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Latest Info On Bi-lateral Tinnitus Law


jessejames

Question

Below is more from the Veterans Court about "Bilateral Tinnitus",

wherein the VA secretary admits that a separate 10 percent for each

ear is within the law, and the courts say the VA must comply.

Your Editor,

Ray B Davis Jr

Editor valaw.org

"CONCLUSION

On the basis of the foregoing analysis, the Court AFFIRMS the

November 21, 2003, Board decision with regard to Mr. Stolasz's claim

for entitlement to an initial compensable rating for bilateral

hearing loss; REVERSES the November 21, 2003, Board decision to the

extent that it determined that Mr. Stolasz was not entitled to

separate disability ratings for each ear for his service-connected

bilateral tinnitus; and REMANDS that matter for expeditious issuance

of a decision consistent with this opinion. With regard to Mr.

Anderson, the Court REVERSES the December 23, 2003, Board decision

that Mr. Anderson was not entitled to separate disability ratings for

each ear for his service-connected bilateral tinnitus and REMANDS

that matter for expeditious issuance of a decision consistent with

this opinion." See complete cae below.

Your Editor,

Ray B Davis Jr

Editor valaw.org

-- Veterans Court--

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 04-0217

Theodore J. Stolasz, Appellant,

and

No. 04-0344

Willliam J. Anderson, Appellant,

v.

R. James Nicholson,

Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans' Appeals

(Argued August 30, 2005

Decided October 19, 2005 )

Ronald L. Smith and Landon Overby (non-attorney practitioner), with

whom Leslie C. Rogall, all of Washington, D.C., were on the brief for

the appellants.

Kenneth A. Walsh, with whom Tim S. McClain, General Counsel; R.

Randall Campbell, Assistant General Counsel; Carolyn F. Washington,

Deputy Assistant General Counsel; and Catherine A. Chase, all of

Washington, D.C., were on the brief in case No. 04-0217, for the

appellee. Tim S. McClain, General Counsel; R. Randall Campbell,

Assistant General Counsel; and Brian Rippel, Deputy Assistant General

Counsel, all of Washington, D.C., were on the brief in case

No. 04-0344, for the appellee.

Before HAGEL, LANCE, and SCHOELEN, Judges.

SCHOELEN, Judge: The appellant, Theodore J. Stolasz, through counsel,

seeks review of a November 21, 2003, Board of Veterans' Appeals

(Board or BVA) decision that denied his claim for separate disability

ratings for each ear for service-connected bilateral tinnitus.

Stolasz Record (Stol. R.) at 1-9. Also before the Court is the

appellant, William J. Anderson, who, through counsel, seeks review of

a December 23, 2003, BVA decision that denied his claim for separate

disability ratings for each ear for service-connected bilateral

tinnitus. Anderson Record (Ande. R.) at 1-7. The appellants and the

Secretary filed briefs. On August 30, 2005, the Court heard oral

argument in this consolidated case. These appeals are timely, and

the Court has jurisdiction over the cases pursuant to

38 U.S.C. §§ 7252(a) and 7266. The issue on appeal in both cases is

whether a June 2003 amendment to regulation 38 C.F.R. § 4.87 (2004),

Diagnostic Code (DC) 6260, prohibiting separate disability ratings

for bilateral tinnitus, may be applied to the claims that were

pending at the Department of Veterans Affairs (VA) at the time the

June 2003 amendment was promulgated, so as to preclude the assignment

of separate disability ratings for bilateral tinnitus.

As a preliminary matter, the Court notes that the appellants' briefs

present arguments with respect only to the Board's denial of separate

disability ratings for bilateral tinnitus. Accordingly, the Court

deems all other appealable issues to be abandoned. See Ford v.

Gober, 10 Vet.App. 531, 535 (1997) (holding claims not argued on

appeal are deemed abandoned); Bucklinger v. Brown, 5 Vet.App. 435,

436 (1993). For the reasons that follow, the Court will reverse the

Board decisions and remand the matters for further proceedings

consistent with this opinion.

