Whatever Happened To

[mrsvet28]

WAS JUST THINKING -HAVENT HEARD MUCH LATELY ABOUT BENEFIT OF THE DOUBT -SEEMS LIKE IT VANISHED-- DOES IT STILL STAND IN APPEALS PROCESS- HAVENT READ THEM LATELY :)

[Commander Bob]

Hoppy,

Same here with Mrvets claim -- after the remand -it took them a year to schedule a CP exam because the IMO(favorable) and the VA CP differentiated in the PTSD diagnosis-then they put it in a "special handing place "for 150 days(whever that was) they said they couldnt schedule anything until the 150 period expried-then it had to wait another 120 days before anexam could be scheduled-the remand warrented the new CP exam to find a PTSD diagnosis of 50 % or greater- because originally it said based upon the evidence of record the regional office would permit finding of service-connection, because of the differnce of opinions between the IMO's and the VA- it stalled it for 3yearstotal--now the AUG CP was favorable-and it was supoosed to be afforded "expeditious treatment"the folder didnt get back to the DRO till Oct 1--the whole month of Sept went by-it is now Nov./and they never recognized he has been on SS for PTSD-and a NSC pension since 03' because he can't work and we had no income-but it doesnt seem to matter-/when I called they told me it is on the DRO desk-so I put some heat on the attys. to speed this up-this is the only diagnosis we needed to settle the claim-they already verified the stressors/ and the SS IMO and 3 private IMO-and 3 VA exams !!! We have been stuck in the wheel for 12 years--Take Care MrsVet

I see a big light at the end of your tunnel, MrsVet....Best wishes..

Edited November 3, 2009 by Commander Bob

[carlie]

mrsvet,

Here's a copy and paste of a 2009 BVA decision that shows

application and definition of the benefit of the doubt rule

in a very clear way.

carlie

The evidence shows that the Veteran served as a tank crewman,

light truck driver and a construction foreman in service.

Based on his military occupational specialties, the Veteran

was clearly exposed to excessive noise throughout his time in

service from tanks, artillery, military trucks and

construction, and this has in fact been conceded. The Board

notes that the Veteran also claims to have been in combat as

a tank operator in Germany. The evidence of record is

consistent with the Veteran's reports. However, as noise

exposure has already been conceded, application of the combat

presumption set forth in 38 U.S.C.A. § 1154(b) is moot.

There is also no dispute that the Veteran currently has

tinnitus. Thus, the only remaining question is whether the

Veteran's current bilateral tinnitus is related to the noise

exposure incurred in service.

The Veteran had a VA examination in November 2007 at which he

reported both military and civilian occupational noise

exposure. He reported a bilateral buzzing tinnitus, which

does not interfere with sleep, left greater than right.

However, the examiner indicated in the examination report

that the Veteran did not know the date and circumstances of

its onset. The examiner also noted the report of a recent

private audiological exam that showed high-frequency hearing

loss bilaterally, but the presence tinnitus was not noted.

Based on the Veteran's lack of knowledge as to the onset of

his present tinnitus and the private audiological exam report

that failed to show a report of tinnitus, the examiner opined

that the Veteran's tinnitus is not the result of acoustic

trauma incurred during military service because noise-induced

tinnitus occurs at the time of the exposure, not after the

noise has ceased.

Although the VA examiner gave a negative nexus opinion, after

considering all the evidence, the Board finds that the

evidence is at least in equipoise as to whether the Veteran's

present tinnitus is related to in-service or post-service

noise exposure. In response to the VA examination report,

the Veteran stated that, although he was unable to report the

exact date that his tinnitus began, he did tell the examiner

that he cannot remember a time since the war that this

buzzing was not present. Thus, there is contradictory

evidence as to the onset of the Veteran's present tinnitus.

Further, although in-service noise exposure has been

conceded, the evidence also shows that the Veteran had

civilian occupational noise exposure as a truck driver and a

police officer for at least 53 years. Thus, it is unclear

whether the Veteran's tinnitus is related to military noise

exposure or civilian occupational noise exposure.

Finally, although the VA examiner rested her negative nexus

opinion on the fact that the Veteran could not pinpoint the

exact time of the onset of his tinnitus, the Board notes that

the Veteran was 81 years old at the time of the VA

examination, meaning he was discharged from service more than

60 years before that. In addition, it appears the Veteran

was exposed to a multitude of instances of acoustic trauma in

service (as indicated by his military occupational

specialties). Thus, the examiner's reliance on the fact the

Veteran was not able to pinpoint an exact time or

circumstance of the onset of his tinnitus is questionable.

In addition, the Veteran's response that he told the examiner

that he does not remember a time without tinnitus since the

war sets forth a continuity of symptomatology that the

evidence of record does not contradict. Furthermore, the

private audiological exam report is insufficient for purposes

of rebuttal evidence because it is a form and does not

contain a place where a complaint of tinnitus could be noted.

Thus, the fact that it does not note a complaint of tinnitus

cannot be negative evidence against the Veteran's claim.

Moreover, the Board notes that the Veteran's report of his

tinnitus being worse on the left than the right is consistent

with the Veteran's bilateral hearing loss, which is the same

as set forth by the audiological findings. Thus, the Board

finds the VA examiner's opinion has little to no probative

value.

