Retro Pay Denied

[GlennieHB]

In March of 2020 I filed a claim for increased disability compensation awarded in 2016 of 10% tinnitus, 30% bilateral hearing loss, total 40% rating.  My 2020 claim was based on a continually worsening condition with my hearing over the past four years since my original claim.  I also included a claim for Meniere’s disease, asking for 100% P&T.  This was based on my deteriorating health going back over three years for which I received regular care from the VA, and was originally diagnosed through the VA in 2011.  In July of 2020 I was awarded an increase to 50% bilateral hearing loss, 10% tinnitus and 10% for Meniere’s.  This totaled to 70% but through the magic of government math I was awarded a 60% rating.  I felt this was an incorrect rating based on the evidence in my file and decided to file an appeal.  I began to collect evidence in August 2020, asking for a copy of my C&P exam, while continuing to seek treatment at the VA.  It wasn’t until early July of 2021 that I submitted a “Decision Review Request: Supplemental Claim” based on the previous award.  I waited nearly a year seeking the C&P evidence, sending three letters and placing several phone calls, but never received it, so was forced to submit my claim without knowledge of what was in the first C&P in order to preserve my original filing date.  By August 2021 I was called for a second C&P exam and in September 2021 I was awarded 100% P&T, now changing my rating to Meniere’s as the primary, hearing loss and tinnitus as secondary but was denied retro pay. I believe that there is evidence within my claim that proves I am deserving of the retro pay, which totals to over $30K.  My question is, how should I pursue this situation?  Should I use another VA 20-0995 Decision Review Request?  Ask for a “Higher-Level Review on 20-0996 or an “Appeal to the Board of Veterans Appeals” on VA10182?  

 

 I don’t want to poke the Bear, but $30K is a lot to leave on the table.  Any advice would be appreciated. 

[GlennieHB]

Hi Berta, thanks for your help and advice.  In the "REASONS FOR DECISION" section of my award document, the following was stated:  "There is no objective evidence that indicates entitlement to an evaluation in excess of 10 percent prior to the date of your recent VA examination, as there is no objective evidence of regular staggering or cerebellar gait prior to this date".  To me, the key phrase here is "objective evidence".  I have researched the legal definition of this terminology and depending on the application, it can mean different things.  Do you know where I could find the exact definition that the BVA uses in making their decision reviews?  Would it be in 38 CFR?  I am assuming that the "recent VA examination" referred to was my August 2021 C&P exam, (which was conducted on the phone). Thanks, Glenn

[broncovet]

Your statement, in bold above, (reasons for decision) is just plain BS.  

I can almost guarantee you had your malady (staggering or cerebellar gait) prior to that c and p exam.  Your examiner did NOT cause staggering or cerebellar gait, you already had it when you came into his office.  

  This said, the VA uses the date of the exam "when the doctor does not state when your condition began".  

   To fix this, you will likely need an IMO, OR evidence you had been treated by a doctor for Cerebellar gait or staggering BEFORE your c and p exam.  Or both.  

First, get your file and review it to see "if another doc reported your cerebellar gait or staggering" prior to your c and p exam.  If so, then there may be cue.  VARO is supposed to read the file.  They often "top sheet" it,  and never read your file.  This means they read the first few pages, boom, here is a decision.  

Edited December 12, 2021 by broncovet

[GlennieHB]

Thanks for the advice Broncovet.  While researching for my July 2021 appeal, I discovered that the VA doctors that I have dealt with had never documented, diagnosed, concluded or analyzed my condition for any of my visits. They just stated what my complaint was.  In my March 2020 filing for an increase where I first brought the Meniere's Syndrome issue up asking for a 100% rating I based this on a two month daily diary of my symptoms that my VA ENT doctor asked me to keep.  He told me that I had Meniere's, but never actually submitted an analysis or opinion into my medical record.  Before I filed my appeal in July 2021 asking for the 100% P & T, I wrote him a message through the VA website so it would be documented in my records and asked him to go back and put an addendum into my record of his analysis of that diary.  He did that and placed it with the record of my follow up visit in February 2020.  He stated that in his opinion I had Meniere's.  In my diary I documented all my symptoms and had more than enough to satisfy what 38 CFR 4.87- 6205 calls for in order to be rated 100%.  I clearly laid it out in my appeal that the doctor had failed to enter his diagnosis into the record prior to my March filing and that was why I was filing the appeal and to look back at my Feb 2020 appointment for his documentation. ( I submitted copies of all these visits) I also had another group of appointments that my ENT at Supulveda Medical Center sent me to at the West LA Medical Center where they have a much larger staff.  In June of 2021 I asked the ENT who was treating me to document his analysis of my problems, and he clearly wrote that I was suffering from Meniere's and was unable to work and should be rated as such.  I don't know if that would qualify as a CUE, or whether I should just write up my NOD and point these thing out.  I defiantly discovered that if you want your VA doctor to give you an opinion for your record, you better ask for it.  

[broncovet]

A doctors mistake is not cue.  Even if the doc works for VA.  In fact, the doctor is "presumed" competent absent your challenge to the doctor.  

The doctor does not necessarily opine as to whether or not your condition(s) were "at least as likely as not" related to an event in service.  Him not doing so, is not a clear unmistakable error.  

If you want benefits you are going to need to make sure all caluza elements are present.  If you dont have all 3 Caluza elements, CUE filing wont fix that.  No Caluza elements: No benefits.  

If VA docs wont provide a nexus (at least as likely as not opinion), then you can get an IMO.  But you are not gonna be awarded benefits absent a valid nexus in most cases.  

[pwrslm]

The addendum in the record is new evidence. Should maybe go as supplemental claim and is faster than an appeal. If the diary is not posted in your VA Medical Records, you should ask them to do that as well, or if not, include it in your claim as evidence (if you have not done that already).

 

The addition of a non-VA IMO on this issue would put this over the top in more ways than one. Try Dr. Bash. He might cost 1500 for an IMO, but the return would be tenfold.

Edited December 16, 2021 by pwrslm