New Claims caused old claims to be increased & Reopened?????

[MarshOIF2003]

Hello, 

Applied for Tinnitus, Hearing Loss & Post Status left knee arthroscopy last July. Went to all C&P exams, waited and was given 10% for Tinnitus, 10% for knee & nothing for hearing loss. They put hearing loss not service connected. This year I applied for PTSD & Secondary Sleep Apnea. Went to all C&P exams. Was told by psychologist that I “DID” have PTSD. Have been waiting for 3 months and status has changed to “Pending Decision Approval”, the final stage. BUT, for some reason without me asking for a R.E.-evaluation for the Tinnitus, Knee & hearing loss, they have “R.E.-opened” the hearing loss, and on Ebenefits it states that they are increasing Tinnitus which I thought could not go any higher than 10%, increasing the Knee, and increasing  scars on knee from the surgery which I was originally given a 0% service connection. The PTSD and Sleep Apnea which are the 2 new claims have been merged together with all of these but have not been given a rating yet because it is pending decision approval. Why would they re-open hearing loss if they said it wasn’t service connected a year ago and why would they have the word “increase” next to Tinnitus if I’ve already been given the max of 10% a year ago? Why would they have increase next to the knee from 10% if I didn’t ask for an increase and why would they have increase next to “scars on left knee” when they originally gave me 0% service connection? 

[Berta]

It is probably because of the Modernization Act.

https://www.hadit.com/veterans-appeals-improvement-and-modernization-act-hill-ponton-p-a/

Last year the Secretary' office called me regarding a letter I had set to POTUS and to Sec, Shulkin.

One of the biggest problems I saw, as a advocate, is that claim decisions,for years,  contain too many CUEs.

That was ony one of my concerns and I made may suggestions to change the process.

The VA has changed the claims process in may ways and decisions are being reviewed more carefully now-

That does not mean every decision-maybe someday it will-

I think someone gave your claim the attention every claim should have.

They probably made a CUE in the initial decision and failed to apply Fast  Letter 10-35- searchable here-

re: the HL and tinnitus.

A very  few vets here have had this happened to them- finding that VA re opened past issues or found a new disability. 

Shulkin's office said that some of my suggestions were within the new claims process.

I dont think one letter from an advocate like me changed the process but I am elated that at least I know someone at VA can read- in VA Central. We need more literacy from the ROs.

I asked for  a Fast letter as well-but will write to VACO again when the new Secretary settles is confirmed ( if he has to be).

The Fast Letter I requested would hold every vet lawyer, vet rep. VSO  and/or  the claimant to file CUE immediately when they see one in a new decision.

If you read hundreds of BVA decisions as  I have done over the past year, you would see what I mean and how may claims should have and could have been done correctly at the RO level.....adding years due to remands , and years of waiting to disabled veterans.

 

 

 

Edited July 7, 2018 by Berta

[broncovet]

You dont have to file for an increase.  When you submit "new and material evidence", they should reopen the claim.  Read 38 cfr 3.156.  

You posted, 

Quote

They put hearing loss not service connected. 

I had the same thing happen to me with arthritis.  "They put it NSC".  No decision, they just put it nsc.  I did not know they did this for many years...until I finally got the VARO to send me a copy of my cfile, and there it was ..on a "rating" (internal) sheet.  

This, IMHO, is a clear violation of 38 CFR 3.103 which says that VA owes you a written decision.  When we dont get a written decision, its easy to forget.  You see, this means Veterans need to appeal a decision when there was no decision!!!  

Unfortunately, this isnt CUE, either, because a CUE motion reviews a decision finally adjuticated, and this isnt adjuticated, its pending.  And, it can be pending for decades, like mine has.  Now, the Veteran faces a dilema.

You cant file a nod or a cue, because it was never adjuticated.  If you refile, you take the risk on VA forgetting about the claim they forgot before, and kill you on the effective date alleging the "new" date of claim.  If they forgot about adjuticating it once, that means they can forget again.  

Even a writ of mandamus probably wont succeed (which is what I did).  The VA said something like, 

"While its frustrating for Veterans to not have their claim adjuticated in ( number of years), there is no time limit on VA to complete the claim, since each Veterans claim is different.  We are still working on your claim and will complete it as soon as it is feasable.  So the writ should be denied".  

And, yes it was denied.   The VA can literally drag out a claim forever, just because they can.  We have no remedy when the VA decides to delay this indefinately.  Justice delayed is justice denied.  

This is the single most irritating thing about VA claims.  Veterans have strict time limits..try filing a NOD 367 days after you get the decision.  It will be denied every time.  But VA has no time limits..ever.  How is that a "claimant friendly" environment??

How does that give  the Veteran the "benefit of the doubt"?  It does not.  If VA can not, or will not adjuticate the claim, it is deemed denied, and the appeal period begins to run.  We are in the lose/lose position of trying to appeal a decision when there is no decision.  Its a gaping hole in VA law, that VA has exploited, at Vetrans expense.  

[R3dneck]

Maybe try the Whitehouse hotline. 50/50 chance they will help.

[Berta]

Indeed it is a gaping hole-

"This is the single most irritating thing about VA claims.  Veterans have strict time limits..try filing a NOD 367 days after you get the decision.  It will be denied every time.  But VA has no time limits..ever.  How is that a "claimant friendly" environment??

How does that give  the Veteran the "benefit of the doubt"?  It does not. "

Yeah- we claimants all have expirations dates too-

It is difficult sometimes to try to help survivors when the veteran dies when the VA claim is still pending and it might have been in appeals for years by then.

My dead husband at one point, even hoped he would get a denial ( TDIU for PTSD) and Section 1151 for conditions he felt they malpracticed on. He won it all, posthumously ,almost three years after he died , but only because I knew how to become the claimant.

My vet reps at the time didn't know crap and told me Not to NOD the 1151 award letter.

I had to file CUE and won that (4 CUEs in the decision)

but the Buffalo VARO could have awarded the 100% SC PTSD as well as the 1151 in his lifetime.

He felt that a denial would at least give him something to fight, but the VA, the day he died- told him the claims had not moved since he filed them. They already had evidence for the 100% PTSD.

Things are changing at VA-they hired more BVA lawyers and the BVA is working much faster than it used to-

but the best reduction to the BVA backlog in my opinion ,is  to make sure these well paid raters do the claims correctly in the first place.

 

 

 

[Buck52]

I never heard of a increase for tinnitus above 10%, if you get 20% be sure to let us know.

[Buck52]

As for a reopen claims the VA does what ever they want  if you did not file to reopen a claim  then they can& apparently that's what they did &  some times this  is good some times not so good. if you were awarded increase on all these claims and the reopen claim   it would be good to get the increase. (jmo)

you might double check the increase for tinnitus...as for as I know tinnitus is only a 10% rating for both ears, but maybe that has changed?