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]

When were you granted SC for Tinnitus? Being granted Tinnitus means the Tinnitus claim is no longer unadjudicated. So I am not seeing a way to go back on an unadjudicated informal claim. Are you still within the appeal period on the Tinnitus claim?

Edited May 26, 2014 by free_spirit_etc

[free_spirit_etc]

"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."

Did the C&P examiner give you a diagnosis of Tinnitus? Or did he just report that you reported Tinnitus?

[elcamino_77us]

free_spirt_ect,

That was quoted from the C&P Exam. I had complained about the Tinnitus during the Exam

Thanks for the Info, I will go through it. Sorry to be so short. Leaving for in-laws in about 2 mins.

Bill

Edited May 26, 2014 by elcamino_77us

[elcamino_77us]

Thanks Again for the information. It goes along with some of the appeals that I found as well.

Being a Marine, the Navy's Occupational Health and Safety section had me removed from my MOS due to a hearing loss caused by the high noise level within my MOS environment. At first, they were keeping my in the dark about what was going on, my guess was to keep me from "fibbing" on the hearing test. As it turned out, there were three of us in my MOS Field with the same hearing problems. In a sense, our loss made the Marine Corps take appropriate actions to prevent future Marines in our MOS from also losing their hearing as well.

Bill

[elcamino_77us]

Good Morning,

I did some searching last night. I'm thinking a good timeline might help, don't have dates in front of me, but here goes.

Dec 1995 VA receives my Claim which includes hearing loss.

Feb 1996 Audio C&P Examination. I complained about the ringing in my ears.

The examiner wrote: "He reported progressive bilateral hearing loss and occasional bilateral tinnitus, onset 1993 or 1994." This should have been an Inferred Claim

1997 File a NOD for my claims including hearing loss

2002 Contacted Senator concerning Claim as I had never heard back from the VA

2002 or 2003 BVA Hearing Atlanta, Most Claim was Remanded

2003-4 new exams

2005 Back to BVA, Within the NOD Statement I wrote a full paragraph concerning my Tinnitus and its effects. This also should have been classified as a Inferred Claim.

2005 BVA decided my case on Hearing Loss. Most was again remanded

2006 RO Decision appealed

2008 BVA on Left Knee and Back.

09/07/2011 New claim for Tinnitus & Increase for Hearing Loss Claim filed

10/31/2011 Tinnitus Claim SC"d for 10% using some new streamline method. Never got the decision letter or findings.

12/06/2011 Filed for an Increase for Hearing Loss. I have not idea who filed, I'm thinking it was my VSO.

06/14/2012 Final decision for Hearing Loss. still at 0%. Never got the decision letter or findings. No Appeal Filed.

From a Letter I read last night from a VA Judge, concerning Inferred or unjudicated claims, there seems to have been alot of changes in the law during that time period ending in 2009. One of the standards states that when a Inferred Claim is pending from a previous claim and if a new claim is later made addressing the same disability, the pending claim is no longer pending and has been decided.

I guess you could say I'm somewhat confused which way to go in this case. I can claim CUE on my previous 1996 Case as the Inferred Claim should have been made from my exam. I can also use the 2005 NOD to say the same thing. I also have two SF600's (Service Medical Records) showing that I was treated in service for Tinnitus, only one of them was used in my 2011 Claim. Even though they were already in my Service Medical Records, the VA does't even look at them. My request for records through the Information act only netted partial copies which took three years to get. I need to see if I can still use Roberson as the laws have changed.

Any advice will be appreciated.

Billy G. Hill

.

[elcamino_77us]

Ok, after searching here, I netted an post from last year:

Free Spirit had posted a couple of links. One was a Federal Court Decision; Harris v. Shinseki, No. 2012-7111 that, in fact still quoted Roberson along with a few others:

"In Roberson, we held that the VA has a duty to 3 The cited pro se cases involve clear and unmistakable error (CUE) reviews, rather than a direct appeal fully develop any filing made by a pro se veteran by determining all potential claims raised by the evidence. We reiterated this requirement in Szemraj, when we stated that the VA must generously construe a pro se veteran’s filing to discern all possible claims raised by the evidence. Finally, in Moody, we held that any ambiguity in a pro se filing that could be construed as an informal claim must be resolved in the veteran’s favor."

Therefore, my thinking is that Roberson still is valide argument.

In that same post, Broncovet posted:

It isnt enough to seek treatment, to get an eed under 3.157. The CAVC has ruled there are 3 conditions the Veteran must meet to qualify as an informal "claim" under 3.157:

1. The claim has to be "in writing". No verbal claims.

2. The Veteran must "show intent" to apply for one or more benefits. (Showing intent for treatment isnt enough)

3. The Veteran must "specify benefit sought".

In my 1995 Claim, I 1) Applied for Benefits by filling out a Claim. 2) Undertook a C&PAudio Exam. 3) I Reported my Tinnitus to the Examiner. & 4) The Examiner wrote it into my C&P Exam. The Claim was in writing, it showed an intent to apply for benefits. And it showed that I sought a Service Connection for Tinnitus.

I should be able to CUE my 2005 BVA where my Hearing Loss was decided.

Any Ideas or suggestions

Bill