Citation Nr: 0810155	
Decision Date: 03/27/08    Archive Date: 04/09/08

DOCKET NO.  05-36 982	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, 
Maine


THE ISSUE

Entitlement to separate schedular 10 percent disability 
ratings for bilateral tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Andrew Mack, Associate Counsel







INTRODUCTION

The veteran served on active duty from October 1943 to May 
1946. 

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a February 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Togus, Maine that denied the veteran's claim of entitlement 
to separate schedular 10 percent disability ratings for 
bilateral tinnitus.  The veteran perfected a timely appeal of 
this determination to the Board.


FINDING OF FACT

The veteran experiences recurrent bilateral tinnitus for 
which the maximum scheduler rating of 10 percent is assigned.


CONCLUSION OF LAW

There is no legal basis for the assignment of separate 
schedular 10 percent disability ratings for bilateral 
tinnitus.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, 
Diagnostic Code 6260 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran argues that he is entitled to a scheduler 
evaluation in excess of 10 percent for his service-connected 
bilateral tinnitus.

In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the U.S. 
Court of Appeals for Veterans Claims (CAVC) held that the 
pre-1999 and pre-June 13, 2003 versions of DC 6260 required 
the assignment of dual ratings for bilateral tinnitus.  VA 
appealed this decision to the U.S. Court of Appeals for the 
Federal Circuit (Federal Circuit) and stayed the adjudication 
of tinnitus rating cases affected by the Smith decision.  In 
Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the 
Federal Circuit concluded that the CAVC erred in not 
deferring to the VA's interpretation of its own regulations, 
38 C.F.R. § 4.25(b) and 38 C.F.R. § 4.87, Diagnostic Code 
6260, which limits a veteran to a single schedular disability 
rating for tinnitus, regardless whether the tinnitus is 
unilateral or bilateral.  Subsequently, the stay of 
adjudication of tinnitus rating cases was lifted.

The maximum schedular rating available for tinnitus is 10 
percent.  38 C.F.R. § 4.87, Diagnostic Code 6260; see 
38 U.S.C.A. § 1155.  As there is no legal basis upon which to 
award a higher evaluation than 10 percent for bilateral 
tinnitus, the veteran's appeal must be denied.  Sabonis v. 
Brown, 6 Vet. App. 426 (1994).  The provisions of the 
Veterans Claims Assistance Act have no effect on an appeal 
where the law, and not the underlying facts or development of 
the facts, is dispositive in a matter.  Manning v. Principi, 
16 Vet. App. 534, 542-543 (2002).


ORDER

Entitlement to separate schedular 10 percent disability 
ratings for bilateral tinnitus is denied.



____________________________________________
JONATHAN B. KRAMER
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs