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]

Inferred Issues are a whole different ball game than informal claims.

An inferred issue is derived from the consideration or outcome of related issues. Often the primary and inferred issues share the same fact pattern.
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCgQFjAA&url=http%3A%2F%2Fwww.benefits.va.gov%2Fwarms%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart3%2Fsubptiv%2Fch06%2Fch06_secb.doc&ei=POWEU-qGFYSxyATpqoC4CQ&usg=AFQjCNHL5Ny6bA44KDqnaAcBn1TguErCiA&bvm=bv.67720277,d.aWw

and more in M21-1MR as well :

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCgQFjAA&url=http%3A%2F%2Fwww.benefits.va.gov%2Fwarms%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart3%2Fsubptiv%2Fch06%2Fch06_secb.doc&ei=POWEU-qGFYSxyATpqoC4CQ&usg=AFQjCNHL5Ny6bA44KDqnaAcBn1TguErCiA&bvm=bv.67720277,d.aWw

In essense my SMC CUE claim regarded an inferred issue, never mentioned in the 1998 decision I CUed.

It was an award however, and not a pending un adjudicated inferred issue which I think you might have.

Still it was an inferred issue that VA never inferred until I Cued them.

The 2004 CUE was 3 parts, specifcally regarding VA's mandate to 'infer' SMC whever the medical evidence warrants it.

He was 100% P & T for PTSD plus 100% under 1151 CVA so the mandate dictated that the VA infer the SMC issue ( 100% SC plus 60 or over independent SC)and then adjudicate it.

They did in 2012.

You need to determine if you have an open inferred issue claim for the tinnitus.

Do you have a copy of your complete C file?
"
The issue
involving alcohol abuse became an inferred issue as the
evidence was developed. In January 1989 the RO denied
service connection for PTSD and for alcohol abuse, and sent a
letter to the veteran notifying him of the denial of PTSD,
but failing to notify him as to the denial of alcohol abuse. "

"In October 1992, the veteran sought to submit a notice of
disagreement with the rating action of August 1991 as to the
percentage rating assigned for PTSD. He also requested the
RO to address the issue of service connection for alcohol
abuse. "

"ORDER

Entitlement to an evaluation in excess of 30 percent for
post-traumatic stress disorder beginning May 20, 1988, is
denied.

Entitlement to an increased evaluation of 50 percent for
post-traumatic stress disorder with alcohol abuse effective
September 3, 1992, is granted, subject to governing criteria
applicable to the payment of monetary benefits."

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp96/files2/9612581.txt

Maybe not the best example of an inferred issue but if the veteran had not raised the issue in 1992, he would not have gotten this retro and rating.

Edited May 27, 2014 by Berta

[free_spirit_etc]

I think you may well have had an inferred claim for Tinnitus. I think it would have been stronger if the C&P doctor had actually written Tinnitus as a diagnosis, instead of just writing that you reported you had Tinnitus. But until 2011, you might have a good argument that Tinnitus was a pending unajudicated claim from your date of discharge. There are several cases where it was decided that a claim for hearing loss was also a claim for Tinnitus -- and since the Tinnitus had not been addressed, that it remained pending and unadjudicated.

But as Tinnitus was SCed in 2011, it has now been adjudicated. So I am not clear how you could create an argument for an earlier effective date on the issue now (on the basis that it was unadjudicated between discharge and 2011).

The only way I see going for an earlier effective date would be to argue a CUE. And I am not quite sure what that CUE would be. Failure of duty to assist can not be a basis for a CUE claim. You would have to argue that the VA made a decision on your original hearing loss claim that was clearly erroneous.

Of course, that is just my opinion at the moment. And I could very well be wrong.

[free_spirit_etc]

elcamino,

I had some cases pulled up on Tinnitus somewhere. I will see if I can find anything. I pulled them up when I was investigating my husband's claims. In my husband's case - he filed for hearing loss upon discharge. He was given zero percent hearing loss. However, the C&P examiner also gave him a diagnosis of Tinnitus. I think that my husband might very well have a pending unadjudicated claim for Tinnitus since his discharge. I have not addressed that yet. I just kind of kicked that one down the road a bit by asking the Board to remand the other claims my husband may have had pending at the time of his death (aside from his cancer claim) as these had not yet been adjudicated by the RO.

But the difference in my husband's case was that they had never addressed, or issued a decision, on the Tinnitus. In your case, they have. So a lot of the stuff I found might not apply to your case. But then again, it might.

[free_spirit_etc]

Here is a BVA case:

http://www.va.gov/vetapp13/Files2/1316590.txt

In an October 1958 rating decision, the RO denied the Veteran's service connection claim. A review of that decision reveals that although the RO characterized the Veteran's claim as service connection for an ear condition, it denied service connection for "hearing loss, left, not found on examination." Notably, the RO did not discuss the Veteran's diagnosis of tinnitus, other than to state that the Veteran had complained of ringing in his ear in service. The Veteran did not file a notice of disagreement (NOD) as to that decision and the October 1958 RO decision therefore became final. See VA Regulation 1330 (1958).

