Veteranclaims’s Blog

August 23, 2018

Single Judge Application; sensorineural hearing loss not the same as conductive hearing loss; Boggs, 520 F.3d at 1334;Clemons, 23 Vet.App. at 7 (discussing Boggs);

Excerpt from decision below:

“The Board and the Secretary’s reliance on Boggs as a basis to conclude that the appellant’s reopened claim was limited to hearing loss is unavailing. In Boggs, the U.S. Court of Appeals for the Federal Circuit faced the issue of whether two hearing-loss related claims should be considered to have the same factual basis for purposes of 38 U.S.C. § 7104(b), which provides that when a claim is finally decided, a claim based upon the same factual basis may not be considered, unless the claimant submits new and material evidence. 520 F.3d at 1334. The Court recognized that if
a claim does not have the same factual basis as a prior finally denied claim, then the veteran is not seeking to reopen his prior claim, but rather, is opening a new claim in which the new and material evidence requirement is inapplicable. Id.
The Federal Circuit held that Mr. Boggs’s claim for sensorineural hearing loss was not the same as an earlier finally denied claim for conductive hearing loss. Id. at 1337. The Court reasoned that because Mr. Boggs’s claim for sensorinerual hearing loss was based on a distinctly different diagnosed disease than conductive hearing loss, he was not attempting to reopen the finally denied claim for conductive hearing loss on the same factual basis. Id. Rather, he was seeking to file a new claim for sensorineural hearing loss. Because his conductive hearing loss claim was a new claim, he did not have to submit new and material evidence to reopen this claim. Id. Thus, Boggs stands for the proposition that when VA finally denies a claim based on a particular diagnosis, the
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appellant’s subsequent submission of a new and different diagnosis must be considered factually distinct from the first and must be considered to relate to a separate claim. Clemons, 23 Vet.App. at 7 (discussing Boggs).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 08-2692
WALTER L. RADU, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

SCHOELEN, Judge: Walter L. Radu, appeals, through counsel, the May 5, 2008, decision of the Board of Veterans’ Appeals (Board) that denied entitlement to a compensable evaluation for bilateral hearing loss and an effective date prior to March 21, 2003, for a 10% disability rating for tinnitus. Record (R.) at 3-16. This appeal is timely, and the Court has jurisdiction to review the
Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Both parties filed briefs.
Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
Because the Court finds that the Board did not provide an adequate statement of reasons or bases for
its decision that the appellant was not entitled to an extraschedular rating for hearing loss, the Court
will remand the claim for a compensable evaluation for hearing loss for further adjudication.
Additionally, because the Court finds clearly erroneous the Board’s finding that the appellant’s
December 5, 2002, claim did not encompass a claim to reopen his previously denied tinnitus claim,
the Court will reverse that finding and remand for further adjudication the matter of the appellant’s
entitlement to an effective date prior to March 21, 2003.
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I. BACKGROUND
The appellant served in the U.S. Navy from March 1970 to September 1974. R. at 323.
During service, the appellant worked as a jet engine mechanic. R. at 292. In August 1974, the
appellant underwent an audiometric examination as part of his separation medical examination.
R. at 342. The test results showed abnormal hearing in the pure tone thresholds at the 4,000 and
6,000 Hertz levels. Id.
In December 1976, the appellant filed a claim seeking disability compensation benefits for
“hearing loss and occasional ringing in the ear (right)” that “first started in 1971 when I first started
working around jets. Noticed problem increased during period of duty with Arizona Army Guard
in Helicopters.” R. at 375. In a medical history that the appellant provided in connection with a VA
medical examination, the appellant stated that after working around the jet powered aircraft he
suffered “an extremely noticeable range loss in my right ear and occasionally under different
circumstances experience[d] loud ringing in my right ear. R. at 98. In March 1977, the appellant
underwent a VA audiometric examination in which the hearing examiner concluded that his “hearing
acuity is within normal limits, bilaterally.” R. at 339.
On April 26, 1977, a VA regional office (RO) denied the appellant’s request for disability
compensation benefits. R. at 327. In doing so, the RO characterized the nature of the appellant’s
request for benefits as “service connection for hearing loss with ringing in right ear” and denied the
request because it concluded that “hearing deficiency [was] not found on last examination.” Id. An
April 29, 1977, letter from the RO notified the appellant that
[w]e have carefully examined all the evidence in your file including the Veterans
Administration Hospital examination date March 23, 1977. The separation
examination on August 12, 1974[,] indicated a hearing deficiency on audiometric
testing. This is confirmed by the records. At the time of your last examination,
however, there were no findings of any disability that might have resulted.
