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

 

 

[Berta]

"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."

You need a copy of your C file-because the VA should have rated the bilateral hearing loss  on the older claim, even though they say it was not Service connected. (NSC)

 

 

[Lemuel]

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 10th Circuit Court of Appeals to rate my "tinnitus" at 30% from July 19, 1974 because the EENT consult in 1965 was a result of denying me a Navy forklift operator's permit.  That was 9 years before I got out.  And the consult indicates a "definite" loss of employability options for safety concerns.  The attached draft Pro Se form is a work in progress.  Have some duplicate statements that need to be downsized removing Arguments from Statement of Facts.  Most is a Copy and Paste from notes from my 4,624 page RBA (Record Before the Agency).

I'm also attaching a copy of Comer V Peake from the 3rd Circuit which a lot of Veterans on this site can use.

This is a result of discovering you can "Petition for Review" and "Agency Decision" to the Federal Court of Appeals.  My claims have been in progress for over 30 years.  Like Comer, I never gave up because the decisions were "arbitrary and capricious," like your decision, choosing to only look items that are negative to your claim.

In my case I had seizures confirmed in 1990 but the diagnosis changed to pseudo seizures when they didn't respond to Tegretol.  In fact Tegretol made them worse.  I obtained a Physicians' Desk Reference from ABE BOOKS after looking up Tegretol online and discovering it was contraindicated for the type of seizures diagnosed currently.  It was also in the 1990 PDR.  I had a sensitivity to amitriptyline which was also contraindicated.  5 months of treatment in 1990 and then no treatment until 2015 when I was put on Keppra.  So there is also a 38 CFR 3.154 claim.  The Rating Officers, DRO and BVA of 1990 only referenced the WNL EEGs and not the ones showing "with or without seizures," which occurs frequently with Temporal Lobe Seizures.

If you are accused of being a little "drifty" you may need to look into getting some EEGs done also.  If you do stop all antidepressants or similar drugs for 3 days before you scheduled EEG.  Also don't sleep for at least 24 hours before the EEG.  And make sure you get at least 3 EEGs at times when you feel foggy brained.  There is an NIH study showing "blast concussive damage" occurs.  If, in your noise induced hearing loss you had any of these symptoms the sinus bouncing may have damaged your anterior temporal lobes of your brain and be causing, short absences, concentration problems, enervations (sudden onsets of loss of muscle tone--hard to hold your head up or infrequent drop attacks (knees buckling with quick recovery), nose bleeds during the firing exercise, etc. 

This also applies to malaria victims.  A December of 2016 NIH study shows p. falciparum malaria also damages the temporal lobes primarily.  From almost 50 years of getting worse, I can tell you temporal lobe seizures are hard to diagnose and no fun.  I'm fortunate in the Oakland Naval Hospital inpatient record shows complex partial seizure symptoms in the nursing notes twice during my recover from 50 hours of unconsciousness followed by 30 hours of amnesia.

20180815 DC 10th Brief BVA 20170511.pdf

Comer v. Peake, 552 F.3d 1362 (Fed. Cir., 2009).pdf

Edited August 22, 2018 by Lemuel
correct an error

[GeekySquid]

@broncovet

Thank you for the response, I do understand that concept I just have experienced that crossing paperwork within the VA at any level can & does cause delays. Since the C&P review that just occurred last week seems to likely take me close to 90% (or possibly higher) I did not want insert any unnecessary delays

 

[GeekySquid]

@Berta

Thank you for your response.

I have an appointment with the VA coming up and I will try and get my Cfile then.

I have never filed any type of appeal, NOD, CUE, or any other disagreement with the VA, because after being denied by them  for almost 25 years (at about a dozen Regional Offices) I really did not want to rock the boat.

That said, my experience inside the VA is almost as bad as when they said they could not find my military records or when the same clerk denied having met me the previous day. Maddening.

Maybe you can direct me towards the proper procedure and content I should put in to my claim. What I mean is that there is a form to fill, and I am supposed to attach new evidence. I assume that a copy of each of the hearing tests done in the military,  and the ones done by the VA, as well as the decisions and a copy of the letter I got should all be attached.

Should I attach a narrative explaining what they did wrong? If so I assume that something more than "you guys goofed" is needed, so any suggestions on how to format that?

Thanks for any Guidance

 

[GeekySquid]

@Lemuel

Thank you for your response and those docs. I will read and review.

I was hoping to get assistance getting hearing aids. It would be nice to actually hear what someone says the first time and without them having to shout.

Reading your information is both helpful and angering. Every single time I read / hear about another type or pattern of bad behavior from the VA it just makes my blood boil again and again.

New questions about process and structure keep popping into my head. I will start a new question for them instead of diverting this thread.

Thank you, I appreciate the information

 

[Lemuel]

3 hours ago, GeekySquid said:

@broncovet

Thank you for the response, I do understand that concept I just have experienced that crossing paperwork within the VA at any level can & does cause delays. Since the C&P review that just occurred last week seems to likely take me close to 90% (or possibly higher) I did not want insert any unnecessary delays

 

That is right.  Even at 70% if you are not working, or working in a sheltered environment make sure your claim includes TDIU for 100%.  It is presumptive at that level.  You can take up date revisions and other issues on appeal including TDIU.  You just have to have a claim filed for TDIU or some request that is reasonably close to a claim for TDIU.  Just having said I'm not working or I can't work well is enough.