Wanner - Wright v. Principi , 2003 U.S. Vet. App. LEXIS 88 ( 2003 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 00-1888
JACOB WANNER, APPELLANT ,
AND
No. 01-1012
KING L. WRIGHT , APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued August 27, 2002 Decided February 12, 2003 )
Ronald L. Smith, with whom J. Marc Burgess was on the briefs, both of Washington, D.C.,
for the appellants.
Mark M. McNabb, with whom Tim S. McClain, General Counsel; Joan E. Moriarty, Acting
Assistant General Counsel; and Mary Ann Flynn, Deputy Assistant General Counsel, all of
Washington, D.C., were on the brief in case 01-1012, for the appellee. Tim S. McClain, General
Counsel; R. Randy Campbell, Acting Assistant General Counsel; Darryl A. Joe, Acting Deputy
Assistant General Counsel; and Erica M. Dornburg, all of Washington, D.C., were on the brief in
No. 00-1888 for the appellee.
Before IVERS, STEINBERG, and GREENE, Judges.
STEINBERG, Judge: Appellant King L. Wright appeals a February 20, 2001, Board of
Veterans' Appeals (BVA or Board) decision that denied, inter alia, separate 10% ratings (effective
June 10, 1999) for each ear for his Department of Veterans Affairs (VA) service-connected tinnitus.
Wright Record [hereinafter Wri. R.] at 2, 5. (Tinnitus is "a noise in the ears, such as ringing,
buzzing, roaring or clicking". DORLAND 'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND 'S) 1714
(28th ed. 1994)). Appellant Jacob Wanner appeals a June 7, 2000, BVA decision that denied a
compensable rating effective earlier than June 10, 1999, for his VA service-connected tinnitus and
denied a rating greater than 10% (effective June 10, 1999) for that condition. Wanner Record
[hereinafter Wan. R.] at 2.
I. Relevant Background
A. Wright
Appellant Wright served on active duty in the U.S. Army from December 1942 until
December 1945, including service in World War II. Wri. R. at 12. In March 1947, a VA regional
office (RO) awarded service connection and assigned a noncompensable rating for "impairment of
auditory acuity", effective from December 21, 1945, the day following his date of discharge. Wri.
R. at 15. At the time of the 1947 VARO decision, the examining audiologist reported that the
veteran claimed that he was "subjected to noises such as machine guns, explosion rifles, mortar
shells[,] and aircraft engines" during World War II; the audiologist concluded that the veteran's
"tinnitus [was] consistent with the history of noise exposure". Wri. R. at 16. In a July 1985 decision,
the RO noted that, upon examination at the veteran's separation from service, he had 15/15 hearing
bilaterally, with 12/15 in his right ear and 15/15 in his left ear. Wri. R. at 18. The RO also recorded
that "[t]he veteran gave a history of exposure to loud noises in service and now complained of a
squeaky ringing in his ears". Wri. R. at 18. The RO granted service connection for tinnitus and
continued the prior noncompensable rating, but referred to his condition as "defective hearing,
bilateral with tinnitus". Wri. R. at 19.
In a July 1986 VA tinnitus-examination report, an audiologist recorded that the veteran was
suffering from "a mild to moderate sensorineural hearing loss bilaterally" and that "the patient's
tinnitus is a moderate annoyance, and does present a disturbance to the veteran's sleep and
interpersonal communication". Wri. R. at 77. Based on a finding that the veteran's hearing had
worsened since his separation from service, in July 1988 the RO assigned a 20% rating for his
service-connected bilateral hearing loss with tinnitus, effective June 29, 1987, the date that a VA
medical examination confirmed the veteran had an increased hearing loss. Wri. R. at 23. The RO
2
also commented: "Claimed tinnitus does not warrant separate compensable evaluation as it is not
shown in service or as the result of definite acoustic trauma." Ibid.
In response to the veteran's April 1999 claim for an increased rating for his bilateral hearing
loss with tinnitus (Wri. R. at 38), the RO continued the 20% rating in October 1999. Wri. R at 44.
The RO commented: "Although the veteran's hearing loss does not meet the current criteria to
support the 20[%] evaluation, this evaluation is continued as it was assigned under old rating criteria
previously in effect for evaluating hearing loss. Higher evaluations are assigned for greater loss of
hearing." Wri. R. at 45. On appeal to the Board (Wri. R. at 63), the veteran argued, inter alia, that
he should receive a separate 10% tinnitus rating for each ear. Wri. R. at 73. Specifically, he argued
that Diagnostic Code (DC) 6260 (in 38 C.F.R. § 4.87a) is ambiguous because it does not specify
"whether recurrent tinnitus must be present in both ears in order to warrant the [10%] rating, whether
recurrent tinnitus in either ear alone will warrant the [10%] rating, or whether such bilateral tinnitus
warrants separate [10%] ratings". Wri. R. at 75. On a November 1991 statement-in-support-of-
claim form, the veteran stated that he is "partly deaf", his "ears ring all the time", and his condition
keeps him awake "most of the night". Wri. R. at 92-93.