R. at 326. The appellant did not appeal the April 1977 RO decision.
On December 5, 2002, the appellant notified VA: “I am requesting reopened service
connect[ion] for bilateral hearing.” R. at 310. The RO interpreted this letter as a request to reopen
the appellant’s claim for hearing loss only and did not consider the appellant’s letter as a request to
consider the RO’s previous denial for disability compensation benefits for tinnitus.
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On March 14, 2003, the appellant underwent a VA hearing examination. R. at 302-04. The
examiner diagnosed the appellant as having bilateral “severe high frequency sensorineural hearing
loss.” R. at 304. The examiner opined that “based on the veteran’s reported history of in-service and
postservice noise exposure . . . it is not possible to delineate the etiology of the hearing loss.” Id.
He stated further: “Although it is possible that the hearing loss had its origins in the service, the ratio
of possibility is so difficult to determine that it would only be speculative.” Id.
In a letter to the RO that was received on March 21, 2003, the appellant complained that his
hearing loss and ringing in his ear had worsened over the years. R. at 292. On March 25, 2003, the
RO granted the appellant service connection for bilateral hearing loss, and rated the disability as
noncompensable, effective December 2002, the date of the reopened claim. R. at 299-301. In
July 2003, the RO continued to rate the appellant’s hearing loss as noncompensable. R. at 277-79.
On March 30, 2004, the appellant appealed the RO decision assigning a noncompensable rating for
his hearing loss. R. at 274. During the course of his appeal, the appellant informed VA that he was
forced to resign from his employment with the fire department because of physical injuries. R. at
165-66. He stated that although he had been recommended for jobs as a fire dispatcher and
telephone solicitor, he could not pass the hearing test or perform the duties associated with these jobs
because of his hearing loss. Id.
On September 27, 2004, the appellant requested that VA “open [his] claim for
[service-connected] tinnitus.” R. at 252. On March 25, 2005, VA gave the appellant a hearing
examination. R. at 327-28. The VA examiner diagnosed the appellant with tinnitus and opined that
the tinnitus “is as likely to be related to his hearing loss and to the noise exposure he had while on
the tour of duty.” R. at 328. On April 4, 2005, the RO awarded the appellant disability
compensation benefits for tinnitus and assigned a 10% disability rating, effective
September 27, 2004. R. at 232-34.
On November 1, 2005, the appellant appealed the effective date of the award of
compensation benefits for tinnitus. R. at 218-21. During the course of the appeal, the appellant
explained that he began suffering from ringing in the ears during service at the same time that he
began experiencing hearing loss. R. at 164-65, 218-19. He thought that the two conditions were
related to hearing loss. R. at R. 191, 219-20. He also explained that he when filed his reopened
claim for hearing loss he was not aware that these conditions were two separate disabilities that
required separate claims. Id. Once he learned that the RO viewed these as two separate disabilities
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requiring separate claims to reopen, he filed a claim in 2004 to reopen the previously denied claim
for tinnitus. R. at 191.
On May 5, 2008, the Board issued the decision here on appeal. R. at 3-16. The Board
determined that the appellant was not entitled to either a compensable schedular rating or an
extraschedular evaluation for his hearing loss. R. at 4-5. The Board also determined that the
appellant was not entitled to an effective date prior to March 21, 2003, for tinnitus. R. at 5.
II. ANALYSIS
A. Extraschedular Rating for Bilateral Hearing Loss
The appellant does not assert that the Board’s finding that he was not entitled to a
compensable schedular rating for his hearing loss is erroneous. Rather, he disputes the Board’s
findings regarding his entitlement to an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)
(2010). In this regard, the Board found that the appellant’s hearing disability did not produce an
unusual or exceptional disability picture that would warrant an extraschedular evaluation. R. at 5.
The Board reasoned that even though the veteran was unable to work as a fire dispatcher or
telephone solicitor because of his hearing loss, “there is nothing in the record which indicates that
there is not other employment which the veteran could perform.” R. at 13. Additionally, the Board
stated that “while . . . the veteran experiences difficulties hearing certain types of speech at home and
in work settings, in light of his documented audiometric test results and the lack of a showing of
marked interference in the work setting, the Board finds the circumstances warranting referral [for
extraschedular consideration] do not exist.” Id.
