Guest Berta Posted December 10, 2005 Share Posted December 10, 2005 ------------------------ Yahoo! Groups Sponsor --------------------~--> Get fast access to your favorite Yahoo! Groups. Make Yahoo! your home page Click Here! --------------------------------------------------------------------~-> VETERANS RESOURCES NETWORK http://www.valaw.org Dear Readers, I have recieved many emails asking why the VA has denied their claim for two separate ratings based on "Bilateral Tinnitus". The answer is that the VA Scretary does not like the Veterans Court opinion, and has "ORDERED" your claim "stayed" until they can get the opinion reversed at the Federal Circuit Court of Appeals. See the Information from a recent BVA case. DO NOT ALLOW THE VA SCRETARY TO CAUSE YOU TO MISS ANY TIMELIMITS TO APPEAL. DO NOT NEGLECT TO APPEAL IF YOU HAVE BILATERAL TINNITUS. FURTHER MORE, this does not only apply to cases filed before 2003. The VA Secretary has admitted in Court that the 2003 change was "non-substantive" and as such if the Veterans Court ruling is upheld in the Federal Circuit? The veteran will be able to use the VA Secretary's own words to show that there was no change to the pre-2003 regulations. Again if you have Bilateral Tinnitus: APPEAL APPEAL APPEAL. However the VA will most likely seek to change the regulations, and if they succeed in making "Substanitive" changes to the regulations? the door to a separate rating for each ear will be closed. NOTE: BVA case DOCKET NO. 04-00 027 (explaination by C.W. SYMANSKI Veterans Law Judge): "The United States Court of Appeals for Veterans Claims (Court) issued a decision in Smith v. Nicholson, No. 01-623 (U.S. Vet. App. April 5, 2005), that reversed a decision of the Board of Veterans' Appeals (Board) which concluded that no more than a single 10-percent disability evaluation could be provided for tinnitus, whether perceived as bilateral or unilateral, under prior regulations. The United States Department of Veterans Affairs (VA) disagrees with the Court's decision in Smith and is seeking to have this decision appealed to the United States Court of Appeals for the Federal Circuit. To avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on court precedent that may ultimately be overturned on appeal, the Secretary of Veterans Affairs has imposed a stay at the Board on the adjudication of tinnitus claims affected by Smith. The specific claims affected by the stay include (1) all claims in which a claim for compensation for tinnitus was filed prior to June 13, 2003, and a disability rating for tinnitus of greater than 10 percent is sought; and (2) all claims in which a claim for service connection for tinnitus filed prior to June 10, 1999, was denied on the basis that the veterans' tinnitus was not "persistent" for purposes of 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. Once a final decision is reached on appeal in the Smith case, the adjudication of any tinnitus cases that have been stayed will be resumed. " NOTE: see complete BVA case below my name: Your Editor, Ray B Davis, Jr editor Veterans Resources Network http://www.valaw.org -- bva case -- Citation Nr: 0515696 Decision Date: 06/10/05 Archive Date: 06/21/05 DOCKET NO. 04-00 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), currently rated as 30 percent disabling. 2. Entitlement to an increased evaluation for tinnitus, currently rated as 10 percent disabling. 3. Entitlement to a compensable evaluation for bilateral hearing loss, currently rated as 0 percent disabling. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Richard A. LaPointe, Attorney ATTORNEY FOR THE BOARD Robert C. Scharnberger, Counsel INTRODUCTION The veteran served on active duty from January 1968 to October 1969. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2002 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The United States Court of Appeals for Veterans Claims (Court) issued a decision in Smith v. Nicholson, No. 01-623 (U.S. Vet. App. April 5, 2005), that reversed a decision of the Board of Veterans' Appeals (Board) which concluded that no more than a single 10-percent disability evaluation could be provided for tinnitus, whether perceived as bilateral or unilateral, under prior regulations. The United States Department of Veterans Affairs (VA) disagrees with the Court's decision in Smith and is seeking to have this decision appealed to the United States Court of Appeals for the Federal Circuit. To avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on court precedent that may ultimately be overturned on appeal, the Secretary of Veterans Affairs has imposed a stay at the Board on the adjudication of tinnitus claims affected by Smith. The specific claims affected by the stay include (1) all claims in which a claim for compensation for tinnitus was filed prior to June 13, 2003, and a disability rating for tinnitus of greater than 10 percent is sought; and (2) all claims in which a claim for service connection for tinnitus filed prior to June 10, 1999, was denied on the basis that the veterans' tinnitus was not "persistent" for purposes of 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. Once a final decision is reached on appeal in the Smith case, the adjudication of any tinnitus cases that have been stayed will be resumed. In this case, the Board will REMAND the veteran's other claims and will stay the adjudication of the claim for an increased rating for tinnitus. REMAND The record indicates that the veteran has filed a claim for Social Security Disability benefits. The RO must contact the Social Security Administration and obtain all records related to the veteran's Social Security claim. In addition, the RO should obtain all treatment records for the veteran from the VA Medical Center (VAMC) in Gainesville, Florida, dated from August 2002 to the present. Decisions of the Board must be based on all of the evidence that is known to be available. 