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Bva Case_bilateral Tinnitus Is Granted.


Guest allanopie

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Guest allanopie

BVA9404880

DOCKET NO. 93-01 204 ) DATE

)

)

)

THE ISSUES

1. Entitlement to service connection for a chronic bilateral

sensorineural hearing loss disability.

2. Entitlement to service connection for bilateral tinnitus.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

T. Sternad, Associate Counsel

INTRODUCTION

The appellant served on active duty from February 1957 to May 1966,

and from September 1990 to December 1990.

This matter arises from a rating decision of June 1992 from the St.

Petersburg, Florida Regional Office (RO) in which service connection

for a hearing loss disability and tinnitus were denied.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that his current hearing impairment is due to

exposure to loud noise during his first period of service in which

hearing protection was not provided. In addition, he contends that

he has a constant high-pitched siren sound in his left ear and

intermittent ringing in his right ear which are the result of

acoustic trauma in service.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. § 7104

(West 1991), has reviewed and considered all of the evidence and

material of record in the veteran's claims file. Based on its review

of the relevant evidence in this matter, and for the following

reasons and bases, it is the decision of the Board that the

preponderance of the evidence is against a grant of service

connection for a bilateral sensorineural hearing loss disability and

supports a grant of service connection for bilateral tinnitus.

FINDINGS OF FACT

1. All relevant evidence necessary for an equitable disposition of

the veteran's appeal has been obtained by the agency of original

jurisdiction.

2. The veteran currently does not have a bilateral sensorineural

hearing loss disability for VA rating purposes.

3. The veteran has bilateral tinnitus which is related to his active

service.

CONCLUSIONS OF LAW

1. A chronic bilateral hearing loss disability was not incurred in

or aggravated by service, nor was a sensorineural hearing loss

disability shown to a compensable degree within one year of

separation from service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1153, 5107

(West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (1993).

2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131,

5107; 38 C.F.R. § 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

We find that the veteran has presented evidence of "well-grounded"

claims within the meaning of 38 U.S.C.A. § 5107. That is, the claims

are plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). We

further find that the VA has properly assisted the veteran in

developing the facts pertinent to his claims. 38 U.S.C.A. § 5107.

When all the evidence is assembled, the determination is made whether

the evidence is in relative equipoise, or whether a preponderance of

the evidence is for or against the claim. 38 U.S.C.A. § 5107. The

appellant will prevail in either of the first two events and the claim

will be denied if the third event occurs.

I. Service Connection for Chronic Bilateral

Sensorineural Hearing Loss Disability

We find that service connection for a chronic bilateral sensorineural

hearing loss disability is not warranted by the evidence of record,

inasmuch as a current hearing loss disability is not demonstrated for

VA rating purposes. Service connection for a chronic hearing loss

disability may be granted if the disability results from disease or

injury incurred in service, or if a sensorineural-type hearing loss

disability was demonstrated to a compensable degree within one year

thereafter. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 1991);

38 C.F.R. §§ 3.303, 3.307, 3.309 (1993). The veteran must have a

current disability due to service in order for service connection to

be granted. 38 C.F.R. § 3.303.

Service connection for impaired hearing will not be established when

the thresholds for the frequencies at 500, 1,000, 2,000, 3,000 and

4,000 hertz are all less than 40 decibels, the thresholds for at

least three of these frequencies are 25 decibels or less, and speech

recognition scores using the Maryland CNC test are 94 percent or

better. 38 C.F.R. § 3.385.

The most current medical evidence of record, a VA audiogram in

October 1991, demonstrates that the veteran's hearing is within

normal limits for VA rating purposes. The pure tone thresholds, in

decibels, are as follows:

HERTZ

500

1000

2000

3000

4000

RIGHT

25

20

10

10

20

LEFT

20

20

10

15

35

Speech audiometry shows speech recognition ability of 94 percent in

the right ear and 96 percent in the left ear.

We note that audiograms in August 1989 and February 1991

demonstrated a temporary hearing loss disability in the left ear.

