tinnitus Federal Circuit Has Ruled On Tinnitus Dc Interpretation

[Angela]

For those interested in the rulings on dual 10 percent ratings for Tinnitus (bilateral), the Federal Circuit ruled on 19 June 2006 that the DVA's interpretation of the rating code is "due defference".

Here's a link...http://www.fedcir.gov/opinions/05-7168.pdf

I note that the court did not address if application of the supreme court's ruling in Brown v Gardner 1994 that

(1) "veteran's are entitled to most advantageous reasonable interpretation of ambiguous statute",

(2) "But even if this were a close case, where consistent application and age can enhance the force of administrative interpretation, the Government's position would suffer from the further factual embarrassment that Congress established no judicial review for VA decisions until 1988, only then removing the VA from what one congressional Report spoke of as the agency's "splendid isolation." As the Court of Appeals for the Federal Circuit aptly stated, "[m]any VA regulations have aged nicely simply because Congress took so long to provide for judicial review. The length of such regulations' unscrutinized and unscrutinizable existence" could not alone, therefore, enhance any claim to deference."

would require a different outcome.

Your thoughts?

[Guest rickb54]

Angela,

So what does this mean in english?

[Stretch]

Due:

Adjective

1. expected to arrive: expected to arrive imminently

The baby is due in three weeks.

2. ready: awaiting an event, as part of a normal chain or progression of other events

due for a long-awaited promotion

3. caused by somebody or something: caused by or attributable to somebody or something

The delay was due to bad weather.

4. payable: payable at once and on demand or at a stipulated time

Payment is due in 30 days.

5. proper and appropriate: meeting all the necessary requirements and thus proper and appropriate to the situation

after due consideration

6. owed: owed as a debt because of a right or an obligation

Our deep gratitude is due to all those who have helped over the last few months.

noun

Definition:

somebody's right: something that somebody has deserved or is owed

I'll give you your due - you were absolutely right.

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Deference:

noun

1. Respect

2. submission: submission to the judgment, opinion, or wishes of another person

in deference to out of respect or courtesy to somebody or something

[Guest rickb54]

stretch...

as I said before in English...what does this mean? Always has to be one smart ass in the bunch!

[Stretch]

am·big·u·ous [ am bíggyoo ess ]

adjective

Definition:

1. having more than one meaning: having more than one possible meaning or interpretation

an ambiguous response

2. causing uncertainty: causing uncertainty or confusion

an ambiguous result

[Early 16th century. < Latin ambiguus "undecided" < ambigere "wander around" < agere "to lead"]

am·big·u·ous·lyadv

am·big·u·ous·nessn

ambiguous or ambivalent?

Both words describe uncertainty in understanding what is meant. The principal difference is that ambivalent is used of people and their attitudes, whereas ambiguous refers to information or context. If people are ambivalent about disarmament, they are unsure about the advantages and disadvantages and cannot easily decide between the various arguments, whereas if a political leader makes an ambiguous statement about disarmament, then the statement has more than one possible interpretation.

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stat·ute [ stáchoot ] (plural stat·utes)

noun

Definition:

1. law enacted by legislature: a law established by a legislative body

2. established rule: a permanent established rule or law, especially one involved in the running of a company or other organization

[13th century. Via French < late Latin statutum "something set up" < Latin statuere (see statue)]

stat·u·ta·bleadj

[JR Reihs]

It means the court has screwed the vet again!

[Stretch]

A little patience Rick. I can only crank out the bullshit a little faster than congress can. A VSO or VA Lawyer could be helpful here.

Just my opinion of the CAVC interpretation as opposed to the DVA (Dept. Vets Affairs) interpretation:

With this in mind, the VA was isolated before 1988, and VA laws were confusing and had more than one meaning. Before 1988 there wasn't much respect or adequate judgment for most Veterans claims, because of congressional failure to act promptly to any Veterans laws. DVA made additions to laws (not congress) and got away with it for a period of time, and the time became a factor in the weight of the decision.

Disabled Veterans suffered being forced into the work arena without any compensation or maybe 0% compensation. Many of these Veterans became homeless Veterans. This was a very good tool used for denials of claims for one interpretation or the opposite interpretation from another time frame.

It was a no-lose-proposition for Defense. Congress noticed that Veterans cost went down at the same time that DoD spending went up, but failed to recognize why this was happening, amazing.

There is a striking resemblance to Hieronymus Bosch's triptych (Three-panel Painting), "The Garden of Delights". On the left panel at the bottom a creature, sitting on the throne, is eating people and at the same time deprecating golden coins into a pot. Once the creature got use to eating the Veterans, it could not stop itself, and congress could not recognize what was happening for some reason. (I am not positive of the triptychs name.)

1. It appears that since there were several interpretations of the same VA law, and that a CAVC Judge decided the the most rewarding interpretation of the many interpretations, in favor of the Veteran, would now be applied to the Veterans Claims. Of coarse, that is only if the Veteran Persist and Pursues a denied decision.

2. Even though the VA continued to deny the Veteran with same old carbon copy bullshit from its old original decision, prior to 1988, that the age and weight of the old decision could be a factor in the outcome of the Veterans claims, but should not be a continued factor due to the embarrassment of Congress's failure to act now and before 1988, at which time Congress had their heads up their- (where the sun don't shine).

That the weight of the old carbon-copy decision that was made, because the VA did not have a watchdog (Congress) for all those years prior to 1988, were now held to take the most rewarding decision of the many different interpretations for the same confusing double-talking laws. It is probable that the DoD was the only watchdog for the VA Pre-1988.

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To me this means that:

The Veterans claims that were closed prior to 1988, now can have more acceptable judgments, due to the fact that the DoD and VA finally got caught in the habitual act of immediate-denial and carbon-copy re-denial of the veterans claims. The DVA (Department of Veterans Affairs) will now have to at least read a Veterans evidence and SMR before making a decision. The new decision has to be the most favorable interpretation of the law in the claims decision, for the Veteran, and also in the benefit of the Doubt of the Veteran.

What this has to do with a duel rating for tinnitus, I do not know, unless the Post-2003 decision of reducing two ratings to only one tinnitus rating, has been overturned in favor of duel rating Post-1988 and Pre-2003 decision. The DVA will probably win. If you read the case below you will think you were listening to three different personalities. I think the DVA has a personality disorder.

Veterans Court argued that two ratings were necessary. DVA argued that only one rating is required for both ears. Circuit Court said that the Veterans Court did not respect the DVA decision about its own interpretation of the rating, and the claim was remanded. DVA disagreed with the entire CAVC interpretation.

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What really happened.

2006/06/19____05-7168.pdf_CAVC Smith v. Nicholson_______for the CAVC decision

US Court of Appeals for the Federal Circuit Court

Conclusion:

Because the Veterans Court (CAVC) erred in not deferring to the Agency's (DVA-Dept. of Veterans Affairs) reasonable interpretation of it's own regulations, we reverse the decision of the Veterans Court and remand for proceeding consistent with our decision.

Reversed and Remanded

How is this for an ambiguous interpretation? It isn't over yet. At least I had a disclaimer in my second sentence.

Edited June 22, 2006 by Stretch