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Crunch Time -nod Or Not?


nlualum82

Question

Soon to be 1 year from getting my upgrade.

I went from 40% hearing to 50% hearing, 70% PTSD/MDD, 10% tinnitus, 10% lknee injury and 10% l knee degenerative osteoarthritis.

I was denied 10% for chronic otitis externa. I thought it was a well documented claim. A VA ear, nose & throat doc's records that I submitted said "...l otitis externa, most likely from the ear molds (hearing aids)...stuck in a chronic state...). I had an IMO from a doc who treated me for the condition a couple of times.

The VA sends me a prescription every month to control it.

The C & P examiner was very hostile.

I figured I would correct his statement to the effect that I no longer had the problem since getting hypo-allergenic molds. I told him it had reduced the frequency a bit.

The VA denial said it could find no record of me having it in service - I would point out that I filed it secondary to my hearing loss and that it didn't occur until I had to wear hearing aids full time due to my S hearing loss.

I guess it's partly the nature of PTSD, but I am threatened by the idea that they may bring me back in and review everything and cut me somewhere over filing the NOD.

I am 90% now and working at the post office. IU seems a distant dream. The otitis award wouldn't change my percentage and as such wouldn't bring retro.

Another question - I have heard of the requirements of new evidence to re-open a claim. Since retro is not involved, can I re-file the same claim anytime - is the one year limit only to preserve an effective date?

Gary

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  • HadIt.com Elder

If you are 90% now then IU is not a distant dream. All you have to do is apply for disability retirement from the Post Office and you could then ask for IU. That is what I did and I was 70% and was eventually awarded IU P&T. If you can still work and collect 90% that sounds like a pretty good deal if you can hack it.

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  • HadIt.com Elder

Gary,

If my memory serves me correctly I think you cannot be rated for hearing loss, tinnitus, and otitis all at once. You can only be rated with a combination of the two, but not all three. I had discussed this awhile back in another thread, but can't remember exactly when. Further, if this disability wouldn't benefit you in some way such as SMC, A&A, garantee DIC for your spouse, why bog down an already overloaded system?

If you are filing a Notice of Disagreement with your RO about a recent rating, the VA will only address the issues on appeal, they won't go and take a look see at your non-appealed disabilities. Also, if you're still employed, then basically IU is a distant dream. Generally, IU isn't granted to a veteran still employed, hence unemployability. Having said that, in very, very, very, limited circumstances a veteran can be awarded IU, or retain their IU status when working in a protected enviroment, such as a family bussiness with limited working hours ect... However, this is rarely done and I have never personally seen this happen.

You can re-open a previously decided claim with "new and Material" evidence at any time. The only way to perserve the original effective date of a claim is to appeal the decision within the one year time limit. To re-open a claim the effective date is generally the date the veteran submitted the "New and Material" evidence. One thing to keep in mind is if you're within the one year from a decision and you submit "New and Material" evidence, and that evidence changes the prior decision, then the effective date would be as if the prior decision was decided on that particular evidence, meaning the effective date would be the date of the original claim.

Vike 17

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  • HadIt.com Elder

Gary,

As I satated before , you can still work while you are awaiting the OPM disability retirement.......If refused ( which it wont be ) you have lost nothing and the agency can do nothing to you.

As stated IU is a whole lot closer than you think it is @ 90%. I have a VA rating of 90....IU was a given P&T.

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Guest rickb54

Gary,

As a civil Service medical retiree I agree with JR Reihs. Getting my civil service retirement was a piece of cake, actually it was too easy most are becasue the government is always looking for ways to get rid of people cheep.

I also believe that if you have additional medical problems that you think are service connected (no matter how small) you should apply for compensentation after all you earned it. Some will tell you that if you are already TDIU or 100% don't tie up the system... I say bull... I have said in the past if I had listened to the nay sayers, I would never had been awarded adapted housing, or received awards that add up to 200 and combine to 90%....

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  • HadIt.com Elder

Carlie,

Chronic suppurative otitis media and otitis externa are two different condition and are rated differently.

6200 Chronic suppurative otitis media, mastoiditis, or cholesteatoma

(or any combination)

During suppuration, or with aural polyps...................................................................... 10

Note: Evaluate hearing impairment, and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of skull, separately.