I. RELEVANT BACKGROUND

A. Appellant Stolasz

Appellant Stolasz served honorably on active duty in the U.S. Air

Force from July 1963 to July 1967. Stol. R. at 16. In May 2001, he

applied for disability compensation for hearing loss. Stol. R. at

10. In September 2001, he was diagnosed with tinnitus and hearing

loss by a VA medical examiner. Stol. R. at 124. "Tinnitus" is

"noise in the ears such as ringing, buzzing, roaring, or clicking."

Dorland's Illustrated Medical Dictionary 1725 (27th ed. 1988).

In September 2001, a VA regional office (RO) granted service

connection for hearing loss and tinnitus, and assigned a 10%

disability rating for tinnitus, effective May 2001.

Stol. R. at 127-30. In June 2002, while the matter was pending on

appeal to the BVA, the appellant argued, inter alia, that he should

receive separate 10% disability ratings for each ear for bilateral

tinnitus pursuant to 38 C.F.R ྷ 4.25(:) (2002). Stol. R. at 174-77.

In May 2003, the VA General Counsel's Office issued a precedent

opinion in which it concluded that separate disability ratings for

bilateral tinnintus were prohibited under the versions of DC Code

6260, as in effect prior to June 1999, and as amended on that date.

VA General Counsel Precedent Opinion 2-2003 (May 22, 2003)

[hereinafter G.C. Prec. 2-2003]. Subsequently, in June 2003, an

amendment to DC 6260 was promulgated. The June 2003 amendment

provided that separate disability ratings for each ear for bilateral

tinnitus were prohibited.

In November 2003, the Board issued a decision denying separate 10%

disability ratings for each ear for bilateral tinnitus. Stol. R. at

1-12. To conclude that, as a matter of law, separate schedular

ratings could not be assigned for bilateral tinnitus, the Board

relied on the June 2003 amendment to DC 6260 and G.C. Prec. 2-2003.

Stol. R. at 11.

B. Appellant Anderson

Appellant Anderson served on active duty in the U.S. Navy from June

1959 to May 1961. Ande. R. at 11. In September 1997, he filed a

claim for entitlement to service connection for tinnitus. Ande.

R. at 14. In December 1997, Mr. Anderson was diagnosed with tinnitus

and hearing loss, both of which a VA medical examiner opined were

related to service. Ande. R. at 20. In February 1998, the RO

granted service connection for tinnitus, rated 10% disabling,

effective September 25, 1997. Ande. R. at 26-28.

In August 2000, Mr. Anderson was examined by a VA medical examiner

who concluded that he suffered from tinnitus that the appellant

characterized as a constant "buzzing." Ande. R. at 32. In December

2002, the RO continued the 10% disability rating assigned for his

tinnitus. Ande. R. at 36-39. The Board issued a decision in December

2003 that denied Mr. Anderson's claim for separate 10% disability

ratings for each ear for tinnitus. Ande. R. at 1-7. As in Mr.

Stolasz's case, to conclude that, as a matter of law, separate

disability ratings for each ear for bilateral tinnitus were

prohibited, the Board relied on the June 2003 amendment to DC 6260

and G.C. Prec. 2-2003. Ande. R. at 7.

II. ANALYSIS

A. Applicable Law Regarding Evaluation of Tinnitus

By statute, the Secretary has the authority to "adopt and apply a

schedule of ratings of reductions in earning capacity from specific

injuries or combination of injuries." 38 U.S.C. ྷ 1155 (2000).

Pursuant to that authority, the Secretary has adopted a schedule of

ratings for ear disorders. The diagnostic code for tinnitus is set

forth in 38 C.F.R. ྷ 4.87, DC 6260. In 1998, a 10% rating was

warranted for "persistent" tinnitus if the disease was the result of

a head injury, concussion, or acoustic trauma. See 38 C.F.R. ྷ 4.87,

DC 6260 (1998). In June 1999, the Secretary amended DC 6260 to

provide a 10% disability rating for "recurrent" tinnitus. 64 Fed.

Reg. 25, 202 (1999) (codified at 38 C.F.R. § 4.87, DC 6260 (2000)).

