CAVC Case 02-1284: Hearing Loss

CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · June 8, 2005 · GREENE

This is a decision of the U.S. Court of Appeals for Veterans Claims — the federal court that reviews Board of Veterans' Appeals decisions, one level above the Board. Court decisions can vacate, reverse, or affirm what the Board did.

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Rating	Monthly (2026, incl. 2.8% COLA)
10%	$180.42
20%	$356.66
30%	$552.47
40%	$795.84
50%	$1,132.90
60%	$1,435.02
70%	$1,808.45
80%	$2,102.15
90%	$2,362.30
100%	$3,938.58

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Outcome

Vacated / Remanded

Decision Date

June 8, 2005

Judge

GREENE

Service Era

Not specified

Conditions Claimed

Hearing Loss Tinnitus Hip Heart Respiratory Eye

Issues on Appeal

Hearing LossTinnitusHipHeartRespiratoryEye

Why It Was Decided This Way

Kowalski maintains that the Board erred by denying his hearing- loss claim on the basis that he had abandoned it by refusing to report for a VA medical examination and by also concluding that a private audiologist's opinion, which stated that his hearing loss "quite likely" began in service, had no probative weight because it was based solely on Mr.

The Secretary contends that, should the Court conclude that the Board erred by denying Mr.

Kowalski appealed to the Board, and on June 21, 2002, the Board found that Mr.

Alternatively, the Board determined that the preponderance of the evidence of record was against awarding Mr.

229 (1993), the Board found: [The] preponderance of evidence is against the veteran's claim.

The evidence in essence consists of the nexus opinion of an audiologist based on the veteran's own reports of noise exposure during service.

Although the Board erred by concluding that under § 3.

The Secretary's duty to assist under the facts of this case was particularly great in light of the unavailability of Mr.

Authorities Cited

Busic v. United StatesDusek v. DerwinskiGilbert v. DerwinskiHare v. DerwinskiIn Struck v. BrownJones v. WestKutscherousky v. WestMariano v. PrincipiMoore v. DerwinskiOlson v. PrincipiReonal v. BrownSee Allday v. BrownSee Bucklinger v. BrownSee Cuevas v. PrincipiSee Hickson v. WestSee Kay v. PrincipiSee Rose v. WestSee Schafrath v. DerwinskiSee Shoffner v. PrincipiSee Sizemore v. PrincipiSee Wilson v. DerwinskiSee Zimick v. WestSwann v. BrownUrban v. PrincipiWood v. Derwinski

Regulations Cited (38 CFR / 38 USC)

38 CFR 3.15838 CFR 3.158 (2001)38 CFR 3.158(a)38 CFR 3.158(b)38 CFR 3.2(e)38 CFR 3.2(e) (2004)38 CFR 3.303(a) (2003)38 CFR 3.304(c) (2001)38 CFR 3.326(b)38 CFR 3.326(c)38 CFR 3.655(a)38 CFR 3.655(b) (2001)38 CFR 4.85 (2001)38 USC 1154(b)38 USC 510338 USC 512538 USC 7104(a)(d)(1)38 USC 7252(a)38 USC 7261(a)(4)38 USC 7261(b)(2)

Denial Type

Credibility|No Nexus|Preponderance Against|Duty To Assist

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