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Do I fit under this process, legacy, or both?

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GeekySquid

Question

I will ask the first question in this new forum.

I have just been granted a 30% rating for Vertigo from a 2018 claim. If this were a "normal" first claim I would fall under the AMA and have to NOD using one of these three lanes.

My confusion comes from the following.

In my original award fro 2013, the VA knew about the vertigo. They had sent me for a VNG (waterboarding through the ear) and an MRI for vertigo. I had two C&P's, one for PTSD and one for Hearing Loss. Both knew about the vertigo and tests. The award letter from 2013 did not mention vertigo or the tests even though they were in my file (or at least the ordering of the tests and notes that said the results were being uploaded).

Since it did not mention them, and I did not know they were compensable, I did not NOD the decision at that time. I also did not know what a NOD was so that makes things worse.

I was denied SC for Hearing Loss in 2013. I did not know that they reason they denied was that they only looked at 1 enlistment instead of both which covered 10 years and were consecutive. I only found out the reason they denied in Aug 2018 and filed to reopen based on New and Material evidence even though I did use that exact term.

They denied reopening the hearing claim for SC based on the old C&P form 2013 and did not offer a specific C&P for SC connection.

In that same Aug 2018 claim I filed for "dizziness" which is what I have always called my episodes of vertigo. They sent me for a C&P. The doctor was incompetent and did not even have a DBQ in front of him and no computer in the office. He stated his wife does all his computer work at home. He stated he did not know why I was there or what the VA was expecting. I told him about the vertigo (I had learned that was the correct term).  Further he looked up my nose, in my ears, then said the problem was between my ears meaning a problem he could not see. He did not ask about my gait, frequency of events or if I had nystagmus (I do and it is documented).

The C&P for Vertigo did include a hearing test. I pointed out to Audiologis, and showed the records, that the 2013 C&P was wrong on SC. She stated she was not doing a C&P just an hearing test but would include a note on the SC and dates.

The VA bounced this around for months, even reaching pending final verification with a Due date of 1/8/2019. They then bounced back to gathering evidence and ordered a C&P on Hearing Loss, ostensibly for the Vertigo claim.

The results were finalized about 20 days ago and Ebenefits disabilities were updated to show Vertigo at 30% and Hearing Loss as SC.

The BBE has not yet arrived so I don't yet know their reasoning.

So my questions are:

Do I NOD the 2018 Vertigo decision using the AMA and which lane?

Do I NOD the 2013 award or CUE it? They VA failed to even mention the tests in that award. The did not notify me that a claim was possible and they did not offer me an assist in getting the C&P. They now claim they have lost the records

Do I Nod the 2013 hearing denial for SC and request EDD? or Do I NOD the 2018 hearing decision asking for EED to 2013? Do I CUE this to get my EED? The doctor clearly did not look at my full record and even states it so. The VA did not notify me of that fact in the Award letter, which significantly changes any NOD choice I could have made back then.

As I am still waiting on the 2018 Vertigo claim and Hearing SC connection I cannot post them. I will gather all the award letters and redact them once that shows up.

Any help? suggestions?

 

 

 

 

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So my questions are:

Do I NOD the 2018 Vertigo decision using the AMA and which lane?  Defiantly the appeal lane

Do I NOD the 2013 award or CUE it? They VA failed to even mention the tests in that award. The did not notify me that a claim was possible and they did not offer me an assist in getting the C&P. They now claim they have lost the records.  Hoping you have these records still and it sounds like a CUE to me.

Do I Nod the 2013 hearing denial for SC and request EDD? or Do I NOD the 2018 hearing decision asking for EED to 2013? Do I CUE this to get my EED? The doctor clearly did not look at my full record and even states it so. The VA did not notify me of that fact in the Award letter, which significantly changes any NOD choice I could have made back then.  I would almost say both, but from what I understand if you have flagrant information showing they were negligent then the CUE is the way to go!  If not then the NOD will probably be the best route.  Remember the CUE is pretty much saying you #%*!#$ up!

As I am still waiting on the 2018 Vertigo claim and Hearing SC connection I cannot post them. I will gather all the award letters and redact them once that shows up.

Any help? suggestions?

Keep fighting, anything you can do to give them new 5 star evidence to award you can help so much!

AMA Three Lanes

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1.  If you have new evidence, choose either the Supplemental Claim Lane OR go directly to the BVA (with new evidence).  

2.  If you have no new evidence, and HAVE A COPY OF YOUR CFILE to be sure, only then consider HLR or BVA without new evidence.  Even then use those with caution because, more often than not, you need new evidence.  

