NOD, CUE, or some other process

[GeekySquid]

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

 

 

[broncovet]

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))

 

[GeekySquid]

@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.

 

[broncovet]

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

 

[GeekySquid]

@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.

[GeekySquid]

@broncovet

Follow up.

I just read the 526 form and I have what may seem like stupid questions to you but that is how my mind works.

The form is for a Fully Qualified Claim expedited process or standard process.

question 1)

In the section IV Claim information, I want to make sure that since this is about getting them to look at N&M for bilateral hearing loss and nothing else, the only claim and conditions I have to list are the relevant ones. Meaning my 70% rating for PTSD does not have to be included at this time. I assume they will know I am 70% and I don't want to confuse the rater /reviewer in any way.

question 2)

in section VI Service Pay (Retired Pay, Separation Pay, and Disability Severance Pay)

In the past different parts and people at the VA have used confusing terms concerning my Disability Compensation, including calling it a Pension. I found out the hard way it is not technically a pension. So in this case for this section does Disability Severance Pay actually encompass Disability Compensation awarded through a C& P?

I see the not about Severance pay in the form, I just want to make sure I am not misunderstanding the entire scope of how va may mix and match these terms.

I know what Severance means, and I know how to use a dictionary, I just want to make sure the VA folks and I are using the same definition as frequently vets and va have different definitions for the same words.

question 3)

Should I wait until my recent C&P review is completed or at least registers in ebenefits before I submit this?

I stated in another post that I just went through a C&P Review at a QTC contract center two days ago. The doctor, a PhD who says he has been doing the C&P work for 20 years and has been a shrink for 50 years, told me specifics from the report he is going to submit. He did tell me they were not supposed to discuss what the raters might decide etc. but he said in his experience his reports on people like me receive significant bumps in %.

He said he was going to add 3 other diagnosis to the report and that the VA required them to use 1 of 7 sentences to describe the patient. 1 being needs no help, 7 being the guy is functionally toast. His evaluation is that I am a 6.

Further he said that his report is not the VA's but mine and that in his experience his office will submit it by Monday and I should be able to see it in my records by that Friday. He further stated his office is experiencing, on average, a maximum of 5 weeks from the date of submission before the raters come to a decision and it is in my records. I don't know how accurate any of that is, but I believe he was sincere and believed what he was saying.

All that aside I don't want to introduce anything that might mess up that timeline or put a hold on that review by the raters, so should I just wait?

 

Thanks

 

 

[broncovet]

Maybe someone else can answer questions 2 and 3, as I just dont know that.  

However, on the issue of "should you wait to file?", my answer is always the same:

Quote

How much money can you afford to lose by waiting?  

If you have plenty, then go ahead and wait.  In fact, if you dont need money, dont bother to file at all.  

However, if you understand that each month you wait, (at 100 percent and I have no idea whether or not you will get 100 percent) its about 3000 each month you delay.  So, if you delay 6 months times 3000 per month, that is 18,000 in potential retro you throw away.  You could buy a fairly nice car for 18,000, so waiting would be like wrecking your nice car without any insurance.  I dont know about you, but I cant afford to wait.