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Bilateral Tinnitus Claims- Explained

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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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Guest allanopie

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.

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