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Cue For Eed For Tinnitus

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elcamino_77us

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Good Afternoon Everybody.

Here recently My EED for Tinntius was changed to a CUE case by my VARO and I was awarded an earlier effective date but not to my date of discharge date when I was diagnosed at my C&P Exam. I was told over the phone by the VARO that if I disagreed with their findings, it would be best to file a Motion to Reconsider as a BVA would take around two years to complete. That later I could still appeal if I felt it nessessary. I have written a rebuttal concerning my Tinnitus which I'm posting here for review as my VSO is useless.

Thanks,

Bill

BENEFITS SOUGHT: RECONSIDERATION OF APR 7, 2015 VARO DECISION

An Earlier Effective Date of November 13, 1995.

PURPOSE OF CORRESPONDENCE:

Submission of material regarding Benefits Sought for said Tinnitus Service Connection.

On 7 April 2015, the Atlanta VARO made a determination of my case concerning my Tinnitus as follows:

Entitlement to an earlier effective date for service connection of tinnitus is granted because a clear and unmistakable error was made; therefore, a 10 percent evaluation is assigned effective May 10, 2005.

The statement made in “Reason for Decision:”

“Therefore, entitlement to an earlier effective date for service connection of tinnitus is granted because a clear and unmistakable error was made and a 10 percent evaluation is assigned effective May 10, 2005, which is the date of the letter we received from you where you first explicitly claimed tinnitus (ringing in ears).”

This was not the case:

On 12 Nov 1995, I was discharged from the Marine Corps. On 06 Dec 1995, the Veterans Administration received my application for benefits. In my Audio C&P Exam Report dated on 02 Feb 1996, it was reported by my Examiner:

“Veteran was seen for an audiologic compensation and pension evaluation on January 27, 1996. He reported progressive bilateral hearing loss and occasional bilateral tinnitus, onset 1993 or 1994.”

Due to my 27 Jan 1996 Audio C&P Exam, I was service connected for Hearing Loss Left Ear. However, the ringing in my ears, diagnosed by the Examiner as Tinnitus, was not addressed.

(Note in 2011, I was service connected for Hearing Loss Right Ear with a EED of 13Nov1995)

The Doctor’s written statement was the result of a direct statement I made to the doctor stating that I had ringing in my ears while I was describing the symptoms of my hearing loss to ensure that this was also considered in my hearing claim.

The CAVC has stated that an informal claim for VA benefits requires:

1. An intent to apply for benefits,

2. An identification of the benefits sought, and

3. A communication in writing.

- Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009);

- See also 38 C.F.R. § 3.155(a) (stating that an informal claim must “identify the benefit sought”).

- CAVC, quoting its decision in Brokowski, went on to state that “[A] claimant's identification of the benefit sought does not require any technical precision.”

- CAVC stated that a claimant sufficiently identifies the benefit sought “by referring to a body part or system that is disabled or by describing symptoms of the disability.”

All three of the CAVA requirements for an informal claim were met on 06 Dec 1995 when the Veterans Administration received my application for benefits which included a claim for hearing loss.

In Clemons, the CAVC held that even though vet claimed SC for a specific condition, VA may be obligated to consider SC for other diagnosed conditions as well if the vet mentions or if the vet’s records relate symptoms of the other conditions.

A claimant "[does] not file a claim to receive benefits only for a particular diagnosis, but for the affliction his . . . condition, whatever that is, causes him." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Consequently, VA "should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim," taking into consideration "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Id. VA commits error "when it fail to weigh and assess the nature of the current condition the appellant suffer when determining the breadth of the claim before it." Id. at 6.

When a veteran files a claim, the VA is obligated to not only consider the claims specifically mentioned by the veteran, but also all benefits to which the veteran might be entitled that are supported by evidence of record.

See 38 C.F.R § 3.103(a) (2012) (“Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the government.”)

Once a claim is received, VA must review the claim, supporting documents, and oral testimony in a liberal manner.