38 U.S.C.A. § 5103(A) (West 2002). The duty to assist particularly applies to relevant evidence known to be in the possession of the Federal Government, such as VA or Social Security records. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Counts v. Brown, 6 Vet. App. 473 (1994). The Board also finds that additional examinations for the veteran's hearing loss and PTSD are required. The veteran was last examined by a VA physician for his hearing loss and PTSD in August 2002. The Board finds that new examinations are necessary to determine the current level disability related to the veteran's hearing loss and PTSD. The United States Court of Appeals for Veterans Claims (Court) has held that "fulfillment of the statutory duty to assist ... includes the conduct of a thorough and contemporaneous medical examination...so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (citing Suttman v. Brown, 5 Vet. App. 127, 138 (1993) (duty to assist includes providing the veteran a thorough and contemporaneous medical examination when needed)). The veteran's claim for TDIU is impacted by the outcome of his claims for an increase for PTSD and bilateral hearing loss and therefore the TDIU claim is inextricably intertwined with the increased rating claims. The Court has held that all issues "inextricably intertwined" with an issue certified for appeal, are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). As the TDIU claim is "inextricably intertwined" with the increased ratings claims, the TDIU claim must also be remanded to the RO in accordance with the holding in Harris, supra. Because there is additional development required, this case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington DC for the following action: 1. The RO should request the following records concerning the veteran from the Social Security Administration: All records related to the veteran's claim for Social Security benefits including all medical records and copies of all decisions or adjudications. 2. The RO should obtain all treatment records for the veteran from the VAMC in Gainesville, Florida dated from August 2002 to the present. If no records are available, the RO should obtain written confirmation of that fact. 3. The RO should schedule the veteran for an audiological examination in order to ascertain the nature and severity of his bilateral hearing loss. All indicated tests should be conducted including puretone testing and word recognition testing using the Maryland CNC word list. Pertinent findings should be reported in detail 4. The RO should schedule the veteran for a psychiatric examination in order to ascertain the nature and severity of his PTSD. All indicated tests should be conducted and the examiner should review the claims folder, including the report of the August 2002 VA examination. Pertinent findings should be reported in detail and the examiner should assign a GAF score based solely on PTSD and explain what the score represents. The examiner should report all of the veteran's symptoms of PTSD and their severity. A complete rationale for any opinion offered should be included. 5. Following the above, the RO should then readjudicate the veteran's claims including reviewing all newly obtained evidence. If any benefit sought on appeal remains denied, the veteran and his representative should be provided an SSOC that contains a summary of the evidence and applicable laws and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Subsequently, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. No action is required of the veteran until he is notified by the RO. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (:), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ C.W. SYMANSKI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(B) (2004). --end-- Subscribe: raybdavisjr-subscribe@egroups.com Unsubscribe: raybdavisjr-unsubscribe@egroups.com List owner: raybdavisjr-owner@egroups.com URL to this page: http://www.egroups.com/group/raybdavisjr http://www.veteransresources.net Link to comment Share on other sites More sharing options...
Guest allanopie Posted December 10, 2005 Share Posted December 10, 2005 Thanks Berta, I was thinking of calling my SO over this, but thought it would be another waste of time. Glad you posted this for us. Will get in a NOD than. I know 10% doesn't sound like much to fuss over for some folks. But this would help us a great deal. Doesn't sound like we can count on it helping in the near future though, but will get the NOD in anyway. It was denied last spring I think. I first filed back in 95 or 96 maybe, for bilateral tinnitus. I was awarded 10% for tinnitus in 97, maybe. Not sure on dates anymore. Anyway, thanks Berta. Link to comment Share on other sites More sharing options...
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Guest Berta
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VETERANS RESOURCES NETWORK
http://www.valaw.org
Dear Readers,
I have recieved many emails asking why the VA has denied their claim
for two separate ratings based on "Bilateral Tinnitus". The answer
is that the VA Scretary does not like the Veterans Court opinion, and
has "ORDERED" your claim "stayed" until they can get the opinion
reversed at the Federal Circuit Court of Appeals. See the
Information from a recent BVA case.
