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Hello, I checked ebenefits and it said I received a GRANT from the CAVC for increased rating "anklyosis of the shoulder." I had appealed for depression and anxiety as well and they were not addressed on ebenefits so I am guessing it is still on remand at the BVA level. Ebenefits also stated that my remand would take 16-24 months. I am currently 60% with 10 for tinnitus, 20 for ankle, 20 for shoulder, 20 for shoulder radicupathy, 10 for knee. What does all this mean? if I am not providing the information needed for input I am happy to do that but at this time I dont know what else to provide you guys.
A few years back read a CAVC cite that in effect said 'RO can't ignore request by C&P examiner for a test, diagnostics, they deem necessary'. Stupid me, I didn't write it down or if I did, I can't locate it now when I need it. Been googlin' but Google produces way too many hits to wade thru. Then I found this at the BVA appeals search page:
“The Board notes that the Court of Veterans Appeals(COVA) has indicated that the VA cannot ignore requests for diagnostic studies suggested by its own physicians”
The BVA docket # is 91-37 953, and I believe the year is 1995, that the Board remanded it back to the RO using the language above. So I'm not nuts...the BVA was referring to a CAVC(COVA back then) opinion.
I just can't find that COVA case cite. Anyone have an idea?
I'd like to use it in a CUE argument that'll probably get to the BVA sometime next year, late 2019 if I'm lucky, and I'm condensing/clarifying and adding clarity in preparation.
I'm working on preparing my brief to the CAVC on my appeal having received the Record Before the Agency (RBA). Searching for the initial EENT consult in the RBA now. Have it in a CD sent to me by the VA Records Management Center earlier.
Does anyone know the date of "liberalization" of tinnitus allowing the rating of 10% for noise induced loss instead of only as secondary to a TBI? Is there a reference?
Docket 17-2990 The following is in the RBA.
1) RBA Pages 4255 & 4254; The Rating Decision of 2-25-76, RO did not do investigation of injuries medically, only for “in line of duty” determination.
a) CUE: RBA page 4365 dated 4/5/65; 4/4/65. “Patient took exam to operate a forklift and was noted to have a moderate hearing deficit. Please see and evaluate.” 4/5/65, “tinnitus ® ear & vertigo.” (tinnitus subsequent to exposure to 5” naval gunnery practice in the battle dressing station under the gun mount during the USS Sperry AS-12 gunnery practice during my tour on that ship aggravating a pre service mild hearing deficit with an incident of losing most of hearing for a period of 3 days not recorded or complained about on the record as an HN E3 when told it would come back.)
b) RBA page 4309, Audiogram at Guam Memorial Hospital dated 7/31/75 noting “poor speech discrimination both ears.” But without noting the claim of tinnitus which is at least partially contributing to that. And the AOJ, given the EENT consult of 4/5/65 above and the other earlier Audiograms failed to send the examination back for a clarification on whether the tinnitus had subsided or was omitted from the report.
c) RBA page 476, Audiology consult dated June 18, 2013. Please include the audiology report and notes on tinnitus and word discrimination.
d) RBA page 3106, Rating Decision date 1/22/92:
i) “F. Service medical records show complaints of recurrent tinnitus in April 1965 and January 1968. The audiometrics done on current VA examination show average pure tone thresholds as 48 in the right ear and 63 in the left ear, with speech recognition as 88 percent and 76 percent respectively. Also shown is periodic bilateral tinnitus.”
ii) D. Service connection is warranted for a separate diagnosis Of tinnitus at a compensable level with application of 38 CFR 3.114 (A).
iii) 2016 38 CFR 3.114(a) “…or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue.”
iv) 1974 38 CFR § 3.114 Change of law or Veterans Administration issue.
