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Retroactivity

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Bruno2

Question

In April of 2005, the Court of Appeals for Veteran's Affairs handed down a verdict in the case of Smith vs. Nicholson. In short Smith was allowed a disability rating of 10% for each ear rather than a combined 10% for both ears, for having service connected tinnitus. I have the same condition as well as bilateral nerve deafness. I have appealed to the VA for increased compensation based on the Smith precedent.

My question concerns retroactivity. I've been collecting this compensation since 1968. As the VA has wrongly applied the rule and I should prevail in my claim, that makes me feel I would be owed retractive payments back to the time when I first applied and was awarded compensation for this condition.

Is this a correct assumption or not.

Thank you for you advice and input. This is the first time I'm posting at this board so I'll be interested to see what feedback I get.

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  • HadIt.com Elder

Bruno welcome to Hadit. What you say makes sense and I hope that you get it. Would be a nice check going back that far.

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  • HadIt.com Elder

Bruno

In 2003 tha VA changed the regulation as a result of the case you are citing. As things now stand, VA is appealing that ruling, and will not pay anybody for the bilateral factor, until such time as they receive a negative ruling on their appeal (if it is negative).

Once the appeal is ruled on, then you be eligible for lots of back pay, unless of course the Government decides to save money by reversing the COVA decision. ( Which is not unknown). I am also waiting for that decision, only my claim only goes back to 2002.

If a claim is filed for bilateral after the date in 2003, when the VA changed 38 CFR part 4, then there will be NO bilateral for that claimant.

Edited by wallyg
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In April of 2005, the Court of Appeals for Veteran's Affairs handed down a verdict in the case of Smith vs. Nicholson. In short Smith was allowed a disability rating of 10% for each ear rather than a combined 10% for both ears, for having service connected tinnitus. I have the same condition as well as bilateral nerve deafness. I have appealed to the VA for increased compensation based on the Smith precedent.

My question concerns retroactivity. I've been collecting this compensation since 1968. As the VA has wrongly applied the rule and I should prevail in my claim, that makes me feel I would be owed retractive payments back to the time when I first applied and was awarded compensation for this condition.

Is this a correct assumption or not.

Thank you for you advice and input. This is the first time I'm posting at this board so I'll be interested to see what feedback I get.

Hi Bruno2, I just got a check for retroactive for hearing loss, the computation was difficult to follow due to the changes in rating schedules over the years. I would like to get tinnitus for "both" ears but I cant tell where im hearing the current whine at? I have one completely deaf ear and the other is mild to moderate loss in the remaining ear. In all good concience I cant tell them I have tinnitus in the deaf ear, deaf is deaf. I got tinnitus almost Immediatly and had to wait for the BVA ruling to get another 10% which I am appealing as they do not understand the disability two bad ears causes, they just go by the "obsolete rating tables". I find they allways misapply the rule, getting it right the first time is like playing space invaders while navigating through a meteor storm. The VA is full of volenteers and VA wannabees all trying to help out with the work load. The others are just incompetent, untill you clusterbomb them you wont get thier attention.

Arch Sgt. USAF

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  • In Memoriam

VA has appealed Smith v. Nicholson, which provides for dual 10% ratings for bilateral tinnitus to the Federal Circuit and asked for a stay. In the meantime, they have put an administrtive stay on these claims, and I think somone (maybe NVLSP) is suing against this.

The reason why this case drives VA nuts is that. if it loses n the Federl Circuit (and maybe before the Supremes), it is going to get a glut of CUE claims rom guys who got the single rating before the regulations change.

Alex

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