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

[elcamino_77us]

Thanks Ladies!!! I really do appreciate all of the help!!!

Berta, I have a somewhat complete copy of my C-File. I've requested it about three times now. There are some Medical Records that I turned into my VSO to file I've never seen the VA use. At this point, who knows if they did or not. Or, if they were quietly disposed of. I've also tried on two separate occasions to see my C-File. The last time was about three weeks ago. After I called and made an appointment, I was told after I got there by the VA that they had scaned them into the system and had mailed my hard copies to my Home Of Record. That I would have them that next Monday or Tuesday. About an hour Later, my VSO told me that the VA Rep had just told me a lie as my records were not in the system. She also informed me that the VA would send the Records to St. Louis for storage after they were scanned. Tuesday I got a package, it looks like two sets of copies with a note stating something about any further requests would have to be sent to St. Louis. Sorry, Long winded at times.

Free Spirit, I don't know if my VSO got a copy or not. 99% of the time she doesn't get back with me. I may have gotten a full copy this last time, will have to check.

Now for maybe some good news. I was looking back at NVLSP's Effective Date Errors.pdf, and it dawned on me that in the decision of my last claim there was a statement about receiving medical records concerning my Tinnitus Claim:

"Please note: We received a medical statement from Dr. Phillip Allen in our office on December 6, 2011, regarding your tinnitus. Our decision of October 31, 2011, granted service connection for your tinnitus as 10 percent disabling which is the highest evaluation allowed. lt is noted that Dr. Allen's statement is dated September 28, 2011, prior to the cited decision. Therefore, no further action is being taken regarding the statement from Dr. Allen."

If I read the NVLSP's Effective Date Errors.pdf correctly, by Dr. Allen submitting records to the VA concerning my case, that kept my Claim opened even though I didn't submit a NOD. Is that correct. If so, I can now file a NOD concerning an Earlier Effective Date. The Decision of the last claim was Nov 27, 2013.

Thanks

Bill

[free_spirit_etc]

I seems like they are saying that since they had already granted the full benefits allowed for Tinnitus prior to receiving the statement from Dr. Allen, they did not reopen the claim to take his statement into consideration, because his statement was dated prior to the decision.

It sure is worded like this is the first time they are telling you about the evidence not being considered.

Was this is in the decision that was dated December 2013?

You may be on to something that you submitted new and material evidence about the effective date of your Tinnitus claim within the appeal period for the claim.

[elcamino_77us]

Here is what the NVLSP States:

The Effective Date Rule when New & Material Evidence is Received Prior to Expiration of Appeal Period

38 C.F.R. § 3.156(b) Pending claim. – (1)When new & material evidence submitted

(2)received prior to expiration of appeal period, or prior to appellate decision if timely appeal has been filed

(3) will be considered as having been filed in connection with claim that was pending at beginning of appeal period

Example: Claim received on 4/1/09

RO denies on 7/1/09

new and material evidence submitted 360 days after 7/1/09, on 6/26/10 (5 days before deadline for submitting NOD)

claim still pending even if the next 5 days go by w/out vet submitting NOD

If claim ultimately granted, effective date (the claim was received) would be 4/1/09, not 6/26/10, when new and material evidence was submitted

VA cannot consider 6/26/10 as the effective date

The 4/1/09 claim did not became final due to the fact that an NOD was not submitted within the one-year time period . The result of submitting new evidence was NOT the filing of a claim to reopen

Young v. Shinseki, 22 Vet. App. 461(2009)

Jennings v. Mansfield, 509 F.3d 1362(Fed. Cir. 2007)

Muehlv. West, 13 Vet. App. 159(1999)

Source of new and material evidence is irrelevant.

For example, if SSA sends records to VA on 6/26/10, 4/1/09 would still be the date the claim was received for effective date purposes.

If neither an NOD nor new & material evidence were submitted before 7/1/10, the 4/1/09 claim would be finally denied

if new & material evidence arrived after 7/1/10 and resulted in an award of benefits, effective date would most likely be after 7/1/10

The new & material evidence must be submitted in connection with claim not yet finally decided by RO/BVA

The way I read it, even though Dr. Allen's report was written before their decision, they still received it within one year after the decision which, left my case open. In my opinion, this leaves an opening for me to do a NOD for an Earlier Effective Date based on the NVLSP Info. I'll need to research those three cases listed by them as well as the ones listed by both Berta and Free Spirit.

I've had a hard time getting documents back from the VA in a timely manner if at all. They even called me at home one evening, wanting to read document to me as they had realized that they had forgot to mail it to me so they could send it to the raters. I made them mail it. However on this last claim, they actually mailed the claim back to me after Time and Date stamping it. ?????????

Bill

Edited May 29, 2014 by elcamino_77us

[Asiadaug]

Where can I find a copy of VA Training Letter 10-028?

[free_spirit_etc]

Is there a way to go to the RO and get copies of some of the information. I would be especially interested in what they said in the decisions. Maybe you could get a copy from your VSO.

I think asknod has posted some information in some of the threads about submitting new evidence while appealing. You might want to research some of his posts.

[Tbird]

Where can I find a copy of VA Training Letter 10-028?

Try this link