits" and which adequately "identif[ies] the

benefit sought." 38 C.F.R. § 3.155(a) (2010). The May 2007 VA examination contains a diagnosis

of bilateral tinnitus and the appellant's contention that he "has noticed a high-frequency 'static' in

quiet listening situations." R. at 185. Moreover, the appellant twice expressly denied that he

suffered from tinnitus. R. at 199, 236-37. Accordingly, the Court holds that the Board did not err

in failing to recognize and address the appellant's claim for hearing loss and subsequent diagnosis

of tinnitus as an informal claim for tinnitus. See MacPhee and Brannon, both supra.

Additionally, the appellant's argument that the May 2007 VA examination was inadequate

because it failed to provide a nexus opinion for tinnitus is meritless as there was no claim, formal

or informal, for tinnitus. To the extent that the appellant argues that the Board erred in denying the

appellant's claim for service connection for bilateral hearing loss because the May 2007 VA auditory

examination was inadequate, the Court is not persuaded. See Hilkert v. West, 12 Vet.App 145, 151

(1999) ("An appellant bears the burden of persuasion on appeals to this Court."). The Court does

not find error in the Board's reliance on the May 2007 examiner's opinion that the appellant had

"normal hearing status." R. at 186. Further, the Board provided an adequate statement of reasons

or bases for the Court to review the Board's determinations. See 38 U.S.C. § 7104(d)(1); Allday v.

Brown, 7 Vet.App. 517, 527 (1995); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992). Therefore,

the Court will affirm the Board's denial of the appellant's claim for hearing loss.

B. Tinnitus

The record before the Court raises the question of whether the appellant has a pending

unadjudicated claim for tinnitus raised below. Although the appellant twice denied tinnitus, he

clearly expressed in his original claim for compensation for a hearing condition that he was exposed

to weapons fire during combat and has a hearing condition as a result of that exposure: "I was around

105 Howitzer when it was fired, M60, and rifles. . . . I have a hearing loss and request a VA

examination. I have just lived with this condition." R. at 310. Thus, VA was aware that the

appellant was experiencing some hearing condition that the appellant related to service when itB. Tinnitus

The record before the Court raises the question of whether the appellant has a pending

unadjudicated claim for tinnitus raised below. Although the appellant twice denied tinnitus, he

clearly expressed in his original claim for compensation for a hearing condition that he was exposed

to weapons fire during combat and has a hearing condition as a result of that exposure: "I was around

105 Howitzer when it was fired, M60, and rifles. . . . I have a hearing loss and request a VA

examination. I have just lived with this condition." R. at 310. Thus, VA was aware that the

appellant was experiencing some hearing condition that the appellant related to service when itB. Tinnitus

The record before the Court raises the question of whether the appellant has a pending

unadjudicated claim for tinnitus raised below. Although the appellant twice denied tinnitus, he

clearly expressed in his original claim for compensation for a hearing condition that he was exposed

to weapons fire during combat and has a hearing condition as a result of that exposure: "I was around

105 Howitzer when it was fired, M60, and rifles. . . . I have a hearing loss and request a VA

examination. I have just lived with this condition." R. at 310. Thus, VA was aware that the

appellant was experiencing some hearing condition that the appellant related to service when itB. Tinnitus

The record before the Court raises the question of whether the appellant has a pending

unadjudicated claim for tinnitus raised below. Although the appellant twice denied tinnitus, he

clearly expressed in his original claim for compensation for a hearing condition that he was exposed

to weapons fire during combat and has a hearing condition as a result of that exposure: "I was around

105 Howitzer when it was fired, M60, and rifles. . . . I have a hearing loss and request a VA

examination. I have just lived with this condition." R. at 310. Thus, VA was aware that the

appellant was experiencing some hearing condition that the appellant related to service when it

ordered the auditory examination. The May 2007 VA auditory examiner ruled out bilateral hearing

loss as a diagnosis, but it is clear from reading the examination report that the appellant received a

diagnosis of bilateral tinnitus. R. at 185. The appellant and his counsel had ample opportunity to

express an intention to seek entitlement to service connection for tinnitus with even the threshold

requirements of an informal claim pursuant to 38 C.F.R. § 3.155(a), but failed to do so as discussed

above.

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 inservice

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.