tinnitus Legal Research On Va Laws Reducing Compensation

[Navy6983]

Recently on an unemployibility claim the VA not only denied the claim but reduced 80% to 60% consolidating Hearing 50% and Tinnitus 10% under an overall Menieres Rating of 60% citing the pyramiding regulation even thought the symptoms of Bi Lateral Hearing Loss, Menieres and Tinnitus are distinctly different. Are there any court decisions relating to the above.

[Pete53]

Probably but I don't know where to find them.

[Buck52]

Appeal the decision,file NOD ask for DRO Hearing at your RO.

go get you a IME/IMO with a qualified /certified specialist ENT and Make sure they use the VA Guidelines for hearing test and sure they use Maryland CNC word discrimination speech test.

If your already SC

jmo

........................Buck

[USMC_VET]

Have you filed you Notice of Disagreement yet?

Im sorry you are dealing with a reduction, I just went through the same thing recently. I had a C&P in December and in January i found out they wanted to reduce my PTSD from 50% to 30%. Unlike you it was my fault, i was starting a new job and i didnt want to say everything that was going on for fear of losing it, etc. etc.

can you upload you decision letters without personal information.

Also was your tinnitus listed as "subjective tinnitus"?

If so this may help.... in that regard will continue to research.

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-0540
ROBERT FOUNTAIN, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided February 9, 2015)

To the extent the Secretary argues that tinnitus is a not a condition "of
the nervous system,"
the prior VA pronouncements undermine that argument as well. In the Final
Rule, VA describes
tinnitus as "a central nervous condition." 68 Fed. Reg. 25,822.
Referencing a VA booklet on
hearing impairment in the Final Rule, VA explains: "[D]amage in the inner
ear may be a precursor
for subjective tinnitus, but [] subjective tinnitus is generated within
the central auditory pathways.
Comparing tinnitus, a central nervous condition, to hearing loss, a
disability from damage to an
organ of special sense (the ear) is not a valid comparison." Id. In the
proposed rulemaking, VA
explains that "[t]rue (subjective) tinnitus does not originate in the
inner ear, although damage to the
inner ear may be a precursor of subjective tinnitus" and that it "appears
to arise from the brain rather
the ears." 67 Fed. Reg. 59,033 (2002) (proposed rule); Appendix at 28. The
General Counsel

This decision I think would bolster your case against it being considered pyramided with the ear, since subjective tinnititus by the VA's rule is considered to arise in the brain and not the ear. While earlier in the case the Court opined that damage to the ear could be a precursor to tinnitus, the VA's rule doesnt account for that.

This is the anti-pyramiding section in the 38 cfr

38 CFR 4.14 - Avoidance of pyramiding

§ 4.14 Avoidance of pyramiding.

The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.

Pyramiding is basically giving you multiple ratings for different aspects of the same disease. say you have TBI and you get headaches and vertigo which are symptoms of your TBI, the VA cannot rate you for TBI (with those as symptoms) and then rate you seperately for those as well.

However i since the VA does not at this moment consider subjective tinnitus to really have anything to do with damage to the ear and arising from the brain, then they shouldnt, from my reading be able to reduce you based on it being part of "bilateral hearing loss". Like i said above this is based on you being given a diagnosis of "Subjective Tinnitus" and not objective tinnitus which is a vascular condition and can actually be heard by a doctor, your ear actually rings to everyone. Either way though neither diagnosis should be subjected to pyramiding under the VA rule.

I would take a look at the Va's (google it)

Training Letter 10-02
Adjudicating Claims for Hearing Loss and/or Tinnitus

In Section E it (and where the court above got their info) states the following...

1. What is it? Subjective tinnitus is a phantom auditory sensation that is perceived as a sound when there is n outside source of the sound. It is a symptom rather than an illness or disease. Tinnitus may be perceived in one or both ears or anywhere in the head, and although it is commonly perceived in the ears, it originates in the central nervous system.

Under Section 5 it states the following...

1) If the examiner states that tinnitus is a symptom that is associated with hearing loss, the tinnitus should be service connected and separately evaluated under diagnostic code 6260 if the hearing loss is determined to be service connected. No additional opinion about the relationship of tinnitus to service is needed.

This proves in my opinion they cant combine your tinnitus with your hearing loss. The letter states that IF tinnitus is SC (it is they already granted it to you) it is to be seperately evaluated under a different code if hearing loss is also SC (it is they already granted it to you).

[toddt]

Looking under §4.87—Schedule of ratings–ear

"Rating criteria for Meniere's:

6205 Meniere’s syndrome (endolymphatic hydrops):

Hearing impairment with attacks of vertigo and cerebellar gait
occurring more than once weekly, with or without tinnitus............................... 100
Hearing impairment with attacks of vertigo and cerebellar gait
occurring from one to four times a month, with or without tinnitus.................... 60
Hearing impairment with vertigo less than once a month, with or
without tinnitus.................................................................................................... 30

Note: Evaluate Meniere’s syndrome either under these criteria or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. But do not combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under diagnostic code 6205."


If you look at the note, it's an either/or proposition. Either you are rated for Meniere's or you are rated for the vertigo, hearing loss and tinnitus separately. Which ever method results in the highest rating is the one you'll receive.

To research Board of Veteran's Appeals cases go here: http://www.index.va.gov/search/va/bva.jsp and put in your search criteria.

For Court of Appeals for Veteran's Claims go here: http://www.uscourts.cavc.gov

[USMC_VET]

i may have been too hasty.

I have been doing some research...

UNITED STATES COURT OF VETERANS APPEALS


No. 93-598


Rodney C. Shogren, Appellant,

v.

