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

[free_spirit_etc]

elcamino,

I am not sure if this would effect your claim, but you might want to look up:

(I know this isn't the question you were asking, but since your initial claim was around that time-frame, I figured the info might be useful.)

May 22, 2003 VAOPGCPREC 2-2003

http://www.va.gov/ogc/opinions/2003precedentopinions.asp

DISCUSSION:

1. Before 1999, the rating schedule authorized a 10% disability rating for tinnitus incurred as a result of trauma to the head. See generally 38 C.F.R. § 4.87a, DC 6260 (1998) (“Persistent as a symptom of head injury, concussion or acoustic trauma.”). At that time, manifestations of tinnitus that were not the result of head trauma could be rated in association with the underlying cause under the appropriate diagnostic code.[1] In 1999, the Rating Schedule was amended, 64 Fed. Reg. 25,202, 25,210 (1999), to provide service connection for “Tinnitus, recurrent,” regardless of its etiology. 38 C.F.R. § 4.87, DC 6260. Additionally, a note was added in the 1999 amendment instructing raters that: “A separate evaluation for tinnitus may be combined with an evaluation under diagnostic codes 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports an evaluation under one of those diagnostic codes.”

[1] In Wanner v. Principi, 17 Vet. App. 4, 18 (2003), the CAVC invalidated the part of pre-1999 38 C.F.R. § 4.87a, DC 6260, that contained a trauma requirement for a 10% disability rating for tinnitus. As a result, the sole criterion remaining for that regulation was that the tinnitus be “[p]ersistent.” The CAVC did not reach the issue of whether a rating in excess of 10% could be provided for bilateral tinnitus under the modified regulation.

Edited May 30, 2014 by free_spirit_etc

[elcamino_77us]

Good Evening,

I Stand Corrected, The VA did in fact send me copies of my Tinnitus Case.

However, they were late in doing so. My SSOC was dated 13 Sept 2011. Yet, according to the Award Letter dated 1 Nov 2011, they decided the case on 7 Sept 2011. My Rating Decision was dated 31 Oct 2011. Also on 31 Oct 2011, my VSO submitted a VA Form 21-4138 along with extra documentation on my behalf, unknown to us, the VA had already decided the case. The VA then took the VA Form 21-4138 along with extra documentation and started a Increase Claim for Tinnitus and Hearing Loss, Left. With this Increase Claim, they service connected my Hearing Loss, Right. We were all under the impression that it was still the same came and it hadn't been decided.

I'm wondering if I can still use the statement from my last decision concerning Dr. Allen's records as keeping the case open. Along with the 2) SF-600's from service treatment my 1996 Audio C&P and my NOD of 2005.

I'm thinking using the statement about Dr. Allen's Statement in my 2013 Decision, my best way to go.

Bill

Edited June 2, 2014 by elcamino_77us

[elcamino_77us]

Ok, after tons of research, I found on Ask NOD, who happens to come in here, a section on "The Pending Claims Doctrine." Reading this I found,

"General Counsel in VAOPGCPREC 9-97 that under 38 U.S.C.A. § 7105(d)(3), if VA receives additional material evidence within the time permitted to perfect an appeal, then VA is required to issue an SSOC even if the one year period following the mailing date of notification of the determination being appealed will expire before VA can issue the SSOC."

"Furthermore, the opinion stated that once an SSOC was issued, then the veteran would have at least an additional 60 days in which to submit a substantive appeal to perfect his appeal, even if this extended the period to perfect an appeal beyond the standard one year from the date of notice of the decision on appeal."

In my case, the VA never issued a SSOC after I submitted the information they requested. Instead they opened a new claim. Therefore, the decision was never final. Which means that I can go back and appeal for a EED.

Bill

Edited June 5, 2014 by elcamino_77us

[elcamino_77us]

Update on my EED for Tinnitus.

I tried three times to fill a claim for a EED. The VA kept blowing me off, the second time they stated that I couldn't file a free stand claim for an EED. The third time I filed a NOD on the decision which SC'd my Tinnitus. Included within the NOD was the fact that they had not followed protocol and issued my SSOC as required, instead starting a New Claim. That's where that claim dated 12/06/11 came from. By the Atlanta's VARO trying to play games, it left my claim open.

They were still ignoring my third try when I decided to email the Secretary of the VA Robert McDonald. Not only were they ignoring me on this claim, they also inappropriately closed my appeals on my Nov 2013 Claim. I had asked for a DRO, ignoring this they sent my claim to the BVA. When I brought this to their attention, they stated they would fix it. Instead they closed it. My local Congressman's Office was trying to work on it but they were getting the runaround. I thought it might be good to show Mr. McDonald parts of my 2008 BVA where they had deliberately misquoted doctors statements that are a part of my Nov 2013 NOD for a Left Knee condition and Bilateral Radiculopathy.

Mr. McDonald sent me a response the next day. Within a week, I received a phone call from the Atlanta VARO as well stating that my letter requesting either a DRO or BVA had been mailed concerning my Tinnitus Claim. They also stated that they had inadvertently closed my DRO and that they had just reviewed it. That I would be getting a SSOC as well. I did receive the letter on the Tinnitus Claim, however according my VSO, the SSOC hasn't been released yet and is not in the system.