Veteranclaims’s Blog

March 10, 2020

Training Letter 10-02 has since been rescinded due to its incorporation into the Veterans Benefit Administration (VBA) Adjudication Procedures Manual (M21-1), pt. III, subpt. iv, ch. 4, § D.1-3

Fountain v. McDonald, 27 Vet. App. 258 (2015):

In this case, the Appellant appealed a decision of the Board that denied entitlement to service connection for tinnitus. The Board rejected the Appellant’s statements concerning the continuity of his symptoms after service based on the absence of complaints of tinnitus symptoms during service and for many years after service. It was also noted that he had not filed a claim for VA benefits for tinnitus during the 29 years that had elapsed since his separation from service, despite filing other claims for compensation during that time period. In addressing whether tinnitus was an “organic disease of the nervous system” and therefore entitled to the presumptions of service connection contained in 38 U.S.C. § 1101(3) and 38 CFR § 3.309(a), the CAVC held that the phrase “organic disease of the nervous system” 13 is ambiguous. After finding the Secretary’s position “not persuasive,” the CAVC held that tinnitus is a disease, not a symptom, consistent with the Secretary’s recognition of tinnitus as a disability in VA’s Schedule of Rating Disabilities, and, at a minimum, is an organic disease of the nervous system where there is evidence of acoustic trauma. As a result, the CAVC determined that the appellant may establish entitlement to VA benefits based on chronicity or the continuity of his symptoms. In addition, the CAVC reaffirmed that the Board may weigh a claimant’s lay statements against the absence of contemporary medical evidence, but must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation. The CAVC also held that, based on guidance provided to VA examiners in VA Training Letter 10-02 and VA Fast Letter 08-10, the Board erred when it failed to consider whether the Appellant’s tinnitus was secondary to his service-connected hearing loss. This case is significant because the CAVC held that service connection for tinnitus may be established under 38 U.S.C. § 1101(3) and 38 CFR § 3.309(a).

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