Citation Nr: 0804621 Decision Date: 02/08/08 Archive Date: 02/13/08 DOCKET NO. 06-02 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 10 percent for bilateral tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Crohe, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from November 1965 to February 1969 and from November 1977 to October 1991. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2005 determination letter rating decision by the Waco Regional Office (RO) of the Department of Veterans Affairs (VA) that denied a rating in excess of 10 percent rating for tinnitus. On his January 2006 Form 9, the veteran indicated that he desired to have a Central Office hearing before a member of the Board. The veteran did not appear for his August 2006 Central Office hearing and has not requested that another hearing be rescheduled. FINDINGS OF FACT The veteran's service-connected tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code (Code) 6260; factors warranting extraschedular consideration are not shown. CONCLUSION OF LAW There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for bilateral tinnitus. 38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION In May 1998, service connection for tinnitus was granted and assigned a 10 percent evaluation, effective January 14, 1997. In July 2005, the veteran filed an increased rating claim for his bilateral tinnitus, specifically requesting a 10 percent evaluation for each ear. In an August 2005 determination letter, the RO denied an increase rating on the basis that there was no entitlement to this benefit under the law. Disability evaluations are determined by the application of a Schedule of Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, note 2 (2007). In Smith v. Nicholson, 19 Vet. App. 63 (2005), the U. S. Court of Appeals for Veterans Claims (Court or Veterans Court) reversed a Board decision that found that, under pre- June 2003 regulations, no more than a single 10-percent rating could be provided for tinnitus, whether perceived as bilateral or unilateral. The Court held that pre-1999 and pre-June 13, 2003, versions of Diagnostic Code 6260 required that VA assign dual 10-percent ratings for "bilateral" tinnitus where it was perceived as affecting both ears. VA appealed the Court's decision in Smith to the United States Court of Appeals for the Federal Circuit (Federal Circuit). To avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources based on court precedent that may ultimately be overturned on appeal, the Secretary imposed a stay at the Board on the adjudication of tinnitus claims affected by Smith. The specific claims affected by the stay essentially included all claims in which a claim for compensation for tinnitus was filed prior to June 13, 2003, and a disability rating for tinnitus of greater than 10 percent was sought. Recently, the Federal Circuit reversed the Veterans Court's decision in Smith, and affirmed VA's long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10-percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Citing Supreme Court precedent, the Federal Circuit explained that an agency's interpretation of its own regulations was entitled to substantial deference by the courts as long as that interpretation was not plainly erroneous or inconsistent with the regulations. Id. at 1349- 1350. Finding that there was a lack of evidence in the record suggesting that VA's interpretation of Diagnostic Code 6260 was plainly erroneous or inconsistent with the regulations, the Federal Circuit concluded that the Court erred in not deferring to VA's interpretation. As a consequence of that holding, on July 10, 2006, the Secretary rescinded the stay that had been imposed on all claims affected by Smith, and directed the Board to resume adjudication of the previously stayed claims consistent with VA's longstanding interpretation that a single 10-percent disability rating is the maximum rating available under Diagnostic Code 6260, regardless of whether the tinnitus is perceived as unilateral or bilateral. However, in this case, the veteran filed a claim seeking an increased rating for his bilateral tinnitus in July 2005. As such, the only version of Diagnostic Code 6260 that applies in this case is the current one which expressly prohibits the assignment of separate ratings for each ear affected by tinnitus. Therefore, the veteran's claim for an evaluation in excess of 10 percent rating for service-connected tinnitus must be denied. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The provisions of the Veterans Claims Assistance Act of 2000 have no effect on an appeal where the law, and not the underlying facts or development of the facts is dispositive in a matter. See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). As the tinnitus is rated at the maximum schedular rating, the remaining matter for the Board to address is whether extra- schedular consideration under 38 C.F.R. § 3.321 is warranted. No specific factors warranting extraschedular consideration have been alleged. The record does not show that the tinnitus has required frequent hospitalization, or caused marked interference with employment, or involves any factors of like gravity, which would render impractical application of the regular schedular criteria. Accordingly, the Board finds that referral of this claim for extraschedular consideration is not in order. ORDER A rating in excess of 10 percent for bilateral tinnitus is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs