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  • 0

Va Turned Down Claim

Question

Posted

Recently I put in a claim for hearing loss and vertigo. The VA denied the hearing loss, but has let the vertigo claim go forward. The reason the VA stated for denying the hearing loss claim was that last year I had put in a claim for hearing loss, which was denied and that I did not appeal the decision within the one year time limit. I did file a claim for tinnitus, and did not file a hearing loss claim. The tinnitus claim was approved and I received a 10% rating. The award letter states that my tinnitus claim was approved and nowhere in the letter does it state that a hearing loss claim was denied. The VA also states that in order for the hearing loss claim to continue, that I need to provide new evidence which has not been previously used.

The doctor's report that I sent in last year for the tinnitus claim stated the I had tinnitus and hearing loss due to acoustic trauma while in the military.

The doctor's report was used on the tinnitus claim, should that report be allowed to support my hearing loss claim since I had not previously file for hearing loss claim in last years original tinnitus claim?

Any input that you all might have would be appreciated. Thanks.

68mustang

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47 answers to this question

Posted

is tinnitis and hearing loss separate , i filed claim for hearing loss and thought

they were same .i was diagnosed with tinnitis after a long time out of military.

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Posted

No skunk, hearing loss and tinnitus are two separate issues. Maximum rating for tinnitus, whether in one ear or both, is 10%. Even if service connected, hearing loss needs to be significant to be rated above 0%, but again, they're both separate issues. You can suffer hearing loss without suffering from tinnitus.

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Posted

No skunk, hearing loss and tinnitus are two separate issues. Maximum rating for tinnitus, whether in one ear or both, is 10%. Even if service connected, hearing loss needs to be significant to be rated above 0%, but again, they're both separate issues. You can suffer hearing loss without suffering from tinnitus.

well i did not know that , how do you aquire tinnitis?

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Posted

68, it sounds like the VA used a little known(virtually unknown to most veterans) tactic to get over on you. For some reason it has been ruled that if the VA rules on one issue but not another, the other claim can be deemed denied without notification to the veteran. At least, I remember something to that effect. If you had not filed for hearing loss, the VA might have used the doctors report for tinnitus and hearing loss as an infered claim. I think you should request a copy of your c-file to see just what is in there.

You may have to re-open with new and material evidence. Or maybe someone here has come across this and knows how to help. If I remember correctly, a while back we have discussed this issue here at Hadit. I don't remember if anyone had a solution for veterans that got screwed by this trap but it was determined that if any claim was rated with no mention of other claims in the award letter, a NOD must by filed to keep the other claim/s alive. Of course, if you hadn't personally filed for hearing loss and was not notified if the claim was infered, there was no way for you to NOD.

I could be reading more into this than there is.

Hope someone can help.

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Posted

If you want a quick education on tinnitus, visit this website for the American Tinnitus Association:

www.ata.org

There's a tab labeled, "About Tinnitus" that should help.

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Posted

Recently I put in a claim for hearing loss and vertigo. The VA denied the hearing loss, but has let the vertigo claim go forward. The reason the VA stated for denying the hearing loss claim was that last year I had put in a claim for hearing loss, which was denied and that I did not appeal the decision within the one year time limit. I did file a claim for tinnitus, and did not file a hearing loss claim. The tinnitus claim was approved and I received a 10% rating. The award letter states that my tinnitus claim was approved and nowhere in the letter does it state that a hearing loss claim was denied. The VA also states that in order for the hearing loss claim to continue, that I need to provide new evidence which has not been previously used.

The doctor's report that I sent in last year for the tinnitus claim stated the I had tinnitus and hearing loss due to acoustic trauma while in the military.

The doctor's report was used on the tinnitus claim, should that report be allowed to support my hearing loss claim since I had not previously file for hearing loss claim in last years original tinnitus claim?

Any input that you all might have would be appreciated. Thanks.

Did your denial for "hearing loss" state that this doctor's report was used to come to the conclusion of the denial?

Is this doctor's report mentioned anywhere in the SOC?

If not, then I'd file an NOD for "hearing loss" and use this doctor's report as the basis of "new and material" (meaning it is new evidence that the VA had not considered in the original claim and that it was, indeed, material evidence that, if it had been considered, would have materially effected the decision.