DO NOT ALLOW THE VA SCRETARY TO CAUSE YOU TO MISS ANY TIMELIMITS TO
APPEAL. DO NOT NEGLECT TO APPEAL IF YOU HAVE BILATERAL TINNITUS.
FURTHER MORE, this does not only apply to cases filed before 2003.
The VA Secretary has admitted in Court that the 2003 change was
"non-substantive" and as such if the Veterans Court ruling is upheld
in the Federal Circuit? The veteran will be able to use the VA
Secretary's own words to show that there was no change to the
pre-2003 regulations.
Again if you have Bilateral Tinnitus: APPEAL APPEAL APPEAL.
However the VA will most likely seek to change the regulations, and
if they succeed in making "Substanitive" changes to the regulations?
the door to a separate rating for each ear will be closed.
NOTE:
BVA case DOCKET NO. 04-00 027 (explaination by C.W. SYMANSKI
Veterans Law Judge):
"The United States Court of Appeals for Veterans Claims
(Court) issued a decision in Smith v. Nicholson, No. 01-623
(U.S. Vet. App. April 5, 2005), that reversed a decision of
the Board of Veterans' Appeals (Board) which concluded that
no more than a single 10-percent disability evaluation could
be provided for tinnitus, whether perceived as bilateral or
unilateral, under prior regulations. The United States
Department of Veterans Affairs (VA) disagrees with the
Court's decision in Smith and is seeking to have this
decision appealed to the United States Court of Appeals for
the Federal Circuit. To avoid burdens on the adjudication
system, delays in the adjudication of other claims, and
unnecessary expenditure of resources through remand or final
adjudication of claims based on court precedent that may
ultimately be overturned on appeal, the Secretary of Veterans
Affairs has imposed a stay at the Board on the adjudication
of tinnitus claims affected by Smith. The specific claims
affected by the stay include (1) all claims in which a claim
for compensation for tinnitus was filed prior to June 13,
2003, and a disability rating for tinnitus of greater than 10
percent is sought; and (2) all claims in which a claim for
service connection for tinnitus filed prior to June 10, 1999,
was denied on the basis that the veterans' tinnitus was not
"persistent" for purposes of 38 C.F.R. § 4.87, Diagnostic
Code (DC) 6260. Once a final decision is reached on appeal
in the Smith case, the adjudication of any tinnitus cases
that have been stayed will be resumed. "
NOTE:
see complete BVA case below my name:
Your Editor,
Ray B Davis, Jr editor
Veterans Resources Network
http://www.valaw.org
-- bva case --
Citation Nr: 0515696
Decision Date: 06/10/05 Archive Date: 06/21/05
DOCKET NO. 04-00 027 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an increased evaluation for post-traumatic
stress disorder (PTSD), currently rated as 30 percent
disabling.
2. Entitlement to an increased evaluation for tinnitus,
currently rated as 10 percent disabling.
3. Entitlement to a compensable evaluation for bilateral
hearing loss, currently rated as 0 percent disabling.
4. Entitlement to a total disability rating based on
individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Richard A. LaPointe, Attorney
ATTORNEY FOR THE BOARD
Robert C. Scharnberger, Counsel
INTRODUCTION
The veteran served on active duty from January 1968 to
October 1969.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a September 2002 rating decision of the
St. Petersburg, Florida, Department of Veterans Affairs (VA)
Regional Office (RO).
The United States Court of Appeals for Veterans Claims
(Court) issued a decision in Smith v. Nicholson, No. 01-623
(U.S. Vet. App. April 5, 2005), that reversed a decision of
the Board of Veterans' Appeals (Board) which concluded that
no more than a single 10-percent disability evaluation could
be provided for tinnitus, whether perceived as bilateral or
unilateral, under prior regulations. The United States
Department of Veterans Affairs (VA) disagrees with the
Court's decision in Smith and is seeking to have this
decision appealed to the United States Court of Appeals for
the Federal Circuit. To avoid burdens on the adjudication
system, delays in the adjudication of other claims, and
unnecessary expenditure of resources through remand or final
adjudication of claims based on court precedent that may
ultimately be overturned on appeal, the Secretary of Veterans
Affairs has imposed a stay at the Board on the adjudication
of tinnitus claims affected by Smith. The specific claims
affected by the stay include (1) all claims in which a claim
for compensation for tinnitus was filed prior to June 13,
2003, and a disability rating for tinnitus of greater than 10
percent is sought; and (2) all claims in which a claim for
service connection for tinnitus filed prior to June 10, 1999,
was denied on the basis that the veterans' tinnitus was not
"persistent" for purposes of 38 C.F.R. § 4.87, Diagnostic
Code (DC) 6260. Once a final decision is reached on appeal
in the Smith case, the adjudication of any tinnitus cases
that have been stayed will be resumed. In this case, the
Board will REMAND the veteran's other claims and will stay
the adjudication of the claim for an increased rating for
tinnitus.
