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