68mustang

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Posted

states audio exam va hosp. hearing loss or tinnitus are not related to your

gonorrhea infection in vietnam

the most likely cause is your civilian occupation as a construction worker.

also says may reopen with new and material evidence.

when i filed for hearing loss the examiner at audiology asked mme if i had

ever had gonorrhea . i said yes ,in vietnam and i assumed that could cause

tinnitus , so i filed under that assumption ,wasn't very bright as there is no

evidence to connect the two ,i now find out.

now what i am investigating is medications since 1971 . all kinds psychiatric

meds , haldol prolixin, mellaril,stellazine,depakote,trazadone,and i dont know

what all else. i had severe reaction to haldol in va hosp and prolixin too.

i have been trying to find a precedent on making this kind of claim as far

as construction work i did not stay on jobs long enough to get hearing damage.

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Posted

states audio exam va hosp. hearing loss or tinnitus are not related to your

gonorrhea infection in vietnam

the most likely cause is your civilian occupation as a construction worker.

also says may reopen with new and material evidence.

when i filed for hearing loss the examiner at audiology asked mme if i had

ever had gonorrhea . i said yes ,in vietnam and i assumed that could cause

tinnitus , so i filed under that assumption ,wasn't very bright as there is no

evidence to connect the two ,i now find out.

now what i am investigating is medications since 1971 . all kinds psychiatric

meds , haldol prolixin, mellaril,stellazine,depakote,trazadone,and i dont know

what all else. i had severe reaction to haldol in va hosp and prolixin too.

i have been trying to find a precedent on making this kind of claim as far

as construction work i did not stay on jobs long enough to get hearing damage.

depends on what you were doing with the ear i suppose.

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Posted

depends on what you were doing with the ear i suppose.

well the ear was listening for sounds---- of better keep my mouth shut

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Posted

Thanks for the info provided by all of you.

Larry J to answer your questions below. The denial that I received this past month mentions that I had previously file for hearing loss in 2007 . I never filed for hearing loss at that time. In 2007 I for filed tinnitus and not for hearing loss. The tinnitus claim was awarded and the award letter did not make any mention of a denial for hearing loss. If there had been documentation of a denial for hearing loss I would have quickly file an NOD. I believe the VA has made a mistake in saying that a non existent hearing loss claim from 2007 precludes me from using the doctor's report that was used for tinnitus in 2007. The doctor's report documents hearing loss due to exposure to acoustic trauma in military jobs and I believe that I should be able to use it since it has not been used to support a hearing loss. Thanks.

"Did your denial for "hearing loss" state that this doctor's report was used to come to the conclusion of the denial?

Is this doctor's report mentioned anywhere in the SOC?

If not, then I'd file an NOD for "hearing loss" and use this doctor's report as the basis of "new and material" (meaning it is new evidence that the VA had not considered in the original claim and that it was, indeed, material evidence that, if it had been considered, would have materially effected the decision".

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Posted

I'd ask to see a copy of my C-file (get 'em to send you one).

Look through the C-file and make doubly sure that there is NOT a claim for hearing loss in your file (I know that you know that you DID NOT file for hearing loss.......BUT, when I received my copy of my C-file, I found a claim for DMII in there. I've never filed for diabetes, but, some old boy with a totally different name, HAD filed for diabetes, THREE years ago.........).

If there is no claim apparent for hearing loss, then now is the time to file a claim.

But, something is certainly strange of them turning down your claim for hearing loss, when there is, in fact, NO such claim.

Have you tried calling the 1-800 number and asking them to access your alledged claim?

Do it, just for laughs if nothing else.

If they can't find the so-called claim, then go for it. If they claim that they found the claim, get them to send you a copy of the claim.

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Posted

Could it be that since your Dr said you suffered from hearing loss that is SCd that then the RO "assumed" (wrongly) that you were also filing a claim for that hearing loss....but didn't find either enough evidence or the right paperwork and denied it??

idk...just guessing here

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Posted

Could it be that since your Dr said you suffered from hearing loss that is SCd that then the RO "assumed" (wrongly) that you were also filing a claim for that hearing loss....but didn't find either enough evidence or the right paperwork and denied it??

idk...just guessing here

Purple and Larry J thanks for your input. I don't know how an RO could give a denial when there is no claim for hearing loss. I agree that the RO could have made a mistake and wrongly assumed that a claim for hearing loss was made using the doctor's report. I'll also ask to see my c-file and call the 1-800 number for a copy of the alleged claim. Thanks.

