tinnitus Letter From Varo Ref. Bilateral Tinnitus Separate Ratings For Each Ear

[vaf]

I don't think we need to respond to this, but what do you think?

We filed for a 10% x 2 rating for bilateral tinnitus, an increase from the flat 10% rating already awarded several years ago. We did this to go on record in the event the Federal Circuit Court hearing later this year upholds the recent decisions made along these lines by the Court of Veterans Appeals. The VARO sent my husband a letter stating that at the present time, the regulations do not allow for multiple ratings for bilateral tinnitus, and that currently the maximum rating is 10% (which we all know). It goes on to state that should the regulations change, the VA will review the claim. I interpret this to mean that the review will kick in automatically if the regulation changes, without our having to file another claim.

Later, the letter includes the usual statement about what to do if the veteran disagrees with the decision, and that the veteran has a year to file an NOD, etc.

I'm just trying to be careful. Thanks.

[Guest DON20906]

VETERANS LAW JOURNAL

A QUARTERLY PUBLICATION OF THE COURT OF APPEALS FOR VETERANS CLAIMS BAR ASSOCIATION

PROPRIETY OF STAY OF TINNITUS CLAIMS

By Mary Peltzer

Ramsey, et al. v. Nicholson, et. al., No. 05-1314.

Oral argument held before Chief Judge Greene,

and Judges Moorman and Schoelen on

September 22, 2005.

The Petitioners petitioned the CAVC for

extraordinary relief in the nature of a writ of

mandamus, seeking a writ directing a rescinding of

VA’s stay on the adjudication of certain tinnitus cases.

In a memorandum dated April 22, 2005, the Secretary

directed the Board to stay action and refrain from

remanding until resolution of ongoing litigation all 1)

tinnitus claims filed prior to June 13, 2003 seeking a

disability rating for tinnitus in excess of 10 percent

and 2) all tinnitus service connection claims filed

prior to June 10, 1999, in which the basis of denial of

benefits was that the veterans’ tinnitus was not

persistent. In a memorandum dated April 28, 2005,

the then Acting Chairman of the Board imposed a

stay on the adjudication of tinnitus claims affected by

Smith v. Nicholson, 19 Vet.App. 63 (2005).

The Petitioners, having claims pending before the

Board for separate ratings for service-connected

bilateral tinnitus, argued that the memorandum

directing a stay have delayed their appeals in violation

of 38 U.S.C.A. § 7107, alleging that the stays on their

appeals are contrary to law because the Board is

required to decide appeals in regular order according

to their docket number. The law contains exceptions,

allowing the Board to 1) advance cases on the docket,

2) postpone an appeal for later consideration if

necessary to afford an appellant a hearing, and 3)

screen cases for the purposes of determining the

adequacy of the record for decisional purposes or the

development of a record found to be inadequate for

decisional purposes.

The Petitioners argue that the Secretary’s

memorandum directing their appeals be stayed to

“avoid burdens on the adjudication system, delays in

adjudication of other claims and unnecessary

expenditure of resources through remand or final

adjudication of claims based on court precedent that

may ultimately be overturned on appeal” is not a legal

exception to 38 U.S.C.A. § 7107. As the Respondents

refuse to act on their appeals, the Petitioners argue

that a writ of mandamus is the appropriate means to

compel action.

The Respondents contend that the Petitioners,

who carried the burden of proof, did not satisfy the

stringent standards required to invoke the Court’s

mandamus power, citing to Tobler v. Derwinski, 2

Vet.App. 8 (1991) as evidence that the Court has long

recognized that the Chairman of the Board has the

authority to stay administrative proceedings while an

appeal is being contemplated. The Respondents

highlight that the statutory scheme of chapter 71 of

the United States Code acknowledges that

management activities of the Board is subject to the

direction of the Secretary and that Congress has

charged the Chairman with the responsibility of

conducting the business of the Board in a proper and

timely manner. Furthermore, the original provisions

of 38 U.S.C.A. § 7107 predated the advent of judicial

review and Respondents submit that the issuance of a

stay of cases pending an appeal would not conflict

with the original purpose of the provision.

Relying on case law, the Respondents argue that

the stay on tinnitus cases is reasonable, in the interest

of the uniform administration of justice, avoids

disparate treatment of similarly situated veterans, and

does not amount to an arbitrary refusal to act. Citing

to Bullock v. Brown, 7 Vet.App. 91 (1998), the

Respondents indicate that while time taken by VA to

adjudicate a claim may be frustrating to a petitioner,

the delay must be unreasonable before a court will

inject itself into an administrative agency’s

adjudicative process and that the mere passage of time

in reviewing a matter does not constitute the

extraordinary circumstances requiring the Court to

invoke its mandamus power.

Attorney for Petitioners:

Ronald L. Smith, Esquire (202) 554-3501

Disabled American Veterans

Attorney for Respondent:

R. Randall Campbell, Esquire (202) 639-4802

Office of General Counsel

DAV Prevails in Fight Over Tinnitus Claims

On April 5, 2005, the United States Court of Appeals for Veterans Claims handed down its decision in Smith v. Nicholson. The DAV had argued on behalf of Mr. Smith that he was entitled to two separate ten-percent disability ratings for service-connected tinnitus, i.e., ringing, in his right and left ears. The Department of Veterans Affairs (VA) argued in Smith’s case, as well as in a large number of other cases, that the VA Schedule for Rating Disabilities provided for only one ten-percent rating, regardless of whether the tinnitus was present in only one ear or both ears.

The Court held that: “Based on the plain language of the regulations, the Court holds that the pre-1999 and pre-June 13, 2003 versions of [diagnostic code] 6260 required the assignment of dual ratings for bilateral tinnitus.” Veterans who filed a claim for service connection for tinnitus in both ears, or who claimed an increased rating for that condition, prior to June 13, 2003, may be entitled to receive combined disability compensation based on two ten-percent ratings for tinnitus. Additionally, the law does not permit any such ratings to be reduced in the future, unless the severity of the tinnitus is shown to have actually improved.

The decision of the Court of Appeals for Veterans Claims in the Smith case has not yet become final. The VA appealed that decision to the United States Court of Appeals for the Federal Circuit on June 22, 2005. The VA and Mr. Smith have both filed opening briefs, and the VA’s reply brief is due in January 2006. DAV anticipates that the Federal Circuit will hold oral argument on the VA’s appeal in the spring. The Federal Circuit is likely to hand down a decision in the second half of 2006.