The appellant argues that the Board failed to provide an adequate statement of reasons or
bases for its decision not to refer his claim for a compensable rating for hearing loss for
extraschedular consideration. Appellant’s Brief (Br.) at 20-21. In support of his argument, he asserts
that the Board used an incorrect standard when it denied the appellant’s claim on the basis that he
failed to show that he was unemployable. Id. The Secretary counters that the Board provided an
adequate statement of reasons and bases for its finding. Secretary’s Br. at 11-14. The Secretary
contends, without explanation, that the Board applied the appropriate standard for evaluating the
appellant’s entitlement to an extraschedular evaluation. Id. at 14.
The Board is required to include in its decision a written statement of the reasons or bases
for its findings and conclusions on all material issues of fact and law presented on the record; that
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statement must be adequate to enable an appellant to understand the precise basis for the Board’s
decision, as well as to facilitate informed review in this Court. See 38 U.S.C. § 7104(d)(1);
Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
To comply with this requirement, the Board must analyze the credibility and probative value of the
evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the
reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown,
7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table);
Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, supra.
Generally, it is sufficient to evaluate a disability using either the corresponding or analogous
diagnostic codes contained in the rating schedule. See 38 C.F.R. §§ 4.20, 4.27 (2009). “However,
in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular
rating.” Thun v. Peake, 22 Vet.App. 111, 114 (2008); cf. Martinak v. Nicholson, 21 Vet.App.
447, 455-56 (2007) (recognizing that because an extraschedular rating for hearing loss may be
appropriate, VA hearing examiners should comment on any functional effects of a hearing
disability). When either a claimant or the evidence of record suggests that a schedular rating may
be inadequate, the Board must specifically adjudicate the issue of whether referral for an
extraschedular rating is warranted. See Colayong v. West, 12 Vet.App. 524, 536 (1999). Factors that
may indicate that an extraschedular rating is warranted include “marked interference with
employment or frequent periods of hospitalization” beyond the contemplation of the rating schedule.
38 C.F.R. § 3.321(b)(1) (2010).
In Thun, the Court concluded that “determination of whether a claimant is entitled to an
extraschedular rating under § 3.321(b) is a three-step inquiry.” Thun, 22 Vet.App. at 115. First, the
Board or the RO must determine whether the evidence presents “such an exceptional disability
picture that the available schedular evaluations for that service-connected disability are inadequate.”
Id. To do this, the Board or the RO must determine whether the criteria found in the rating schedule
reasonably describe the claimant’s disability level and symptomatology. If so, the claimant’s
disability picture is contemplated by the rating schedule and the assigned schedular evaluation is,
therefore, adequate, and no referral is required. Id. However, if the schedular evaluation does not
contemplate the claimant’s level of disability and symptomatology, the RO and Board move to the
second prong of the analysis. Id.
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Under the second prong, the RO and Board must determine whether the claimant’s
exceptional disability picture exhibits other related factors such as “marked interference with
employment” and “frequent periods of hospitalization.” Id. In sum, if the Board determines that the
schedular evaluation does not contemplate the claimant’s level of disability and symptomatology,
and the disability picture exhibits other related factors such as marked interference with employment
or frequent periods of hospitalization, the case must be referred for completion of the third step – to
determine whether, to accord justice, an extraschedular rating must be assigned. Id.
Here, the Court finds the Board’s discussion of extraschedular consideration is inadequate.
The Board failed to appropriately consider whether an extraschedular disability rating was warranted
in accordance with the procedure set forth in Thun. In making an extraschedular determination,
Thun requires that the Board compare the claimant’s disability picture with the criteria found in the
rating schedule for that disability. 22 Vet.App. at 115. The Board decision contains no discussion
as to whether the rating schedule reasonably describes the appellant’s hearing disability and his
symptomatology. It was error for the Board not to make this comparison in evaluating the appellant
for extraschedular consideration.
Additionally, the Board’s analysis of whether the appellant is entitled to a referral for
extraschedular consideration is inadequate because it conflates the criteria in § 3.321(b) with the
criteria for a total disability rating based on individual unemployability in 38 C.F.R. § 4.16(b)
(2010). This Court has recognized that “the effect of a service-connected disability appears to be
measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1)
. . . and for purposes of a TDIU claim under 38 C.F.R. § 4.16.” Kellar v. Brown, 6 Vet.App. 157, 162
(1994). While the former requires marked interference with employment, the latter requires evidence
of unemployability. Id.; see also Thun, 22 Vet.App. at 117 (“[Extraschedular] consideration [under
§ 3.321] may be warranted for disabilities that present a loss of earning capacity that is less severe
than one where the veteran is totally unemployable.”). Because the Board applied an incorrect legal
standard and failed to provide an adequate statement of reasons or bases for its decision, the Court
will remand this claim. Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that a remand is the
appropriate remedy “where the Board has incorrectly applied the law, failed to provide an adequate
statement of reasons or bases for its determinations, or where the record is otherwise inadequate”).
