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Proving VA Tinnitus ClaimsVA Tinnitus Claims (tinnitus is that incessant ringing in the ears that nearly every Veteran suffers from) are one of the most common VA Claims.

And,VA Tinnitus Claims used to be one of the easiest to prove.

To prove a VA Tinnitus Claim, you simply have to show the 4 pillars: exposure to noise in service or symptoms in service, a current diagnosis of tinnitus, and the rating should be automatic – 10% is the highest you can get.

Obstacles Veterans Face in VA Tinnitus Claims.

The biggest obstacle for Veterans in VA Tinnitus Claims was proof of nexus; a medical diagnosis is not always necessary.

After all, who goes to spend money for the doctor to tell them that the ringing in the ears is a condition known as tinnitus for which there is no known cure?

Nobody.

In fact, a Veteran’s credible and competent lay evidence of ringing in the ears typically suffices for proof that the Veteran has the condition.

Caveat: I’m not a doctor, but you probably should have a doctor look to verify that the ringing is actually tinnitus, and not a symptom of a much more significant brain or neurological disorder.

But the diagnosis – or reported current and in-service symptoms of tinnitus – is not enough to win a VA Tinnitus Claim.

Remember the 4 pillars?

Which one is missing in the above example?

Nexus – or as I call it, the bridge to service-connection – is a surprising challenge for Veterans to prove in their VA Tinnitus Claims.

To show nexus for a VA tinnitus claim, it used to be that a Veteran merely had to show continuity of symptomatology from discharge (or in-service) through diagnosis of the condition.

It USED to be that the lay evidence of a chronic condition, coupled with competent and credible proof of continuous symptoms from discharge through diagnosis was enough to show “Continuity of Symptomatology”.

That Continuity of Symptomatology used to take the place of an Independent Medical Exam Opinion or a C&P Exam in a VA tinnitus claim.

But a few years back, in the Walker case, the Court basically eliminated “Continuity of Symptomatology” as a valid form of proof of nexus in a service connection claim for all but a few types of medical conditions.

The Walker case essentially said: continuity of symptomatology is not permissible proof of nexus unless the medical condition is expressly listed in this regulation as a chronic condition: 38 C.F.R. § 3.309(a).

Fast forward to 2015, when a precedential decision of the CAVC changed that – at least when it comes to VA Tinnitus Claims.

The “Fountain” Decision, and How it Changed VA Tinnitus Claims.

Here are the basic facts of the “Fountain” decision.  You can read the full case here, if you like.  Fountain v. McDonald, 13-0540 (2015).

The Facts of the Fountain Case

The Veteran in this case served on active duty in the U.S. Army from February 1977 to July 1980.

He was a motor transport operator, driving large engine diesel trucks and was diagnosed with bilateral hearing loss.

At that time, he filed an application for VA benefits for a problem with his  “hearing.”

This Case timeline ensued:

December 1980:  VA regional office (VARO)  granted service connection for bilateral hearing loss, albeit at a non-compensable level.

January 2009: Veteran filed a VA Tinnitus Claims along with a request to increase disability compensation for his hearing loss.  (He reported that a practice round exploded directly in his face, blowing off his helmet, and caused temporary deafness and considerable tinnitus.)

May 2009: The VA audiologist examiner noted that there was less than a 50/50 probability that the tinnitus was caused by in-service acoustic trauma. This is common -VA Tinnitus Claim C&P opinions often cite the lack of complaints or diagnosis of tinnitus in-service (an impermissible consideration in most cases)

May 2009:  VA Tinnitus claim denied, citing lack of nexus between his current tinnitus and his service.

The Veteran did not appeal the decision, and it became final.

November 2010: The Veteran filed a claim to reopen the disallowance of his VA tinnitus claim. He stated that he was never asked about tinnitus while in the service and did not know it was a disability until recently.

2011: VA Tinnitus Claim denied again; Veteran filed a timely Notice of Disagreement

January 2013: The BVA granted reopening, but denied service connection of the Veteran’s tinnitus claim.