(1) (a) Effective date of awards. Where pension, compensation, or dependency and indemnity compensation is awarded or increased pursuant to a liberalizing law or a liberalizing Veterans Administration issue, approved by the Administrator or by his direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative Issue.
v) 1974 38 CFR 4.84(b) 6260 Tinnitus ---------------------- 0 (See diagnostic codes 8045 and 8046.)
vi) 1974 38 CFR 4.124(a) 8045 Brain disease due to trauma Purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial' nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). Purely subjective complaints, such as headache, dizziness, insomnia, tinnitus, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under diagnostic code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of chronic brain syndrome associated with brain trauma.
vii) RBA page 844, Periods of steady tone were greater in Japan because of the constant additional background noise but still the 20 per day of the steady high-pitched tone seems a bit exaggerated. Probably something lost in the translation to the Audiologist. However, even with the translation, this is the clearest and best history of my tinnitus reported in the record.
viii) RBA pages 3149 & 3150, Audiogram dated 8/21/91, recording tinnitus but inaccurately. My tinnitus has been constant with the bird chirping, with an intermittent steady high-pitched tone that more grossly interferes with hearing especially in a circumstance like an audiogram, since it first appeared in late 1964 during my tour on the USS Sperry AS-12 following gunnery practice and a temporary hearing deficit of everyone sounding like they were down in a well which off the record, after the practice, by a physician I was told would go away in a day or two. As an HN E-3, at the time, all I was concerned about was getting my hearing back which I did except for the tinnitus interference which wasn’t too severe except when trying to intently listen to soft sounds when it becomes a high pitched steady tone. So, it is intermittent in nature of interference. Otherwise it is like a soft background noise unless competing with soft sounds. This is the way I always describe it, but it has never been recorded in the long version except on RBA 844.
ix) RBA page 3202, Claim on my behalf by representative with no mention of tinnitus. Given that it was granted on the review of the record under 38 CFR 3.114(a) it should have been dated from Mar 18, 1976 per the 1976 38 CFR 4.85b and the cited, in the 1/22/92 Rating Decision, 38 CFR 3.114(a).
x) RBA pages 3484 & 3485 Audiological Case History, dated 5/24/88, recording tinnitus but with errors. Not “since taking Elavil” as the record shows. Worse since taking Elavil. And not intermittent as stated above except for the difference in tone. It is there when I wake up and when I go to sleep and probably keeps me from dreaming most of the time. And it has been like that since the 1963 or 1964 USS Sperry AS-12 gunnery practice.
xi) RBA pages 3955 & 3956, Audiology Case History dated 5/14/85, also reporting tinnitus but erroneously. Is the reporting of “intermittent” because that is the usual? Where did the “2 episodes come from” Perhaps 2 episodes of the change in tone to a high-pitched tone. Should be mild constant with intermittent severe.
xii) RBA pages 3965 & 3966, Audiology Case History dated 7/14/83 recording tinnitus moderate with errors as above.
xiii) RBA pages 3987 & 3988. Audiology Case History dated 12/13/83, tinnitus reported, correctly as not in ears, incorrectly as periodic and just in morning (louder when first awakening). Appears to include both high pitched and “birds” (high pitched; “birds.”)
xiv) RBA pages 4328 & 4329, Audiogram dated 22 Jan 67, Audiologist did not fill out history on back. Similar Beltone reports back was not copied.
xv) RBA page 4462, Rating Decision dated June 25, 2015; “We determined that the following condition was not related to your military service, so service connection couldn't be granted: Medical Description Tinnitus” This goes to the authenticity of the June 25, 2015 Rating Decision and its sloppiness.
e) Several audiograms listing tinnitus in boxes provided on VA and Military audiogram report forms are not included in the record. Some but not all are on the CD provided to me dated 02/15/2017.
Is this motion to correct the Record Before the Agency in order or does it need some adjustments?
IN THE UNITED STATES COURT OF APPEALS
FOR VETERANS CLAIMS
Lemuel clayton bray
DAVID J. SHULKIN, MD
Secretary of Veterans Affairs
Motion to correct the rba
This motion is brought under Rule 10 (b).
There are many missing items from the RBA relevant to my claim and appeal. While most of the items are not relevant to the NOA current issue, they are relevant to the BVA Remand and bode for causing a return to the CAVC if not obtained. Obtaining a carefully copied new complete copy of the Medical Division OPTRs and IPTRs from the VA Records Management Center should provide most of the missing evidentiary documents and in a reasonably organized fashion not including much of the superfluous and disorganized documents in the RBA. The rest can be obtained from the Communications Division in the VA Central Office.
