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  • #31
    Battman, they must have appealed to God because, unless they have instituted another level of appeal, the USCAVC is the final step and they have told the VA to start paying ASAP.

    You have taken the best avenue by getting a workup by a other than VA doc.
    If their eval is favorable to you it is almost never contested. The quacks, AKA has beens, employed by the VA for C&P exams follow the party line.

    Don't ever give up. Appeal, appeal, appeal...


    • #32

      Thanks for the help Moe. My rep at Okla. dept of Vet. Affairs told me he went to the VFW who started all this and they told him the VA had appealed to Congress and he also said the VA told him the same. There has to be some one out there who has the truth and can put it all in order. I have no more contacts.


      • #33

        I just spoke to my County VA rep last Friday to see if he had heard anything regarding the 10% for each ear. He told me that I would know before him and to please let him know when I did hear. Also, you are correct in seeing a private Dr. for anything you take to the VA. I have a Dr. that has been contacted 4 differant times regarding my claims and he has always been helpful to my knowledge. I always tell him that the VA will be contacting him and so far he has been prudent in responding to them.
        Good Luck!


        • #34
          I am going to try to hunt down Mr Turn. He was one who brought his case for double ten percent all the way to the USCAVC. Their decision was that he was entitled to ten percent for each year due to the language of the law prior to June 2003. They told the VA to pay up.

          As far as I know the VA will not be able to get the language of the law changed retroactively. But this is USA 2005. Anything is possible.

          The only thing in our favor anymore is an election year..

          As soon as I can uncover something I'll pass it on..


          • #35
            Apparently I am wrong. The VA has more options up its slimy sleeve. Here is the answer I just got from the American Legion.

            Thank you for contacting The American Legion National Headquarters. The short answer to your question is "not yet." The Department of Veterans Affairs (VA) has appealed the CAVC decision (Smith) to the United States Court of Appeals for the Federal Circuit and has issued a stay on applying the CAVC's decision in Smith until the Federal Circuit decides the case.

            Steve Smithson, Deputy Director
            National Veterans Affairs & Rehabilitation Division

            The bureaurats in the VA aren't going to give up their money without a fight. Please remember that they have to pay from the date of the claim, so submit and keep appealing. You have to keep your claim alive.What I don't know and have been unable to find out is if they will have to reimburse us from the date of the original claim. In my case that would be March 1999. I will try to unravel that mystery.

            I think the "not yet" in the reply I got from the AL is an indication thet they think this next court isn't going to over rule at least two subordinate superior courts.

            Me; I plan to fight them like I did all other enemies, to the bloody ******* end..
            Last edited by moe1942; 01-12-2006, 09:02.


            • #36
              If the VA loses in the Court of appeals in the Federal Circuit they can go to the Supreme Court. I have no doubt they will. They have deep pockets. Ours...


              • #37

                I was granted 10% for bi-lateral tinnitus in Nov 2001 after filing in Feb 2001. I also got 0% service connection for hearing loss. At that time the scuttlebutt was that it was 10%, period, for tinnitus. In the next couple of years I noted that the DAV was taking a case all the way and I asked my VSO if I should reopen my claim. I believe my VSO is top notch and they fight like hell for any vet they represent. At that time I was told to sit tight and wait to see if they get a ruling for the vet. It was a couple of years later, and they did get a positive ruling but as has been pointed out, it was a little confusing. In March of 2005 I filed to reopen my claim and asked for 10% for each ear. In October I was notified that my claim was denied since it was pre 2003. My VSO filed an appeal for review at the Regional Office. I got the answer last week and it was again denied based on the fact that I did not ask for dual ratings when I filed in 2001. I was diagnosed in 2001 with bilateral and that is what my original decision says but now they are saying that since I did not ask for dual ratings when they were not granting dual ratings that I am out of luck. The most obvious problem with all this is that veterans with exactly the same disability are being treated differently based on when they filed. The unfairness of that is glaring. I will be talking to my VSO this coming week to see how to proceed but I will be adamant about sending this to the BVA based on the unfair application of the ruling. Maybe this is being appealed again and there are things happening that I don't know about but I feel the need to perservere in this fight.


                • #38
                  Chippysgt, I too was granted 10% for bilateral tinnitus in 1999. At that time the VA was interpreting the law as saying ten percent for both ears. The BVA has ruled that prior to June 2003 a separate rating of ten percent will apply. The VA, naturally , has again appealed to the federal circuit.

                  Keep your appeal alive and you shgall prevail. Might be an old dude when that happens but it will happen. The VA figures that each year they can stall the less they will pay out.


                  • #39
                    Im glad your VSO helped you mine was compleatly ineffectual and then seemed like he wished I would go away. Ended up having to redo my application 3 times and got no help from him at all. The first guy I had retired and if it weren't for him I would have gotten nothing as the VA lost my 214 and sent me a form saying I was a Vietnam era vet not a Vietnam vet. He asked for my personnel history (206) file and that proved I was a Vietnam vet


                    • #40
                      1Chuck, sounds like you drew the short straw. The only reason I can think of to make a distinction between in country VN Vet and VN era vet would be for the agent orange registry. Should have no bearing on a claim for tinnitus.

                      If you know your VSO is inexperienced get with the nearest DAV rep. They are good people and have the knowledge to pursue a claim.

                      Never let a DD214 get away from you. The local clerk of court will make true certified copies for little or nothing. These copies will be accepted by any agency, including the VA.


