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Smith v. Nicholson

United States Court of Appeals for the Federal Circuit

June 19, 2006, Decided

05-7168

Opinion

 [*1345]  LOURIE, Circuit Judge.

The Department of Veterans Affairs (the "DVA") appeals from the decision of the United States Court of Appeals for Veterans Claims (the "Veterans Court") reversing in part, vacating in part, and remanding the decision of the Board of Veterans' Appeals (the "Board"), holding, inter alia, that 38 C.F.R. § 4.25(b) and  [**2]  38 C.F.R. § 4.87, DC 6260 require the assignment of dual ratings for bilateral tinnitus. Smith v. DVA, 19 Vet. App. 63 (2005). Because the Veterans Court erred in not deferring to the DVA's interpretation of its own regulations, we reverse and remand that portion of the court's decision. No other aspect of the court's decision is on appeal.

BACKGROUND

Smith served on active duty in the U.S. Army from March 1966 to March 1969. A report from an April 1995 VA audiological examination revealed that Smith had tinnitus. In October 1995, a VA regional office ("RO") found that Smith's tinnitus was service connected. However, the RO assigned a noncompensable disability rating to Smith's tinnitus because the evidence did not demonstrate that the tinnitus was "persistent" as required by 38 C.F.R. § 4.87, DC 6260. In April 1999, the RO issued a supplemental statement of the case reaffirming that Smith's tinnitus was not persistent. Prior to June 10, 1999, DC 6260 (hereinafter "pre-1999 DC 6260") provided for a 10% disability rating for a veteran with tinnitus if the evidence demonstrated that the tinnitus was "persistent [**3]  as a symptom of head injury, concussion, or acoustic trauma." ] On June 10, 1999, DC 6260 (hereinafter "post-1999 DC 6260") was amended to provide a 10% disability rating for tinnitus if the evidence demonstrated that the tinnitus was "recurrent."  [*1346]  38 C.F.R. § 4.87, DC 6260 (2000). 1 The requirement that tinnitus must be a "symptom of head injury, concussion, or acoustic trauma" was deleted. Consequently, Smith appealed the RO's decision, asserting that his service-connected tinnitus should be evaluated under the post-1999 DC 6260, which requires that his tinnitus be "recurrent," rather than "persistent."

In a December 2000 decision, the Board considered Smith's claim under both the pre-1999 DC 6260 and the post-1999 DC 6260 regulations. With regard to pre-1999 DC 6260, [**4]  the Board affirmed the RO's decision that Smith's tinnitus was not "persistent," which the Board defined as "insistently repetitive, or continuous, tenacious, or enduring." Thus, the Board determined that Smith was not entitled to a 10% disability rating prior to June 10, 1999. With regard to post-1999 DC 6260, the Board determined that Smith's tinnitus was "recurrent" and granted him a 10% disability rating, effective June 10, 1999. Smith appealed from the Board's decision, alleging that the evidence demonstrated that his tinnitus was "persistent" under pre-1999 DC 6260 and that the Board misinterpreted both pre-1999 and post-1999 DC 6260 by failing to award a separate 10% disability rating for service-connected tinnitus in each ear.

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451 F.3d 1344 *; 2006 U.S. App. LEXIS 14919 **

ELLIS C. SMITH, Claimant-Appellee, v. R. JAMES NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellant.

Subsequent History: US Supreme Court certiorari denied by, Motion granted by Smith v. Nicholson, 2007 U.S. LEXIS 1302 (U.S., Jan. 22, 2007)

Stay lifted by In re Bilateral Tinnitus Cases, 2007 U.S. App. Vet. Claims LEXIS 14 (U.S. App. Vet. Cl., Jan. 31, 2007)

Appeal after remand at, Remanded by Smith v. Nicholson, 2007 U.S. App. Vet. Claims LEXIS 121 (U.S. App. Vet. Cl., Feb. 8, 2007)

Prior History:  [**1]  Appealed from: United States Court of Appeals for Veterans Claims. Senior Judge Jonathan R. Steinberg.

Smith v. Nicholson, 19 Vet. App. 63, 2005 U.S. App. Vet. Claims LEXIS 143 (U.S. App. Vet. Cl., 2005)

Disposition: REVERSED AND REMANDED.

CORE TERMS

tinnitus, Veterans, regulations, rating, ear, disabilities, disability rating, deference, bilateral, disease, own regulation, persistent, dual, proceedings, Appeals, agency's interpretation, court's decision, constitutes, service-connected, documents, recurrent, plainly, vacated

Military & Veterans Law, Veterans, General Benefits, Compensation for Service Connected Death & Disability, Administrative Law, Judicial Review, Standards of Review, Rule Interpretation, Civil Procedure, Appeals, De Novo Review, Appeals & Review, US Court of Appeals for Veterans Claims, Remand & Remittitur, Appellate Jurisdiction, Final Judgment Rule, Reviewability, Jurisdiction & Venue, Reviewability of Lower Court Decisions, General Overview, Department of Veterans Affairs, Agency Rulemaking, Rule Application & Interpretation, Validity