Based upon the above, the Board finds that the evidence is in

equipoise and a reasonable doubt exists as to whether the

Veteran's current bilateral tinnitus is related to his

military noise exposure. When, after considering all the

evidence, a reasonable doubt arises regarding a determinative

issue, the benefit of the doubt shall be given to the

claimant. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.

App 49, 55-57 (1990). Giving the benefit of the doubt to the

Veteran, therefore, service connection for bilateral tinnitus

is granted.

[mrsvet28]

I see a big light at the end of your tunnel, MrsVet....Best wishes..

will the light be my maker? or a final decision? <_<

[mrsvet28]

mrsvet,

Here's a copy and paste of a 2009 BVA decision that shows

application and definition of the benefit of the doubt rule

in a very clear way.

carlie

The evidence shows that the Veteran served as a tank crewman,

light truck driver and a construction foreman in service.

Based on his military occupational specialties, the Veteran

was clearly exposed to excessive noise throughout his time in

service from tanks, artillery, military trucks and

construction, and this has in fact been conceded. The Board

notes that the Veteran also claims to have been in combat as

a tank operator in Germany. The evidence of record is

consistent with the Veteran's reports. However, as noise

exposure has already been conceded, application of the combat

presumption set forth in 38 U.S.C.A. § 1154(<_< is moot.

There is also no dispute that the Veteran currently has

tinnitus. Thus, the only remaining question is whether the

Veteran's current bilateral tinnitus is related to the noise

exposure incurred in service.

The Veteran had a VA examination in November 2007 at which he

reported both military and civilian occupational noise

exposure. He reported a bilateral buzzing tinnitus, which

does not interfere with sleep, left greater than right.

However, the examiner indicated in the examination report

that the Veteran did not know the date and circumstances of

its onset. The examiner also noted the report of a recent

private audiological exam that showed high-frequency hearing

loss bilaterally, but the presence tinnitus was not noted.

Based on the Veteran's lack of knowledge as to the onset of

his present tinnitus and the private audiological exam report

that failed to show a report of tinnitus, the examiner opined

that the Veteran's tinnitus is not the result of acoustic

trauma incurred during military service because noise-induced

tinnitus occurs at the time of the exposure, not after the

noise has ceased.

Although the VA examiner gave a negative nexus opinion, after

considering all the evidence, the Board finds that the

evidence is at least in equipoise as to whether the Veteran's

present tinnitus is related to in-service or post-service

noise exposure. In response to the VA examination report,

the Veteran stated that, although he was unable to report the

exact date that his tinnitus began, he did tell the examiner

that he cannot remember a time since the war that this

buzzing was not present. Thus, there is contradictory

evidence as to the onset of the Veteran's present tinnitus.

Further, although in-service noise exposure has been

conceded, the evidence also shows that the Veteran had

civilian occupational noise exposure as a truck driver and a

police officer for at least 53 years. Thus, it is unclear

whether the Veteran's tinnitus is related to military noise

exposure or civilian occupational noise exposure.

Finally, although the VA examiner rested her negative nexus

opinion on the fact that the Veteran could not pinpoint the

exact time of the onset of his tinnitus, the Board notes that

the Veteran was 81 years old at the time of the VA

examination, meaning he was discharged from service more than

60 years before that. In addition, it appears the Veteran

was exposed to a multitude of instances of acoustic trauma in

service (as indicated by his military occupational

specialties). Thus, the examiner's reliance on the fact the

Veteran was not able to pinpoint an exact time or

circumstance of the onset of his tinnitus is questionable.

In addition, the Veteran's response that he told the examiner

that he does not remember a time without tinnitus since the

war sets forth a continuity of symptomatology that the

evidence of record does not contradict. Furthermore, the

private audiological exam report is insufficient for purposes

of rebuttal evidence because it is a form and does not

contain a place where a complaint of tinnitus could be noted.

Thus, the fact that it does not note a complaint of tinnitus

cannot be negative evidence against the Veteran's claim.

Moreover, the Board notes that the Veteran's report of his

tinnitus being worse on the left than the right is consistent

with the Veteran's bilateral hearing loss, which is the same

as set forth by the audiological findings. Thus, the Board

finds the VA examiner's opinion has little to no probative

value.

Based upon the above, the Board finds that the evidence is in

equipoise and a reasonable doubt exists as to whether the

Veteran's current bilateral tinnitus is related to his

military noise exposure. When, after considering all the

evidence, a reasonable doubt arises regarding a determinative

issue, the benefit of the doubt shall be given to the

claimant. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.

App 49, 55-57 (1990). Giving the benefit of the doubt to the

Veteran, therefore, service connection for bilateral tinnitus

is granted.

Thanks Carlie

[sixthscents]

while I agree with carlie..

benefit of doubt went out and "trust but verify" went in....

though how you could trust someone and feel the need to fact check them is beyond me... its seems to be a contradiction.. but the so much of what the VA does is.

Bob

[mrsvet28]

while I agree with carlie..

benefit of doubt went out and "trust but verify" went in....

though how you could trust someone and feel the need to fact check them is beyond me... its seems to be a contradiction.. but the so much of what the VA does is.

Bob

and dont forget fact check and then loose the facts!