In the February 2000 BVA decision here on appeal, the Board denied a rating greater than
20% for the appellant's bilateral hearing loss with tinnitus and assigned a separate 10% rating for
tinnitus effective as of June 10, 1999. Wri. R. at 2. In determining the proper rating and effective
date for the tinnitus claim, the Board stated:
At the time the veteran was granted service connection for tinnitus
and prior to June 10, 1999, the only [DC] to address tinnitus was
[DC] 6250 [sic], which allowed a compensable (10%) rating for
tinnitus only if it was persistent and resulted from a head injury,
concussion, or acoustic trauma. See 38 C.F.R. § 4.87a, [DC] 6260,
effective prior to June 10, 1999. On June 10, 1999, [DC] 6260 was
amended to provide that service-connected tinnitus would be rated as
10% disabling if recurrent. See 38 C.F.R. § 4.87, [DC] 6260,
effective on and after June 10, 1999. The current [DC] 6260 also
noted that a separate evaluation for tinnitus may be combined with an
evaluation under [DCs] 6100, 6200, 6204 or other [DCs], except
where tinnitus supports an evaluation under one of those [DCs]. See
38 C.F.R. § 4.87 [DC] 6260, effective as of June 10, 1999.
3
Wri. R. at 4. The Board then reasoned that, although Karnas v. Derwinski, 1 Vet.App. 308, 313
(1991), required that the Board apply the more favorable law, under 38 U.S.C. § 5110(g) the Board
may apply the amended regulation only "to rate the veteran's disability for periods from and after the
effective date of the amendment"; the Board concluded, therefore, that it could award a 10% rating
for tinnitus only effective as of June 10, 1999. Wri. R. at 5 (citing VA Gen. Coun. Prec. (G.C. Prec.)
03-00 (Apr. 10, 2000)).
In response to the appellant's argument that he should receive, under DC 6260, two 10%
ratings for tinnitus, one for each ear, the Board reasoned:
While the rating schedule does provide[] for rating each ear for otitis
media, otitis externa, and ear neoplasms, it specifically does not
address the "bilateral" condition in [DC] 6260 for tinnitus. [Those
three conditions] are all conditions that may affect only one or both
ears and may have separate complications when bilateral. Tinnitus,
on the other hand, is a condition that is defined as "a ringing, buzzing
noise in the ears.["] [DORLAND 'S] 1725 (27th ed. 1988)[]. In other
words, it is a diffuse perception of sound, rather than an actual
physical condition. Thus, the Board finds that either tinnitus is
present or it isn't, it is an all-or-none phenomenon, and a single
evaluation is appropriate whether it is perceived as being bilateral,
unilateral, or somewhere in between. Thus, the Board concludes that
[DC] 6260 provides for a maximum 10[%] rating for recurrent
tinnitus, whether perceived as unilateral or bilateral.
Wri. R. at 5.
B. Wanner
Appellant Wanner served honorably, including wartime service, in the U.S. Marine Corps
from February 1946 to June 1948. Wan. R. at 33, 40. While in service, the veteran developed
tuberculosis (Wan. R. at 28-29), for which he was treated with an ototoxic medication, streptomycin,
(Wan. R. at 3). Following his July 1948 application for benefits (Wan. R. at 36), an RO granted
service connection for his tuberculosis in November 1949 (Wan. R. at 39). In April 1982, he filed,
inter alia, a claim for service connection for his bilateral hearing loss, which he stated was "due to
medication". Wan. R. at 42. In May 1982, a private audiologist examined him and concluded that
he had "a mild high[-]frequency hearing loss consistent with his history of ototoxic medication"
(Wan. R. at 46), and in September 1982 he was diagnosed with "tinnitus aurium, recurrent" (Wan.
4
R. at 50). The RO denied his claim for service connection in November 1982 and issued a Statement
of the Case (SOC) in April 1983 and a Supplemental SOC in September 1983 reiterating that denial.
Wan. R. at 52-54, 66, 81-82. In a September 1984 hearing at the RO, the veteran testified under oath
that he had not experienced any ringing in his ears before he began taking tuberculosis medication.
Wan. R. at 90. He further testified that he had served with an artillery unit and "did a lot of firing",
which also caused his ears to ring. Wan. R. at 90.
In August 1985, based on several medical opinions that the veteran's tinnitus resulted from
the streptomycin medication, the Board awarded service connection for tinnitus as "the result of
treatment for a service-connected disability". Wan. R. at 115-17. The RO assigned a
noncompensable rating for the condition, effective from April 15, 1982, the date on which the
veteran had filed his claim. Wan. R. at 122. On September 23, 1998, he filed a claim for an
increased rating, based on the assertion that his bilateral hearing loss had increased in severity (Wan.
R. at 125), and he underwent a VA audiological examination in November 1998 (Wan. R. at 136-39).
The examining physician concluded that the veteran "does indeed have a significant bilateral
sensorineural hearing loss" and stated:
[T]he tinnitus was not present early on when he suffered any damage
due to the streptomycin. It would be hard to argue that the
streptomycin he took for his tuberculosis probably caused some of his
hearing loss [sic]. The exact percentage of that [loss] cannot be
determined, but it is probably a factor. The tinnitus is probably more
related to aging, and the tinnitus does not seem to be that bothersome
to him and does not interfere with his functioning.
Wan. R. at 138. In January 1999, the RO increased the veteran's rating for high-frequency hearing
loss, bilateral, to 20%, but denied a compensable rating for tinnitus because the record did not show
"persistent tinnitus as a symptom of head injury, concussion, or acoustic trauma". Wan. R. at 143.
On appeal to the Board, the veteran challenged only the noncompensable rating for his service-
connected tinnitus. Wan. R. at 161, 167.
In the BVA decision here on appeal, the Board denied a compensable rating effective earlier
than June 10, 1999, for the veteran's service-connected tinnitus but awarded a 10% rating as of that
date. Wan. R. at 2. As in the Board's Wright decision, the Board here found that, although under
Karnas, supra, the more favorable law must apply, DC 6260 (1999) is effective as of June 10, 1999,
5
and the regulation does not permit retroactive application. Wan. R. at 5-6. In applying the
pre-June 10, 1999, DC 6260 [hereinafter "pre-1999 DC 6260"], the Board concluded that even if it
were to determine that the veteran's tinnitus was persistent, "there is no indication of record (nor does
the veteran contend) that it was a symptom of head injury, concussion, or acoustic trauma". Wan.
