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tinnitus Latest Info On Bi-lateral Tinnitus Law
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jessejames
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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