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

[GeekySquid]

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?

 

 

 

 

[Phury & Rhage]

Hello

You folks use a shorthand that I'm not sure I'm getting but here is some relevant information on your "review" options:

If you receive a decision notification after February 15, 2019, you are able to select 1 of the 3 AMA lanes covered above.  The trick is you need to know what you want done.

• HLR is a closed record review.  Nothing new after the date of the rating decision you disagree with except what you say in the Informal Conference with the DRO (if you elect one).  That's where you say, "they did it wrong and this is why..."  But it is strictly based on the evidence and regulations/laws in place at the time of the decision.
• Supplemental is not only an open record, but you are required to submit new evidence with it.  I'll go into more detail on that in a bit, but if you don't submit "new and relevant" evidence, you will be getting a letter that says so and no claim will be opened.  The cool thing about the new and relevant is that it is a lower threshold than new and material.  Also, some excellent stuff is considered new and relevant:  new treatment records, a new theory of service connection, your statement that points to evidence that isn't currently in the record, etc.  It's critically important that you say what the new evidence is when you fill out the form.  Say that new evidence is in the folder since the last decision.  Say that you have new VA treatment records.  Say that you believe it's secondary to a service connected condition (different than the last one) or that it was aggravated by a service connected condition.  Use the words new and relevant when you fill out the form, "my new and relevant evidence is a different theory of service connection."
• BVA, which essentially offers the same lanes above, plus they still review RO decisions.

I'll write separately about the pre-2/19/19 decisions.  I'm kinda rummy from overtime.

Phury

[GeekySquid]

23 minutes ago, Phury & Rhage said:

You folks use a shorthand that I'm not sure I'm getting

@Phury & Rhage

welcome to Hadit

There is a section on here that has the lingo. but in short the most common ones are

SC -Service Connection

NSC -Non Service Connection

VSO -Veterans Service Office (American Legion, Order of the Purple Heart, VFW, etc) they help vets file for free.

RO - Regional Office

BVA - Board of Veterans Appeal

CAVC -Court of Appeals for Veterans Claims

NOD- Notice of Disagreement

BOD- Benefit of the Doubt

ITF - Intent to File

SMC - Special Monthly Compensation

your profile says you read CAVC cases so many of these should be familiar.

Edited May 19, 2019 by GeekySquid

[Phury & Rhage]

Thanks, actually all of those are familiar but BOD.  Of course, I've know about benefit of the doubt, I just don't see it abbreviated much.  Also, I'm brain dead from working overtime, lol.  

[GeekySquid]

17 minutes ago, Phury & Rhage said:

working overtime,

 

OT is a good thing