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Rated 0% 1970 For Tinnitus


vietvet

Question

Fellow Vets:

I was rated 0% service connected for Hearing WITH Tinniuts back in 1970. I filed a notice of disagreement within one year and it remained

0% for Hearing WITH Tinnitus.

I understand how difficult the hearing portion is, but shouldn't I have been rated 10% each ear in 1970 for Tinniuts?

Note: back then it was 10% for each ear. Now I know it's 10% for both ears.

Then in 2006 when I refiled again took my CAP and was awarded 0% Hearing and 10% Tinnitus.

Question: Do I have any claim for an error in the rating; should I have been granted 20% service connected back in '70?

Am I do retro? I greatly appreciate your opinion. Happy Holidays!

A Proud Vietvet

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  • HadIt.com Elder

For Tinnitus the report has to say recurrent tinnitus.

If is doesnt say recurrent then you get rated a zero percent.

Just one little word is the case for 10 percent.

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Jbasser:

Tinnitus did not exist as a stand alone diagnostic code under 38 CFR Part 4 until the late 1970s so I wouldn't concern yourself with EED dating back to the original Rating Decision (CUE claims are based upon the evidence and laws at the time of the Rating Decision). That said the current 38 C.F.R. 4.87a (Diagnostic Code 6260) supports a 10% disability rating for recurrent tinnitus. Both case law (and now the regulations) only provide for a 10 % disability rating regardless of whether it is in both ears or one ear.

If you are still experiencing tinnitus, you'll want to file a claim for increased rating. I would write a short statement in support of your claim and include any treatment records (VA or private) documenting the ringing in your ear.

Good luck

Seth Director

Edited by bluenote (see edit history)
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Remember, I am doing a great deal of this from memory, so be gentle ...

In the May 11, 1999 issue of the Federal Register http://www.gpo.gov/f...df/99-11768.pdf , the criteria for Diagnostic Code (DC) 6260 were changed somewhat. Per page 25206:

The previous rating schedule provided a 10-percent evaluation for tinnitus, DC 6260, with the criteria being: ‘‘persistent as a symptom of head injury, concussion or acoustic trauma.’’ We proposed to remove the requirement that tinnitus be a symptom of head injury, concussion or acoustic trauma and that it be persistent and instead provide a 10-percent evaluation for recurrent tinnitus.

The change resulted in:

6260 Tinnitus, recurrent ......................... 10

Note: A separate evaluation for tinnitus

]may be combined with an evaluation under

diagnostic codes 6100, 6200, 6204, or other

diagnostic code, except when tinnitus

supports an evaluation under one of those

diagnostic codes.

While it would seem to indicate that there would be a single 10% evaluation for the condition "tinnitus", neither unilateral nor bilateral was mentioned specifically.

Now, dredging up from memory ...

In the May 14, 2003 issue of the Federal Register http://www.gpo.gov/f...df/03-12038.pdf , clarification guidance specified that a single 10% was warranted for DC 6260, whether unilateral, bilateral or within the head. I think the rational for the clarification is pretty much valid.

In close proximity with this clarification, there was a lawsuit alleging that a separate 10% evaluation for each ear was authorized (or, perhaps better to say 'not unauthorized'), and there were a fair number of new claims and claims for increase for bilateral tinnitus. I do not recall the decision year or the name of the decision.

The upshot? Those veterans with an extant claim for bilateral tinnitus at the time of the judicial decision were authorized separate 10% evaluations. So, there likely are a few folks still out there with "schedular" 10% + 10% for tinnitus.

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vietvet

You posted,

Tinniuts back in 1970. I filed a notice of disagreement within one year and it remained

0% for Hearing WITH Tinnitus.

What was the outcome of your NOD? Was your appeal denied? If so, did you appeal this? Or, did the VA just "ignore" your NOD?

If the VA just ignored your NOD, and you have documentation that you sent it in, then you have a "live" appeal. Documentation of your NOD would include a letter from the VA acknowledging receipt of your NOD, or other documetion from the VA mentionioning this appeal, as well as your original NOD, back in 1971.

Your appeal does not "expire". If you have documentation that you appealed back in 1970, then you should "check on the status" of your 42 year old appeal.

Depending on your answers to the above questions, yes, you could have a big retro check coming.

The VA may try to say you abandoned the appeal.

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I was just going to post a question on this same topic today, funny this would be on here. It started with Nehmer claim my husband made 10/10 for IHD. It was during this claim that he also put in for tinnitus, he is rated 0% for hearing loss since 03, but he never put in for tinnnitus until 2010 as secondary to hearing loss. When he went for C & P exam for IHD, my husband was told to cancel the increase in hearing loss exam as you need to be etremely bad in hearing to get increase past 0, however the C & P hearing loss exam is also for tinnitus (which he was not canceling) The hearing loss C & P was same day, but he did not go to it. He was told by C & P office and a VFW VSO that exam not needed if claim for increase in hearing loss was being withdrawn and I thought, well how would ringing in ears show up in hearing loss exam, so it would not be needed. Ah, but I was wrong the hearing exam was also for tinnitus, so he did need exam. Sorry this is long. Partial claim was settled in 5/12, with deferment on tinnitus and meneier's disease (ear condition) Meneier's disease, secondary to DMII. He was had his C & P exam for both in 10/12

During a visit with with VSO in May, ED was brought up (no pun intended). Well we didn't think VSO was going to put in claim for this as I did not want to put in anything new as it would effect present claim. To our surprise, he was scheduled for ED exam, last Friday 11/30.

And now to point of this story. We went to record release office and he was able to get copy of C & P exam from hearing loss. It stated he had tinnitus and also examier wrote it was also noted my husband had tinnitus from exam back in 2003. He was never rated and he had never put in claim for it.

If rated for tinnitus now, would the prior exam from 2003 be a CUE?? Can it fall under the VA having knowledge of a medical condition thru the C & P exam and not giving it to a vet, even if no claim for condition was made? Also Meneier's disease was acknowledge but not as secondary to DMII, It said tinnitus more than likely due to hearing loss, Meneier's disease not as likely to DMII.

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Frankie:

Here is my impression, noting that it is difficult to consider effective dates without seeing the entirety of the claims record. Foremost, there is a tension between what constitutes an informal claim for compensation and whether that claim was denied (formally or through inferred denial). See Ingram v. Nicholson, 21 Vet. App. 232 (2007) and Coker v. Nicholson, 19 Vet. App. 439 (2006). Frankly, the VA and associated courts are still dealing with that issue on a case-by-case basis. That said, the case law clearly has ruled that violations of the VCAA's duty to assist are not grounds for CUE. In short, from my perspective, no CUE is possible unless you first establish that there was a prior claim in 2003.

Based upon the facts given, if I were going to arguing EED for tinnitus my argument would be: (1) the veteran's original claim for hearing loss fairly encompassed a claim for tinnitus; and (2) that claim has remained pending and unadjudicated since the original date of claim for hearing loss; (3) the evidence establishes that the veteran has service connected tinnitus as noted in the service medical records (or secondary to his service connected hearing loss). Assuming arguendo the prior rating decision denied tinnitus by inference, then the facts demonstrate CUE because: (1) there was an original claim for tinnitus based upon the veterans claim of hearing loss; (2) the VA denied that claim through inference in its original rating decision; and (3) the available statutes and C&P examination at the time of the original adjudication clearly established that the veteran had service connected tinnitus.

Good luck and sorry about the long-winded response

Seth Director

Edited by bluenote (see edit history)
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