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Federal Circuit Has Ruled On Tinnitus Dc Interpretation


Angela

Question

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?

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  • In Memoriam

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.

___________________________________________________________________

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

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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

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  • HadIt.com Elder

It means the court has screwed the vet again!

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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.

-------------------------------------------------------

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.

--------------------------------------------------------

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 by Stretch
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  • HadIt.com Elder

It means that Federal Judges knows which side their bread is buttered, as long as we have anti-veteran crooks in the White House, and on Capitol Hill.

NOBODY will get more than 10% for tinnitus!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! BIG SURPRISE.

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"[06/19] Smith v. Nicholson

A decision of the U.S. Court of Appeals for Veterans Claims reversing in part a decision of the Board of Veterans' Appeals holding that certain regulations require the assignment of dual ratings for bilateral tinnitus, an ear disease, is reversed where the Veterans Court erred in not deferring to the agency's reasonable interpretation of its own regulations."

from:http://www.riccilaw.com/FSL5CS/News/news79.asp?page=more&t=c09

Say what?

Isn't that what the US CAVC decision says too?

I am waiting for the DAV's take on this new decision-

The DAV fought for Smith V. Nicholson ( US CAVC 05-7168)

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Court of Appeals for Veterans Claims (CAVC) was for two separate ratings for tinnitus, saying that the ringing was affecting each separate ear, as per Pre-2003 DVA ruling of its own. CAVC said that the two different rulings were Vague, and that the most favorable ruling, 2 ratings interpretations, should be given.

The Department of Veterans Affairs (DVA) was for one separate rating, saying that it was a ringing that originated in the head and not in each separate ear (New and Improved medical technology ruling). The DVA made a note (b.) to the original rating ruling, at someplace in time after the original rating ruling (maybe 2003), for tinnitus.

The DVA argument said that a single rating has been going on all the way back to 2003 (Gravity), and that this decision would effect many claims that have already been decided. This would make more work for all the courts not to mention DVA disallowing Veterans monies that have been denied in the past few years.

Apparently Congress did not change or stop the altering of this DVA ruling timely, and congress allowed the DVA to police and make it's own decisions on DVA's own rulings.

Fed circuit court held that the CAVC did not respect the deference to Dav's interpretation of its own altering and interpretation of its own (DVA) ruling. (Wally is right)

Sounds like the Fed. Circuit Court and the DVA are one and the same guy, further adding to disparity in Veterans claims that Congress is trying to overcome.

Fed. Circuit Court has decided the "Benefit of the Doubt" goes to the Department of Veterans Affairs, and it remands the Veterans Claim and reverses the CAVC decision, which was in favor of the Veterans two ratings for tinnitus, with this Fed. Circuit Court decision in mind.

Congress has been allowed to police its own-self. It has done such a rotten job of this that congress is now getting caught up in its own failure of its own self-policing policy. People, in Congress, are going to prison. This means that the Fed. Circuit Court and DVA will get caught up in its own mischief also. The DoD covert operation of the DVA will be found out soon. This will be the biggest mess in history. There is a conflict of interest here with Veterans interest left out of the equation.

Sometime Bosch's creature is more hungry than other times.

Edited by Stretch
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I am confused is the DVA saying that tinnitus is a head issue and not an ear. It's true that tinnitus is subjective but it is related to the inner ear. I may have ringing in one ear and not the other.

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  • In Memoriam

Dorthy,

I agree with you 100%. The Vets court agrees with you, although Vets Court is a little timid. The confusion of the issues seems to me like the DoD controlling a ping pong game with a ground-hog day at the 20-20 tie breaker.

This poor vet has been dragged through the mud. He has been given a little hope by the Vets Court, and then jerked back up, by the circuit court, as if he were a yo-yo. This tells me that the Vets Court is not really up for the game.

I am not sure where the Veterans next appeal will have to go, in this huge cumbersome legal nightmare.

The Genevase Effect is at play in the stall of this Veterans Claims. This will not change until the Government gives, free of cost, Veterans legal representation of their choice. This might sound a little overboard, but not out of the question considering the corruption in government.

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Sorry if I wasn't clear in my original post. I'll try to do better here.

If I get something wrong here somebody correct me.

The Tinnitus diagnostic code (DC) doesn't specifically preclude a 10 percent rating for each ear, but the VA has consistently refused to award more than one 10 percent rating even if the condition is present in both.

In Smith v Nicholson the CAVC ruled that the VA HAD to award a 10 rating for each affected ear because their regulation said that each service connected disability will be given it's own rating even if a single cause resulted in more than one "disability". So... since each ear is separate, a separate 10 percent rating for each.

