Appeal with a fully developed claim

[FlyboyLeRoy]

I have an appeal still open going on 2 years now for ear issues which I don’t believe has sufficient evidence when compared to new claim ( increased hearing loss/ear infections). I am currently service connected for hearing loss at 0%, tinnitus at 10%, and Ottis media followed by Eustachian tube dysfunction at 0%. Numerous ear surgeries while in and out of service followed by treatment during my first year in (2009) up until now.  April 2019 I was diagnosed with Ménière’s by the va and civilian doctor. I then filed a new fully developed claim 04/2019 with a dbq diagnosis Ménière’s, nexus statement >50% connection. C & p exam and medical opinion confirm and agrees with all the same and opines connection. Per ecfr title 38 my rating should be 100% and my vso states he is confident on 100% being granted due to all finished evidence. VA responds that they are unable to process most recent claim due to issues being too similar to current appeal and that they’ll be processed together . My vso states he has never heard this happen before since my new claim currently meets all information needed for 100% with Ménière’s disease. Anyone have any insight or advice on what I can do ? 

[FlyboyLeRoy]

14 hours ago, Buck52 said:

''WELL JUST MY OPINION''

'' VA responds that they are unable to process most recent claim due to issues being too similar to current appeal and that they’ll be processed together''

A lot of this boils down to the Diagnostic codes??? per condition!

They will get with a Medical professional in this field and ask about  your  current  s.c.condition  is it a separate condition or can it be rated as the same condition?  the raters do have medical manuals but they are not Dr's and can't render a medical opinion, they may send you back for another C&P Exam  with the correct Dr  or a better qualified Dr.(a possibility)

in other words they need to be sure they get the right rating for your condition,  in this case  is it a separate condition or  just one complete condition.?? (jmo)

 I could be wrong  I am not an expert on this type claim. although I do have a SERVICE CONNECTION for noise induced  bilateral hearing loss  with tinnitus cause from the military.

Read the last lines in the statment below.

6205 Meniere’s syndrome (endolymphatic hydrops):

Hearing impairment with attacks of vertigo and cerebellar gait

occurring more than once weekly, with or without tinnitus............................... 100

Hearing impairment with attacks of vertigo and cerebellar gait

occurring from one to four times a month, with or without tinnitus.................... 60

Hearing impairment with vertigo less than once a month, with or

without tinnitus........................................................................

............................ 30

Note: Evaluate Meniere’s syndrome either under these criteria or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. But do not combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under diagnostic code 6205.

Thanks for your reply, I’ve already had a c&p done for Ménière’s and have been granted service connection for it and also the ENTs medical opinion is in my favor 100% agreeing and backing up the diagnosis. Which is the main factor in me not understanding why it wasn’t approved  ? Just not making sense to me and especially with the ear issues dating back years now  

 

 

[vetquest]

I have never heard of this either but it may be something new under the AMA.  Previously according to 38 CFR 156 new and material evidence would be added to your claim if a decision was not already made.  New CFR 38 156a states:

(d)New and relevant evidence. On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record.

I believe this means that you must file a supplemental claim after adjudication and it will be readjudicated.  I have no ideal why they would be doing this but it looks like that is what they are doing. 

Any other thoughts @broncovet, @Buck52?

Edited July 16, 2019 by vetquest

[brokensoldier244th]

It may have to do with two claims on one 'system'- i.e. your ears. For a lot of ratings, you can only have 1 per body system, though there are a few where its not pyramiding, like I have lower back DDD, and nerve impingement into my legs, but the impingement is rated separately because while visually it 'looks' like its the same system related, its not, medically. It may also be advantageous that they combined them because at least you won't have to wait for 2 separate claims to resolve. 

[Buck52]

''WELL JUST MY OPINION''

'' VA responds that they are unable to process most recent claim due to issues being too similar to current appeal and that they’ll be processed together''

A lot of this boils down to the Diagnostic codes??? per condition!

They will get with a Medical professional in this field and ask about  your  current  s.c.condition  is it a separate condition or can it be rated as the same condition?  the raters do have medical manuals but they are not Dr's and can't render a medical opinion, they may send you back for another C&P Exam  with the correct Dr  or a better qualified Dr.(a possibility)

in other words they need to be sure they get the right rating for your condition,  in this case  is it a separate condition or  just one complete condition.?? (jmo)

 I could be wrong  I am not an expert on this type claim. although I do have a SERVICE CONNECTION for noise induced  bilateral hearing loss  with tinnitus cause from the military.

Read the last lines in the statment below.

