moe1942 wrote: The Feds have rendered a decision in Smith vs Nicholson. Not sure what they said and all my sources are mum on the subject. I visit a site that has quite a few RO rating specialists participating and the one and only comment made was that the feds remanded the case to a lower court for a decision favorable to the DAV's position.

I don't understand legalese so I can't unravel the decision myself. Even the DAV is mum on the subject.

Moe,

I read over some of the decisions too and they all seemed to support our cause but again, like you, I am an honest man, not a lawyer. It does sound promising though. I will continue to patiently wait.

I was pleased to hear from my County VSO that she has had Iraq War veterans getting claims settled in as little as a month. My VVA chapter was selling hot dogs and drinks at an event yesterday and a young kid came up and was looking at our table with pins and t-shirts, He had a beard and sandels so I was wondering and I asked him if he was a vet. He says Yeah, 82 Airborne and just got back from his second tour in Iraq. I hugged the hippy looking turd and gave him a big Welcome Home. Says he finished a tour in the Army and just signed up for six years in the National Guard. Made me feel good to met a young patriot that is proud to be serving his country.

Chippysgt,

It is too quiet on this Fed Circuit decision. Nothing at the DAV site either. You would think they would have posted something if they won.

I go to six Vet sites and except for that one comment nothing. Very strange.

I too am glad to see that recruitment hasn't dried up. Although going Guard is almost the same as active duty anymore. At least the guys in the 256th here in La would agree.

Looks like this is a dead issue. Everything I have read seems to indicate the fix was in.

Tinnitus score: VA 1, Vets 0...

It wouldn't have affected my rating but many others would have benefited.

Tell me it ain't so!

I just recieved a letter the other day, one of about 6 this year, assuring me my claim is still in the works. Seem like if they stopped sending out those damn letters and spent more time processing claims we all might be more content.

Larry South wrote: I just recieved a letter the other day, one of about 6 this year, assuring me my claim is still in the works. Seem like if they stopped sending out those damn letters and spent more time processing claims we all might be more content.

I received one once and I didn't have a claim in the system.

I think I will quit fooling with the VA. I'm at seventy percent and I don't need the aggravation. I won't even put in for IU. Getting too old to jump through hoops. Think I'll just try to help others with info I've gained the hard way.

For those who are still in the fight, a good site is hadit.com. A few there that are pretty savvy about the claims process.

My best to all.

Don't talk like that!

Moe 1942, Damn you, don't be like that! When I go to the VA clinic we have here in Bakersfield, the one thing I am proud of is, I can always spot a Marine because there are always a bunch of hippy looking, weirdo's there and I can almost always strike up a conversation with a Marine. Don't give up any fight you may have. If you need help, let me know. I am only about 4 years into the VA system and I am sure I will need your help in the future.

Veteran's lost the Appeal on Tinnitus

The full text of the decision by the Federal Circuit Court of Appeals,. (Link goes to .pdf file)
http://www.ll.georgetown.edu/Federal/judicial/fed/opinions/05opinions/05-7168.pdf

The fight to have tinnitus determined to be bi-lateral (20%) instead of a single condition at 10% was lost recently, June 2006, at the Fed Circuit in the Smith case. Of course that decision only affects vets who filed before May 2003, because the VA further revised DC 6260 in May 2003 so that claims filed after that date could only get a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head." 38 C.F.R. § 4.87, DC 6260 (2004).

The DAV is trying to take the case to the Supremes, but over the years they've shown little interest in veterans' cases. About the only significant one they ever decided was Gardener, and right after the did that, Congress revised 38 Sect.1151 to delete that veteran friendly provision. So don't hold out any special hopes for Smith at the Supreme Ct

TINNITUS CLAIMS AFFECTED BY SMITH V. NICHOLSON – UPDATE

In the Smith v, Nicholson case, the U. S. Court of Appeals for Veterans Claims reversed the BVA decision, which concluded that no more than a single 10-point disability evaluation would be provided for tinnitus. Subsequently, in a decision dated June 19, 2006, the Federal Circuit reversed the Veteran’s Court decision and affirmed VA’s long standing interpretation of DC 6260 authorizing a singly 10-percent rating for tinnitus, whether unilateral or bilateral.