In Robinette v. Brown, 8 Vet. App. 69, 76 (1995), the Court held that claim documents must be read in a liberal manner so as to identify and carry out the required adjudication of all claims that are reasonably raised by the evidence of record whether or not formally claimed in a VA application.

Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) - holding VA has a duty to determine all potential claims raised by the evidence, applying all relevant laws and regulations.

The Federal Circuit has held on several occasions (Andrews, Moody, and Szemraj cases) that VA is required to:

Give sympathetic reading to the veteran’s filings

Determine all potential claims raised by evidence

Apply all relevant laws and regulations.

M21-1 DUTY TO CONSIDER NOTED DISABILITIES, EVEN IF NOT CLAIMED

Manual M21-1, Ch. 46.02, Change 400, 3/28/85,

DISPOSITION OF DISABILITIES NOTED OR CLAIMED:

a. Compensation Ratings. All disabilities claimed will be given consideration as to service connection and be coded as a disability rating on VA Form 21-6796.…Any additional disabilities noted will be coded, except:

(1) Acute transitory conditions that leave no residuals.

(2) Noncompensable residuals of venereal disease.

(3) Disabilities noted only on the induction examination, or conditions recorded by history only.

(4) Disabilities found by authorization to have not been incurred “in line of duty”.

b. Pension Ratings. Code all claimed or noted disabilities on VA Form 21-6796 and show the percent of disablement for each unless the disabilities have been held to be due to the claimant’s own willful misconduct by Administrative Decision….

c. Supplemental Ratings. (1) All previously rated serviceconnected and nonservice-connected disabilities must be brought forward on supplemental ratings on VA Form 21-6796….

If a disability was coded or should have been coded in a rating decision – there is a potential claim that should have been adjudicated.

A disability should have been coded in a rating decision if it was “noted.” In other words:

If during the development of a claim for service connection for Disability A, VA obtained a diagnosis of Disability B, then Disability B should have been coded in the rating decision for Disability A.

CURRENT M21-1MR PROVISIONS

There are several directives in the VA Adjudication Procedures Manual, M21-1 Manual Rewrite (Manual M21-1MR) that stress that all inferred issues also must be adjudicated.

Manual M21-1MR, Part III, subpart iv, 6.B.2. states:

When preparing a rating decision, the Rating Veterans Service Representative (RVSR) must recognize, develop, clarify and/or decide all issues and claims…

Whether they are expressly claimed issues, reasonably raised claims, or unclaimed subordinate issues and ancillary benefits.

Manual M21-1MR, Part III, subpart iv. 6.B.3. states:

A subordinate issue is derived from the consideration or outcome of related issues.

Often the primary and subordinate issues share the same fact pattern.

HARRIS v. SHINSEKI, No. 2012-7111 (Fed. Cir. Jan. 4, 2013) Addresses the analysis that VA must undertake – in determining whether an earlier effective date is warranted – whether a veteran has filed a claim for VA benefits.

The Federal Circuit determined that the CAVC failed to apply the proper legal standard for determining whether the BVA correctly determined the earliest possible date for vet’s benefits.

In the Federal Circuit Decision:

• Court said that under its cases, pro se pleadings (vet not represented by atty) must be read liberally –

• Roberson - VA has duty to fully develop any filing made by a pro se vet by determining all potential claims raised by the evidence.

- Szemraj – VA must generously construe a pro se veteran's filing to discern all possible claims raised by the evidence.

- Moody - Any ambiguity in a pro se filing that could be construed as an informal claim must be resolved in the veteran's favor.

- The Federal Circuit determined that the CAVC failed to apply the proper legal standard for determining whether the BVA correctly determined the earliest possible date for vet’s benefits.

- Federal Circuit stated that under its cases, pro se pleadings must be read liberally – Moody, zemraj, Roberson.

- Court stated that even though three cited cases involved CUE appeals, rather than direct appeals, the VA’s duty to read pro se filings liberally is equally applicable to CUE claims and direct appeals.

