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!

[Gboyington]

14 minutes ago, brokensoldier244th said:

Depends on the reason for denial. Without that there's not much anyone can advise you on. 

I attached a copy of the VA letter - is not viewable on your end? If not, let me know and I'll see what I did wrong. Tks

Edited May 21, 2023 by Gboyington

[Rattler]

Tinnitus is getting more and more hard to get ratted. If I remember right the VA changed how they rate it. I know other Vets who are having issues getting ratted for it even though the VA issued them hearing aids. broken my know more on this issue. 

The question I have is what was your MOS. For example if you were a heavy equipment mechanic you would be exposed to a lot of noise. The same if you were in combat and around gun fire, alterlary etc. I would point out this error in an HLR. 

Reading your decision I think the ratter errored in that they did not properly give weight to your IMO. VA must provide an adequate statement of reasons or bases for its decision. In your case it did not. 

Now without reading the IMO I am assuming this.  Read the below info. I am going through this in one of  my claims that dates back to 1982 - 1983.

"Federal statute requires VA to weigh private DBQs equally with C&Ps (38 USC 5101 as amended by Pub. L 116 315, title II, 2006(d), Jan. 5, 2021, 134 Stat. 4976). This equal status is now expressed most explicitly by the policy regarding increased rating claims: "Do not routinely request an examination if a disability benefits questionnaire, completed by a private or VA physician, was submitted" (M21-1 IV.i.1.B.1.g). However, this same principle applies to all types of claims."

" VA cannot "develop to deny" a claim. Since I have already submitted a complete package of private evidence, any further development with C&Ps would violate VA policy: "Decision makers may not arbitrarily or capriciously refuse to assign weight to a claimant's evidence or develop with the purpose of obtaining evidence to justify a denial of the claim" (M21-1 Vii..3.B.1.a). This prohibition was emphasized in a law review article published by the BVA: "additional evidence should not be procured for the sole purpose of denying the veteran's claim" (1 Veterans L Rev. 94 (2009)). Even CAVC has strongly affirmed this policy: "Because it would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for
its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose" (Mariano v Frincipi, 17 Vet. App. 312 (2003))."

 

 

[broncovet]

HLR "is definately not" the route to go to appeal if you have new evidence.  A HLR is used when you think the rater made a mistake, AND YOU HAVE NO NEW EVIDENCE.  

If you have new evidence, such as a good IMO, you can appeal to the BVA, or a supplemental claim.  

NEVER USE HLR WHEN YOU HAVE (OR MAY HAVE) NEW EVIDENCE.  HLR "expressly forbids" new evidence, its a type of appeal that does not have new evidence.    Dont put .22 shells in a 308 rifle, and dont use a HLR when you have new evidence.   The .22 shells will "go in there", but are of no use, and even dangerous.  

 

[brokensoldier244th]

Hlr is what used to commonly be referred to as a "de Novo" review, or "submitting to dro" in a lot of online forums, and Google searches will often turn these posts up. I've worked with a few vets that read about those and think they are a different category from hlr. Moreso it's just a change in terminology from some years ago although legally it's still a de Novo review. 

[Rattler]

broncovet is correct if you have new evidence. As I read the decision they denied the claim because you IMO didn't go far enough in there opinion. That may be right or wrong. without seeing the IMO we can't tell if the ratter is correct or not.

[Gboyington]

On 5/25/2023 at 4:17 AM, Rattler said:

Tinnitus is getting more and more hard to get ratted. If I remember right the VA changed how they rate it. I know other Vets who are having issues getting ratted for it even though the VA issued them hearing aids. broken my know more on this issue. 

The question I have is what was your MOS. For example if you were a heavy equipment mechanic you would be exposed to a lot of noise. The same if you were in combat and around gun fire, alterlary etc. I would point out this error in an HLR. 

Reading your decision I think the ratter errored in that they did not properly give weight to your IMO. VA must provide an adequate statement of reasons or bases for its decision. In your case it did not. 

Now without reading the IMO I am assuming this.  Read the below info. I am going through this in one of  my claims that dates back to 1982 - 1983.

"Federal statute requires VA to weigh private DBQs equally with C&Ps (38 USC 5101 as amended by Pub. L 116 315, title II, 2006(d), Jan. 5, 2021, 134 Stat. 4976). This equal status is now expressed most explicitly by the policy regarding increased rating claims: "Do not routinely request an examination if a disability benefits questionnaire, completed by a private or VA physician, was submitted" (M21-1 IV.i.1.B.1.g). However, this same principle applies to all types of claims."

" VA cannot "develop to deny" a claim. Since I have already submitted a complete package of private evidence, any further development with C&Ps would violate VA policy: "Decision makers may not arbitrarily or capriciously refuse to assign weight to a claimant's evidence or develop with the purpose of obtaining evidence to justify a denial of the claim" (M21-1 Vii..3.B.1.a). This prohibition was emphasized in a law review article published by the BVA: "additional evidence should not be procured for the sole purpose of denying the veteran's claim" (1 Veterans L Rev. 94 (2009)). Even CAVC has strongly affirmed this policy: "Because it would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for
its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose" (Mariano v Frincipi, 17 Vet. App. 312 (2003))."

 

 

I unloaded and loaded cargo plans on the flight line (Air Transportation 2T231). The audiologist that wrote my nexus letter came to the same conclusion you did; the rater didn't properly consider the IMO letter.  The IMO documented the review of my STR, which the rater implies below was absent. The IMO is willing to do a rebuttal letter if the HLR is denied, which seems like the next logical step.  Thank you, everyone!

 

The medical opinion we received from the VA Medical Center was more persuasive than your private physician's opinion because it was based on a thorough review" of your military and /or personal history and contained a more convincing rationale.

Edited May 30, 2023 by Gboyington