R. at 6. In examining DC 6260 as effective on June 10, 1999 [hereinafter DC 6260 (1999) or DC
6260 (2002)], the Board concluded that a 10% evaluation was warranted for the veteran's tinnitus
because it was "recurrent", occurring four to five times daily, and that that rating "remains the
maximum disability rating available under this [DC]". Wan. R. at 6.
II. Contentions on Appeal
Each appellant seeks reversal of his respective Board decision and the assignment of two
separate 10% tinnitus ratings, one for each ear; appellant Wright seeks an effective date of April 8,
1999 (the date of his claim for an increased rating (Wri. R. at 38)); appellant Wanner seeks an
effective date of September 23, 1988 (the date of his claim for an increased rating (Wan. R. at 125)).
Wri. Brief (Br.) at 13; Wan. Br. at 25. In their principal and reply briefs, the appellants make many
of the same arguments in support of their general arguments that the Board erred by failing to award
(1) two separate 10% ratings for the each appellant's tinnitus, one for each ear, and (2) an effective
date prior to June 10, 1999, for the appellants' 10% tinnitus ratings.
A. Separate Tinnitus Ratings
First, both appellants argue that the Board misinterpreted DC 6260 when it failed to award
two separate 10% tinnitus ratings, one for each ear. Wri. Br. at 9; Wan. Br. at 12. Specifically, the
appellants argue that 38 C.F.R. § 4.25 requires that the appellants' tinnitus disabilities be rated
separately because "each service-connected disability shall be separately rated and the ratings [shall
be] combined". Wri. Br. at 9 (citing 38 C.F.R. § 4.25, Colayong v. West, 12 Vet.App. 524, 531
(1999), and Esteban v. Brown, 6 Vet.App. 259, 262 (1994)); Wri. Reply at 1-2; Wan. Reply at 8-9.
The appellants also argue that because that DC does not specify whether the 10% rating available
for tinnitus may be awarded for each ear or whether 10% is the maximum rating for both unilateral
and bilateral tinnitus, that ambiguity must be resolved in favor of the veteran, particularly in light
of the fact that in other DCs the Secretary has explicitly specified that other disabilities that may be
6
experienced bilaterally may receive only one rating whether the condition involved is unilateral or
bilateral. Wri. Br. at 10-11 (citing 38 C.F.R. §§ 4.87a, DC 6207 (providing separate rating for "loss
of both" and for "loss of one" auricle); 4.84a, DC 6011 (providing one rating for scars of the retina,
whether "unilateral or bilateral), DC 6019 (providing one rating for "[p]tosis, unilateral or bilateral",
DC 6023 (providing one rating for loss of eyebrows, whether "unilateral or bilateral"), DC 6024
(providing one rating for loss of eyelashes, whether "unilateral or bilateral", and DC 6029 (providing
one rating for aphakia, whether "[b]ilateral or unilateral"); and 4.97, DC 6520 (providing one rating
for stenosis of larynx, whether "unilateral or bilateral")); Wan. Br. at 12-14 (citing DC 6207 for
proposition that where single rating is intended, Secretary has specifically so provided).
The Secretary argued initially in Wright that the appellant's increased-rating claim for his
service-connected hearing loss has been abandoned on appeal. Secretary's Br. in response to Wri.
Br. [hereinafter Br. #2] at 6-7 (citing Smith (Dennis) v. West, 11 Vet.App. 56, 57 (1998), Mykles v.
Brown, 7 Vet.App. 372, 373 (1995), and Bucklinger v. Brown, 5 Vet.App. 435, 436 (1993)). The
Court agrees. See Ford v. Gober, 10 Vet.App. 531, 535-36 (1997); Degmetich v. Brown, 8 Vet.App.
208, 209 (1995), aff'd, 104 F.3d 1328 (Fed. Cir. 1997). In Wanner, initially the Secretary argued at
length that the appellant has failed to exhaust his administrative remedies because he did not raise
the separate-tinnitus-ratings issue before VA or the Board (Secretary's Br. in response to Wan.
Br. [hereinafter Br. #1] at 5-9); the appellant objected to that argument in his reply brief (Wan.
Reply at 1-9), and the Secretary later moved, in light of the Court's consolidation order, to withdraw
that portion of the brief (Motion at 1-2). The Court will grant that motion.
As to the merits of the appellants' separate-tinnitus-ratings arguments, the Secretary counters
that the rating schedule is not ambiguous and that it "explicitly prohibits pyramiding of disability
evaluations" under 38 C.F.R. § 4.14 (2000). Br. #1 at 9; Br. #2 at 7. The Secretary argues that he
has provided for separate ratings for "like organs" when he intended to and that, had he intended
separate ratings in the case of bilateral tinnitus, he would have provided for it. Br. #1 at 9; Br. #2 at
7 (both citing DC 6207; 38 C.F.R. § 4.115b, DC 7523 (providing separate ratings for atrophy of
"[o]ne" testis and "[b]oth" testes) and DC 7524 (providing separate ratings for removal of "[o]ne"
testis and "[b]oth" testes); and 38 C.F.R. § 4.116, DC 7626 (providing separate ratings for surgery
on "[o]ne" breast and on "[b]oth" breasts)). The Secretary further asserts that (1) "VA considers
7
tinnitus a single disability, whether heard in one ear, both ears, or somewhere undefined in the head";
(2) no matter where the condition is manifested, "the average impairment on earning capacity is the
same"; and (3) therefore, under 38 U.S.C. § 1115 and 38 C.F.R. § 4.1 (2000), the rating schedule
assigns a single rating for tinnitus because ratings are based in large part on impairment of earning
capacity. Br. #1 at 9-10; Br. #2 at 7-8.