Here is why:  res judicata, defination:  

Quote

a matter that has been adjudicated by a competent court and may not be pursued further by the s

Dont expect a new decision maker to make a different decision than the last one (except with CUE).  At least, have a compelling reason as to how the previous adjuticator erred, even if it does not rise to cue level.  

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You can not NOD a 2013 decision.  You must do so in a year or it will be denied and its too late.  

You CAN nod the 2018 decision if its under a year since the decision.  

Dont even think of filing any NOD based on what ebenefits says.  Wait for the decision, have it in hand when filing the nod.  (You want to refute its reasons and bases for decision, so you need to know what those are when you file the nod). 

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3 hours ago, broncovet said:

You can not NOD a 2013 decision.  You must do so in a year or it will be denied and its too late.  

You CAN nod the 2018 decision if its under a year since the decision.

Right on the 2013, the quirk is that in 2018 (before the AMA changes took affect) I had filed to reopen he 2013 decision on a couple of issues. I was denied that reopen as the VA said that the New and Material information I provided did not qualify as New and Material.

Then surprisingly in the part of that claim they deferred, the Vertigo part that they just (incorrectly) awarded me 30% , they also awarded SC for the the item them said was denied for not being New and Material. They essentially CUE'd themselves. The problem is the Effective Date issue which should be 2013 not 2018. 

What this tells me is that they are not actually reading the evidence submitted, using common sense, or are just trying to obstruct in every way possible.

As I have said before in other posts, this is a complex set of issues and I am trying to align the pieces so they all go into the right lane.

It is exhausting.

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Ok.  Did you file a NOD to the decision that awarded benefits at the wrong effective date?  If not, you need to file a nod disputing the effective date, and give your reasons why you dispute said date.  Again, the decision awarding benefits at the wrong effective date needs to be within a year or you vastly limit your options.  

If you have passed the one year appeal period, then the 2 major ways of getting an EED are CUE and 38 cfr 3.156 c, new and material service evidence.  

38 cfr 3.156 b (pending claim) wont help you if you did not submit new evidence until after the appeal periods were over.  

If the VA declined to reopen due to n and m evidence, did you dispute that decision with a nod??  

Its mostly always the same:

You file a nod within a year of a VARO decision (A BVA decision, if you dispute it, needs to be filed much quicker, in 120 days).  

If you DONT file a nod (preserving the effective date) you limit yourself MOSTLY to CUE, and 3.156  N and M evidence.  

Failing to timely file a nod, normally will mean you miss out on benefts.  There are some exceptions.  

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12 minutes ago, broncovet said:

Did you file a NOD to the decision that awarded benefits at the wrong effective date? 

 

Let me see if I can succinctly put a time line on the first Effective Date Issue for the Denial of SC for Bilateral Hearing Loss. This does not address the other items the First Award did not even mention  but should have.

1) 2013 award letter denied SC on Hearing Loss, but did not include salient information that would have made me question the decision. In particular the Doctor only looked at my First enlistment and ignored the rest of my Service Record. This award did not mention (and should have) OSA and Vertigo. I did not know any better and was exhausted from dealing with the VA so I just accepted the ruling.

2) July 2018, I get letter for a review of award granted in 2013 C&P. This is standard review period, I did not know that it was standard and kinda freaked out. This spurred my investigating the VA-stuff once again.

3) Aug 2018, before getting Award decision. I filed claim to reopen, and several other issues against the 2013 award. I had received my C-File and found out the 2013 denial of SC was bogus and the Doc did not look at my full service record. I found out that the OSA and Vertigo was compensable, and SC, and that the VA had the information before they issued the Award but ignored the evidence in medical record. They should have inferred claim and notified me to file a claim for both.

4) Aug 2018, two days after the above claim, I found out that ED was an SMC K issue and I applied.

5) Aug 2018, they combined the two claims.

6) Oct 2018, received partial decision. 1) jumped PTSD to 100%, 2) Deferred Vertigo claim, 3) denied reopening of claim for SC, 4) denied reopening other parts of claim. 5) Granted SMC K

7) Oct 2018, Decision letter stated claim possible for Voiding Dysfunction after ED C&P.

8 ) Oct 2018 filed another Intent To File for the Voiding Dysfunction.

9) Nov 2018 to Feb 2019, 3 C&P's on deferred claim. Ebennies status jumped all over the place from gathering evidence to pending final approval back down to gathering evidence. This happened 4 times in that period.

10) April 2019, Ebennies added Vertigo under Disabilities at 30%. Rated Hearing Loss as SC with Aug 2018 date.

11) Today, May &, 2019, still waiting BBE to see reasoning before I file the NOD.

12) This week I will be filing the claim for Voiding Dysfunction, hopefully they will apply the ITF so I get the Oct 2018 Effective Date.

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