Actions by the CAVC, VBA and BVA:

• The Court of Appeals for Veterans Claims has imposed a stay on processing any appeals involving this issue until period allowed for an appeal to the Supreme Court expires. (Under Supreme Court rules, a petition may be submitted within 90 days of the date the appealed decision was entered in the lower court.) See: http://www.vetapp.gov/MiscOrd-5-06.pdf

• The Chairman, Board of Veterans Appeals (BVA) lifted the stay on processing these tinnitus cases by rescinding his Memorandum No. 01-05-08 (April 28, 2005), “Processing of Tinnitus Claims affected by Smith v. Nicholson – Imposition of Stay.”

• In a memorandum dated July 10, 2006, lifted the stay on processing certain tinnitus claims utilizing the interpretation of the regulation that a single 10-percent rating is the maximum rating available under DC 6260.

"Keep on, Keepin' on"
Dan Cedusky, Champaign IL "Colonel Dan"
See my web site at:
http://www.angelfire.com/il2/VeteranIssues/

Larry South wrote: Moe 1942, Damn you, don't be like that! When I go to the VA clinic we have here in Bakersfield, the one thing I am proud of is, I can always spot a Marine because there are always a bunch of hippy looking, weirdo's there and I can almost always strike up a conversation with a Marine. Don't give up any fight you may have. If you need help, let me know. I am only about 4 years into the VA system and I am sure I will need your help in the future.

Larry didn't know I came across as a quitter per se, but rereading what I said it did sound that way. I meant to communicate that I had reached a point where my conditions would have to deteriorate much further before I could ask for any increase in ratings.

The tinnitus case was the last one I could pursue and it wouldn't have increased my rating.

I don't need the aggravation but I have put up with the VA BS for 24 years and just need a breather. I think the best I can do now is put what I have learned to use by helping others.

Also, I'm USAF... 😀

Oops!

I may have overreacted a little when I thought you were quitting. Even if you are USAF. Sounds like you are right about the decision though. Oh yeah, I think I may have confiscated some plywood from you guys @ MMAF. Looking forward to having a beer with you someday.

Good luck, Larry

Larry South wrote: I may have overreacted a little when I thought you were quitting. Even if you are USAF. Sounds like you are right about the decision though. Oh yeah, I think I may have confiscated some plywood from you guys @ MMAF. Looking forward to having a beer with you someday.

Good luck, Larry

My trap worked. We've been looking for you! It was Nam 70. You never brought the steaks... 😀

Dittos on the beer.

Moe

Tinnitus

Moe,

Well, I was wrong again. I thought maybe someone in the legal system would give a break to the vets and stand by us on what I consider a common sense issue. Maybe the DAV will try to run it past the Supreme Court but who knows.
Here is the legal brief. It is a little tedious to read and all they are doing is saying the VA interpretation of their regulations was right. So what is wrong with changing the regs to benefit disabled veterans???

http://fedcir.gov/opinions/05-7168.pdf

Tinnitus

I sent an e-mail to DAV regarding the future of this case and this is the response for those who are interested. It looks grim but like Chesty Puller said, when you are surrounded by the enemy they are easier to kill. We may be at the last barricade but I am not giving up yet.

Hello and good morning Brian.
In reference to your email of July 30, 2006, concerning the bilateral tinnitus case the following is noted:
The Federal Circuit's decision does not become final until the conclusion of any proceeding before the Supreme Court of the United States. The DAV anticipates that it will file a petition for a writ of certiorari with the Supreme Court on behalf of Mr. Smith. If the petition is denied, then the Federal Circuit's decision becomes final. If the petition is granted, then the Federal Circuit's decision will not become final until the Supreme Court issues its decision.
Let us hope it is a positive response.
Clay

Mr. Carroll Clay Saucier
Supervisor
Disabled American Veterans
1301 Clay Street, Room 1110, North
Oakland, CA 94612-5209
Office (510) 834-2921
Fax (510) 834-1331
Cell (925) 787-5297

Book on Tinnitus and Service

Y'all have probably seen this:
http://www7.nationalacademies.org/ocga/briefings/Noise_and_Military_Service.asp

I haven't looked at it, but thought it might be of interest to you.

Macalester, Oklahoma VARO

Caution - they are not veteran friendly. You will have to fight for what you get. I suggest, if you are well documented that you work in conjunction with one of our U.S. Senators or Congresman. Do not hesitate to communicate directly with the Secritary of Veterans Affairs in D.C. either. Your going to get your records marked "Congresional Interest" but that is not a stigma, it is a plus.