Turning to the proper effective date for the Veteran's award of service connection for tinnitus, the Board notes that in filing for VA disability compensation in March 1958, the Veteran's specific application was not limited to left-ear hearing loss, which was the disability for which service connection was explicitly denied by the RO in October 1958. Rather, the Veteran's claim was couched in general terms as one for an ear condition. Notably, the evidence developed in connection with his claim contained a diagnosis of tinnitus, which the VA examiner seemingly related to the Veteran's reported history of acoustic trauma. Despite this evidence, the RO stated that the examination report revealed nothing remarkable physically and noted that the Veteran's hearing was within normal ranges at the conversational frequencies.

In consideration of the non-specific nature of the Veteran's claim filed in March 1958, the evidence developed in support of that claim, and the fact that VA is obligated to sympathetically construe an application for benefits to encompass every reasonably raised benefit to which a claimant may be entitled, the Board finds that the Veteran's initial claim for an ear condition encompassed a claim of service connection for tinnitus. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that VA must construe a claim for service connection to include any disability that may reasonably be encompassed by the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or the Secretary obtains in support of the claim); Bradley v. Peake, 22 Vet. App. 280, 294 (2008) ("The Secretary is required to maximize benefits...."); Ephraim v. Brown, 5 Vet .App. 549, 553 (1993) (holding that VA is "required to consider the veteran's entitlement, on any basis consistent with the claim, to any benefit which could flow from a determination of service connection and to which entitlement is reasonably raised on the record."); see also 38 C.F.R. § 3.103(a) (2012) ("It is the obligation of VA . . . to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government."); VA Regulations Compensation & Pension Transmittal Sheet 494 at 1 (July 18, 1972) (explaining that VA codified 38 C.F.R. § 3.103(a) "primarily for the purpose of placing certain longstanding policies and procedures in a medium more available to the public" and noting that the codification of that section "provides little in the way of substantive change [from those policies and procedures] as, for the most part, [§ 3.103(a) ] has been gleaned from other VA directives").

The Board also finds that the Veteran's claim of service connection for tinnitus remained pending since it was initially filed in March 1958 until it was granted in July 2011, as the RO has never explicitly denied service connection for tinnitus and neither the October 1958 nor the November 2001 RO decision can be read as resulting in an implicit denial of that claim. See Adams v. Shinseki, 568 F.3d 956, 960 (Fed.Cir.2009) ("A claim for benefits, whether formal or informal, remains pending until it is finally adjudicated."); Id. at 961 ("The 'implicit denial' rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if [VA] did not expressly address that claim in its decision."); Cogburn v. Shinseki, 24 Vet. App. 205, 210-13 (2010) (outlining the factors for determining its applicability).

Accordingly, having determined that the Veteran's initial claim of service connection for an ear condition, which was filed within a year of discharge from service, encompassed tinnitus and remained pending and unadjudicated from March 1958 until July 2011, the Board finds that the Veteran is entitled to an effective date for his award of service connection for tinnitus back to February 12, 1958, the day after his discharge from service. See 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2).

[free_spirit_etc]

Here is another BVA decision:

http://www.va.gov/vetapp10/files1/1007499.txt

However, in a subsequent case, the United States Court of

Appeals for Veterans Claims (Court) clarified the extent of

the applicability of Deshotel. See Ingram v. Nicholson, 21

Vet. App. 232 (2007). In this decision the Court made clear

that that a claimant must be given adequate notice and

opportunity to appeal a decision and that sub silentio

denials of claims do not provide adequate notice of the

denial of a claim. Id. at 248-49. The Court distinguished

Ingram from Deshotel noting that in Deshotel although there

was no specific adjudication of the claimed disability in

question, that VA provided enough information in its decision

for the claimant to know that he would not be awarded

benefits for his asserted disability by finding an absence of

the claimed psychiatric disability. Id. at 248. Thus,

although a claim may not be "specifically addressed" in a

rating decision, there must be enough information therein for

the claimant to reasonably know that he would not be awarded

benefits for the asserted disability. Id.

Initially, the Board finds that the Veteran's formal claim

coupled with the VA examination report disclosing tinnitus

with a reported onset immediately following service

constitutes a claim for service connection of tinnitus. A

liberal reading of the Veteran's claim for a left ear

"hearing condition," along with the evidence noting

tinnitus in the left ear since his discharge from service,

shows that the Veteran's claim also encompassed tinnitus.

The Federal Circuit has emphasized VA has a duty to fully and

sympathetically develop a veteran's claim to its optimum.

Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This

duty requires VA to "determine all potential claims raised

by the evidence, applying all relevant laws and

regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed.

Cir. 2001), and extends to giving a sympathetic reading to

all pro se pleadings of record. Szemraj v. Principi, 357

F.3d 1370, 1373 (Fed. Cir. 2004).

A thorough reading of the April 1994 rating decision fails to

disclose any mention of tinnitus. The rating decision only

addressed the grant of service connection for left ankle

traumatic arthritis with a 10 percent evaluation and the

denial of service connection for left ear hearing loss.

Accordingly, the Board finds that a claim for service

connection of tinnitus was either unadjudicated or

adjudicated sub silentio in the April 1994 rating decision.

See Deshotel, supra.; see also Ingram, supra. In any event,

this claim it remained pending until it was adjudicated in

January 2008. See Norris v. West, 12 Vet. App. 413, 422

(1999).

[free_spirit_etc]

"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."

Did your VSO get a decision letter on these? Can you find out if one was issued? I would not think the appeal period would start until the BVA notified someone of the decision.