My Service Medical Record SF600 Dated 19 Nov 1990 stating:

“Ringing in the ears with upper freq testing.”

These Service Medical Records show relate symptoms that were never considered by the VA and therefore would constitute grounds for an Earlier Effective Date.

The CAVC has held even though a vet claimed SC for a specific condition, VA may be obligated to consider SC for other diagnosed conditions as well if the vet mentions or if the vet’s records relate symptoms of the other conditions. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).

In Summary:

On 06 Dec 1995, the Veterans Administration received my application for benefits. In my Audio C&P Exam Report dated on 02 Feb 1996, it was reported by my Examiner:

“Veteran was seen for an audiologic compensation and pension evaluation on January 27, 1996. He reported progressive bilateral hearing loss and occasional bilateral tinnitus, onset 1993 or 1994.”

According to the M21-1 Manual, Ch. 46.02, Change 400, 3/28/85, the Diagnoses of Tinnitus made by the Doctor during my C&P Examination should have been coded since it was identified and required adjudication as all claims that are reasonably raised by the evidence of record whether or not formally claimed in a VA application.

Manual M21-1MR, Part III, subpart iv, 6.B.2. states:

When preparing a rating decision, the Rating Veterans Service Representative (RVSR) must recognize, develop, clarify and/or decide all issues and claims…Whether they are expressly claimed issues, reasonably raised claims, or unclaimed subordinate issues and ancillary benefits.

The assumption by VARO Atlanta that an Earlier Effective Date for Tinnitus did not exist until May 10, 2005 because it wasn’t written is in error.

The VA committed error when it failed to weigh, assess, and take into consideration the nature of the current condition and symptoms that I described during this C&P Exam. This was included in the information the VA obtained in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009)

HARRIS v. SHINSEKI, No. 2012-7111 (Fed. Cir. Jan. 4, 2013) Addresses the analysis that VA must undertake – in determining whether an earlier effective date is warranted – whether a veteran has filed a claim for VA benefits.

The Federal Circuit determined that the CAVC failed to apply the proper legal standard for determining whether the BVA correctly determined the earliest possible date for vet’s benefits.

In Federal Circuit Decisions, the Court has held:

Pro se pleadings must be read liberally –

VA has duty to fully develop any filing by determining all potential claims raised by the evidence.

VA must generously discern all possible claims raised by the evidence.

Any ambiguity that could be construed as an informal claim must be resolved in the veteran's favor.

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  • HadIt.com Elder

If you did not file a NOD back in 1996 or the onset 1993 1994 for them not DX the tinnitus? if NO NOD was filed then they must closed the claim?

Edited by Buck52
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Yes, there was a NOD filed for on my Hearing Loss. My VSO never told me that hearing Loss and Tinnitus were seperate. I complained about it at all of my Audio C&P Exams. My first one wrote it down, the rest blew me off. I specficly complained about it in my 2005 NOD which is where they gave me an EED. In 2011 I reopened my Hearing case concernig my Right Ear and specficly claimed Tinnitus. They Service connected my Right Hearing Loss back to 13 Nov 1995 and ervice connected the Tinnitus. The Atlanta VA then played games by pretending that my Tinnitus Claim was still pending for over a year so I couldn't Appeal it. Even my VSO was under the impression that it was pending. Although since then I have figured out that the Georgia Department of Veterans Services is pretty useless and thats being nice!!!

Remember; Roberson, Szemraj and Moody were all CUE Claims based on the fact that the VA errored in failing to dertermine all potential claims raised by the evidence.

Edited by elcamino_77us
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  • HadIt.com Elder

if you have the medical report from back in 13 Nov 1995 that the examiner diagnosed your tinnitus That should be your EED for tinnitus (your evidence) , tinnitus is separate rating from loss of hearing and only 10% is the max allowed

appeal & submit & attach medical report to claim for the Tinnitus for the EED OF Nov 13TH 1995.