On the audiological evaluation in August 1989, pure tone thresholds,

in decibels, were as follows:

HERTZ

500

1000

2000

3000

4000

RIGHT

20

20

5

10

15

LEFT

30

20

5

40

40

Speech recognition ability was not recorded. On the audiological

evaluation in February 1991, pure tone thresholds, in decibels, were

as follows:

HERTZ

500

1000

2000

3000

4000

RIGHT

25

25

5

5

10

LEFT

20

20

10

15

40

Speech recognition ability was not recorded.

It appears that the hearing loss disability demonstrated in the

August 1989 and February 1991 audiograms was not a chronic disorder.

The hearing impairment noted in the August 1989 audiogram at 3,000

hertz in the left ear subsequently improved as demonstrated by the

results of the audiograms in February and October 1991. In addition,

the auditory acuity demonstrated in the August 1989 and February 1991

audiograms at 4,000 hertz in the left ear had improved at the time of

the October 1991 audiogram.

The evidence of record demonstrates that the veteran has a hearing

impairment but it does not demonstrate a chronic hearing loss

disability for VA rating purposes. Therefore, service connection for

a bilateral sensorineural hearing loss disability is not warranted.

II. Service Connection for Tinnitus

Service connection for tinnitus may be granted if it was incurred in

or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107;

38 C.F.R. § 3.303. Each disabling condition for which a veteran

seeks service connection must be considered on the basis of the

places, types and circumstances of his service. 38 C.F.R. § 3.303.

Although the service medical records are negative for complaints of

ringing in the ears or a diagnosis of tinnitus, the Board finds that

the current tinnitus is probably related to the veteran's exposure to

acoustic trauma in service. The service records demonstrate that the

veteran served in combat in Vietnam and his military occupational

specialty was light weapons infantryman. The veteran noted that

during the 9 years of his first period of service he was exposed to

light and heavy weapons firing for long periods of time without ear

protection. The evidence of record demonstrates that the veteran was

exposed to acoustic trauma during service.

In addition, the examiner at the VA examination in October 1991 noted

that the veteran reported bilateral tinnitus, which was periodic in

the right ear and constant in the left ear. The examiner noted that

the probable cause of the veteran's tinnitus was exposure to gunfire

in the infantry.

The evidence shows that the veteran currently has tinnitus in both

ears and, although it was not demonstrated in service, it has been

related to an injury (acoustic trauma) incurred in service.

Therefore, service connection for tinnitus is warranted.

ORDER

Service connection for a chronic bilateral sensorineural hearing loss

disability is denied.

Service connection for bilateral tinnitus is granted.

BOARD OF VETERANS' APPEALS

WASHINGTON, D.C. 20420

*

U. R. POWELL (MEMBER TEMPORARILY ABSENT)

LAWRENCE M. SULLIVAN

*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'

Appeals Section, upon direction of the Chairman of the Board, to

proceed with the transaction of business without awaiting assignment

of an additional member to the Section when the Section is composed

of fewer than three Members due to absence of a Member, vacancy on

the Board or inability of the Member assigned to the Section to serve

on the panel. The Chairman has directed that the Section proceed

with the transaction of business, including the issuance of

decisions, without awaiting the assignment of a third Member.

NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a

decision of the Board of Veterans' Appeals granting less than the

complete benefit, or benefits, sought on appeal is appealable to the

United States Court of Veterans Appeals within 120 days from the date

of mailing of notice of the decision, provided that a Notice of

Disagreement concerning an issue which was before the Board was filed

with the agency of original jurisdiction on or after November 18,

1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402

(1988). The date which appears on the face of this decision

constitutes the date of mailing and the copy of this decision which

you have received is your notice of the action taken on your appeal

by the Board of Veterans' Appeals.

http://www.va.gov/vetapp/files1/9404880.txt

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Guest allanopie
The VA has appealed this decision to the federal circuit.

Hello Moe,

Im not sure what you meant.

This case before the BVA was granted. Did the BVA withdraw the award later?

###########

>Service connection for bilateral tinnitus is granted.

BOARD OF VETERANS' APPEALS

WASHINGTON, D.C. 20420

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Don't know about this individual, only the issue of granting 10% for each ear. The VA is appealing the BVA decision. I don't think the federal Circuit will over turn the BVA decision. Probably just a stall tactic by the VA.

This will only affect those rated with bilateral tinnitus prior to june 03.

Edited by Moe
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Guest allanopie

>This will only affect those rated with bilateral tinnitus prior to june 03.