The June 1999 amendment also eliminated the requirement that the

tinnitus must be the result of a head injury, concussion, or acoustic

trauma. Id. In June 2003, the Secretary added a note (Note 2) to

the end of DC 6260 stating that only a single evaluation may be

assigned for recurrent tinnitus "whether the sound is perceived in

one ear, both ears, or in the head." 68 Fed. Reg. 25, 822 (2003)

(codified at 38 C.F.R. § 4.87, DC 6260 (2004)). The regulation

stated that it would become effective on June 13, 2003. Id.

Also relevant to the appellants' claims is 38 C.F.R. ྷ 4.25(B), the

regulation that provides the general rule for rating disabilities

arising from a single disease entity. This regulation provides that

each service-connected disability arising from a single disease

entity is to be rated separately, and the ratings combined, unless

otherwise provided by the Secretary. See Colayong v. West,

12 Vet.App. 524, 531 (1999); Esteban v. Brown, 6 Vet.App. 259, 261

(1994).

In Smith (Ellis) v. Nicholson, 19 Vet.App. 63 (2005), the Court

reversed a Board decision that denied the veteran separate 10%

disability ratings for bilateral tinnitus under the pre-June 2003

versions of DC 6260. The Secretary argued that the Board decision

was consistent with VA's longstanding interpretation of DC 6260 that

no more than one 10% disability rating may be assigned for tinnitus.

Id. at 69-70. In support of this argument, the Secretary pointed to

the introductory language to the proposed and final rule amending DC

6260 and to G.C. Prec. 2-2003. Id. These documents stated that the

amendment to DC 6260 did not represent a substantive change but

merely restated VA's standard practice of granting only a single 10%

disability rating for bilateral tinnitus. Id. at 69. Thus, the

Secretary argued that VA's longstanding interpretation of DC 6260 had

always prohibited separate ratings for bilateral tinnitus. Id.

The Court in Smith reviewed the text of the pre-June 2003 versions of

DC 6260 and concluded that VA's interpretation of DC 6260 was

inconsistent with the plain meaning of DC 6260, which listed tinnitus

as a disease of the ear, thereby making the provisions of § 4.25(B)

applicable. Id. at 74-77. Furthermore, the Court noted that the

rating schedule contained no exception to § 4.25(B) regarding

tinnitus. Id. at 75. The Court also concluded that because the

introductory language explaining the proposed amendment misstated the

law regarding § 4.25(B), the Secretary's interpretation was entitled

to no deference. Id. at 77. The Court held that "the plain reading

[of the pre-June 2003 versions of DC 6260] and application of § 4.25

(B) required the assignment of dual ratings for bilateral tinnitus."

Id. at 78. The Court also expressly invalidated G.C. Prec. 2-2003

to the extent that the General Counsel's opinion precluded the Board

from assigning dual ratings for bilateral tinnitus under the pre-June

2003 versions of DC 6260. Id.

B. Retroactivity and the BVA's Application of the June 2003

Version of DC 6260 to Appellants' Claims

The Court is required to decide whether the June 2003 amendment to DC

6260 may be applied to the appellants' rating-increase claims for

bilateral tinnitus that were pending at VA when the June 2003 amended

regulation went into effect. The question of whether to grant

retroactive application of law is a question of statutory

interpretation. See Mason Gen. Hosp. v. Sec'y of Health & Human

Servs., 808 F.2d 1220, 1224 (6th Cir. 1987); Daughters of Miriam

Cntrs. for the Aged v. Matthews, 590 F.2d 1250, 1259 (3rd Cir. 1978);

Retail, Wholesale and Dep't Store Union v. NLRB, 466 F.2d 380, 390

(D.C. Cir. 1972). Matters involving statutory interpretation are

questions of law that the Court reviews de novo. Debeaord v.

Principi, 18 Vet.App. 357, 363 (2004). An administrative agency does

not have any particular expertise concerning the issue of

retroactivity. Mason, supra; Daughters, supra. The extent to which a

regulation should be given retroactive effect is governed by

principles of law that have been developed by the courts. Mason,

supra; Daughters, supra.

The U.S. Supreme Court has held that "retroactivity is not favored in

the law," and therefore, "congressional enactments and administrative

rules will not be construed to have retroactive effect unless their

language requires this result." Bowen v. Georgetown Univ., 488 U.S.

