Ellis C. Smith v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 01-623

ELLIS C. SMITH , APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Remand from the U.S. Court of Appeals for the Federal Circuit

(Argued February 17, 2005 Decided April 5, 2005 )

Ronald L. Smith, with whom Landon E. Overby and J. Marc Burgess (nonattorney

practitioners), all of Washington, D.C., were on the brief, for the appellant.

John D. McNamee, with whom Tim S. McClain, General Counsel; R. Randall Campbell,

Assistant General Counsel; and Brian B. Rippel, Deputy Assistant General Counsel, all of

Washington, D.C., were on the brief, for the appellee.

Before IVERS, Chief Judge, and STEINBERG and KASOLD, Judges.

STEINBERG, Judge, filed the opinion of the Court. IVERS, Chief Judge, filed an opinion

concurring in part and dissenting in part.

STEINBERG, Judge: Veteran Ellis Smith (the appellant), through counsel, seeks review of

a December 12, 2000, decision of the Board of Veterans' Appeals (BVA or Board) that, inter alia,

granted a Department of Veterans Affairs (VA) disability rating of 10% (but no higher) effective

from June 10, 1999, for his service-connected tinnitus pursuant to 38 C.F.R. § 4.87, Diagnostic Code

(DC) 6260, but denied a compensable rating prior to that date. Record (R.) at 3; see 38 C.F.R. § 4.87,

DC 6260 (1999 & 2000). ("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).) The

parties each filed briefs, and the appellant filed a reply brief. (As discussed below, this appeal has

already been the subject of a June 23, 2003, decision by this Court, Smith v. Principi, 17 Vet.App.

168 (2003) (per curiam order) (Smith I), which was reversed, and the matter was remanded, by the

U.S. Court of Appeals for the Federal Circuit (Federal Circuit), Smith v. Principi, No. 03-7212, 2004

WL 2030123 (Fed. Cir. Aug. 23, 2004) (Smith II).) Thereafter, the Court ordered additional briefing

from the parties, both parties filed responses, and the Court then heard oral argument in the case. At

oral argument, the Court ordered further supplemental briefing on the issue of reversal regarding an

earlier effective date, which had not been addressed by the parties. For the reasons set forth below,

the Court will vacate the December 2000 BVA decision in part, reverse it in part, and remand the

matters for proceedings consistent with this opinion.

I. Relevant Background

The veteran had active service in the U.S. Army from March 1966 to March 1969, including

service in the Republic of Viet Nam (R. at 21) where he reportedly was exposed to artillery fire. R. at

141. In 1994, he filed a claim with a VA regional office (RO) for service connection for, inter alia,

bilateral hearing loss. R. at 69. Several VA audiological examinations were conducted in order to

assess his claim. R. at 88, 101, 142, 244-45. A report from an April 1995 VA audiological

examination, although inconclusive as to hearing loss, revealed that the veteran also had tinnitus; he

described his tinnitus as "high pitched, periodic, and of mild to moderate severity", and as a condition

that he had experienced "for the past 15 years". R. at 88. In May 1995, the RO, inter alia, granted

service connection for hearing loss in the right ear (rated as noncompensable), and denied the tinnitus

claim as not well grounded. R. at 92. The veteran submitted a Notice of Disagreement (NOD) as to

that decision, and in October 1995 the RO, inter alia, awarded service connection for the veteran's

tinnitus, rated as noncompensable, effective from April 1995 (R. at 172); the RO found that "the

evidence show[ed] a diagnosis of tinnitus due to acoustic trauma", and that "[r]easonable doubt ha[d]

been resolved in favor of the claimant regarding acoustic trauma leading to his tinnitus because of his

assignment as a vehicle mechanic in service and his subjective history of assignment in combat to an

artillery unit." R. at 170. However, the RO assigned a noncompensable disability rating on the

ground that "the evidence [did] not show tinnitus which [was] persistent". R. at 170. The veteran

filed an NOD as to, inter alia, the noncompensable rating for tinnitus. R. at 174.

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At a 1997 hearing before the Board, the veteran provided sworn testimony that he had

experienced the "ringing" in both his left and right ears for the past 15 years. R. at 244. In a

November 1997 decision, the Board, inter alia, remanded the veteran's tinnitus claim to the RO for

further development and to "assess the present severity of hearing loss in his left ear and bilateral

tinnitus, since he indicated . . . that he had been experiencing frequent draining and ringing in his

ears." R. 275. In April 1999, the RO issued a Supplemental Statement of the Case (SSOC) that, inter

alia, continued a noncompensable rating for the veteran's service-connected tinnitus, because under

DC 6260 "[a] noncompensable evaluation is assigned unless the record shows persistent tinnitus as

a symptom of head injury, concussion, or acoustic trauma", and that the veteran had reported

"occasional" tinnitus, not persistent tinnitus. R. at 289-92 (emphasis added).