6205 Meniere’s syndrome (endolymphatic hydrops):

Hearing impairment with attacks of vertigo and cerebellar gait

occurring more than once weekly, with or without tinnitus............................... 100

Hearing impairment with attacks of vertigo and cerebellar gait

occurring from one to four times a month, with or without tinnitus.................... 60

Hearing impairment with vertigo less than once a month, with or

without tinnitus........................................................................

............................ 30

Note: Evaluate Meniere’s syndrome either under these criteria or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. But do not combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under diagnostic code 6205.

 

 

[Buck52]

If the VA did not use this evidence in your favor and its in your file and was in your file at the time of adjudication and you was denied  you should file a CUE

 From the VA What was the Reasons and bases of your denial? 

What We Decided''???

[Buck52]

If the VA did not use this evidence in your favor and its in your file and was in your file at the time of adjudication and you was denied  you should file a CUE

 From the VA What was the Reasons and bases of your denial? 

What We Decided''???

due to the difficulty of meeting the requirements for CUE, a CUE claim is usually filed as a claim of last resort.

In order to establish CUE, the appellant must demonstrate: (1) Either the facts known at the time of the decision being attacked on the basis for CUE were not before the adjudicator, or the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been “manifestly different.” Bouton v. Peake, 23 Vet. App. 70, 71 (2008). In other words, it must be undebatable that the VA made an error based on unconvertible facts or a misapplication of the law that existed at the time.

Apply for VA Disability CUE Claims

The following are some examples of successful CUE claims:

VA’s failure to give a sympathetic reading to the veteran’s filings by determining all potential claims raised by the evidence, applying all relevant current laws and regulations. Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004).

VA’s failure to apply applicable, existing regulations or statute at that time. Look v. Derwinski, 2 Vet. App. 157, 163-64 (1992).

VA’s failure to follow the regulations that govern whether an existing disability rating should be reduced, namely 38 C.F.R. §§ 3.343 and 3.344. Olson v. Brown, 5 Vet. App. at 434; Ternus v. Brown, 6 Vet. App. 370, 376 (1994); Sorakubo v. Principi, 16 Vet. App 120, 123-24 (2002).

VA’s failure to properly apply the Schedule of Rating Disabilities. Myler v. Derwinski, 1 Vet. App. 571, 574-75 (1991).

VA’s failure to apply 38 C.F.R. § 3.303(b) which establishes a presumption of service connection for chronic diseases diagnosed in service. Groves v. Peake, 524 F.3d 1306 (Fed. Cir. 2008).

VA’s failure to apply the regulation that governs conditions that preexist service. Joyce v. West, 19Vet. App. 36 (2005); see also Sondel v. West, 13 Vet. App. 213 (1999) and Akins v. Derwinski, 1 Vet. App. 228 (1991).

Unsuccessful CUE Claims

Additionally, the following are examples of unsuccessful CUE claims:

VA’s reliance on medical diagnosis in a BVA denial was incorrect in light of a medical diagnosis rendered after the BVA denial.

VA’s failure to fulfill the duty to assist.

BVA’s failure to properly weigh or evaluate the facts (weight of evidence).

Change in the interpretation of a statute or regulation occurring after BVA decision.

Cannot Apply for VA Disability for CUE

Furthermore, the following are situations when CUE claims cannot be filed:

Board of Veterans’ Appeals (BVA) decision appealed to the Court of Appeals for Veterans Claims (CAVC) or Federal Circuit cannot be filed for CUE. See Winsett v. Principi, 341 F.3d 1329 (Fed. Cir. 2003) cert. denied, 540 U.S. 991 (2003).

If BVA has denied claim twice or more and last claim was appealed to CAVC without success, all of the BVA denials are immune from revision based on CUE. 38 C.F.R. s. 20.1400(b) (2012).

If BVA decision is so recent that it is still subject to appeal to the CAVC, a CUE claim cannot be lodged until no longer subject to appeal before CAVC. See Gates v. Nicholson, 19 Vet. App. 376 (2005); May v. Nicholson, 19 Vet. App. 310, 320 (2005). (Appealing a case to the CAVC is usually a better option than filing a CUE claim because it is much more difficult to prevail on a CUE claim.)

Filing a CUE claim can result in an enormous backpay award; however, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 21.1403(c) (2012). Further, filing CUE claims is a complicated process and could be an exercise in futility if you are not sure what you are doing.

Get Help Applying for VA Disability Benefits

Contact the veterans disability law experts at the Berry Law Firm at (888) 838-7754. We are trained in properly filing CUE claims and assisting veterans to get the disability benefits they lawfully deserve.

Edited July 17, 2019 by Buck52