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Posted

I agree with timetowinarace about a inferred claim. The RO most likely noticed that the audiologist mentioned hearing loss due to noise exposure in the service and opened a claim on your behalf. I so not know about the rule that time mentioned, though. According to M21-1MR, every issue that was in the claim has to be addressed in the decision letter. If they inferred a claim for hearing loss, then that should have been in the decision letter. Go back and re-read that decision letter and be certain it is not in there. If it is not, then I agree with the others about checking your C-file for any information on this. Do it quickly, in case you have to file a NOD. If you do find something in the C-file, but not on the decision letter, you may have a CUE, but you'll have to find the applicable reg and the reason for the denial first.

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Posted

During my claims process, I got tired of the years of VA bull and contacted my senator with a hand delivered letter. In that letter I listed all my issues/symptoms so the senator could understand the gravity of my medical situation. In turn, the senator's office forwarded that letter to the RO with his inquiry. The RO contacted me shortly after because they had to consider all of those symptoms as infered claims. My claim could not go forward with 13+ claims added to my file. These were not even medical reports. Just a list of symtoms. I had to write a statement that the list of symtoms was part of the initial claim and that I was dropping them as individual claims.

You do not have to file an official claim form for there to be a claim. That is why you need to view your c-file quickly.

I'll try to reference the decision about not notifying veterans for the deemed denied claims when one claim is rated.

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Posted

rental, here it is.

http://www.vawatchdog.org/old%20newsflashe...8-01-2006-1.htm

Larry,

A new case decided on July 27 by the U.S. Court of Appeals for the Federal Circuit (Fed. Cir.) contains a bombshell for veterans and their dependents.

The Fed. Cir. held that "[w]here the veteran files more than one claim with the RO at the same time, and the RO’s decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run." (citing Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005)).

This means, in contravention of 38 U.S.C. Sec. 5104 and 38 U.S.C. Sec. 3.103, that VA does not have to provide the claimant with notice of the claim or claims that have been "deemed denied" or the reasons for the denials, and the period in which to submit a notice of disagreement with the claims "deemed denied" begins to run from the date of the decision on any of the other simultaneously submitted claims.

Thus, an unrepresented or poorly represented claimant could have the time to appeal the "deemed denied" claims run out without even knowing that the claims had been denied!

Here is a link to the case: http://www.fedcir.gov/opinions/05-7155.pdf

Here are 38 U.S.C. Sec. 5104 and 38 U.S.C. Sec. 3.103:

§ 5104. Decisions and notices of decisions

(a) In the case of a decision by the Secretary under section 511 of this title [38 USCS § 511] affecting the provision of benefits to a claimant, the Secretary shall, on a timely basis, provide to the claimant (and to the claimant's representative) notice of such decision. The notice shall include an explanation of the procedure for obtaining review of the decision.

(:lol: In any case where the Secretary denies a benefit sought, the notice required by subsection (a) shall also include (1) a statement of the reasons for the decision, and (2) a summary of the evidence considered by the Secretary.

§ 3.103 Procedural due process and appellate rights.

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

(B) The right to notice -- (1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.

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Posted

Mustang68

Did you received a VCAA letter for the claim for hearing loss or tinnitus? If you don't get a VCAA letter on a claim then the VA has violated their own regs. If it was an inferred claim you should have still got a VCAA letter.

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Posted

That's absolutely crazy! :lol:

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Posted

The sole and only reason that the judicial system exists in this country is to interpret laws, NOT TO MAKE THE LAWS, but only to interpret the intentions of the legislature (supposedly the intentions of THE PEOPLE, but, in most instances, big business and special interests groups, but, nonetheless....).

Time, this decision by the Court of Appeals for the Federal Circuit is in open contravention of the Constitution of the United States of America and would NOT stand scrutiny of the Supreme Court, but, unfortunately, it'll be one or more of US veterans that will have to spend the remainder of his/her life in limbo while their single attorney, the only one that they could get to take their case, fights this decision in the Supreme Court of the United States, taking, on average these days, 6 years from filing to hearing date, IF and ONLY IF, the Supreme Court deems it in THEIR INTEREST to hear the case.

Being that the Court of Appeals has decided in the VA's favor, AGAIN, the GOOD recommendation that we should be giving out on this site when it comes to "should I claim more than ONE issue when I file?" is ABSOLUTELY NO!

and, again, as Pete and John and Rentaldude, et al, have repeatedly pointed out:

GET A COPY OF YOUR C-FILE, NOW, AND READ IT, AND READ IT, AND READ IT!