Notice the fact that it took 3+ years, and countless man hours, to deny a compensation claim that at most will pay 10% – as of 2016, about $135 a month.  Assuming this Veteran lived to the age of 85, the most that the VA would have paid over the life of that claim was $48,600. Add up all the time spent on this case – by multiple raters, doctors, lawyers, judges and court personnel –  I imagine it cost the VA far more to deny the case then it would have cost to just grant it – which, as it turns out, the Court told them they should have done.

The Law of the Fountain Case

The basis of the BVA denial of the VA tinnitus claim was  rejection of the Veteran’s admittedly credibly and competent testimony concerning the continuity of his tinnitus symptoms after service.

At the Court, the VA defended that error, arguing the Walker case I mentioned above.

The VA’s attorney at the Office of General Counsel defended the VA, and made a host of other – in my opinion – frivolous and ex post facto arguments, which the Court succinctly addressed in the full opinion.  You should read it.  It’s enlightening.

The Court disagreed. It looked, instead, to 38 USC 1101.

This statute allows a Veteran to prove the element of nexus for chronic conditions using continuity of symptomatology.

The word “Chronic disease” is statutorily define in 38 U.S.C. § 1101, as “organic diseases of the nervous system,” and such other chronic diseases as the Secretary may add to the list.

This leaves the question – is tinnitus an “organic diseases of the nervous system”?

The VA – as pointed out in great detail by the Court – has long said “yes, tinnitus is an organic disease of the nervous system”.

The Secretary’s attorney tried to make up some creative – but intellectually dishonest – arguments that tinnitus was not a disease of the nervous system and was in fact not a disease at all but a symptom.

The Court even pointed to the VA’s own Training Letter acknowledges that tinnitus originates in the central nervous system.

The Holding of the Fountain Case.

So there you have it, tinnitus is an organic disease of the nervous system, and you can prove the element of nexus by showing chronicity and continuity of symptomatology from discharge through diagnosis.

Proving VA Tinnitus Claims.

Okay, here’s the practical skills portion of the post – because, after all, the law is useless unless we can use it, right?

Here’s how to prove nexus in your VA Tinnitus claims.

Draft a Sworn Declarationdo not use VA Form 21-4138 – with the following information:

  1. List each and every incident of significant noise exposure you can remember – and give enough detail to show that the exposure was significant and credible Grenade blasts, artillery rounds, simulators, constant machine-gun fire, years around loud jet or tank engines, you get the idea.  Don’t OVERDO it…1-3 sentences should suffice, but identify if you can the approximate month and year of the noise exposure.
  2. State approximately when you remember the tinnitus starting.
  3. If it started in service, explain why you didn’t seek medical treatment in service (for most Veterans, explaining the reality of military service to bureaucrats will suffice: no soldier, sailor, or airmen is going to stop a mission or training to seek treatment for a condition that everybody has and that there is no cure for. True Story).
  4. Identify the chronicity of your tinnitus – has it been continuous since exposure to the noise?  If yes, explain that you have had this ringing since the exposure to noise.
  5. Identify the frequency of your tinnitus – how often do you have ringing in the ears?  Every day? Twice a week? 4 times a month?
  6. Identify the severity of your tinnitus. I think you need only do this if your tinnitus is so severe that it is debilitating, prevents you from working, or in ery rare cases, is “objective tinnitus”, meaning it can be heard by other people standing next to you.  In these cases, you might be able to seek an extra-schedular rating for the tinnitus in excess of the 10% limit in the Schedule of Impairment Ratings.
  7. Use my Get to the Point Video – or if you are just starting your claim, use the How to File a VA Claim Training Package – to learn how to persuasively present this information to the VA or the BVA.

In whatever format you submit this information to the VARO through the VA Evidence Intake Center remember: VARO Raters and BVA VLJs are not always  up to date on the law – and even though this case is almost a year old, I still see the VA ignoring it.

So…..be sure to point out the Fountain case and the holding for which it stands:

“Tinnitus is a chronic and organic disease of the nervous system, and the Veteran may establish nexus with lay evidence with proof of continuity of symptomatology”.

There it is, folks – 7 steps to proving VA tinnitus claims.

Good luck, and be sure to let me know if the VA or BVA denies your claim even after you’ve  used these steps.   Click the green “support” button in the lower right to contact me.

 

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