In reply to the Secretary's briefs, both appellants argue that the Court should reject the
Secretary's "post[]hoc rationalization[]" that "VA considers tinnitus a single disability" because VA
never adopted this position before the Secretary filed the brief and that the Court should thus give
no deference to this position because it was "'fashioned for the purposes of litigation'". Wri. Reply at
2-3; Wan. Reply at 9-11 (quoting Alaniz v. OPM, 728 F.2d 1460, 1465 (Fed. Cir. 1984)).
B. Earlier Effective Date (EED)
Appellant Wright asserts that the Board misinterpreted pre-1999 DC 6260 when it held, "de[]
facto", that the frequency of his tinnitus was not "persistent" within the meaning of the pre-1999 DC,
despite the fact that "the tinnitus is constant in nature" (Wright Br. at 6, 12-13 (citing 38 C.F.R.
§ 4.87a, DC 6260 (1998) and Wri. R. at 32-33, 77, 79, 87, 90, 95)) and, therefore, it is "persistent"
under the plain meaning of the pre-1999 regulation. Wri. Br. at 12-13. Furthermore, the appellant
asserts that the "Board's unexplained ipse dixit that the veteran's tinnitus is [only] 'recurrent[]' . . .
should be reversed by the Court." Wright Br. at 13 (citing Wri. R. at 2, 5). The Secretary counters
that the determination of a proper effective date is a question of fact and is therefore reviewable only
under the "clearly erroneous" standard under 38 U.S.C. § 7261(a)(4). Br. #2 at 9 (citing Hanson v.
Brown, 9 Vet.App 29, 32 (1996), and Scott v. Brown, 7 Vet.App. 184, 188 (1994)). The Secretary
argues that the Court should affirm the Board decision because there is "a 'plausible basis' in the
record" for the Board's determination that the appellant is not entitled to a separate rating for tinnitus
prior to June 10, 1999. Br. #2 at 9 (quoting Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990)). In
response to appellant Wright's assertion that "'tinnitus described as constant is persistent within the
meaning of the [pre-1999] regulation'", the Secretary states that he "does not dispute that statement";
instead, he argues that, as the Board determined, the condition did not "result[] from a head injury,
concussion[,] or acoustic trauma". Br. #2 at 9-10 (quoting Wri. Br. at 12-13); see Wri. Reply at 6.
8
Both appellants also argue that they are entitled to an effective date earlier than June 10,
1999, because the requirement contained in the pre-1999 DC 6260 that the disability be a symptom
of "head injury, concussion[,] or acoustic trauma" [hereinafter "the trauma requirement"] is unlawful;
the appellants contend that the DC conflicts with 38 U.S.C. § 1110 by denying compensation for
tinnitus that was not acquired from trauma. Wan. Br. at 15-19 (citing Brown v. Gardner, 513 U.S.
115, 117-18 (1994), and Allen v. Brown, 7 Vet.App. 439, 446 (1995) (en banc), for proposition that
it is "contrary to law" for VA to limit statute "thereby narrowing [its] scope . . . and construing it
against veterans"); Wri. Reply at 4-8 (same). Both appellants assert that the Court has jurisdiction
to hold that pre-1999 DC 6260 conflicts with section 1110, because such a holding is not the review
of the rating schedule that is prohibited by 38 U.S.C. § 7252(b). Wan. Br. at 15 (citing Villano v.
Brown, 10 Vet.App. 248, 249-50 (1997)); Wri. Reply at 5 (same).
Appellant Wanner asserts that the scope of the Court's review includes the review of
regulations that the Court finds to be "contrary to constitutional right, power, privilege, or immunity"
under section 7261(a)(3)(B). Wan. Br. at 19-22 (citing 38 U.S.C. § 7252(a), H.R. REP. NO . 100-963,
at 30 (1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5812); see 38 U.S.C. § 7261(a)(3)(B). He
argues that the Secretary has created "unconstitutional classifications", having no rational basis for
the distinction, by providing for tinnitus benefits under pre-1999 DC 6260 only for those veterans
who meet the trauma requirement; appellant Wanner asserts that those veterans not meeting the
necessary qualifications are therefore denied equal protection of the law under the Fifth Amendment
of the U.S. Constitution (as it includes, at least in part, protections under the Fourteenth Amendment
against federal government action, Bolling v. Sharpe, 347 U.S. 497, 499 (1954)). Wanner Br. at 22-
23. Furthermore, appellant Wanner agrees with the Secretary that the "degree of impairment" in
earning capacity under section 38 U.S.C. § 1155 determines the amount of a compensation award,
but he contends that pre-1999 DC 6260 intimates "no relationship between the manner in which
tinnitus was acquired and its effect on earning capacity". Wan. Br. at 24-25. Appellant Wright also
sets forth, less extensively, an equal-protection-violation argument. Wri. Reply at 4.
The Secretary first counters appellant Wanner's equal-protection arguments by challenging
the Court's jurisdiction to entertain such arguments. The Secretary argues that section 7252(b)
prohibits Court review of the rating schedule and requires no interpretation or, therefore, recourse
9
to legislative history to divine congressional intent. Br. #1 at 13 (citing Hood v. Brown, 4 Vet.App.
301, 304 (1993), for the proposition that "Court [is] precluded from reviewing the [rating]
schedule"). The Secretary also argues that the appellant "raises his constitutional argument as a
means of bypassing the statutory provisions governing the assignment of an effective date for
payment of compensation based on a liberalizing change of law". Br. #1 at 14 (citing Bucklinger,
5 Vet.App. at 441; Dorward v. West, 13 Vet.App. 295 (2000) (per curiam order)). Although the
Secretary makes no direct argument for any rational basis for this classification based on trauma, he
does state that "the Secretary's rating covered the common forms of tinnitus from injury or disease".
Wan. Br. at 17 (emphasis added).