On June 10, 1999, DC 6260 was revised to provide for a 10% rating for "[t]innitus,

recurrent", and the requirement that, in order to be compensable, the tinnitus must have resulted from

"head injury, concussion[,] or acoustic trauma" was deleted. 64 Fed. Reg. 25,202, 25,206 (May 11,

1999); 38 C.F.R. § 4.87, DC 6260 (1999 & 2004) (emphasis added). The veteran subsequently filed

a Substantive Appeal as to the decision contained in the April 1999 SSOC; he asserted, inter alia, that

his "service[-]connected tinnitus [was] still being evaluated under the old criteria, which required

persistent symptoms rather than intermittent [sic] symptoms as the law now requires for a 10%

evaluation." R. at 398 (emphasis added).

In the December 12, 2000, BVA decision here on appeal, the Board determined that the

amended DC was more favorable than the pre-June 10, 1999, DC (hereinafter pre-1999 DC 6260) and

applied that amended version to the veteran's claim, as of June 10, 1999 (R. at 6-7, 9); the Board

concluded that prior to that date, the veteran had not satisfied the criteria for a 10% rating under pre-

1999 DC 6260 because his tinnitus was not "persistent", which the Board defined as "insistently

repetitive, or continuous, tenacious, or enduring". R. at 8 (emphasis added). He sought review of

that decision in this Court (R. at 397), where his appeal was reviewed by a three-judge panel in 2003.

Smith I, supra. At that time, he asserted, as he does today, (1) that his tinnitus "undeniably satisfie[d]

the plain meaning of 'persistent'" in pre-1999 DC 6260 and that the Board’s conclusion to the contrary

was "legal error", and (2) that the Board had misinterpreted both pre-1999 and then-current DC 6260

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when it had failed to award separate 10% disability ratings for each ear for his service-connected

tinnitus. Smith I, 17 Vet.App at 169.

In Smith I, this Court, on June 10, 2003, ordered the December 12, 2000, BVA decision

reversed in part and vacated in part. Smith I, 17 Vet.App at 173. As to the meaning of "persistent"

in pre-1999 DC 6260, the Court held that "because 'persistent' and 'recurrent' appear to have

overlapping definitions . . . the Board's conclusion that the appellant's tinnitus was not 'persistent' as

required by pre-1999 DC 6260 was reached in a manner that was 'arbitrary, capricious, and an abuse

of discretion'" and therefore must be reversed. Smith I, 17 Vet.App. at 171. As to the issue of

separate tinnitus ratings for each ear, the Court held that this Court's precedential opinion in

Wanner v. Principi, 17 Vet.App. 4 (2003) (Wanner I), rev'd in part, 370 F.3d 1124 (Fed. Cir. 2004)

(Wanner II), "applies to the instant case and requires a remand for readjudication, in light of 38 C.F.R.

§ 4.25(b) (2002) [(requiring that "disabilities arising from a single disease entity . . . are to be rated

separately")], of the appellant's claim for two 10% ratings." Smith I, 17 Vet.App. at 171. After the

issuance of Smith I, the Secretary sought review of that decision in the Federal Circuit as to our action

on the question of the interpretation of "persistent". On August 23, 2004, the Federal Circuit

reversed, stating:

[T]he decision on appeal relied heavily on the Court of Appeals for

Veterans Claims [(CAVC)] decision in Wanner [I, supra,] in

concluding that it had jurisdiction to review the [DC], which is

included in the rating schedule. Thus, we reverse the [CAVC]

determination in this case that it had jurisdiction and remand for

further proceedings consistent with our decision in Wanner [II, supra].

Smith II, supra. In the Wanner II opinion, to which the above-quoted passage refers, the Federal

Circuit reversed this Court's holding in Wanner I.