REMAND
The record indicates that the veteran has filed a claim for
Social Security Disability benefits. The RO must contact the
Social Security Administration and obtain all records related
to the veteran's Social Security claim. In addition, the RO
should obtain all treatment records for the veteran from the
VA Medical Center (VAMC) in Gainesville, Florida, dated from
August 2002 to the present. Decisions of the Board must be
based on all of the evidence that is known to be available.
38 U.S.C.A. § 5103(A) (West 2002). The duty to assist
particularly applies to relevant evidence known to be in the
possession of the Federal Government, such as VA or Social
Security records. Murphy v. Derwinski, 1 Vet. App. 78
(1990); Counts v. Brown, 6 Vet. App. 473 (1994).
The Board also finds that additional examinations for the
veteran's hearing loss and PTSD are required. The veteran
was last examined by a VA physician for his hearing loss and
PTSD in August 2002. The Board finds that new examinations
are necessary to determine the current level disability
related to the veteran's hearing loss and PTSD. The United
States Court of Appeals for Veterans Claims (Court) has held
that "fulfillment of the statutory duty to assist ...
includes the conduct of a thorough and contemporaneous
medical examination...so that the evaluation of the claimed
disability will be a fully informed one." Green v.
Derwinski, 1 Vet. App. 121, 124 (1991); Allday v. Brown, 7
Vet. App. 517, 526 (1995) (citing Suttman v. Brown, 5 Vet.
App. 127, 138 (1993) (duty to assist includes providing the
veteran a thorough and contemporaneous medical examination
when needed)).
The veteran's claim for TDIU is impacted by the outcome of
his claims for an increase for PTSD and bilateral hearing
loss and therefore the TDIU claim is inextricably intertwined
with the increased rating claims. The Court has held that
all issues "inextricably intertwined" with an issue
certified for appeal, are to be identified and developed
prior to appellate review. Harris v. Derwinski, 1 Vet. App.
180 (1991). As the TDIU claim is "inextricably
intertwined" with the increased ratings claims, the TDIU
claim must also be remanded to the RO in accordance with the
holding in Harris, supra.
Because there is additional development required, this case
is REMANDED to the RO via the Appeals Management Center
(AMC), in Washington DC for the following action:
1. The RO should request the following
records concerning the veteran from the
Social Security Administration: All
records related to the veteran's claim
for Social Security benefits including
all medical records and copies of all
decisions or adjudications.
2. The RO should obtain all treatment
records for the veteran from the VAMC in
Gainesville, Florida dated from August
2002 to the present. If no records are
available, the RO should obtain written
confirmation of that fact.
3. The RO should schedule the veteran
for an audiological examination in order
to ascertain the nature and severity of
his bilateral hearing loss. All
indicated tests should be conducted
including puretone testing and word
recognition testing using the Maryland
CNC word list. Pertinent findings should
be reported in detail
4. The RO should schedule the veteran
for a psychiatric examination in order to
ascertain the nature and severity of his
PTSD. All indicated tests should be
conducted and the examiner should review
the claims folder, including the report
of the August 2002 VA examination.
Pertinent findings should be reported in
detail and the examiner should assign a
GAF score based solely on PTSD and
explain what the score represents. The
examiner should report all of the
veteran's symptoms of PTSD and their
severity. A complete rationale for any
opinion offered should be included.
5. Following the above, the RO should
then readjudicate the veteran's claims
including reviewing all newly obtained
evidence. If any benefit sought on appeal
remains denied, the veteran and his
representative should be provided an SSOC
that contains a summary of the evidence
and applicable laws and regulations
considered pertinent to the issue
currently on appeal. An appropriate
period of time should be allowed for
response.
Subsequently, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. No action is required of the veteran
until he is notified by the RO. The appellant has the right
to submit additional evidence and argument on the matter the
Board has remanded to the regional office. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans Benefits Act of 2003, Pub. L. No.
108-183, § 707(a), (:), 117 Stat. 2651 (2003) (to be codified
at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
C.W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(B) (2004).
--end--
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