III. Analysis
The Court will address in turn the following issues: (1) Whether DC 6260 provides for two
separate ratings for bilateral tinnitus, i.e., one rating for each ear, and (2) whether the appellants are
eligible for an EED, to include the jurisdiction and merits issues involved in determining the validity
of the trauma requirement.
A. DC 6260: Unilateral or Bilateral?
In 1998 and until June 10, 1999, DC 6260 provided a 10% rating for tinnitus where the
condition was "[p]ersistent as a symptom of head injury, concussion, or acoustic trauma". DC 6260
(1998). On June 10, 1999, an amendment to DC 6260 went into effect; that amendment contains
the same text as the current regulation and provides for a 10% rating for "[t]innitus, recurrent", with
the following note: "Note: A separate evaluation for tinnitus may be combined with an evaluation
under [DCs] 6100, 6200, 6204, or other DC, except when tinnitus supports an evaluation under one
of those DCs." 38 C.F.R. § 4.87, DC 6260 (2002); 64 Fed. Reg. 25200, 25202, 25206 (May 11,
1999).
The Board is required to consider all evidence of record and to consider, and discuss in its
decision, all "potentially applicable" provisions of law and regulation. Charles v. Principi,
16 Vet.App. 370, 373 (2002); Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C.
§ 7104(a); Weaver v. Principi, 14 Vet.App. 301, 302 (2001) (per curiam order); Sanden v. Derwinski,
2 Vet.App. 97, 100 (1992). The Board is also required to include in its decision a written statement
10
of the reasons or bases for its findings and conclusions on all material issues of fact and law
presented on the record; that statement must be adequate to enable an appellant to understand the
precise basis for the Board's decision, as well as to facilitate review in this Court. See 38 U.S.C.
§ 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To
comply with this requirement, the Board must analyze the credibility and probative value of the
evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons
for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App.
498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown,
7 Vet.App. 36, 39-40 (1994); Gilbert, supra.
The appellants argue that 38 C.F.R. § 4.25(b) requires the assignment of two separate tinnitus
ratings, one for each ear. The Board decision, however, failed to address § 4.25(b), which states in
pertinent part: "Except as otherwise provided in this schedule, the disabilities arising from a single
disease entity, e.g., arthritis, multiple sclerosis, cerebrovascular accidence, etc., are to be rated
separately[,] as are all other disabling conditions, if any." 38 C.F.R. § 4.25(b) (2002). Therefore,
the Board's statements of reasons or bases were inadequate because the Board failed to discuss this
"potentially applicable" regulation and its impact on the appellants' claims for separate tinnitus
ratings for each ear under DC 6260. These claims must thus be remanded for readjudication in light
of this regulation under both the pre-1999 (in view of our holding in part II.B.2.c., below) and the
current DC.
The Court notes that it is unclear whether the "all other disabling conditions" language in
§ 4.25(b) refers to "all" such disabling conditions generally or if that phrase is intended to refer to
"disabilities arising from a single disease entity". The Board should also consider this matter in
readjudicating the appellant's claims. Additionally, the Court notes that the Secretary recently has
proposed to add to the rating schedule a Note, which would provide: "Note (2): Assign only a single
evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head."
67 Fed. Reg. 59033, 59034 (Sept. 19, 2002). In the accompanying Supplementary Information, the
Secretary explained that the regulation is proposed "[t]o avoid any possible misunderstanding", "[t]o
assure that tinnitus is consistently and correctly evaluated", and "to definitively state that recurrent
tinnitus is assigned only one evaluation whether it is perceived in one ear, both ears, or an
11
indeterminate site in the head"; the Secretary stated that the "amendment involves no substantive
change and is consistent with current practice". 67 Fed. Reg. at 59033. Neither the proposed
regulation nor the Supplementary Information state a proposed effective date or express an intent to
give the regulation any retroactive effect.
B. Effective Date
1. Jurisdiction
The appellants challenge on both constitutional and statutory grounds the regulatory trauma
requirement contained in DC 6260 (1998) . The Court's jurisdiction is described in 38 U.S.C.
§ 7252(b):
Review in the Court shall be on the record of proceedings
before the Secretary and the Board. The extent of the review shall be
limited to the scope provided in section 7261 of this title. The Court
may not review the schedule of ratings for disabilities adopted under
section 1155 of this title or any action of the Secretary in adopting or
revising that schedule.
38 U.S.C. § 7252(b); see also 38 U.S.C. § 1155 (authorizing Secretary to adopt schedule for rating
disabilities). Although the Secretary conceded at oral argument that the constitutional issue falls
within the scope of the Court's review, he contests the appellant's assertion that the law also
empowers the Court to review the DC for its compliance with the statute.