AND, IF YOU HAVE ANY QUESTIONS ABOUT IT, THEN ASK THEM.

AND, BE AWARE OF DATES, OR, IF NOT, YOU ARE, WELL, YOU ARE SCREWED, BY THE VERY INSTITUTION THAT WAS CREATED TO MAKE SURE YOU DIDN'T GET SCREWED! :lol:

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Posted

The sole and only reason that the judicial system exists in this country is to interpret laws, NOT TO MAKE THE LAWS, but only to interpret the intentions of the legislature (supposedly the intentions of THE PEOPLE, but, in most instances, big business and special interests groups, but, nonetheless....).

Time, this decision by the Court of Appeals for the Federal Circuit is in open contravention of the Constitution of the United States of America and would NOT stand scrutiny of the Supreme Court, but, unfortunately, it'll be one or more of US veterans that will have to spend the remainder of his/her life in limbo while their single attorney, the only one that they could get to take their case, fights this decision in the Supreme Court of the United States, taking, on average these days, 6 years from filing to hearing date, IF and ONLY IF, the Supreme Court deems it in THEIR INTEREST to hear the case.

Being that the Court of Appeals has decided in the VA's favor, AGAIN, the GOOD recommendation that we should be giving out on this site when it comes to "should I claim more than ONE issue when I file?" is ABSOLUTELY NO!

and, again, as Pete and John and Rentaldude, et al, have repeatedly pointed out:

GET A COPY OF YOUR C-FILE, NOW, AND READ IT, AND READ IT, AND READ IT!

AND, IF YOU HAVE ANY QUESTIONS ABOUT IT, THEN ASK THEM.

AND, BE AWARE OF DATES, OR, IF NOT, YOU ARE, WELL, YOU ARE SCREWED, BY THE VERY INSTITUTION THAT WAS CREATED TO MAKE SURE YOU DIDN'T GET SCREWED! :lol:

Only Congress can change this now because there was not an appeal to the supreme court.

The story from VA Watchdog here: http://www.vawatchdog.org/nfDEC06/nf122406-4.htm

However, I agree with john999 that 68mustang should have gotten a VCAA letter if there was an infered claim so he could supply evidence in support of the claim. This would be his avenue to pursue. I don't see how the VA could infer and deny a claim without the veteran knowing there ever was a claim. That said, we know the VA is not above such tactics.

There is the chance that the RO is mistaken and there never was a claim, infered or otherwise, for hearing loss. It seems a good chance as the RO is not known for following the law and opening infered claims when they should. They did not open a claim for TBI in my case after I was diagnosed with inservice TBI by a C&P Doc. Instead they denied my MDD claim because the MDD was "caused by a head injury in service".

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Posted

I say again that when you file multiple claims you need to get a VCAA letter that addresses all the claims. If you don't get that letter then you can almost rest assured that the claims that are not referenced in the VCAA letter are going nowhere, and may just die.

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Posted

i turned in a multi claim [14] at once because my poa said to do it as well as hadit members.i received a vcaa letter addressing all.but i had c and p exams for only 3. any input on this? i'm told my claims are at the rater...4 months now.

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Posted

i have multiple claims at the ro does this mean , like if i file for an increase it is

denied and i file for arthritis it is automatically denied? i really do not under stand

this.

oh after reading it says if acts on one claim and doesnt act on others they are deemed denied,but dont they have to notify you?

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Posted

i turned in a multi claim [14] at once because my poa said to do it as well as hadit members.i received a vcaa letter addressing all.but i had c and p exams for only 3. any input on this? i'm told my claims are at the rater...4 months now.

I think multiple claims are fine for those that know these VA dirty secrets. You just need to be on top of it when you get a decision, favorable or unfavorable, on any of them so that the rest do not get swept under the rug. If any claim is not mentioned in an award or denial letter, send in a quick NOD for them.

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Posted

I think multiple claims are fine for those that know these VA dirty secrets. You just need to be on top of it when you get a decision, favorable or unfavorable, on any of them so that the rest do not get swept under the rug. If any claim is not mentioned in an award or denial letter, send in a quick NOD for them.

thanks..i'll be on top with an appeal or nod the second i get word.

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