Missing, specifically, but not limited to:
1. Missing 5 months of OPTRs for Seizure Clinic visits at the West Los Angeles Medical Center that started 2 weeks from 9/17/90, reference RBA pages 3290 (page1) beginning & 3289 (page 2).
2. Missing 6 or more months of OPTRs for Spine Clinic or Back Clinic reference RBA 2996 dated 9/12/91included in IPTRs. Appellant has a copy of the 10/28/91 visit which is now missing from the IPTRs but dates the visits from April 1, 1991 in the copies provided by Cheyenne VARO.
3. Neuropsychological Assessment, undated, but dated by Progress Note on RBA page 3343 as 8/16/91 in IPTRs. Appellant has a copy of this from the hard copy of the file sent to Appellant by Cheyenne VARO.
4. 1-5-90 X-ray report of X-ray ordered on RBA page 3256.
5. Multiple additional hard copy radiographic reports that will be in the Medical Division OPTRs and INPTRs.
6. Denver VARO internal memos and VAOIG letters responding to the Appellant’s alleged failure in getting a DRO hearing in Cheyenne, before the closure of the 1/22/1992, in addition to The Denver VARO letter dated JUL 20, 1998, RBA pages 2626 thru 2628, claim appeal on June 19, 1995. I have an interoffice memo provided to me by the Communications Division in the VA Central Office last year. It is available from the same resource to the Appellee’s attorney for inclusion in the RBA as are probably many of the other missing items. Use the Denver VARO JUL 20, 1998 letter to the VAOIG as a reference point to get the memos.
7. Denver VARO letter of June 19, 1995 Closing the appeal of the 1/22/1992 referenced on RBA pages 2626 & 2710.
8. The missing letters from me stating periods of unavailability for a hearing because of traveling for obligations to family and friends including the transfer to DC when the hearing hadn’t been provided while I was in Wyoming before my move to DC. The letters are detailed on that interoffice memo provided to me by the Communications Division in the Central Office last year.
The RBA is 4529 pages long and is not in any way correlated to the 3151-page CD that I received dated 2/15/2017 which I have done considerable work on. I may have to referenced pages from that CD as 02/15/2017 CD that I have not yet found in the RBA. I can forward to the attorney for the Appellee via Adobe Creative Cloud or by Fax broken up for large files, as the attorney requests by phone or email, items that I have that escaped becoming paper mashie from water damage from my original copies, or from the hard copies sent to me by Cheyenne VARO in 2015 or were on the 1420-page CD provided to Attorney Ellermann for the BVA hearing.
The items that I do not have, have been previously requested by FOIA on numerous occasions and responded to with items from the C&P file in a non-denial denial response. “This is all of the records we have,” quoting the letter dated, February 9, 2017, (RBA page 1056) from The Records Management Center in response to my FOIA of August 11, 2016, (RBA 1399 thru 1405). Quoting from my letter:
“I’m requesting all C&P Documentation that was not included on the CD provided to my attorney, Vanessa Ellermann via correspondence dated March 28, 2016.
There is a big gap from the time I was in Japan until 2009. In that time I had a claim and an appeal that is either incomplete or denied that there is no documentation of on the CD.
Also, I’m attaching a previous request for Medical Division copies of Medical files to replace documents that have gone missing from my C&P file.”
The Record Management Center is under the Appellee’s jurisdiction and is not responding with the missing items from the hard copy of the pre-computerized Medical Division OPTRs and IPTRs which fall under the jurisdiction of the Director of the Medical Division which was the former position of the Secretary and has not provided a complete record of the correspondence via the U S Consulate from 1998 thru 2012 regarding attempts to get a C&P exam for pending claims and appeals.
The Appellee’s attorney may stipulate that efforts to obtain a qualified English Speaking Neuropsychological Assessment were impossible and that therefore all claims and appeals between 1998 and the present.
