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  • 14 Questions about VA Disability Compensation Benefits Claims

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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Most Common VA Disabilities Claimed for Compensation:   

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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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NOD, CUE, or some other process


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Hi all,

As i said in another post I am new here and looking for guidance, opinion, options that may be available to me.

Without all the gory and boring details, I am currently rated SC 70% PTSD, 10% Tinnitus with a statement that my bilateral hearing loss is not service connected.

This all comes from the same original claim in 2012.

I found out last year, 2017, that in making the bilateral determination the doctor only looked at my second enlistment and did not review any records from my first enlistment.

I found this out when going through my records which took years for the VA to "Find".

In the records are audiology test records from the first enlistment which show the damage occurred in service. In my first enlistment I had 3 audiograms. 1 to enlist, 1 diagnosing problem, 1 to re-enlist. in my second enlistment I had exactly 1 audiogram which was when I completed my enlistment.

In the record from the first enlistment is a piece of paper that says  "rehabilitation plan complete." but no other information. When I took the 2nd test they told me to wear earplugs when i could. That was it.

In the test results between enlistment and the 2nd test it shows the loss in both ears.  The final test on discharge says hearing is the same as at re-enlistment which was after the damage.

So here is my question on this:

What are my options to challenge this decision? I did not discover that they did not look at both enlistments until last year, which is 5 years after they granted me my initial 70 & 10 percent ratings.

Is there an option? Do i start it all over again? would I need to get a lawyer?

any suggestions would be great

Thanks

 

 

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At least get service connected.  Hard to get a rating for anything but tinnitus anymore because the hearing aids have improved so much.  Hearing aids are supplied every 5 years. I'm asking the 10

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You pretty much just described 38 CFR 3.156 C.  It is a way you can "reopen" a claim due to new and material service records.  You dont have to prove your issue meets the CUE standard of review, you need only meet the benefit of the doubt that Vets have with a reopening of your claim.  You should get it "backdated", if you get an additional award.  

38 CFR 3.156 C reads

Quote
§ 3.156 New and material evidence.

(a)General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b)Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

(c)Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))

 

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@broncovet

Thank you for that quick response. Now I need to figure out the process to reopen under 38 CFR 3.156 C and what I have to attach/send it with it.

At this particular minute that file is in a storage locker in NOLA so I will see if I can get the Seattle RO to produce my C-file which should have the denial letter saying they only looked at one enlistment period. I think it "should" also contain the hearing tests I mentioned from both my enlistments.

The fact of the matter is that ringing in both ears is frequently so loud I cannot hear words shouted at me two feet in front of my face. The only place I have ever worked or spent considerable time with loud noises is during my service, on the flight line, deck and in the shops. The exploding airplane did not help. All that is documented as is the loss.

Thank you again.

 

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Good point.  I always used to apply to reopen, just using the "general" form 21-4138, and state I wish to reopen (PTSD or issue claimed) due to new and material evidence, 38 CFR 3.156  (new evidence should be enclosed).  

But, VA has become anal requiring a specific form, so apply here. https://www.vba.va.gov/pubs/forms/VBA-21-526EZ-ARE.pdf

Clearly state this is a reopening of a previously denlied claim under 38 CFR 3.156 C.  

OR, read what NVLSP has to say about it:

http://www.purpleheart.org/ServiceProgram/Training2011/T-1 Imp court case N&Ml Evidence.pdf

 

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@broncovet

Thank you so much for the links. I will start reading them now.

I am grateful that folks like you have waded through the VA Lingo and Gordian knots of misdirection to gain accreditation as a Veterans Agent and or your other titles.

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