from DAV : Update on Bilateral Tinnitus

[MORTARDUDE]

Update on Bilateral Tinnitus


On September 19, 2002, the VA published in the Federal Register a proposal to amend diagnostic code (DC) 6260 in 38 C.F.R. ? 4.87. The proposed amendment clarified VA?s practice concerning the evaluation of tinnitus, i.e., recurrent tinnitus will be assigned only a single ten percent evaluation, whether it is perceived in one ear, both ears, or somewhere in the head. The final rule to this effect was published in the Federal Register on May 14, 2003, and became effective June 13, 2003. Claims for service connection or increased evaluation for tinnitus filed on or after June 13, 2003, will be rated solely on the amended DC. In accordance with Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991), those tinnitus claims pending and not finally decided prior to June 13, 2003, must be evaluated based on the more favorable version of either the new or the old DC. Prior to the June 13, 2003, amendment, DC 6260 simply provided a ten percent evaluation for recurrent tinnitus and did not differentiate between unilateral and bilateral tinnitus.


The issue of whether veterans are entitled to two separate ten percent ratings for service-connected, bilateral tinnitus, in conjunction with DC 6260 as it existed prior to June 13, 2003, was presented to the U.S. Court of Appeals for Veterans Claims (CAVC) by DAV. On February 12, 2003, the CAVC addressed the issue in Wanner v. Principi, 17 Vet.App. 4 (2003). However,the CAVC did not reach and decide the question as it found that the BVA had failed to address 38 C.F.R. ? 4.25(b) when it decided the issue. Accordingly, the Court held that the BVA?s statement of reasons or bases was inadequate because it failed to discuss this potentially applicable regulation and its impact of the claim and remanded the appeal to this extent.


However, on June 18, 2003, the VA filed an appeal to the United States Court of Appeals for the Federal Circuit (CAFC). Therefore, the issue of whether Mr. Wanner is entitled to two separate ten percent ratings for his service-connected, bilateral tinnitus, in conjunction with DC 6260 as it existed prior to June 13, 2003, will not be remanded to the BVA until such time the CAFC reaches its decision.