The RBA seems to be sufficient except for the missing response to the VAOIG by Denver VARO acknowledging the failure to give the requested hearing in the appeal of the 1/22/1992 Decision. I have a copy of the memo (which is not in the RBA) that seems to have been used to prepare the letter I saw in my file on my last review of it in Washington, DC, sent to me by the Communications Section in the Central Office detailing the dates of my letters, dates I would be unavailable, dates of the AOs letters in the period of unavailability and dates of hearings set in the period of unavailability on those same letters.
I request the Appellee’s attorney fulfill all previously requested FOIA letters, from January 1, 1990 through the present, as required by 38 CFR 3.159, that were responded to with non-denial denials from the Medical Division or stipulate to the Appellant’s belief of what is on those documents, and radiographic films, which had incomplete reports not rejected by AOs, as required by 38 CFR 3.159 and 4.2, for failure of completeness and failure to provide etiology opinion statements, and EEG tracings which would show, if given to a second opinion professional requesting a complete report including an etiology statement form the medical history included in the Appellant’s medical file.
By 1990 these items were produced digitally except for the hard copy OPTRs & IPTRs and should be archived somewhere for research access. The films, that were shown to me, would have been retired after 5 years but replaceable from the digital data. The hard copy EEG tracings are probably similarly disposed of on the Telemetry Units, but the digital video and tracings should be reproducible from archives.
The several “abnormal” EEGs and 9/16/1990 IPTR should be sufficient to provide the Appellee’s attorney grounds for stipulations as to the similarity of what could or would be produced given the West LA VARMC was using the telemetry units for a “cutting edge” theory research that led to over a decade of wrong information regarding temporal lobe seizures being diagnosed by VA physicians as pseudo and psychogenic seizures and being passed as “clinically approved,” affecting all Americans with this particular problem.
The Appellee’s attorney can, keeping in mind my TBI residuals, rely upon my residual 126 verbal IQ and 13 plus years as a Naval Hospital Corpsman independent duty qualified and having been shown the Radiographic films by the attending physicians, being present when the EEG technician left my side to get a physician for a stat reading of an EEG by the attending physician, or being present when the ultra sound technician left my side to obtain a stat viewing by the attending physician and having noted them in writing over several years in requesting the copies of the films on the refusal of the medical division to do complete reports including etiology assessments as required by 38 CFR 3.159 and 4.2.
I will raise no objection to an Appellee’s request for an extension to 30 days of the time to respond to this request to correct the RBA.
At the same time, I request the opportunity to make further requests to correct this very lengthy and complex RBA in the interest of getting it right the first time and not having to carry this action out further.
Lemuel C Bray
In Pro Se
2833 Main Street
Torrington, WY 82240-1929
Ph 307 316 8568
FAX 307 316 0936
This is a decision I recently received from the BVA after a successful battle at the CAVC (please see below). My appeal dates back to May 2006. I just need clarification on a few things. Staring with what disabilities exactly are they granting me. I don’t understand what is meant by “a disability characterized by chronic fatigue”. What exactly is" that" disability? Do they mean chronic fatigue or something similar to chronic fatigue? Is the polymyositis going to be secondary to major depressive disorder?
Another thing that confuses me is that they are saying these things (chronic fatigue and polymyositis I assume) are secondary to my major depressive disorder. I was only granted service connection for major depressive disorder in May 2014 and this appeal dates back to May 2006. Which date will they use to determine the award May 2006 or May 2014? Any help on clearing up these matters will be greatly appreciated. Thanks in advance.
FINDING OF FACT
The Veteran’s currently diagnosed chronic fatigue disorder, to include polymyositis, is aggravated by her service-connected major depressive disorder.
CONCLUSION OF LAW
The criteria for service connection for a disability characterized by chronic fatigue, to include polymyositis, to include as secondary to a major depressive disorder are met.
Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
Vync posted an answer to a question,I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:
2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis
2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.
"...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.
First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date.
If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues.
I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.
It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.
Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.
Does this help?
Buck52 posted an answer to a question,Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.
The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.
Picked By66 bricks,