Supplemental Claim Question

[Gboyington]

Hello,

My claim for Tinnitus was denied. I submitted a HLR and it was also denied. It has been over a year since the HLR was denied. I had given up the fight against the VA but recently decided to try again. If I obtain a nexus letter from an audiologist, is that considered "new and relevant evidence" to warrant the VA re-opening my case?

Thanks!

[broncovet]

Reopening with new and relevant evidence may be best.  Check 38 cfr 3.156.  

The "evidence" of etiology (nexus) is used for service connection.   WHEN  your doctor wrote a medical opinion linking your tinnitus to military service may not be completely relevant as far as your effective date.  You are either SC for a condition or not.  And this letter may help establish SC.  

Your effective date is the later of facts found, or date of claim, with some exceptions.  Its not the date the doctor provided a nexus letter.  

[brokensoldier244th]

VA has  changed there rating  table for tinnitus. That was proposed, still being discussed, but not finished or finalized. 

[Rattler]

2 hours ago, brokensoldier244th said:

VA has  changed there rating  table for tinnitus. That was proposed, still being discussed, but not finished or finalized. 

One of my veterans went and got tested by the VA for his hearing. They did three different exams. They diagnosed him with a hearing issue  and issued him hearing aids. So I had him apply for SC for his hearing. The system when you apply for SC  will generate a request for a C & P exam. The Va scheduled a C & P hearing exam over 120 miles away. (240 an 4 hours round trip) This Veteran has had heart issues and the week before the C & P Exam was scheduled he was diagnosed with blood clots in his legs so he is limited how far he can sit and travel. So I had him call and explain that he need an exam closer to him like Birmingham. (It was in Montgomery) The exam was never rescheduled. Below is the interesting part of the denial letter. Because they did another hearing exam after the last one listed in the evidence I had him file a supplemental calm. The VA than rescheduled the C & P Exam and he went.

DECISION

Service connection for bilateral hearing loss is denied.

EVIDENCE
• VA Form 21-526 EZ: Application for Disability Compensation and Related Compensation
Benefits, received December 5, 2022
• DD Form 214, Certificate of Release or Discharge from Active Duty, for the period
November 30, 1972 to March 26, 1975
• Service Treatment Records, received November 8, 1993 and August 8, 2016, for the period
November 30, 1972 to March 26, 1975
• Service Personnel Records, received October 8, 1993, March 29, 1994, and August 8, 2016,
for the period November 30, 1972 to March 26, 1975
• Birmingham VAMC (Veterans Affairs Medical Center) treatment records, for the period
November 9, 2022 to November 30, 2022
• VA Examination Report Veteran Cancellation, received January 31, 2023

REASONS FOR DECISION

Service connection for bilateral hearing loss.

Service connection may be granted for a disability which began in military service or was caused
by some event or experience in service. Service connection for bilateral hearing loss is denied
because the medical evidence of record fails to show that this disability has been clinically
diagnosed. (38 CFR 3.303, 38 CFR 3.304)

A VA exam was scheduled on January 31, 2023 to determine the current level of disability;
however, evidence expected from the examination, which might have been material to the
outcome of this claim, could not be considered as you failed to report. The evidence showed no
good cause for the failure to report. Therefore, this evaluation is based on the evidence of record,
to include your service treatment records and VA treatment records. (38 CFR 3.655)

Service connection may be granted for a disability which began in military service or was caused
by some event or experience in service. (38 CFR 3.303)
 

Service connection for bilateral hearing loss is denied since this condition neither occurred in nor
was caused by service. (38 CFR 3.303, 38 CFR 3.304)
 

Favorable Findings identified in this decision:
 

The evidence shows that a qualifying event, injury, or disease had its onset during your service.
Your DD Form 214 shows that your military occupational specialty of fuel and electric systems
is a high probability of noise exposure.
 

You have been diagnosed with a disability. Your VAMC records indicate your have been
diagnosed with hearing loss.
____________________________________________________________________________________________

I have seen a lot of decisions like this one where the VA denies a claim.

The VA admits that the veterans MOS caused his hearing loss.

The VA admits that the veteran VAMC records " indicate your have been
diagnosed with hearing loss."

So the only question here is what % of disability do he have. Not "could not be considered as you failed to report. " when the fact was he requested a closer exam.

I have seen this excuse used with other claims.

 

[brokensoldier244th]

If there is a record of the request, like an 0820 record of the phone call in his Efolder he could contest it on the basis of he requested a reschedule and it wasn't done.

Requesting reschedule isn't always automatically granted but 'reasons and basis' is pretty liberal, too. The system doesn't generate a C&P- they are created by VSRs based on a lookup by zip code that scans available locations daily. The zip that comes up closest available AND able to do the exam (not all locations may have an audiologist or something, or, during Covid a lot of locations' ability to do exams of many types was compromised) is the one that gets put in. 

 

I wouldn't think a C&P would have been necessary, though, since he already had exams, and hearing aids, and I'm assuming that it was within the year prior of him claiming HL/TInnitus? 

Edited March 29, 2023 by brokensoldier244th

[Gboyington]

I appreciate the input from all. I submitted my supplemental claim with my IMO nexus opinion from Dr. Erickson. While she worked for the VA doing hundreds of hearing/tinnitus C&P exams,  I expect the VA to deny my claim. 

Thank you!

[brokensoldier244th]

IMO or not you may just have to go. The standards and tests for a VA audiologist to prescribe hearing aids are different than hearing loss standards for a rating based on the CFR. I have tinnitus and HF hearing loss and I'm only rated for tinnitus. My VA audiologists exam is not the same as a C&p exam, and hearing loss is not enough to trigger the thresholds for HL.