In Wanner I, this Court had concluded that it had jurisdiction to review DC 6260 for

consistency with 38 U.S.C. § 1110 and that such an inquiry did not constitute a review of the rating

schedule (which is prohibited by 38 U.S.C. § 7252(b)). After reaching that conclusion, this Court had

then invalidated the trauma requirement contained in pre-1999 DC 6260 because it was "in violation

of [the] statutory right" provided in section 1110, and therefore "not in accordance with law" pursuant

to 38 U.S.C. § 7261(a)(3)(C) and (A), and because it was the product of "arbitrary and capricious"

rulemaking pursuant to section 7261(a)(3)(A). Wanner I, 17 Vet.App. at 17-18. The second issue

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that this Court addressed in Wanner I was whether the rating schedule allowed for the assignment of

two 10% ratings for bilateral tinnitus. Wanner, 17 Vet.App. at 13. As to that issue, the Court held,

inter alia, that by failing to address 38 C.F.R. § 4.25(b) (2002) the Board had failed to provide an

adequate statement of reasons or bases for its determination that DC 6260 provides for only one 10%

rating for bilateral tinnitus (rather than two, one for each ear). Ibid.

In its reversal of Wanner I, the Federal Circuit held in Wanner II that this Court's review of

DC 6260 for consistency with section 1110 "amount[ed] to a direct review of the content of the rating

schedule", and that, in conducting such a review, this Court had acted "outside of its jurisdiction as

provided by 38 U.S.C. § 7252(b)". Wanner II, 370 F.3d at 1131. Although the Federal Circuit there

reversed this Court’s decision to strike the trauma requirement from pre-1999 DC 6260, there is no

indication that that court intended to disturb our Wanner I reasons-or-bases remand for consideration

of § 4.25(b). Ibid.

Likewise, in its review of Smith I, the Federal Circuit in Smith II indicated no intent to disturb

our Smith I reasons-or-bases remand for readjudication in light of § 4.25(b). See Smith II, supra. The

Federal Circuit issued its mandate in Smith II on October 14, 2004, and the matter is now back before

this Court. Ibid. In preparation for the current re-review of this matter, this Court on November 2,

2004, ordered supplemental briefing from the parties to address the following two issues: (1) To

show cause why the Court should not remand to the Board the matter of the rating under pre-1999

DC 6260 for the provision of an adequate statement of reasons or bases, see 38 U.S.C. § 7104(d)(1),

as to the Board's determination of the meaning of "persistent" under that DC; and (2) to address the

appellant's argument that 38 C.F.R. § 4.25(b) (1999) entitled him to separate ratings of 10% for

tinnitus in each ear under DC 6260 (1998 & 1999).

II. Contentions on Appeal

A. Pre-1999 Rating

In its November 2, 2004, order, the Court directed the Secretary, inter alia, to

show cause why the Court should not remand to the Board the matter

of the rating under pre-1999 DC 6260 for the provision of an adequate

statement of reasons or bases, see 38 U.S.C. § 7104(d)(1), as to the

Board's determination of the meaning of "persistent" under that DC in

light of the Board's having selectively paraphrased the Secretary's

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Supplementa[ry] Information and not having taken into account all of

the Secretary's relevant discussion therein, see 59 Fed. Reg. 17,295,

17,297 ([Apr.] 12, 1994), and having relied on a single dictionary

definition of "persistent", see Theiss v. Principi, 18 Vet.App 204,

210-11 (2004) (criticizing General Counsel precedent opinion, on

which Board had relied, for "selective use of a narrow set of

definitions") . . . ; see Smith I, 17 Vet.App. at 170-71 . . . .

Smith (Ellis) v. Principi, 18 Vet.App. 448, 450 (2004) (per curiam order). In his December 2004

supplemental brief filed in response to the Court's November 2, 2004, order, the Secretary asserts that

"the Court should remand the matter of the rating under pre-1999 DC 6260" so that the Board may

provide an adequate statement of reasons or bases as to its "determination of the meaning of

'persistent' under that DC". Secretary's (Sec'y) Supplemental (Suppl.) Brief (Br). at 3. In his January

2005 supplemental brief, the appellant "concurs with the Secretary on this issue" and urges the Court

to remand that issue. Appellant's (App.) Suppl. Br. at 2. However, at oral argument the appellant's

counsel "clarified" to the Court that the appellant had not abandoned his argument for reversal on this

ground. The Court then ordered from the bench that further supplemental briefs be submitted on the

reversal question. That briefing was completed on March 24, 2005.