204, 208 (1988). A regulation is not retroactive merely because it

is applied in a case arising from conduct antedating the regulation's

enactment. Landgraf v. USI Film Prods., 511 U.S. 244, 269 (1994).

Rather, a regulation is deemed to have retroactive effect when it

"would impair rights a party possessed when he acted, increase a

party's liability for past conduct, or impose new duties with respect

to transactions already completed." Landgraf, 511 U.S. at 280; see

id. at 282 (holding that application of the compensatory and punitive

damages provisions in the Civil Rights Act of 1991 to conduct

occurring before the effective date of the law would operate

retroactively because it would impose new legal burdens and increase

liability for past conduct); Rodriguez v. Nicholson, 19 Vet.App. 275,

287 (2005) (holding that application of an amendment to 38 C.F.R. ྷ

3.22 that barred hypothetical entitlement to 38 U.S.C. ྷ 1318 claims,

which was promulgated while the appellant's dependency and indemnity

compensation (DIC) claim was pending at VA, would have a retroactive

effect because it would take away the appellant's substantive right

to DIC benefits that existed at the time the regulation was

promulgated).

The appellants argue that the Board's application of the June 2003

version of DC 6260 to their claims constituted an impermissible

retroactive application of the June 2003 amendment under Landgraf and

Rodriguez because the amendment extinguished rights to separate

ratings for bilateral tinnitus that they had at the time that they

filed their claims. Appellants' Supplemental Brief (Suppl. Br.) at

10-11. The Secretary counters that there was no impermissible

retroactive effect in applying the 2003 version of DC 6260 to the

appellants' claims because the amendment to DC 6260 did not

extinguish any substantive right. See Secretary's Suppl. Br. at 3-4.

The Secretary argues that at the time the appellants filed their

claims, VA did not recognize entitlement to separate disability

ratings for bilateral tinnitus. Id. The Secretary contends that the

right to separate disability ratings for tinnitus did not exist until

after the appellants' BVA decisions were on appeal to this Court,

when the decision in Smith was issued. Id. He states that "only by

creating a fiction that the holdings in Smith applied at the time

[the a]ppellants' claims were pending prior to June 2003," would

application of the June 2003 amendment have retroactive effect. Id.

The Secretary asserts that the instant cases are in sharp contrast to

Rodriguez, where the substantive right at issue – the right to

"hypothetical" entitlement to DIC claims under 38 U.S.C. ྷ 1318 –

was

in existence at the time that VA amended the regulation that

extinguished that right. Id.

The Secretary's argument is unavailing. Smith involved the Court's

construction of VA regulations DC 6260 and 38 C.F.R. ྷ 4.25(B). The

theory underlying judicial interpretation of a statute is that a

Court's interpretation of a statute "explain its understanding of

what the statute has meant continuously since the date when it became

law." Rivers v. Roadway Express, 511 U.S. 298, 312 (1994) (holding

that the Supreme Court's 1989 interpretation of the phrase "make and

enforce contracts" in the Civil Rights Act of 1866 was the

authoritative interpretation of what that phrase meant prior to a

legislative change in 1991). Thus, the Secretary is not accurate in

stating that Smith created a right to separate disability ratings for

each ear for bilateral tinnitus that did not exist prior to the

Court's decision in that case. Rather, Smith decided what the

pre-June 2003 versions of DC 6260 have always meant.

Additionally, the Secretary's contention that the appellants'

substantive right to separate disability ratings for each ear for

bilateral tinnitus did not exist prior to the Court decision in Smith

fails to take into account a fundamental principle of American

jurisprudence that, while statutes operate prospectively, judicial

decisions operate retrospectively. Rivers, 511 U.S. at 311.

Therefore, the holding in Smith represents this Court's controlling

interpretation of the pre-June 2003 versions of DC 6260 and must be

given full retroactive effect in all cases that are still open on

direct review, such as the appellants', regardless of whether the

events involved predated the Court's announcement of the rule of law.

Rivers, supra; Harper v. Va. Dep't of Taxation, 509 U.S. 86, 95

(1993) (holding that the Supreme Court rule of law that invalidated a

state practice of giving preferential tax treatment to state

employees and not to federal employees was a controlling statement of

Federal law that should have been applied retrospectively); James B.