THEN, just this week, the Federal Circuit overturned that ruling on the grounds that an agency's (VA's) interpretation of their own regulation is "due deference". (Basically this means that because the VA says it's regulation means "only one rating", then that's what it means, and Vets should just shut up and color.)

I pointed out that the decision didn't mention at all the Supreme Court's opinion of "agencies interpretation due deference" is just so much BS because the VA had absolutely no one to answer to before 1988. Before that there was no Court of Veteran's Appeals to go to so veterans had no recourse when the VA made a ruling - no matter how stupid. (I think it's also notable that before 1990 the VA didn't even have to say why they made a decision.)

Anyway, the Supreme Court ruled in 1994 (in Brown v Gardner) that when the VA's regulations

1) are ambiguous (unclear) and

2) Congress hasn't expressed an opinion, but

3) the regulation could be interpreted in more than one way without causing an "absurd result" ...absurd result is something that congress could not have intended , like awarding VA disability payments to someone who didn't have a disability ...

... THEN

the veteran is entitled to the MOST ADVANTAGEOUS PERMISSIBLE INTERPRETATION.

(permissable means, doesn't break or make meaningless any other laws/regs or create an absurd result)

The reason I mentioned this omission is that the Federal Court's ruling in this case makes a mockery of the Supreme Court's Ruling in Brown v Gardner concerning statutory construction (interpretation of laws & regs). Also, even though the CAVC relied on Gardner, the Federal Court didn't discuss it's application at all!

I hope and pray that the veteran (Mr. or Ms. Smith) continues this appeal to the supreme court!

Just goes to show you that the good old boy system is alive and well in our judicial system!

If anyone knows of a decision that addresses the Gardner ruling along with the Chevron standard and agencie's interpretation being "due deference" , please post it here.

Dorothy,

The VA says that Tinnitus is a head problem, but that it results in the veteran perceiving noise in either one or both ears.

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The full text of the decision by the Federal Circuit Court of Appeals,.

(Link goes to .pdf file)

http://www.ll.georgetown.edu/Federal/judic...opinions/05-716

8.pdf

You are correct that the fight to have tinnitus determined to be bi-lateral

(20%) instead of a single condition at 10% was lost at the Fed Circuit in

the Smith case. Of course that decision only affects vets who filed before

May 2003, because the VA further revised DC 6260 in May 2003 so that claims

filed after that date could only get a single evaluation for recurrent

tinnitus, whether the sound is perceived in one ear, both ears, or in the

head." 38 C.F.R. § 4.87, DC 6260 (2004).

The DAV is trying to take the case to the Supremes, but over the years

they've shown little interest in veterans' cases. About the only

significant one they ever decided was Gardener, and right after the did

that, Congress revised 38 Sect.1151 to delete that veteran friendly

provision. So don't hold out any special hopes for Smith at the Supreme Ct

TINNITUS CLAIMS AFFECTED BY SMITH V. NICHOLSON – UPDATE

In the Smith v, Nicholson case, the U. S. Court of Appeals for Veterans

Claims reversed the BVA decision, which concluded that no more than a single

10-point disability evaluation would be provided for tinnitus.

Subsequently, in a decision dated June 19, 2006, the Federal Circuit

reversed the Veteran’s Court decision and affirmed VA’s long standing

interpretation of DC 6260 authorizing a singly 10-percent rating for

tinnitus, whether unilateral or bilateral.

Actions by the CAVC, VBA and BVA:

* The Court of Appeals for Veterans Claims has imposed a stay on

processing any appeals involving this issue until period allowed for an

appeal to the Supreme Court expires. (Under Supreme Court rules, a petition

may be submitted within 90 days of the date the appealed decision was

entered in the lower court.) See: http://www.vetapp.gov/MiscOrd-5-06.pdf

* The Chairman, Board of Veterans Appeals (BVA) lifted the stay on

processing these tinnitus cases by rescinding his Memorandum No. 01-05-08

(April 28, 2005), “Processing of Tinnitus Claims affected by Smith v.

Nicholson – Imposition of Stay.”

* In a memorandum dated July 10, 2006, lifted the stay on processing

certain tinnitus claims utilizing the interpretation of the regulation that

a single 10-percent rating is the maximum rating available under DC 6260.

"Keep on, Keepin' on"

Dan Cedusky, Champaign IL "Colonel Dan"

See my web site at:

http://www.angelfire.com/il2/VeteranIssues/

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