Hello Moe,

I think you meant, it will affect those who filed for bilateral tinnitus prior to 2003, but were awarded 10% for a single rating of Tinnitus instead.

I filed back in the early 90's.

I wonder if the BVA has jurisdiction over the VARO's, can we use these BVA cases as precedent cases to send in on our claims?

I 've been hearing from my SO for over a yr, that my bilat tinnitus claim before the RO, has to wait until the BVA is finished with my appeal claim, returns the folder & a precedent case is decided on bilateral tinnitus in the courts & passed down.

Lacking this precedent case, doesn't the BVA decisions become the precedent for the RO's?

Also, IF the RO's grant eligible claims before them regarding "bilateral tinnitus", based on the BVA's reasoning for granting 10% tinnitus in each ear, will they be punished for speeding up the claims process without the use of fraud or simply waiting for Vets to die?

Would this put the VA way over it's 4% cap set on awarded claims?

#############################################################

Don't know about this individual, only the issue of granting 10% for each ear. The VA is appealing the BVA decision. I don't think the federal Circuit will over turn the BVA decision. Probably just a stall tactic by the VA.

This will only affect those rated with bilateral tinnitus prior to june 03.

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Yes that is what I said, briefly. Those, like me, rated for bilateral tinnitus before june 03 were only given 10% because the VA was misinterpreting the law. The BVA ruled that we should get 10% for each ear and the VA has appealed that decision to the Federal circuit. My latest info says that we should hear something before the 4th on that appeal.

What I have said is very abbreviated as it would take pages to detail all the events. I personally don't read page long posts so I tend to make mine as short as possible.

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Guest allanopie

>My latest info says that we should hear something before the 4th on that appeal.

Thanks Moe!

I'll look for it next month.

############################################################

Yes that is what I said, briefly. Those, like me, rated for bilateral tinnitus before june 03 were only given 10% because the VA was misinterpreting the law. The BVA ruled that we should get 10% for each ear and the VA has appealed that decision to the Federal circuit. My latest info says that we should hear something before the 4th on that appeal.

What I have said is very abbreviated as it would take pages to detail all the events. I personally don't read page long posts so I tend to make mine as short as possible.

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Guest allanopie

Lets say this thing is resolved next month, would I still have to wait untill the appeal issues are decided on by the BVA & the C-file returned to the VARO, before a SOC on the bilateral tinnitus is decided on?

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Guest allanopie

If this is decided on next month, would I still have to wait untill the folder is returned from the BVA, before an SOC from the RO can be sent regarding the bilateral tinnitus?

Thanks again..................

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Allan, the best thing to do is file an appeal of the original award for bilateral tinnitus. Cite the BVA decision as a basis for appeal. That will get you in the lineup. My reply was that they were appealing the BVA decision and once the appeal was decided my request would be considered.

More experienced people have told me it will be automatic if the VA loses at the Fed Circuit.

Very important. Be sure to appeal the original award. Don't open a new claim. That could wipe out the original claim. I, like the majority, don't trust the VA.

Good luck.

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Moe- I forget- do you mean Smith V. Nicholson? Is that the Fed Circuit case?

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Yes Berta. It's hard to get any info about it though. A friend of a friend is a VSO. Says he thinks a decision will come before the 4th. I haven't been to the Fed Circuit site lately. It doesn't share much info.

I don't think this is a supremes issue so this decision should be final.

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Here is the latest I can find on the VA appeal for tinnitus. Can't get details. Keep getting an error message and page closes.

Federal Circuit Opinions, Decisions & Orders

Monday, June 19, 2006 11:05 AM

New opinions are added to the top of the list. Judgments without opinion, entered under Rule 36, will not be listed. Opinions are in PDF format. Prior year's opinions for 2005 and Oct.–Dec. 2004 are also available.

Bold letter P following the case title denotes precedential opinion or order, N denotes non-precedential. Below are instructions on using these opinions.

Date Dkt. Origin Case Name P/N

2006/06/19 05-7168.pdf CAVC Smith v. Nicholson P

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  • HadIt.com Elder
Smith.pdfSmith was overturned, meaning no seperate bilaterl rating for tinittus. I think it is a BS ruling given how the VCA ruled , but it is what it is.........Another one shoved up our colective bums.
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