Now if you was SC for tinnitus back in Nov 13th 1995 but only Ratd 0% this maybe why your EED is only going back to when you got the 10% for tinnitus which you don't make clear(what date that was?) a diagnosed and a decision are two different things, you have to be rated for the tinnitus for retro & even if you were SC for it that don't mean you can get retro.

I am not failure with the Georgia RO's .....> hadit member Georgiapappa may have better advise!

................Buck

Edited by Buck52
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I see where I may be confusing you.

In 1996, I filed a NOD and submitted evidence on my Hearing Loss Claim. In 2002, I contacted my local Congressman due to the failure of the VA to judicate my appeal. The BVA remanded my claim back to the RO, it was appealed and remanded a few times after that.

In 2005, I again filed a NOD on my Hearing Loss Claim. In that NOD, I specifically complained about my Tinnitus and its effects. The decision was a 0% rating for Left Ear Hearing Loss.

In 2011, I filed a claim for Right Ear Hearing Loss and Tinnitus. I was service connected for Right Ear Hearing Loss with a effective date of 13 Nov 1995 and Tinnitus with a effective date of 7 Sept 2011.

After trying several times to file a NOD concerning an EED for Tinnitus as the VARO had kept my claim looking as if it was still open, so my VSO and I were late in filing a NOD., the VARO called me to discuss a CUE Claim.

On 7 April 2015 the Atlanta VARO made a determination of my case concerning my Tinnitus as follows:

Entitement to an earlier effective date for service connection of tinnitus is granted because a clear and unmistakable error was made; therefore a 10 percent evaluation is assigned effective May 10. 2005.

Hope this helps

Bill

Edited by elcamino_77us
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I have the same exact situation!!!!! Was suppose to be service connected back in 1998. Was denied, then denied in 2009 but awarded in 2014. No new evidence was ever submitted.

VA said the law changed in June 1999 for tinnitus that's why I'm not eligible for retro pay back to 1998.

If changed in June 1999 then why wasn't I at least awarded in 2009 claim?

In 2014 they awarded me 10% due to erroneous and mistakable error back in 1998 and said instead they gave me 0% in 1998 then awarded me 10% in 2014.

It's a game they are trying to wiggle out of paying retro back to 1998.

I just don't know if I should request DRO hearing or what.

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El Camino, the Reconsideration Request you filed is FABULOUS!

"Here recently My EED for Tinntius was changed to a CUE case by my VARO and I was awarded an earlier effective date but not to my date of discharge date when I was diagnosed at my C&P Exam."

So the VA itself called CUE on a past decision........

I think your EED should be 06 Dec 1995!

The only thing I might throw in if I were you is
violation of 38 CFR 4.6.

“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “ 38 CFR 4.6

But I think Clemons and other citaions that you cited cover that regulation as well so no need to mention it.

More info here:

Since posting that, I won 1 more CUE claim, pending in that older post., and won a 1151 claim ,that also resulted from me filing a CUE on their Feb, or March 2015 1151 denial.
Actually I filed 4 CUEs on 2 decisions via the Buffalo director's email addy,on both of their recent decisions..They reversed but do not want to pay me accrued benefits.
But they WILL.

The director apologized for 2 of the CUEs. One was regarding the Benefit of Doubt regulations.
If the VA denies a claim and fails to make any statement as to how they weighed the evidence, they have committed a CUE.

I explained all that here somewhere last month.

The 1151 issue resulted from my FTCA case. and a 1998 award letter.

You have been a VERY proactivbe veteran and you are an asset to us all here.

I hope there is someway we can highlight this as a GREAT Reconsideration request template for others to use.

Recon Requests do not stop the one year NOD deadline but I hope they will work on this as soon as they get.

VA doesnt like to admit to their own CUEs and this gives us claimants the advantage of showing them we know the regs and will use the regs against them as fast as they can use them against us.

Superb work Bill !

The tinnitus regs did change some time back (1998) but I cant find that yet and I do not think the change would matter to you because you were diagnosed with tinnitus prior to that..

Hopefully someone will know what that 1998 tinnitus change was all about and post it here.

Edited by Berta
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