As to the constitutional argument, it is well settled that the Court possesses jurisdiction to
review constitutional arguments generally; section 7261(c)(2) provides that the Court may "hold
unlawful and set aside" regulations that are, inter alia "contrary to constitutional right, power,
privilege, or immunity". 38 U.S.C. § 7261(c)(2)(B); Robinson v. Brown, 9 Vet.App. 398, 399-400
(1996) (reiterating holding that Court is "empowered to make determinations regarding the
interpretation and application of regulations and constitutional claims"). It is also well settled that
any exclusion of jurisdiction in courts to review constitutional contentions regarding benefits under
title 38 of the U.S. Code will be disfavored. See Johnson v. Robison, 415 U.S. 361, 366-74 (1974)
(holding that 38 U.S.C. § 211(a) (1970) did not bar judicial review of constitutional questions arising
under title 38, U.S. Code); see also Traynor v. Turnage, 485 U.S. 535, 542-45 (extending Robison
holding "that the federal courts c[an] entertain constitutional challenges to veterans' benefits
12
legislation" and concluding that "the question whether a Veterans' Administration regulation violates
the Rehabilitation Act is not foreclosed from judicial review by [section] 211(a)"). Recently, the
U.S. Court of Appeals for the Federal Circuit concluded that the prohibition in 38 U.S.C. § 502(substantially similar to the section 7252(b)(2) prohibition) against reviewing a revision to the rating
schedule does not preclude that court's review of the constitutionality of such a revision. Nyeholt
v. Principi, 289 F.3d 1350, 1352-53 (Fed. Cir. 2002). Furthermore, it is also a well-established
principle of constitutional litigation that a Court will "'avoid reaching constitutional questions in
advance of the necessity of deciding them'", and will first determine whether the case may be decided
on statutory grounds. Bucklinger, 5 Vet.App. at 441 (quoting Lyng v. Northwest Indian Cemetery
Protective Assoc., 485 U.S. 439, 445 (1998)). Therefore, although as in Bucklinger, 5 Vet.App. at
440, the instant case raises a serious constitutional issue (especially in light of our ensuing statutory-
conflict holding in part III.B.2.c., below, and in light of the fact that the Secretary fails to assert a
rational basis for providing benefits to veterans with tinnitus who satisfy the trauma requirement and
denying benefits to those with tinnitus who do not), we will not reach that issue because the Court
will invalidate that part of the DC at issue, on statutory grounds. See part III.2.c., infra.
As to the Court's jurisdiction to review the appellants' statutory argument, the issue is whether
the Court's examination of DC 6260 (1998) for consistency with section 1110 constitutes the "review
[of] the [rating] schedule" that section 7252(b) prohibits or, rather, whether such an issue is within
the scope of the Court's review powers. In Villano, the Court held that it could "review . . . the
schedule of ratings" for the "limited" purpose of determining "whether a particular [DC] is contrary
to law". Villano, 10 Vet.App. at 250. As in Hood v. Brown, here "[t]he Court is not reviewing the
schedule or percentage ratings or the percentages prescribed by that schedule". Hood, 4 Vet.App.
301, 304 (1993). Although Court review is precluded as to intraschedular conflict, what should be
considered a disability, and the appropriate rating for any disability, that sort of review is not now
before the Court; hence, we conclude, as in Villano, supra, that the Court may review whether the
regulation complies with the statutory authority under which disability compensation is paid,
38 U.S.C. § 1110.
Moreover, as is referenced in section 7252(b), section 7261 sets forth the scope of the Court's
review; section 7261(a)(1) and (3) explicitly allow the review sought by the appellants in the instant
13
case. Section 7261(a)(3) permits the Court to "hold unlawful and set aside" regulations that are, inter
alia, "not in accordance with law" or "in excess of statutory . . . authority[] or limitations, or in
violation of a statutory right". 38 U.S.C. § 7261(a)(1), (3). The Secretary asserts that the appellant
misreads the words of section 7261(a) by failing to recognize its introductory language, which
provides that the scope as defined therein is limited "to the extent necessary to its decision and when
presented", 38 U.S.C. § 7261(a); the Secretary argues that this language bars the Court from
addressing this issue because "review of the rating provisions at issue in this case are neither
'necessary' to the Court's decision nor properly 'presented' for judicial review". Br. #1 at 14. To the
extent that the Secretary is arguing that the issue is not properly "'presented'", it appears that he is
referring to his argument that the appellant failed to exhaust his administrative remedies (Br. #1 at
5-9); however, the Secretary has moved to withdraw that portion of his brief (Motion at 1-2), see
Maggitt v. West, 202 F.3d 1370, 1378-79 (Fed. Cir. 2000) (holding that Court "did not lack
jurisdiction to consider Maggitt's constitutional and statutory arguments", even though administrative
remedies were not exhausted). To the extent that the Secretary is arguing that the issue is not
"'necessary' to the Court's decision", the Court rejects that argument as erroneous because the very
issue before the Court is whether the appellant is entitled to an EED based on the asserted invalidity
of the pre-1999 DC. Moreover, Congress is presumed to legislate with knowledge of caselaw that
sets forth principles of statutory construction, see McNary v. Haitian Refugee Ctr., Inc., 498 U.S.
479, 496 (1991), including the "'fundamental and long-standing principle of judicial restraint . . . that
courts avoid reaching constitutional questions in advance of the necessity of deciding them'",
Bucklinger, supra (quoting Lyng, supra); hence, to decide that Congress prohibited the Court from
deciding a case on statutory grounds and directed instead that a constitutional question be confronted
that might otherwise be avoided would be to impute to Congress, when enacting section 7252(b),
the abrogation by silence of a fundamental statutory-construction principle.
Therefore, for all the reasons discussed above, we hold that the Court has jurisdiction,
pursuant to section 7261(a)(3)(C), to determine whether a DC regulation is "in violation of a
statutory right" and, pursuant to section 7261(a)(3)(A), to determine whether a DC regulation is
"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law". 38 U.S.C.
§ 7261(a)(3)(C), (B).
14
2. Merits
As appellant Wanner and the Secretary both contend, the validity of DC 6260 (1998) is an
issue of law. Wan. Br. at 10, Br. #1 at 1. Hence, we will examine the issue under the de novo
standard of review pursuant to section 7261(a)(1) and (3).
a. Applicable DC: Karnas instructs: "Where the law or regulation changes after a claim has
been filed or reopened but before the administrative . . . process has been concluded, the version
mo[re] favorable to the appellant should and we so hold will apply unless Congress provided
otherwise or permitted the [Secretary] to do otherwise and the Secretary did so." Karnas, supra
(emphasis added). As the appellants point out, the Secretary specifically provided that the current
regulation, which does not contain the trauma requirement, is not applicable prior to June 10, 1999.