6201 Chronic nonsuppurative otitis media with effusion (serous otitis media):

Rate hearing impairment

6202 Otosclerosis:

Rate hearing impairment

6204 Peripheral vestibular disorders:

Dizziness and occasional staggering......................................................................

....... 30

Occasional dizziness.......................................................................

............................ 10

Note: Objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined.

6205 Meniere’s syndrome (endolymphatic hydrops):

Hearing impairment with attacks of vertigo and cerebellar gait

occurring more than once weekly, with or without tinnitus...................................... 100

Hearing impairment with attacks of vertigo and cerebellar gait

occurring from one to four times a month, with or without tinnitus............................. 60

Hearing impairment with vertigo less than once a month, with or

without tinnitus........................................................................

................................ 3

Note: Evaluate Meniere’s syndrome either under these criteria or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. But do not combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under diagnostic code 6205.

6207 Loss of auricle:

Complete loss of both............................................................................

..................... 50

Complete loss of one.............................................................................

..................... 30

Deformity of one, with loss of one-third or more of the substance................................. 10

6208 Malignant neoplasm of the ear (other than skin only)........................................................ 100

Note: A rating of 100 percent shall continue beyond the cessation of any surgical radiation treatment, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based on that or any subsequent examination shall be subject to the provisions of §3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals.

6209 Benign neoplasms of the ear (other than skin only):

Rate on impairment of function.

6210 Chronic otitis externa:

Swelling, dry and scaly or serous discharge, and itching

requiring frequent and prolonged treatment.............................................................. 10

6211 Tympanic membrane, perforation of..............................................................................

...... 0

6260 Tinnitus, recurrent.......................................................................

...................................... 10

Note: 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. (Authority: 38 U.S.C. 1155)

Rick,

If you were previously receiving 100% IU with a rating of let's say 70% and then put in claims for additional stuff and were raised to 90% with keeping the IU status, but didn't receive any SMC, A&A, ect..., what did that accomplish? You are still receiving the 100% rate. Now, as I have said in the past, if a veteran is receiving 100% either due to IU or being schedular and has the oppurtunity at SMC, A&A, DIC, or any other additional benefit, or a possible service-connected condition could become a major problem later on in life, then by all means file the claim. But to just keep filing claims to raise one's over all rating that wouldn't have an affect on the money being paid out, does bog down a system that is already over loaded.

Vike 17

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Vike, in the case of a schedular 100%, or I guess TDIU for that matter, how does one know that they won't be reduced in the future, even with P & T? The answer is that we don't know that with any degree of certainty. Which is why I advocate filing for conditions that warrant ratings, regardless of whether they will result in additional compensation. The veteran may need that cushion in the future, if the VA wants to reduce him. Should the day come when that happens, the fact that the veteran didn't bog down a system that's already overloaded will be of small comfort to him. And the folks who he supposedly helped by not filing his claims in front of theirs won't be of any assistance to him.

Just my opinion.

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Guest fla_viking

Dear Fellow veterans & Friends

I think there is less chance of reviews than there is changeing the laws themself that give us our sc. The republicans put forth a disablity commisson with one of the issues if we should even be compesated for our injuries. They want to offset ect. We vets vote for those republicans who want to put us in the street.

Terry Higgins

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  • HadIt.com Elder

It is not the responsibility of vets to decide which claim is valid or trivial. That is up to the VA and if they had the manpower they could do this quickly. All our claims are bogged down because the system is bogged down because the government does not want to pay compensation if they can get out of it. How can we slow down a system that is already so dysfuntional is flows like sap in December. The only question for the vet is if the cliam is worth filing due to touble that goes along with filing a claim. COPD is definitely worth filing for in my opinion just as is DMII and any cardiovascular disease.

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Soon to be 1 year from getting my upgrade.

I went from 40% hearing to 50% hearing, 70% PTSD/MDD, 10% tinnitus, 10% lknee injury and 10% l knee degenerative osteoarthritis.

I was denied 10% for chronic otitis externa. I thought it was a well documented claim. A VA ear, nose & throat doc's records that I submitted said "...l otitis externa, most likely from the ear molds (hearing aids)...stuck in a chronic state...). I had an IMO from a doc who treated me for the condition a couple of times.

The VA sends me a prescription every month to control it.

The C & P examiner was very hostile.

Another question - I have heard of the requirements of new evidence to re-open a claim. Since retro is not involved, can I re-file the same claim anytime - is the one year limit only to preserve an effective date?