In his March 9, 2005, supplemental memorandum of law, the Secretary presents several

arguments. First, he asserts that "[g]iven that the words 'persistent' and 'recurrent' and, by implication,

the meaning of those terms, are inarguably a part of the ratings schedule, this Court lacks authority

to review the matter." Sec'y Suppl. Memorandum (Mem.) at 6. In the alternative, he argues that, even

if the Court possessed the authority to review VA's interpretation of those terms, the Court must defer

to VA's interpretation because "an agency's interpretation of its own regulations must be given effect

'so long as the interpretation sensibly conforms to the purpose and wording of the regulations.'" Id. at

8. (citing S. Cal. Edison Co. v. United States, 226 F.3d 1349, 1356-57 (Fed. Cir. 2000) (quoting

Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144, 150 (1991))). As support

for VA's interpretation of "persistent" in pre-1999 DC 6260, the Secretary asserts:

[F]rom 1945 until 1999 the Secretary's rating code for tinnitus

provided that in order to be compensable, tinnitus had to be constant.

The precise term used from 1945 was 'continuous' and from 1976 to

1999 it was 'persistent'. . . .

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This requirement of persistence continued until the Secretary decided

to liberalize the rating schedule as to tinnitus, replacing the

requirement with a new, distinct term, "recurrent." As the Secretary

noted in the 1994 commentary to the proposed rulemaking [(59 Fed

Reg. at 17,297)], the deliberate change to the word "recurrent"

encompassed a new meaning, "that tinnitus might not always be

present, but that it does return at regular intervals." The Secretary's

decision to revise the rating schedule was the culmination of a General

Accounting Office study, which recommended that the rating schedule

be reviewed and updated, recommendations by VA medical doctors

and VA rating specialists, and recommendations by an outside

consultant and panel of non-VA specialists on hearing and ear

conditions, in order to update the schedule in accordance with the

medical community's understanding of the impact of hearing disorders

and other diseases. 59 Fed. Reg. at 17,295-96.

Suppl. Mem. at 4-5. Hence, the Secretary asserts that VA's interpretation "is an accepted and valid

one," and that "[a]lthough there might be other definitions" for "persistent" and "recurrent", "[t]his

Court is not free to substitute a different definition". Id. at 8-9. In response, the appellant contends

that under Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004), "this Court ha[s] jurisdiction to review

a VA interpretation of a regulation." App. Suppl. Mem. at 3-4. He asserts further that the authorities

cited by the Secretary do not support his assertion that the Board's interpretation of a regulation is

entitled to deference from this Court (id. at 4); rather, he contends that, although an agency's

interpretation of a statute is entitled to deference, at the time of the Board decision here on appeal,

as "[t]he Secretary conceded at oral argument[,] . . . there had been no interpretation of [DC] 6260

by VA or its General Counsel", and, therefore, there was then "nothing to which the Court could

properly defer", ibid. The appellant seeks reversal on this issue.

B. Separate Tinnitus Ratings

The appellant asserts that he is entitled to dual 10% ratings for tinnitus for essentially two

reasons. First, he asserts that, pursuant to 38 C.F.R. § 4.25(b), "the general rule adopted by [] VA

with respect to rating all disabilities is that each service-connected disability shall be separately rated

and the ratings combined." App. Br. at 10. Hence, the appellant asserts that he "is entitled to have

the tinnitus in his ears separately rated in accordance with § 4.25(b), unless the rating schedule

provides an exception to the general rule." App. Br. at 10. The appellant states further:

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When the Secretary intends to provide a single rating where a

disability is either unilateral or bilateral, he provides for that single

rating in unambiguous terms. . . . These provisions make clear that

where the Secretary intends to make an exception to § 4.25 by limiting

compensation to a single rating for a disability that is either unilateral

or bilateral he knows how to do so. The Secretary having not provided

a single rating for unilateral or bilateral tinnitus, separate ratings are

required. See 38 C.F.R. § 4.25.

App. Br. at 12-13. Second, the appellant contends that "[w]hen called upon to construe an ambiguous

statute providing benefits to veterans, the Court will apply the principle that 'interpretive doubt is to

be resolved in the veteran's favor'" Id. at 11-12 (quoting Brown v. Gardner [hereinafter Brown v.

Gardner], 513 U.S. 115, 118 (1994)). Hence, the appellant asserts, the "mandatory canon of

construction enunciated in Brown v. Gardner and adopted by this Court in McCormick [v. Gober, 14

Vet.App. 39 (2000)] and Ryan [v. West], 13 Vet.App. 151 (1999) is directly applicable to this appeal."

Br. at 12.

The Secretary contends that the appellant is not entitled to a tinnitus rating greater than 10%

because the rating schedule does not allow for dual ratings of 10% for bilateral tinnitus. Specifically,

the Secretary asserts:

The rating schedule is not ambiguous. It explicitly prohibits

pyramiding of disability evaluations. Where separate ratings are

permitted for like organs, the rating code explicitly provides for such.

