tinnitus Letter From Varo Ref. Bilateral Tinnitus Separate Ratings For Each Ear

[vaf]

I don't think we need to respond to this, but what do you think?

We filed for a 10% x 2 rating for bilateral tinnitus, an increase from the flat 10% rating already awarded several years ago. We did this to go on record in the event the Federal Circuit Court hearing later this year upholds the recent decisions made along these lines by the Court of Veterans Appeals. The VARO sent my husband a letter stating that at the present time, the regulations do not allow for multiple ratings for bilateral tinnitus, and that currently the maximum rating is 10% (which we all know). It goes on to state that should the regulations change, the VA will review the claim. I interpret this to mean that the review will kick in automatically if the regulation changes, without our having to file another claim.

Later, the letter includes the usual statement about what to do if the veteran disagrees with the decision, and that the veteran has a year to file an NOD, etc.

I'm just trying to be careful. Thanks.

[john999]

Vicki

File the NOD. Nothing is automatic in the VA system. They should have given your husband 10% for each ear from the beginning. I have peripheral neuropathy in the upper and lower extremities. I got 10% for each limb and they were all separate ratings. I think I am entitled to an extra 10% for the legs and arms due to the bilateral factor but in my case it is not worth the effort. What the VA seems to be saying is that each ear is 5% or that they rated both ears together as 10%. Do they rate eyes separately or do they rate them as one entity? I don't think the VA's rating in your husband's case makes sense.

[Guest DON20906]

VA has a stay on all bilateral tinnitus claims pending the Couurt decision.

They will re

I don't think we need to respond to this, but what do you think?

We filed for a 10% x 2 rating for bilateral tinnitus, an increase from the flat 10% rating already awarded several years ago. We did this to go on record in the event the Federal Circuit Court hearing later this year upholds the recent decisions made along these lines by the Court of Veterans Appeals. The VARO sent my husband a letter stating that at the present time, the regulations do not allow for multiple ratings for bilateral tinnitus, and that currently the maximum rating is 10% (which we all know). It goes on to state that should the regulations change, the VA will review the claim. I interpret this to mean that the review will kick in automatically if the regulation changes, without our having to file another claim.

Later, the letter includes the usual statement about what to do if the veteran disagrees with the decision, and that the veteran has a year to file an NOD, etc.

I'm just trying to be careful. Thanks.

[john999]

Don

How will it hurt to file an NOD just to document that you do mean to appeal and to stay timely? I say when in doubt file the NOD or appeal. You can always drop it later if you don't need it. What is the basis for the stay on deciding Tinnitus claims? Is the VA trying to find a way to challange them?

[vaf]

Don, I think the keyboard got away from you there.

Could you finish the rest of your point, I'd like to hear your opinion, too.

I'm aware of the stay, to answer the question, yes the VA is trying to get the CVA's numerous rulings on this subject overturned.

Thanks!

[Guest DON20906]

I didn't say not to file new or appeal. The stay just means there will be no action taken by VA until the Court decision is out. By all means, file a new claim to establish an effective date and file an NOD within the one-year if you have a pre-stay denial!

VA's argument is that tinnitus arises in the central nervous sytem (brain) and shouldn't be subject to the paired organ rule. I'd have to do some research, but I believe the deal was that when VA published a final rule in the Federal Register to that effect, there were some claims pending for bilateral tinnitus and VA denied them. There were a number of appeals taken that went to the CAVC, then two of them went to the Federal Circuit. All pending bilateral tinnitus claims and appeals are stayed pending the FedCir ruling.

More later.

Don

How will it hurt to file an NOD just to document that you do mean to appeal and to stay timely? I say when in doubt file the NOD or appeal. You can always drop it later if you don't need it. What is the basis for the stay on deciding Tinnitus claims? Is the VA trying to find a way to challange them?

[Guest DON20906]

DAV Prevails in Fight Over Tinnitus Claims

On April 5, 2005, the United States Court of Appeals for Veterans Claims handed down its decision in Smith v. Nicholson. The DAV had argued on behalf of Mr. Smith that he was entitled to two separate ten-percent disability ratings for service-connected tinnitus, i.e., ringing, in his right and left ears. The Department of Veterans Affairs (VA) argued in Smith’s case, as well as in a large number of other cases, that the VA Schedule for Rating Disabilities provided for only one ten-percent rating, regardless of whether the tinnitus was present in only one ear or both ears.

The Court held that: “Based on the plain language of the regulations, the Court holds that the pre-1999 and pre-June 13, 2003 versions of [diagnostic code] 6260 required the assignment of dual ratings for bilateral tinnitus.” Veterans who filed a claim for service connection for tinnitus in both ears, or who claimed an increased rating for that condition, prior to June 13, 2003, may be entitled to receive combined disability compensation based on two ten-percent ratings for tinnitus. Additionally, the law does not permit any such ratings to be reduced in the future, unless the severity of the tinnitus is shown to have actually improved.

The decision of the Court of Appeals for Veterans Claims in the Smith case has not yet become final. The VA appealed that decision to the United States Court of Appeals for the Federal Circuit on June 22, 2005. The VA and Mr. Smith have both filed opening briefs, and the VA’s reply brief is due in January 2006. DAV anticipates that the Federal Circuit will hold oral argument on the VA’s appeal in the spring. The Federal Circuit is likely to hand down a decision in the second half of 2006.

I didn't say not to file new or appeal. The stay just means there will be no action taken by VA until the Court decision is out. By all means, file a new claim to establish an effective date and file an NOD within the one-year if you have a pre-stay denial!

VA's argument is that tinnitus arises in the central nervous sytem (brain) and shouldn't be subject to the paired organ rule. I'd have to do some research, but I believe the deal was that when VA published a final rule in the Federal Register to that effect, there were some claims pending for bilateral tinnitus and VA denied them. There were a number of appeals taken that went to the CAVC, then two of them went to the Federal Circuit. All pending bilateral tinnitus claims and appeals are stayed pending the FedCir ruling.

More later.