CAVC Briefs

[Lemuel]

I'm working on preparing my brief to the CAVC on my appeal having received the Record Before the Agency (RBA).  Searching for the initial EENT consult in the RBA now.  Have it in a CD sent to me by the VA Records Management Center earlier.

Does anyone know the date of "liberalization" of tinnitus allowing the rating of 10% for noise induced loss instead of only as secondary to a TBI?  Is there a reference?

Docket 17-2990  The following is in the RBA.

1)      RBA Pages 4255 & 4254; The Rating Decision of 2-25-76, RO did not do investigation of injuries medically, only for “in line of duty” determination.

a)      CUE: RBA page 4365 dated 4/5/65; 4/4/65. “Patient took exam to operate a forklift and was noted to have a moderate hearing deficit. Please see and evaluate.” 4/5/65, “tinnitus ® ear & vertigo.”  (tinnitus subsequent to exposure to 5” naval gunnery practice in the battle dressing station under the gun mount during the USS Sperry AS-12 gunnery practice during my tour on that ship aggravating a pre service mild hearing deficit with an incident of losing most of hearing for a period of 3 days not recorded or complained about on the record as an HN E3 when told it would come back.)

b)      RBA page 4309, Audiogram at Guam Memorial Hospital dated 7/31/75 noting “poor speech discrimination both ears.” But without noting the claim of tinnitus which is at least partially contributing to that.  And the AOJ, given the EENT consult of 4/5/65 above and the other earlier Audiograms failed to send the examination back for a clarification on whether the tinnitus had subsided or was omitted from the report.

c)      RBA page 476, Audiology consult dated June 18, 2013.  Please include the audiology report and notes on tinnitus and word discrimination.

d)      RBA page 3106, Rating Decision date 1/22/92:

i)       “F. Service medical records show complaints of recurrent tinnitus in April 1965 and January 1968. The audiometrics done on current VA examination show average pure tone thresholds as 48 in the right ear and 63 in the left ear, with speech recognition as 88 percent and 76 percent respectively. Also shown is periodic bilateral tinnitus.”

ii)     D. Service connection is warranted for a separate diagnosis Of tinnitus at a compensable level with application of 38 CFR 3.114 (A).

iii)   2016 38 CFR 3.114(a) “…or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue.”

iv)   1974 38 CFR § 3.114 Change of law or Veterans Administration issue.

(1)   (a) Effective date of awards. Where pension, compensation, or dependency and indemnity compensation is awarded or increased pursuant to a liberalizing law or a liberalizing Veterans Administration issue, approved by the Administrator or by his direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative Issue.

v)      1974 38 CFR 4.84(b) 6260 Tinnitus ---------------------- 0 (See diagnostic codes 8045 and 8046.)

vi)   1974 38 CFR 4.124(a) 8045 Brain disease due to trauma Purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial' nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). Purely subjective complaints, such as headache, dizziness, insomnia, tinnitus, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under diagnostic code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of chronic brain syndrome associated with brain trauma.

vii) RBA page 844, Periods of steady tone were greater in Japan because of the constant additional background noise but still the 20 per day of the steady high-pitched tone seems a bit exaggerated.  Probably something lost in the translation to the Audiologist.  However, even with the translation, this is the clearest and best history of my tinnitus reported in the record.

viii)           RBA pages 3149 & 3150, Audiogram dated 8/21/91, recording tinnitus but inaccurately.  My tinnitus has been constant with the bird chirping, with an intermittent steady high-pitched tone that more grossly interferes with hearing especially in a circumstance like an audiogram, since it first appeared in late 1964 during my tour on the USS Sperry AS-12 following gunnery practice and a temporary hearing deficit of everyone sounding like they were down in a well which off the record, after the practice, by a physician I was told would go away in a day or two.  As an HN E-3, at the time, all I was concerned about was getting my hearing back which I did except for the tinnitus interference which wasn’t too severe except when trying to intently listen to soft sounds when it becomes a high pitched steady tone.  So, it is intermittent in nature of interference.  Otherwise it is like a soft background noise unless competing with soft sounds.  This is the way I always describe it, but it has never been recorded in the long version except on RBA 844.

ix)   RBA page 3202, Claim on my behalf by representative with no mention of tinnitus.  Given that it was granted on the review of the record under 38 CFR 3.114(a) it should have been dated from Mar 18, 1976 per the 1976 38 CFR 4.85b and the cited, in the 1/22/92 Rating Decision, 38 CFR 3.114(a).

x)      RBA pages 3484 & 3485 Audiological Case History, dated 5/24/88, recording tinnitus but with errors.  Not “since taking Elavil” as the record shows.  Worse since taking Elavil.  And not intermittent as stated above except for the difference in tone.  It is there when I wake up and when I go to sleep and probably keeps me from dreaming most of the time.  And it has been like that since the 1963 or 1964 USS Sperry AS-12 gunnery practice.

xi)   RBA pages 3955 & 3956, Audiology Case History dated 5/14/85, also reporting tinnitus but erroneously.  Is the reporting of “intermittent” because that is the usual?  Where did the “2 episodes come from” Perhaps 2 episodes of the change in tone to a high-pitched tone.  Should be mild constant with intermittent severe.

xii) RBA pages 3965 & 3966, Audiology Case History dated 7/14/83 recording tinnitus moderate with errors as above.

xiii)           RBA pages 3987 & 3988. Audiology Case History dated 12/13/83, tinnitus reported, correctly as not in ears, incorrectly as periodic and just in morning (louder when first awakening).  Appears to include both high pitched and “birds” (high pitched; “birds.”)

xiv)           RBA pages 4328 & 4329, Audiogram dated 22 Jan 67, Audiologist did not fill out history on back.  Similar Beltone reports back was not copied.

xv)  RBA page 4462, Rating Decision dated June 25, 2015; “We determined that the following condition was not related to your military service, so service connection couldn't be granted:  Medical Description Tinnitus” This goes to the authenticity of the June 25, 2015 Rating Decision and its sloppiness.

e)      Several audiograms listing tinnitus in boxes provided on VA and Military audiogram report forms are not included in the record.  Some but not all are on the CD provided to me dated 02/15/2017.

 

 

 

 

 

Edited November 15, 2017 by Lemuel
correct an error

[Lemuel]

Found it: 

1976 38 CFR 4.84b, “6260 Tinnitus Persistent as a symptom of head injury, concussion or acoustic trauma ---------- 10; (See diagnostic code 8046) 129 FR 6718, May 22, 1964, as amended at 41 FR 11298, Mar. 18, 1976]

Acoustic trauma is the amendment to this section at 41 FR 11298,  Mar. 18, 1976

Edited November 15, 2017 by Lemuel
clarity