10% + 10% = 10% --

FEDERAL CIRCUIT COURT OVERTURNS VETS' COURT RULING ON TINNITUS --

Bilateral tinnitus now considered a "single" disability.

Here is the latest "anti-veteran" ruling from the U.S. Federal Court system...and analysis from our legal expert, Hugh Cox.

Hugh's web site is here... http://www.hughcox.com/

Hugh's analysis below:

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The U.S. Court of Appeals for the Federal Circuit (CAFC) reversed the US Court of Appeals for Veterans Claims (CAVC) by concluding that bilateral tinnitus should only be awarded 10% rather than 10% per ear.

The case, SMITH v. NICHOLSON, ___ F.3d ___ (Federal Circuit June 19, 2006), is a huge victory for the VA against veterans.

see case text at http://www.fedcir.gov/opinions/05-7168.pdf .

The CAVC took the position that nothing in the regulation limited tinnitus to a single rating of 10% and that each ear should be a separate rating of 10% for a single case of tinnitus.

The CAFC reversed by deciding that tinnitus in each ear could not be two disabilities since the regulation (38 C.F.R. 4.25(b) including DC 6260) was ambiguous.

The CAFC determined that where the DVA issues a regulation that is "fair and considered" and not "plainly erroneous", it is entitled to "deference" (respectful yielding to the DVA) even if ambiguous or enacted without formal administrative procedures.

Ron Smith, a superb lawyer deserving of being a CAVC judge, admirably represented the veteran.

The bottom line is that the DVA rewriting of its regulations (now ongoing) may take advantage of this case and to prevent a separate rating for each ear.

Because of the unique nature of tinnitus, the case should have no effect on other "bilateral" claims for arms and legs allowed by 38 Code of Federal Regulations section 4.26.

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Larry Scott

(go back to VA Watchdog dot Org Home Page)

	Web www.vawatchdog.org

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