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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 05-0254
Thomas A. Lutz, Appellant,
v.
R. James Nicholson,
Secretary of Veterans Affairs, Appellee.
Before KASOLD, Judge.
O R D E R
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
Veteran Thomas A. Lutz appeals through counsel that part of an October 13, 2004, decision of the Board of Veterans' Appeals (Board) that denied entitlement to a disability rating in excess of 10% for bilateral tinnitus. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Board's decision will be reversed and the matter remanded for assignment of a 10% disability rating for the service-connected tinnitus in each of Mr. Lutz' ears.
In March 1991, Mr. Lutz was granted service connection for tinnitus and awarded a 10% disability rating. Record (R.) at 237, 241. In November 2002, Mr. Lutz filed a claim for an increased rating for his tinnitus. A VA regional office found that Mr. Lutz had "recurrent bilateral tinnitus" but denied his claim for an increased rating. R. at 333. On appeal, the Board denied the claim on the basis that a higher disability rating was not available as a matter of law. R. at 7, 9. This appeal followed.
In light of this Court's recent decisions in Stolasz v. Nicholson, 19 Vet.App. 355 (2005), and Smith v. Nicholson, 19 Vet.App. 63 (2005), appeal docketed, No. 05-7168 (Fed. Cir. July 11, 2005), the Board's decision was erroneous as a matter of law. Together, Stolasz and Smith establish that the pre-June 13, 2003, version of DC 6260 requires two separate ratings if each of a veteran's ears is affected by recurrent tinnitus, and that provision applies to all such claims pending prior to that date. Accordingly, the Board's determination that only a single 10% disability rating is authorized for tinnitus prior to June 13, 2003, is not in accordance with law and will be reversed. See 38 U.S.C. 7261(a)(3)(A). Furthermore, because Mr. Lutz was found to have "recurrent bilateral tinnitus," the Court will remand the matter to the Board with the direction for assignment of a separate 10%
disability rating for tinnitus for each ear. See Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996) ( reversal is appropriate "when the only permissible view of the evidence is contrary to the Board's decision")). The Court expects that the Board will provide expeditious treatment of this matter on remand. See 38 U.S.C . 7112.
Upon consideration of the foregoing, it is
ORDERED that the Board's determination that only a single 10% disability rating is authorized for tinnitus under the pre-June 13, 2003, DC 6260 is REVERSED, and the matter is REMANDED with directions that Mr. Lutz be assigned a separate 10% disability rating for tinnitus for each of his ears and for further proceedings consistent with this order.
DATED: January 4, 2006 BY THE COURT:
BRUCE E. KASOLD
Judge
Copies to:
Ronald L. Smith, Esq.
VA General Counsel (027)
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First hit Next document Previous document Native WordPerfect View image Back to results New search
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 05-0254
Thomas A. Lutz, Appellant,
v.
R. James Nicholson,
Secretary of Veterans Affairs, Appellee.
Before KASOLD, Judge.
O R D E R
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
Veteran Thomas A. Lutz appeals through counsel that part of an October 13, 2004, decision of the Board of Veterans' Appeals (Board) that denied entitlement to a disability rating in excess of 10% for bilateral tinnitus. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Board's decision will be reversed and the matter remanded for assignment of a 10% disability rating for the service-connected tinnitus in each of Mr. Lutz' ears.
In March 1991, Mr. Lutz was granted service connection for tinnitus and awarded a 10% disability rating. Record (R.) at 237, 241. In November 2002, Mr. Lutz filed a claim for an increased rating for his tinnitus. A VA regional office found that Mr. Lutz had "recurrent bilateral tinnitus" but denied his claim for an increased rating. R. at 333. On appeal, the Board denied the claim on the basis that a higher disability rating was not available as a matter of law. R. at 7, 9. This appeal followed.
In light of this Court's recent decisions in Stolasz v. Nicholson, 19 Vet.App. 355 (2005), and Smith v. Nicholson, 19 Vet.App. 63 (2005), appeal docketed, No. 05-7168 (Fed. Cir. July 11, 2005), the Board's decision was erroneous as a matter of law. Together, Stolasz and Smith establish that the pre-June 13, 2003, version of DC 6260 requires two separate ratings if each of a veteran's ears is affected by recurrent tinnitus, and that provision applies to all such claims pending prior to that date. Accordingly, the Board's determination that only a single 10% disability rating is authorized for tinnitus prior to June 13, 2003, is not in accordance with law and will be reversed. See 38 U.S.C. 7261(a)(3)(A). Furthermore, because Mr. Lutz was found to have "recurrent bilateral tinnitus," the Court will remand the matter to the Board with the direction for assignment of a separate 10%
disability rating for tinnitus for each ear. See Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996) ( reversal is appropriate "when the only permissible view of the evidence is contrary to the Board's decision")). The Court expects that the Board will provide expeditious treatment of this matter on remand. See 38 U.S.C . 7112.
Upon consideration of the foregoing, it is
ORDERED that the Board's determination that only a single 10% disability rating is authorized for tinnitus under the pre-June 13, 2003, DC 6260 is REVERSED, and the matter is REMANDED with directions that Mr. Lutz be assigned a separate 10% disability rating for tinnitus for each of his ears and for further proceedings consistent with this order.
DATED: January 4, 2006 BY THE COURT:
BRUCE E. KASOLD
Judge
Copies to:
Ronald L. Smith, Esq.
VA General Counsel (027)
First hit Next document Previous document Native WordPerfect View image Back to results New search
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