64 Fed. Reg. 25,200, 25,202 (May 11, 1999) (specifying effective date).
In appellant Wright's case, the Board cited Karnas and concluded that it was constrained by
38 U.S.C. § 5110(g) not to apply the more favorable regulation in DC 6260 (1999) prior to its June
10, 1999, effective date. Wri. R. at 4-5; see Wan. R. at 4-5. Section 5110(g) provides:
Subject to the provisions of section 5101 of this title, where
compensation, dependency and indemnity compensation, or pension
is awarded or increased pursuant to any Act or administrative issue,
the effective date of such award or increase shall be fixed in
accordance with the facts found but shall not be earlier than the
effective date of the Act or administrative issue. In no event shall
such award or increase be retroactive for more than one year from the
date of application therefor or the date of administrative
determination of entitlement, whichever is earlier.
38 U.S.C. § 5110(g) (emphasis added). The Court held in DeSousa v. Gober that section 5110(g)
"precludes an effective date earlier than the effective date of the liberalizing . . . regulation", but the
Board must, nonetheless, still adjudicate whether a claimant "would receive a more favorable
outcome, i.e., something more than a denial of benefits, under the prior law and regulation".
DeSousa, 10 Vet.App. 461, 467 (1997). Accordingly, the Board had the duty to adjudicate the
appellant's claims under the pre-1999 DC for any period prior to June 10, 1999, as well as under the
new DC for the period beginning on June 10, 1999. See DeSousa and Karnas, both supra.
15
b. Appellant Wright's EED Claim: Reasons or Bases: In the Wright case, the Board
correctly pointed out the requirements of Karnas and section 5110(g) in terms of adjudicating the
appellant's claim under the appropriate DC. However, the Board abruptly and incorrectly concluded
its analysis there: "Accordingly, the Board should apply the amended regulation to rate the veteran's
disability for periods from and after the effective date of the amendment." Wri. R. at 5 (citing G.C.
Prec. 03-00). Under DeSousa, as well as G.C. Prec 03-00, which was cited by the Board, this
analysis is incomplete; G.C. Prec. 03-00 plainly holds that in a circumstance such as this, "the Board
should apply the amended regulation to rate the veteran's disability for periods from and after the
effective date of the amendment[, and t]he Board should apply the prior version of the regulation
to rate the veteran's disability for any period preceding the effective date of the amendment".
G.C. Prec. 03-00; see DeSousa, supra. The Board was bound to follow G.C. 03-00, see 38 U.S.C.
§ 7104(c); Herlehy v. Principi, 15 Vet.App. 33, 34 (2001) (per curiam order); instead, however, the
Board simply inserted the following summary conclusion in the final paragraph of the part of its
decision entitled "Hearing Loss" (pertaining to the appellant's claim for an increased rating for
bilateral hearing loss): "However, the preponderance of the evidence is against the claim for a
compensable evaluation for tinnitus under the prior rating criteria in effect during the pendency of
this appeal prior to June 10, 1999." Wri. R. at 6, 9. Because the Board failed (1) to discuss the pre-
1999 DC 6260, a "potentially applicable" regulation (which the Court holds is applicable under
DeSousa), Schafrath, supra (construing 38 U.S.C. § 7104(a)), (2) to provide an explanation for its
decision that would enable an appellant to understand the precise basis for the Board's decision, see
38 U.S.C. § 7104(d)(1); Allday and Gilbert, both supra; and (3) to account for the evidence that it
finds persuasive or unpersuasive, see Caluza and Gabrielson, both supra, the Court holds that the
Board's statement of reasons or bases was inadequate. On remand, the Board must adjudicate fully
the appellant's claim in compliance with these requirements. Of course, in readjudicating appellant
Wright's claim, the Board is also bound by this opinion's holding in part III.B.2.c, below, that the
trauma requirement in pre-1999 DC 6260 is invalid.
Moreover, as to the appellant's argument regarding the Board's "de[] facto" holding that his
tinnitus is only "recurrent" but not "persistent" (Wri. Br. at 6, 12-13), the Board does make two
references to the appellant's tinnitus as being "recurrent" (Wri. R. at 2, 5), but both of these
16
references appear to pertain to the evaluation of the appellant's tinnitus under revised DC 6260
(1999), in which "recurrent" is the criterion of frequency. As stated above, the Board did not actually
evaluate the appellant's condition under pre-1999 DC 6260, and, furthermore, the Board decision
does not appear to contain any discussion or application of the "persistent" criterion in pre-1999
DC 6260 in terms of the appellant's claim. See Wri. R. at 1-10. Therefore, on remand, the Board
must adjudicate this issue (1) in light of the Secretary's concession that "'tinnitus described as
["]constant["] is ["]persistent["] within the meaning of the regulation'" (Br. #2 at 9-10 (quoting
language from Wri. Br. at 12-13 and stating, "[t]he Secretary does not dispute that statement"); and
(2) taking into account the record on appeal (ROA); and (3) providing an adequate statement of
reasons or bases for its decision. See 38 U.S.C. § 7104(a), (d)(1); Wri. R. at 32-33, 77, 79, 87, 90,
95.
The Court notes that the first mention of the appellant's tinnitus is found in the July 1985 RO
decision, where it granted "[service connection] for tinnitus" but found that the requirements for a
compensable rating were not met. Wri. R. at 18. In the summary section listing the service-
connected disabilities in that decision, however, the RO did not separate out the appellant's tinnitus
as a separate noncompensable rating; instead, the RO listed the condition as "defective hearing,
bilateral with tinnitus" and listed the 0% rating effective from December 21, 1945. Wri. R. at 19.