Beam Distilling Co. v. Georgia, 501 U.S. 529, 544 (1991) (holding

that a Supreme Court ruling invalidating excise tax that favored

Georgia-grown alcoholic products applied retrospectively to all

others not barred by procedural requirements or res judicata); Brewer

v. West, 11 Vet.App. 228, 232-33 (1998) (holding that retroactive

effect must be given to Court opinions regarding elements of a

well-grounded claim).

In view of the Court's interpretation in Smith, supra, of DC 6260 and

its relationship to 38 C.F.R ྷ 4.25(B) as allowing for separate

ratings for bilateral tinnitus, the Court holds that the appellants

had a substantive right, at the time that their claims were filed and

pending before VA, when the June 2003 amendment to DC 6260 became

effective. To apply the June 2003 amendment to the appellants'

claims would take from the appellants a substantive right that

existed at the time the June 2003 regulation became effective.

Accordingly, VA's application of amended DC 6260 to the appellants'

claims had a "retroactive effect." See Landgraf, supra, Rodriguez,

supra.

Having concluded that the Board's application of the June 2003

version of DC 6260 to the appellants' claims had a retroactive

effect, the Court must decide whether VA had the power to promulgate

a rule with retroactive effect. As a general rule, a statutory grant

of rulemaking authority to an administrative agency does not

encompass the power to promulgate retroactive rules unless that power

is conveyed by Congress expressly. Bowen, 488 U.S. at 208 (holding

invalid a 1984 Heath and Human Services cost-limit regulation for

medicare reimbursement made retroactive to July 1981 because the

agency had no express power to enact such a retroactive regulation).

In Rodriguez, supra, this Court held that VA's general rulemaking

authority, found in 38 U.S.C. § 501, does not provide the Secretary

of Veterans Affairs with express authority to promulgate a

retroactive regulation. See also VA G.C. Prec. 7-2003, at para. 24

(Nov. 19, 2003) (holding that the Secretary lacks general authority

to make a restrictive regulation apply retroactively except to the

"extent [that] doing so will benefit rather than burden claimants").

Rodriguez noted that "even the slightest retroactive effect would be

questionable." Rodriguez, supra. Here, the retroactive effect would

be substantial, not slight, as application of the June 2003 amendment

to the appellants' claims took away a right, then in existence, to

separate disability ratings for each ear for bilateral tinnitus.

Based on the foregoing, the Court holds that the Secretary's

retroactive application of the June 2003 amendment to DC 6260 to the

appellants' claims was improper, and we will thus reverse the Board

determinations and remand the matters for readjudication consistent

with this opinion.

CONCLUSION

On the basis of the foregoing analysis, the Court AFFIRMS the

November 21, 2003, Board decision with regard to Mr. Stolasz's claim

for entitlement to an initial compensable rating for bilateral

hearing loss; REVERSES the November 21, 2003, Board decision to the

extent that it determined that Mr. Stolasz was not entitled to

separate disability ratings for each ear for his service-connected

bilateral tinnitus; and REMANDS that matter for expeditious issuance

of a decision consistent with this opinion. With regard to Mr.

Anderson, the Court REVERSES the December 23, 2003, Board decision

that Mr. Anderson was not entitled to separate disability ratings for

each ear for his service-connected bilateral tinnitus and REMANDS

that matter for expeditious issuance of a decision consistent with

this opinion.

--end--

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After Ray' s post went out via email, Col. Dan Cedusky emailed this reminder--

"This applies if you had a claim pending prior to June 2003, you can get 10%

for both ears"

As it stands now that is still the reg- bilateral tinnitus only if claim pending prior to June 2003-

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Well, looks pretty much like no cigar for the rest of us. My reading of this decision leads me to believe it only affects claims that were "pending" on 3 June 2003 when the VA published the changes to CFR regarding tinnitus. While any progress may be considered good progress, there won't be many folks able to piggyback on this and it doesn't guarantee a bilateral payment to the affected folks as the VA has rejected such requests claiming they will be appealing.

Edited by TinCanMan
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