                      • #41

                        True words on the DD 214. There was a scare a while back that it was not safe to record your DD 214 with the County Recorder. I checked it out and went right to the elected official in charge of this. He told me that a DD 214 will only be released to the person who recorded it or to an authorized representative with a notarized affidavit. It is also a good idea to have it there in case of death when the family needs it for the national cemetery or VA benefits like DIC.
                        Lots of times the vet forgets to tell the family what part of the attic things like that are stored in.

                        Back to tinnitus. I talked to my VSO this AM. She had talked to a couple of people at the Oakland RO, including a retired Navy guy who is an acquaintance of mine and who urged me to pursue my original claim. He is in the rating and adjudication division. He told her that this issue for vets like me and a few others here, is under appeal by the VA but it is not a strong case and it will probably be decided in favor of those of us that had claims approved for bi-lateral tinnitus prior to 2003. He said it was a mistake for them to deny my appeal since the matter is waiting for a decision. What bothers me about that is that I am an aggressive fighter for the rights of veterans and I educate myself and ask questions. I don't quit without a fight. There are lots of guys that get a decision from the VA and think that is the end of the road. In that case the VA saves some money at the expense of a veteran who has earned the comp. I am not down on everyone at the VA but I believe that there are incompetents who work there and there are those who are not prone to give the vet the benefit of the doubt. I get pretty good health care from the VA and I have had more positive stuff than negative but this issue has my hackled raised and I am ready to do battle. I am mailing a copy of my decision and a signed Form 9 to my VSO today and that will at least keep my in line. I am confident that this will have a favorable result although it may take some time. You just cannot give unequal benefits to two vets with identical disabilities. There is some comfort is recognizing that benefits are retroactive to when you filed.

                        I also agree that the DAV has some really great NVSOs. I insist upon someone who is certified and gets paid for it. I personally go to the VSO in an adjacent county because the one in my county is not as experienced or as agressive. If I got the shabby service that was described, I would be letting my county supervisor know about that.


                        • #42
                          Chippysgt, sounds like you and I have the same mindset regarding VA disability ratings. Since retiring I have chewed on their leg for almost 24 years. I have had to appeal every claim I submitted. I received a favorable rating from the BVA on my most recent appeal in early Dec last year. I am still waiting for my award letter from the RO.

                          The 800 VA customer service number is pretty useless for other than very routine questions. They couldn't tell me where my file was located but my VSO located it and lit a fire under them.

                          I too have an appeal filed for bilateral tinnitus as you probably know from reading my posts. Any progress on the current appeal by the VA in the Federal Circuit is of great interest to me. The case is filed as Smith vs Nicholson.

                          Glad to hear your sources say it will be decided in our favor but I feel the VA will delay further by going to the Supreme Court. Every year they delay the less they have to pay out..

                          The best and only course of action on our part is appeal, appeal, appeal..


                          • #43
                            Here is a statement copied from the DAV website. They led the charge on dual ratings for tinnitus.

                            DAV Prevails in Fight Over Tinnitus Claims

                            On April 5, 2005, the United States Court of Appeals for Veterans Claims handed down its decision in Smith v. Nicholson. The DAV had argued on behalf of Mr. Smith that he was entitled to two separate ten-percent disability ratings for service-connected tinnitus, i.e., ringing, in his right and left ears. The Department of Veterans Affairs (VA) argued in Smith’s case, as well as in a large number of other cases, that the VA Schedule for Rating Disabilities provided for only one ten-percent rating, regardless of whether the tinnitus was present in only one ear or both ears.

                            The Court held that: “Based on the plain language of the regulations, the Court holds that the pre-1999 and pre-June 13, 2003 versions of [diagnostic code] 6260 required the assignment of dual ratings for bilateral tinnitus.” Veterans who filed a claim for service connection for tinnitus in both ears, or who claimed an increased rating for that condition, prior to June 13, 2003, may be entitled to receive combined disability compensation based on two ten-percent ratings for tinnitus. Additionally, the law does not permit any such ratings to be reduced in the future, unless the severity of the tinnitus is shown to have actually improved.

                            The decision of the Court of Appeals for Veterans Claims in the Smith case has not yet become final. The VA appealed that decision to the United States Court of Appeals for the Federal Circuit on June 22, 2005. The VA and Mr. Smith have both filed opening briefs, and the VA’s reply brief is due in January 2006. DAV anticipates that the Federal Circuit will hold oral argument on the VA’s appeal in the spring. The Federal Circuit is likely to hand down a decision in the second half of 2006.

                            Veterans who believe that they may be entitled to benefits based on the Smith precedent should promptly contact their DAV National Service Officer.


                            • #44

                              Yeah, I had already seen the DAV website info.

                              I have serious doubts that the Supreme Court would be willing to take jurisdition of a case involving the VA (US Government) appealing a decision of the federal appeals court. I don't think the case involves constitutional issues per se.
                              I think if the VA loses at the appellate level we will get the 20% rating.

                              To me it all boils down to the issue that if it is good for one, it is good for all. If they say we both have service connected bi-lateral tinnitus, they can't give me 20% and give you 10% for the same thing. Even a lawyer ought to be able to understand that logic.....................................


                              • #45
                                Chippy I hope you are right about the supremes but stranger things have happened. The VA, using unlimited funds (ours), could get it on the supremes docket and milk another year or so out of another favorable ruling. Guess my cynicism is showing..

                                Don't know about you but a year at my stage in life is too much. As I have said, I have lived and experienced their stall and deny tactics for too many years.

                                Maybe we will see a ruling before the fourth. I will check often at the Federal Circuit for any new info..