Therefore, although the RO determined that a separate noncompensable rating was appropriate, the
effective date of that rating is not clear from the record. See Wri. R. at 18-19. On the remand
ordered herein, the Board should consider this matter in determining whether the appellant meets the
criteria under DC 6260 (1998) for the period prior to June 10, 1999.
c. Appellant Wanner's EED Claim: Validity of Trauma Requirement: As stated in part
III.B.1., above, the Court may "hold unlawful and set aside" regulations that are, inter alia, "not in
accordance with law" or "in excess of statutory . . . authority[] or limitations, or in violation of a
statutory right". 38 U.S.C. § 7261(a)(3)(A), (C). Appellant Wanner argues that the Court should
invalidate that portion of pre-1999 DC 6260 that imposes a trauma requirement for service
connection for tinnitus, because it violates section 1110, which states:
For disability resulting from personal injury suffered or
disease contracted in line of duty, or for aggravation of a preexisting
injury suffered or disease contracted in line of duty, in the active
17
military, naval, or air service, during a period of war, the United
States will pay to any veteran thus disabled and who was discharged
or released under conditions other than dishonorable from the period
of service in which said injury or disease was incurred, or preexisting
injury or disease was aggravated, compensation as provided in this
subchapter, but no compensation shall be paid if the disability is a
result of the person's own willful misconduct or abuse of alcohol or
drugs.
38 U.S.C. § 1110 (emphasis added). Because section 1110 states that the "United States will pay
[disability compensation] to any veteran thus disabled" and the Secretary has promulgated a
regulation that allows payment to only some of the veterans "so disabled", as described in section
1110, that regulatory provision is inconsistent with the plain meaning of section 1110 and thus is "in
violation of a statutory right", 38 U.S.C. § 7261(a)(3)(C), and "not in accordance with law",
38 U.S.C. § 7261(a)(3)(A).
Section 7261(a) also directs the Court to "hold unlawful and set aside decisions" that are,
inter alia, "arbitrary, capricious, [or] an abuse of discretion". 38 U.S.C. § 7261(a)(3)(A). The Court
notes that the parties have provided no record, including regulatory history, with respect to DC 6260
that explains why there was originally a trauma requirement or why in 1999 that requirement was
removed. Because the Court can find no basis for that distinction, the only conclusion available is
that it constitutes "arbitrary and capricious" rulemaking to exclude certain veterans from receiving
compensation based on the way in which they incurred their service-connected disabilities. See
Gilbert, 1 Vet.App. at 58 (citing Motor Vehicles Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 42-43 (1983), for proposition that decision denying benefits would not be subject
to reversal under the "arbitrary, capricious, [or] an abuse of discretion" standard when decision is
"premised upon a rational basis and supported by appropriate and relevant favors which were
properly articulated"). Accordingly, the trauma requirement contained in DC 6260 (1998) is invalid
on this basis as well. The Court notes that it is aware of no other VA regulatory provision in which
the Secretary has attempted to exclude certain veterans in a similar manner.
In view of the foregoing analysis, the Court will invalidate that part of the pre-1999
regulation that contained a trauma requirement; as a result, the sole criterion remaining in that
regulation will be "[p]ersistent". 38 C.F.R. § 4.87a, DC 6260 (1998).
18
Appellant Wanner received his original grant of service connection for tinnitus in
August 1985. Wan. R. 117. In September 1985, he was awarded a 0% rating for that condition,
effective April 15, 1982. Wan. R. 122. At that time, DC 6260 contained the trauma requirement and
the same language as it did in the pre-1999 version. 38 C.F.R. §§ 4.84b, DC 6260 (1982); 4.87a,
DC 6260 (1998). Because the Court now holds that the trauma requirement is invalid, the Court will
vacate the BVA decision and remand the matter for the Board to readjudicate the EED issue under
the sole criterion remaining under prior law, "persistent".
IV. Conclusion
Upon consideration of the ROA, the parties' pleadings, oral argument, and the foregoing
analysis, the Court vacates the Board's February 2001 Wright decision and June 2000 Wanner
decision and remands the matters for expeditious readjudication consistent with this opinion. Upon
readjudication, the Board must provide expeditious further development and issuance of a
readjudicated decision supported by an adequate statement of reasons or bases, see 38 U.S.C.
§§ 1110, 5103(a), 5103A, 7104(a), (d); 38 C.F.R. §§ 4.25(b), 4.87, DC 6260 (2002); 38 C.F.R.
§ 4.87a, DC 6260 (1998); 38 C.F.R. § 4.25(b); DeSousa, supra; Fletcher v. Derwinski, 1 Vet.App.
394, 397 (1991) – all consistent with this opinion and in accordance with section 302 of the Veterans'
Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (found at
38 U.S.C. § 5101 note) (requiring Secretary to provide for "expeditious treatment" for claims
remanded by BVA or the Court). See Allday, 7 Vet.App. at 533-34. Furthermore, the Court grants
the Secretary's motion to withdraw that portion of his Wanner brief regarding exhaustion of
remedies. Br. #1 at 5-9. The Court also invalidates 38 C.F.R. § 4.87a, DC 6260 (1998) to the extent
that it is inconsistent with 38 U.S.C. § 1110 as herein interpreted. On remand, the appellants will
be free to submit additional evidence and argument on the remanded claim in accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order) (concluding that an
appellant is entitled, until 90 days after Board mails postremand notice to appellant, to submit
additional evidence and argument or to request hearing on appeal at which appellant may submit new
evidence), and such evidence and argument must be considered on remand, Kay v. Principi,
16 Vet.App. 529, 534 (2002). The Court notes that a remand by this Court and by the Board confers
19
on an appellant the right to VA compliance with the terms of the remand order and imposes on the
Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West,
11 Vet.App. 268, 271 (1998). A final decision by the Board following the remand herein ordered
will constitute a new decision that, if adverse, may be appealed to this Court only upon the filing of
a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the
new final Board decision is mailed to the appellant. See Marsh v. West, 11 Vet.App. 468, 472
(1998).
VACATED AND REMANDED.
20