The Court will not at this time address the remaining arguments and issues raised by the appellant
concerning his entitlement to an extraschedular evaluation. See Best v. Principi, 15 Vet.App. 18,
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20 (2001) (“A narrow decision preserves for the appellant an opportunity to argue those claimed
errors before the Board at the readjudication, and, of course, before this Court in an appeal, should
the Board rule against him.”).
B. Effective Date for Tinnitus
The Board made two factual findings that are relevant to the appellant’s appeal of the
appropriate effective date for the assignment of an award for tinnitus. First, the Board, relying on
Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008), concluded that when the appellant submitted his
December 2002 claim to reopen, the claim did not include a claim to reopen the previously denied
claim for tinnitus. R. at 14. Second, the Board concluded that the RO was not “in possession of any
communication prior to March 21, 2003, which can reasonably be construed as a formal or informal
claim to reopen a previously denied claim for tinnitus.” R. at 5.
The appellant argues that he is entitled to an earlier effective date for the 10% disability
rating for tinnitus because the Board should have construed his December 2002 correspondence as
a claim to reopen his previously denied claim for tinnitus and that the Board erred when it stated that
his request to reopen was limited to hearing loss. Appellant’s Br. at 10-14. In this regard, he argues
that when the RO denied his claims in 1977 and informed him of that denial, the RO treated these
two separate diseases as though they constituted a single claim. Id. Consequently, when he
reopened his “hearing” claim, he intended his reopened claim to encompass both hearing loss and
tinnitus just as the RO had characterized it in 1977. Id.
The Secretary responds that the Board did not err in concluding that the appellant’s
December 2002 claim did not include a claim to reopen for tinnitus. Secretary’s Br. at 16-17. In this
regard, the Secretary argues that the Board properly relied on Boggs to conclude that because tinnitus
is a wholly separate claim from hearing loss, and because the appellant’s December 2002
correspondence did not mention tinnitus, his December 2002 claim should not be construed as a
claim to reopen his previously denied claim for tinnitus. Id.
It is well established that VA is required to identify and act on informal claims for benefits, 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a) (2010), and must fully and sympathetically develop a veteran’s claim to its optimum before reaching the claim on its merits. Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998). Developing a claim to its optimum requires that the Secretary give a sympathetic reading to a pro se veteran’s filings by “determin[ing] all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the
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claim is specifically labeled as a claim for [a particular benefit].” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); see also Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).
“A claimant’s intent in filing a claim is paramount to construing the breadth of the claim.” Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009). When ascertaining a claimant’s intent, the Board should focus on the reasonable expectations of the nonexpert, self-represented claimant and the evidence developed in processing the claim. Id. Accordingly, although a claimant may mention a particular diagnosis when filing a claim, the claim may not be limited only to that diagnosis. Id.
Whether a sympathetic reading of prior filings raises a claim for benefits is essentially a factual inquiry that is reviewed under the “clearly erroneous” standard. See 38 U.S.C. § 7261(a)(4); see Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Ellington v. Nicholson, 22 Vet.App. 141, 144 (2007), aff’d, 541 F.3d 1364 (Fed. Cir. 2008); Beverly v. Nicholson, 19 Vet.App. 394, 405 (2005). “‘A finding is “clearly erroneous” when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has
been committed.'” Gilbert, 1 Vet.App. at 52 (quoting United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948)). The Court may not substitute its judgment for the factual determinations of the
Board on issues of material fact merely because the Court would have decided those issues
differently in the first instance. Id.
Here, in 1976, when the appellant filed his initial application for disability compensation, he
informed the RO that he sought benefits for “hearing loss [and] occasional ringing in the [right] ear.”
R. at 375. Likewise, when the RO adjudicated his claim in April 1977, it also characterized the
claim as involving “hearing loss with ringing in right ear.” R. at 327. The April 29, 1977, RO letter
notifying the appellant of the RO decision explains that the claim was denied because no “hearing
deficiency” was found on the most recent examination of the appellant. R. at 326. That letter does
not mention tinnitus, and it makes no distinction between the appellant’s hearing loss and tinnitus
or in any way suggests that these are two separate claims involving separate disabilities. Instead, the
April 1977 letter generally refers to the two disabilities as though they fall under one umbrella –
involving a “hearing deficiency.” By referring to the appellant’s hearing loss and tinnitus simply as
a “hearing deficiency,” the April 1977 letter creates the impression that the appellant’s hearing loss
and tinnitus are parts of a single “hearing deficiency” claim.
