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Jan 2006 Bilateral Cavc Award-


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http://webisys.vetapp.gov/isysquery/irl5442/16/doc

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 05-0254

Thomas A. Lutz, Appellant,

v.

R. James Nicholson,

Secretary of Veterans Affairs, Appellee.

Before KASOLD, Judge.

O R D E R

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

Veteran Thomas A. Lutz appeals through counsel that part of an October 13, 2004, decision of the Board of Veterans' Appeals (Board) that denied entitlement to a disability rating in excess of 10% for bilateral tinnitus. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Board's decision will be reversed and the matter remanded for assignment of a 10% disability rating for the service-connected tinnitus in each of Mr. Lutz' ears.

In March 1991, Mr. Lutz was granted service connection for tinnitus and awarded a 10% disability rating. Record (R.) at 237, 241. In November 2002, Mr. Lutz filed a claim for an increased rating for his tinnitus. A VA regional office found that Mr. Lutz had "recurrent bilateral tinnitus" but denied his claim for an increased rating. R. at 333. On appeal, the Board denied the claim on the basis that a higher disability rating was not available as a matter of law. R. at 7, 9. This appeal followed.

In light of this Court's recent decisions in Stolasz v. Nicholson, 19 Vet.App. 355 (2005), and Smith v. Nicholson, 19 Vet.App. 63 (2005), appeal docketed, No. 05-7168 (Fed. Cir. July 11, 2005), the Board's decision was erroneous as a matter of law. Together, Stolasz and Smith establish that the pre-June 13, 2003, version of DC 6260 requires two separate ratings if each of a veteran's ears is affected by recurrent tinnitus, and that provision applies to all such claims pending prior to that date. Accordingly, the Board's determination that only a single 10% disability rating is authorized for tinnitus prior to June 13, 2003, is not in accordance with law and will be reversed. See 38 U.S.C. 7261(a)(3)(A). Furthermore, because Mr. Lutz was found to have "recurrent bilateral tinnitus," the Court will remand the matter to the Board with the direction for assignment of a separate 10%

disability rating for tinnitus for each ear. See Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996) ( reversal is appropriate "when the only permissible view of the evidence is contrary to the Board's decision")). The Court expects that the Board will provide expeditious treatment of this matter on remand. See 38 U.S.C . 7112.

Upon consideration of the foregoing, it is

ORDERED that the Board's determination that only a single 10% disability rating is authorized for tinnitus under the pre-June 13, 2003, DC 6260 is REVERSED, and the matter is REMANDED with directions that Mr. Lutz be assigned a separate 10% disability rating for tinnitus for each of his ears and for further proceedings consistent with this order.

DATED: January 4, 2006 BY THE COURT:

BRUCE E. KASOLD

Judge

Copies to:

Ronald L. Smith, Esq.

VA General Counsel (027)

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Together, Stolasz and Smith establish that the pre-June 13, 2003, version of DC 6260 requires two separate ratings if each of a veteran's ears is affected by recurrent tinnitus, and that provision applies to all such claims pending prior to that date.

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I have not come across a veterans court ruling yet that does not say "this action may not be cited as precedent". This only proves that the VA court of appeals is simply a kangaroo court set up to appease all of us crazy alcoholic veterans by leading us to think that we really can use the court system

Ricky

"with 30 minutes training I could be an expert rater also"

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I found a document online called "Summary of Significant Holdings of the Court." Would anyone like to have it? It's dated 1999, but it has a lot of summarized info. I don't know how to post it to hadit, but I'd be glad to send it to anyone privately.

Here's the index for what's in the document:

INDEX OF SIGNIFICANT HOLDINGS AFFECTING ADJUDICATION

1. Jurisdiction 1

2. Questions of Status 8

3. Well-grounded Claims 12

4. Duty to Assist 18

5. Evidence 26

6. Credibility of Testimony 39

7. Reasons and Bases 44

8. Authorization Issues 48

9. Rating Reductions 63

10. Clear and Unmistakable Error 67

Carrie

Edited by Morgan (see edit history)
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