Jesse Brown,
Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans' Appeals
(Decided August 30, 1994 )

Upon reviewing the evidence of record, the Court finds that there is
no medical evidence that the appellant's hearing loss is a separate
condition from his Meniere's disease. It is noted that the appellant did
not file a claim for hearing loss until August 1991, at which time there
were several VA examinations in the record linking the appellant's hearing
loss with his Meniere's disease, first diagnosed in 1983. While there is
no medical evidence in the record that the appellant suffers from hearing
loss as a result of his combat experience, a medical report dated in March
1991 diagnosed the appellant with a "classic Meniere's triad of
incapacitating vertigo, tinnitus, and hearing loss." Because a lay person
is not competent to offer evidence that requires medical knowledge, the
appellant's assertion that the cause of his hearing loss was combat is not
competent evidence of medical causation and is therefore insufficient to
render his claim well grounded under section 5107(a). See Grivois v.
Brown, 6 Vet.App. 136, 140 (1994) (quoting Espiritu, 2 Vet.App. at 494).
Thus, given the lack of medical evidence to support the appellant's
contention as to the cause of his hearing loss, the Court holds that his
claim is not well grounded.

From what ive been reading here and other places since i started to review cases of menieres and hearing loss/tinnitus vs what i read and wrote about in the post above on hearing loss and tinnitus, is that its the menieres that is what triggered the pyramiding. Menieres includes vertigo but other symptomatology of it is hearing loss and tinnitus. However this isnt the whole story.

You will want to review ALL the medical records you have and submitted ot the VA, review all the exams, review the decision.

Find out when they granted menieres initially was it based on vertigo AND hearing loss AND tinnitus as symptoms of it?

If not then you might, might be able to make the argument they are separate. however if you C&P exam and other medical records state that hearing loss and tinnitus are part of the symptomatology of menieres then its probably not going to work.

I am not a doctor nor an expert however i have read that hearing loss is usually at high frequencies while menieres is often at lower ranges and if your records show that your hearing loss is based on the higher ranges, and the menieres is based on the loss at lower levels, that could also be a basis for a case.

I would say that you should contact a lawyer, however in my experience attorneys do not take reduction cases, but since they have already reduced you they may take you on the basis of the retro you would get if you won your appeal.

I would also reiterate Buck's words and go and get a imo/ime. go find a doctor and bring him all your records on all three of your SC's, make sure they are a bonified specialist for the ear, etc.

If they can seperate out that the menieres and the hearing loss are seperate conditions, or that the menieres makes the hearing loss worse of vice versa than you have a good shot at winning. i do feel the tinnitus is lost due to it being a symptom of menieres.

sorry i cant be more help, maybe some folks here know more about this.

Edited August 5, 2015 by USMC_VET

[Navy6983]

i may have been too hasty.

I have been doing some research...

UNITED STATES COURT OF VETERANS APPEALS

No. 93-598

Rodney C. Shogren, Appellant,

v.

Jesse Brown,

Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans' Appeals

(Decided August 30, 1994 )

Upon reviewing the evidence of record, the Court finds that there is

no medical evidence that the appellant's hearing loss is a separate

condition from his Meniere's disease. It is noted that the appellant did

not file a claim for hearing loss until August 1991, at which time there

were several VA examinations in the record linking the appellant's hearing

loss with his Meniere's disease, first diagnosed in 1983. While there is

no medical evidence in the record that the appellant suffers from hearing

loss as a result of his combat experience, a medical report dated in March

1991 diagnosed the appellant with a "classic Meniere's triad of

incapacitating vertigo, tinnitus, and hearing loss." Because a lay person

is not competent to offer evidence that requires medical knowledge, the

appellant's assertion that the cause of his hearing loss was combat is not

competent evidence of medical causation and is therefore insufficient to

render his claim well grounded under section 5107(a). See Grivois v.

Brown, 6 Vet.App. 136, 140 (1994) (quoting Espiritu, 2 Vet.App. at 494).

Thus, given the lack of medical evidence to support the appellant's

contention as to the cause of his hearing loss, the Court holds that his

claim is not well grounded.

From what ive been reading here and other places since i started to review cases of menieres and hearing loss/tinnitus vs what i read and wrote about in the post above on hearing loss and tinnitus, is that its the menieres that is what triggered the pyramiding. Menieres includes vertigo but other symptomatology of it is hearing loss and tinnitus. However this isnt the whole story.

You will want to review ALL the medical records you have and submitted ot the VA, review all the exams, review the decision.

Find out when they granted menieres initially was it based on vertigo AND hearing loss AND tinnitus as symptoms of it?

If not then you might, might be able to make the argument they are separate. however if you C&P exam and other medical records state that hearing loss and tinnitus are part of the symptomatology of menieres then its probably not going to work.

I am not a doctor nor an expert however i have read that hearing loss is usually at high frequencies while menieres is often at lower ranges and if your records show that your hearing loss is based on the higher ranges, and the menieres is based on the loss at lower levels, that could also be a basis for a case.

I would say that you should contact a lawyer, however in my experience attorneys do not take reduction cases, but since they have already reduced you they may take you on the basis of the retro you would get if you won your appeal.

I would also reiterate Buck's words and go and get a imo/ime. go find a doctor and bring him all your records on all three of your SC's, make sure they are a bonified specialist for the ear, etc.

If they can seperate out that the menieres and the hearing loss are seperate conditions, or that the menieres makes the hearing loss worse of vice versa than you have a good shot at winning. i do feel the tinnitus is lost due to it being a symptom of menieres.

sorry i cant be more help, maybe some folks here know more about this.