Don't know anything about the "Tinnitus" thing, just the VARO he was dealing with. They do have some GOOD PEOPLE (I hope I didn't get anyone cut out of a job with direct communication when I was struggling to get to 100%) but, they will fight you even with overwhelming medical documentation. In my case they also have attempted to block government life insurance from paying anything when I go. I'll be happy to furnish a copy of their award letter to anyone who'd like to see documentation of what I have written here... SimperFi to all

Jim,

At this point in the process, the congressional interest flag is not going to be helpful in my opinion. There are about 3000 of us nationwide who have an appeal claim for bi-lateral tinnitus pending and the outcome of the Supreme Court review will determine whether we will get an increase or not. As you may know, the court is not influenced by congressional interest and there is no guarantee that they will even look at the Smith case that represents all of us.

I worked as the veteran and military rep for a congressman for 8 years and generally speaking, congressional interest can help, depending on the issue but I don't think this is one of them.

Brian
"Proud to be a Veteran"

The latest I can find on this topic..

http://webisys.vetapp.gov/isysquery/irl111e/3/doc
O R D E R

This order amends Miscellaneous Order 05-06 (issued July 12, 2006).

For the reasons stated in Miscellaneous Order 05-06, until further order of this Court, all appeals that concern bilateral tinnitus in whole or in part currently pending with this Court and not yet stayed, shall be stayed as of the date of this order. Further, any other such appeals filed after the date of this order, shall be stayed on the date each such appeal is filed. Because, on September 18, 2006, a petition for a writ of
certiorari was filed with the U.S. Supreme Court to review the judgment of the U.S. Court of Appeals for the Federal Circuit in Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), these stays shall remain in effect until
the Supreme Court has acted on the petition.

DATED: September 25, 2006 FOR THE COURT

Supreme Court Review

I saw Justice Ginsberg on TV this AM and she was not commenting on cases but she did say that they have about 100 cases to review and they would be starting Monday. I think it was the DAV that filed the Writ of Certeori. I hope they can convince the court. I am now wondering if any of the other Veteran Organizations file Amecus Briefs with the court. I am not too optimistic but I will keep my fingers crossed.
You may also know that there is a move underfoot in Congress to try to buy out 10 and 20% disabled veterans. A bad move in my humble opinion. What happens if a disability gets worse. What happens if a veteran is desparate or has some problem and gets ten grand and pisses it away in a weekend. No more disability check in the middle of the month. This is only being discussed at the present time.

Buy out?

If the 10% and 20% Vets were offered a buyout I'm curious how that would work. Seems the word commitment only may work one way should that happen. I commit to serve my country for so long and they commit to medical benefits I incurred while serving for life, or till I'm 70, or till I'm dead or until they decide to stop.I think I am going to call my congressman right now!

Seems to me, the buyout thing is a procedure in lieu of anticipated barrage of claims. Legals like to defer to precidence, and heretofore buyouts would be such that.

Altho I had to ask my screener person to repeat herself on several occasions, she said my hearing was just fine and actually above averagfe for my age and experience. Commercial hearing specialists beg to differ with her, but she is the one that can refer me to compensation and treatment.

hearing

Huh? What did you say?

Buyout

I learned today that the Veterans Benefits Commission has rejected the idea of a buyout for the 10% and 20% disabled veterans. The information was in a column in the VVA Veteran magazine. The theory is that it does not benefit the veteran, the military retiree or the government. I hope this issue stays submerged forever.

In the meantime we continue with hope against hope that the Supreme Court will make a favorable ruling on Bi-Lateral Tinnitus. I am not holding my breath.

Supreme Court update

Here is the latest on what is happening on this issue in the Supreme Court.

http://www.supremecourtus.gov/docket/06-400.htm

At least it is still alive.

Another one bites the dust

Well, the veterans lose again, so what else is new. Forgive me if I am pessimistic....................:(

http://www.vawatchdog.org/07/nf07/nfJAN07/nf012407-6.htm

Well Chippysgt it's kinda like VA disability math. 10+10 =10.

1 ear + 1 ear = 1 ear...

Well it is official and I have it n print. Got my BVA ruling yesterday. I may have two ears affected by tinnitus but I onle get one 10% rating..

Soggy noodles to me.:)