hearing loss CUE/Inferred Claim.

[syne7]

I got out of the Army in 1997 with a Medical Discharge:  I went to the VA and was rated 0% for Residuals of Left Ankle & 10% for Restrictive Airway Disease.

Fast forward to May 2016.  I put in a claim and was awarded primary service connection for Tinnitus.  I submitted no evidence other than a note saying my ears have been ringing since the service.  My service medical records show hearing loss with a standard threshold shift from 1994 to 1997.  And haven Tinnitus written in one of the records in 1996.

Now that I have been service connected.  Do I have a chance at claiming a CUE or Inferred claim on to back date to 1997?  My SMR clearly said TInnitus and they should have Inferred the claim when the reviewed them.  One of my MOSes is on the high noise list and the hearing test referrals says "Routinely exposed to hazardous noise."

Is this a potential CUE for miss of an inferred claim?

[broncovet]

File a NOD disputing the effective date.   However, your effective date is never going to be earlier than the date you applied, with some exceptions.  Cue raises the bar, probably too high for you.  With CUE, you lose "benefit of the doubt", and so sense in giving that up unless you have NOT filed the nod within the year of the decision.  

In your NOD, you can allege they should have inferred your tinnitus claim.  Did you apply for hearing loss and was it denied?  Tinnitus is often related to hearing loss.  

Edited September 4, 2016 by broncovet

[syne7]

Hello,

Thank you for the response and for sharing the benefit of your experience with me.

I seek to get the Tinnitus back dated to 1997.  A NOD would only take me back to the date of claim which would arguably be 9/2015.

I guess my question is:

1. What is an inferred claim?

2. Since Tinnitus was mentioned in my records in 1996.  Do I have a potential inferred claim from 1997?  The VA reviewed all my service medical records and since Tinnitus was mentioned their, didn't they have the obligation in my initial 1997 claim to identify and establish a claim for Tinnitus?

3.  If so, would I address that with a CUE?

My understanding from my web research is that they should have inferred a claim when they reviewed my records.

I hope this makes my question a bit more clear.

[Berta]

These 2 cases might help clarify what an 'inferred" claim is,specific to tinnitus claims.

"In this case, the question of whether a claim of entitlement

to service connection for "hearing" or "hearing loss"

reasonably raises a claim of entitlement to service

connection for tinnitus is a matter of fact and of

discretion.  The Board finds that, while the wording of the

claim made by the veteran could have been interpreted by the

RO as including tinnitus, the veteran's claim did not

identify "tinnitus" as a component of hearing impairment so

clearly as to require the RO to infer that claim and

adjudicate it.  Without some identification of the disorder

by the veteran, a claim for tinnitus was not reasonably

inferred.  See, e.g., LaLonde v. West, No. 97-841, slip op.

at 3, 4 (U.S. Vet. App. May 11, 1999); Stewart v. Brown, 10

Vet. App. 15 (1997) (claim for service connection or pension

for a nervous condition was not a claim for service

connection for PTSD under the facts of the case). 

 

Since the RO was not required to infer a claim of entitlement

to service connection for tinnitus at the time of a March

1972 rating decision, there was no claim of entitlement to

tinnitus prior to October 3, 1997.  An effective date prior

to October 3, 1997, is not appropriate.  38 U.S.C.A. § 5110."

 

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp99/files2/9916568.txt

In this next case, there had been evidence of an inferred claim for tinnitus:

"This matter comes before the Board of Veterans' Appeals

(Board) from a March 2009 rating decision of a Department of

Veterans Affairs (VA) Regional Office (RO) that granted

noncompensable service connection for left ear hearing loss,

effective September 15, 2008, and granted a separate 10

percent rating for tinnitus, effective September 15, 2007. 

By a March 2010 rating decision, the RO determined that the

March 2009 rating decision was clearly and unmistakably

erroneous in assigning an effective date of September 15,

2007, for the award of a 10 percent rating for tinnitus.  An

earlier effective date of October 6, 2003, based upon an

October 6, 2004, inferred claim for an increased rating, was

granted."

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp10/Files2/1018719.txt

 

The veteran however lost the appeal for a better tinnitus EED,beyond 2003, and the RO had already granted the 2003 date by calling CUE on themselves in a 2010 rating decision.

"The VA reviewed all my service medical records and since Tinnitus was mentioned their, didn't they have the obligation in my initial 1997 claim to identify and establish a claim for Tinnitus?"

Not in my opinion.Otherwise VA would have had to 'establish" a claim,instead of the claimant, for thousands of veterans over the years who have had medical issues 'mentioned' in their SMRs.

But I could be wrong. Can you give us any links for this info:

"My understanding from my web research is that they should have inferred a claim when they reviewed my records."

 

 

 

 

[Berta]

This link might help you:

http://www.purpleheart.org/ServiceProgram/Training2013/19-T-Effective dates-Ron.pdf

The CAVC cases cited are more recent than La Londe Vs West as in one of the above BVA cases.

But I think the problem is that in 1997 we did not have the VCAA.

And another problem is that CUE cannot be filed unless it is filed on an actual VA decision,identifyng the disability on a rating sheet.

Also CUE requires a disability to be at least at 10% in the established medical record at time the alleged CUE occurred.

I found many claims when I put 'inferred issue' and also 'tinnitus' into the BVA search area.

I hope you can search some of them. I always say here that the worse CUE of all is the one never filed.

But I have no idea what you could file CUE on here.

You might instead want to consider the info here on 38 CFR 3.156 claims...available under a hadit search.

and perhaps suggest the SMRs that reveal tinnitis diagnosis are N & M since VA did not mention them in the older decision.

 

 

[broncovet]

Berta, as usual, gives great advice.  I will add my 2 cents.  One is an "inferred" claim, and there is also an "informal" claim.  Both of these pre suppose you already filed ONE formal claim for benefits.  Nothing happens until you file the first formal claim.  But read this:

http://www.purpleheart.org/ServiceProgram/Training2013/19-T-Effective dates-Ron.pdf

VA’S DUTY TO INFER CLAIMS  Once a claim is received, VA must review the claim, supporting documents, and oral testimony in a liberal manner.  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. © NVLSP 2013 6 VA’S DUTY TO INFER CLAIMS  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. © NVLSP 2013 7 VA RULES REGARDING INFORMAL CLAIMS  VA rules provide – “Any communication or action, indicating intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris [legally competent] may be considered an informal claim.” 38 C.F.R. 3.155(a) (2012). See also 38 C.F.R. 21.31 (2012). © NVLSP 2013 8 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”. © NVLSP 2013 9 M21-1 DUTY TO CONSIDER NOTED DISABILITIES, EVEN IF NOT CLAIMED Manual M21-1, Ch. 46.02, Change 400, 3/28/85, (cont.): 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…. © NVLSP

[syne7]

Broncovet,

That is it exactly:

VA has a duty to determine all potential claims raised by the evidence, applying all relevant laws and regulations.

Since the VA reviewed my entire SMR for my initial claim.  And there was evidence of TInnitus, Hearing Loss, and "Routine Hazardous Noise Exposure."  My thought is they should have opened a claim for me and then a appropriate C&P Exams.

Once my current claim comes back (hopefully this month).  I will look at attacking that.

Can I attack that as a CUE?  If useful I can attach my redacted Claim Decision, C&P Exams, and relevent SMR entries.