In December 2002, when the appellant requested that the RO reopen his service-connection
claim for “hearing,” the appellant described his disabilities in a manner that was consistent with the
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RO’s description of those disabilities in the April 1977 RO letter. Indeed, during the course of the
appellant’s appeal for an earlier effective date for tinnitus, he repeatedly informed the RO that he did
not think it was necessary for him to specifically mention tinnitus in his reopened claim. R. at 191.
He explained that he thought that tinnitus and hearing loss were part of the same hearing disability
that did not require filing separate claims. R. at 191, 219-20. He also reported that he filed a claim
to reopen tinnnitus in 2004, after he learned from a service officer that he needed to specifically
request that the RO reopen his claim for tinnitus. R. at 191.
The Court concludes that the RO did not give a sympathetic reading to appellant’s filings
when ascertaining the scope of his December 2002 reopened claim. The Board failed to focus on
the reasonable expectations of the nonexpert appellant, which were created, in part, because of the
way the RO communicated with the appellant concerning the nature of his claim. Accordingly, the
Court is left with the definite and firm conviction that the Board erred when it concluded that the
appellant’s December 2002 reopened claim did not include a claim to reopen his previously denied
claim for tinnitus and that the RO had not received a claim to reopen tinnitus until March 21, 2003.
The Board and the Secretary’s reliance on Boggs as a basis to conclude that the appellant’s reopened claim was limited to hearing loss is unavailing. In Boggs, the U.S. Court of Appeals for the Federal Circuit faced the issue of whether two hearing-loss related claims should be considered to have the same factual basis for purposes of 38 U.S.C. § 7104(b), which provides that when a claim is finally decided, a claim based upon the same factual basis may not be considered, unless the claimant submits new and material evidence. 520 F.3d at 1334. The Court recognized that if a claim does not have the same factual basis as a prior finally denied claim, then the veteran is not seeking to reopen his prior claim, but rather, is opening a new claim in which the new and material evidence requirement is inapplicable. Id.
The Federal Circuit held that Mr. Boggs’s claim for sensorineural hearing loss was not the same as an earlier finally denied claim for conductive hearing loss. Id. at 1337. The Court reasoned that because Mr. Boggs’s claim for sensorinerual hearing loss was based on a distinctly different diagnosed disease than conductive hearing loss, he was not attempting to reopen the finally denied claim for conductive hearing loss on the same factual basis. Id. Rather, he was seeking to file a new claim for sensorineural hearing loss. Because his coWritenductive hearing loss claim was a new claim, he did not have to submit new and material evidence to reopen this claim. Id. Thus, Boggs stands for the proposition that when VA finally denies a claim based on a particular diagnosis, the
10
appellant’s subsequent submission of a new and different diagnosis must be considered factually distinct from the first and must be considered to relate to a separate claim. Clemons, 23 Vet.App. at 7 (discussing Boggs).
In this case, the appellant concedes that the RO denied his claims for compensation for both
hearing loss and tinnitus in 1977. Unlike Mr. Boggs, he is not arguing that he was not required to
submit new and material evidence to reopen the RO’s 1977 final decision regarding tinnitus. Rather,
he contends that the scope of his 2002 reopened claim was broad enough to encompass both tinnitus
and hearing loss. The substance of the appellant’s argument goes to his intent when he filed his
reopened claim in 2002. Clemons, 23 Vet.App. at 5 (“A claimant’s intent in filing a claim is
paramount to construing the breadth of the claim.”). Boggs, which is limited to the issue of
determining when two claims have been decided on the same factual basis, is not helpful in
determining the appellant’s intent at the time he filed his reopened claim. Accordingly, the
Secretary’s reliance on Boggs is misplaced.
Because the Court concludes that the Board’s factual findings that the appellant’s
December 2002 claim to reopen the denial of his claim for a hearing loss did not include a claim to
reopen the denial of his claim for tinnitus is clearly erroneous, the Court will reverse the Board’s
findings.
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and a review of the
record, the May 5, 2008, Board decision as to the appellant’s entitlement to an extraschedular rating
is VACATED. Regarding the appellant’s entitlement to an effective date prior to March 21, 2003,
for tinnitus the Court REVERSES the Board’s finding that the appellant’s December 2002 claim to
reopen a previously denied claim for bilateral hearing loss, did not also include a claim to reopen a
previously denied claim for tinnitus. These matters are REMANDED to the Board for further
proceedings consistent with this decision.
DATED: July 8, 2010
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Copies to:
Denis L. Peterson, Esq.
VA General Counsel (027)

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