Gary

Gary,

Just my two cents worth. In the beginning of my fight for my husband's disability increase I did a lot of research on when a claim informal or formal can be filed. I did this because my husband has received the same rating for 27 years and we were unaware that if his conditions worsened that we should file a claim with the VA. My husband found this out at a annual eye exam at the local VA clinic from another veteran. From your posting you mention that "The VA sends me a prescription every month to control it". From the research I have done, due to ours being so old, the VA states that a "Informal Claim" for benefits is if the veteran is treated at a VA facility for a non-service connected condition, this is to be treated as a informal claim for benefits. Now I am new at this but at the same time I am using this as my husband was treated for some of his service connected and non-service connected conditions at the local va facility. I would go to the VA that provides you with scripts and get copies of all of your records including scripts for all years going to that facility. The scripts and if you seen a VA doctor for this would be good evidence as to when the condition started. You can fight it from this and possibly get the retro. If you made them aware of what VA facility you are receiving treatment at and filled out a 21-4138 for that facility, the VA should already have those records and show that they have been treating you for this condition for xxxx amount of years. Because I am not the most experienced when it comes to NOD's vs CUE's, I don't know which one you would need to file if you were already denied. If denied within the last year, I would send them a letter stating that they had received your informal claim for benefits for this disability back on ????? (when you first began getting the RX from the VA. But obviously, what still remains is proving the disability. But if they are giving you scripts for it I would think that would help your case somewhat. But you will need to call this to the attention of the VA stating that you provided them with a informal claim for this disability beginning (date).

I hope someone else gets in on this and tell me if I am wrong. Remember I am fairly new at this VA law (about a year), but I did do extensive research on this matter being that we had no contact with the regional VA office for 27 years and needed to know how to approach our first claim with them or if we could even file a claim. We had no idea about any of these things.

Brandy

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With Nov. 9 being the deadline, I decided to fax an NOD (my first) to the VA on Nov. 6.

I spoke with my VSO briefly about it. He said I did not have to do it all, just be specific about which issue I was dealing with and say that I disagreed with their denial.

I am guessing that they will contact me and I will then respond with the long version.

I just happened to get a new tube of triamcinolone acetonide from the VA in the mail that day!

Item 6210 is my condition, and I have to address at least 3 things I can think of off the top of my head:

They denied because:

"My records don't show a diagnosis of otitis media" - I'm filing for otitis externa, plenty of diagnosis and records on that!

"My records don't show it occurring during service" - I'm filing for it as secondary and I guess I'll have to walk them through it - SC for hearing loss - thus need hearing aids - hearing aids caused otitis externa according to YOUR Dr.! Is that the framework of a nexus?

To quote hostile C &P guy "has not been a problem since switching to hypo-allergenic aids" - I told him that it was less frequent and the Rx worked much better than hydro-cortisone that my HMO supplied, but I won't bother to treat them to a blow by blow account or that I don't think for a minute that it was an accident or misunderstanding that he wrote that in his report.

I am soon to be headed in to have a new right aid made to replace the one I lost. The reason it was in my pocket instead of my ear was because of an outbreak. I have not been diagnosed in my right ear, but it started right after the Rx started coming and I've handled it the same way with the same results.

Thanks for all the responses. The help is what we come here for mostly, but sometimes it's just nice to see that caring people respond.

Gary

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Regarding the NOD:

I would send them along with it,

"My records don't show a diagnosis of otitis media" - I'm filing for otitis externa, plenty of diagnosis and records on that!"

In this claim it states:

"The maximum disability rating under the Schedule for disease

of the auditory canal or otitis externa is 10 percent"

How did they state the denial of it as secondary?

This part of this BVA decision is odd---the rating criteria was changed in 1992-

"The rating criteria of both the original and revised versions

of Diagnostic Code 6210 are the same. The only change in the

revised criteria is re-designation of the disability as

chronic otitis externa. Accordingly, there is no prejudice

to the veteran in the Board considering both the original and

revised rating criteria in the first instance, since they are

the same and neither is more advantageous to the veteran in

assessing his claim. See Bernard v. Brown, 4 Vet.App. 384

(1993)."

Are they saying that it does not matter whether this is media or externa?

http://www.va.gov/vetapp01/files01/0102254.txt

(re-read your post -not time to send those records with the NOD-I guess-)

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