See, e.g., 38 C.F.R. § 4.87, DC 6207 (Loss of auricle); [] § 4.115(b)

(Testis, atrophy complete), and DC 7524 (Testis, removal); []§ 4.16,

DC 7626 (Breast, surgery of). If the Secretary had intended to provide

separate ratings for tinnitus in the schedule of ratings related to ears,

he would have employed specific language to do so, as he did for

rating disability of the auricles (DC 6207).

Sec'y Br. at 7. As support for his assertion, the Secretary points to the fact that VA amended the

rating schedule, effective June 13, 2003, by adding to DC 6260 "Note 2", which provides: "Assign

only a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears,

or in the head", 38 C.F.R. § 4.87, DC 6260 (2004). Suppl. Br. at 4. The Secretary asserts that "Note

2 did not change the way VA evaluates tinnitus . . . [; r]ather, the note was added to reflect VA's

standard practice", and that "Note 2" would hence apply to claims filed prior to the June 2003

effective date of that amendment, such as in this case. Ibid. This position, according to the Secretary,

8

is consistent with VA General Counsel Precedent Opinion 2-2003 (May 13, 2003) [hereinafter G.C.

Prec. 2-2003] and VA's Supplementary Information contained in the preambulatory language of the

proposed and final rule amending DC 6260, 67 Fed. Reg. 59,033 (Sept. 19, 2002); 68 Fed. Reg.

25,822, 25,823 (May 14, 2003). Suppl. Br. at 3-4. According to those documents, VA does not

consider Note 2 to be a "substantive change" but merely a clarification or "restatement" of that DC.

As G.C. Prec. 2-2003 states:

As was stated in the notice of proposed rulemaking: "This amendment

involves no substantive change and is consistent with current

practice." 67 Fed. Reg. at 59,033. Thus, the amendment restated in

more explicit terms the rule reflected in prior VA regulations that only

a single 10% rating for tinnitus is authorized regardless of whether

tinnitus is perceived as unilateral, bilateral, or in the head.

G.C. Prec. 2-2003. The Secretary asserts further that the interpretation provided by Note 2 "is a

reasonable interpretation based on the common medical definition of tinnitus and should be given

deference by the Court". Suppl. Br. at 5. As support for this assertion, he cites to VA's

Supplementary Information, published in conjunction with the proposed rule, which stated that "[t]rue

tinnitus . . . appears to arise from the brain rather than the ears" and that true (subjective) tinnitus is

"a central nervous system condition", 67 Fed. Reg. at 59,033. As the medical authority for this

assertion regarding tinnitus being a central-nervous-system disorder, the Secretary cites to the

Supplementary Information published in explanation of the proposed and final rule change. Suppl.

Br. at 5 (citing 67 Fed. Reg. at 59,033 and 68 Fed. Reg. at 25,822). The Secretary then concludes:

Because tinnitus is a central nervous system disorder, rather than a

disorder of the ears, the sound that Mr. Smith perceives in each ear is

in reality a single disability existing in his central nervous system.

Section 4.25(b)'s reference to "disabilities arising from a single disease

entity" has no application in this case because he has only a single

disability, a disability of the nervous system.

Ibid. At oral argument, when asked what was the medical basis for the central-nervous-system thesis,

the Secretary's counsel could not provide any citation to authority. Finally, the Secretary contends

that VA's interpretation should control here because an agency's interpretation of its own regulation

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is entitled to "substantial deference", unless that interpretation is '"plainly erroneous or inconsistent

with the regulation.'" Suppl. Br. at 4 (quoting Westberry v. Principi, 255 F.3d 1377, 1382 (Fed. Cir.

2001)).

III. Analysis

A. Applicable Law and Regulation

At the time of the BVA decison here on appeal, section 1155 of title 38 of the U.S. Code

provided, and provides now, in relevant part:

§ 1155. Authority for schedule for rating disabilities

The Secretary shall adopt and apply a schedule of ratings of

reductions in earning capacity from specific injuries or combination of

injuries. The ratings shall be based, as far as practicable, upon the

average impairments of earning capacity resulting from such injuries

in civil occupations. The schedule shall be constructed so as to provide

ten grades of disability and no more, upon which payments of

compensation shall be based, namely, 10 percent, 20 percent, 30

percent, 40 percent, 50 percent, 60 percent, 70 percent, 80 percent, 90

percent, and total, 100 percent. The Secretary shall from time to time

readjust this schedule of ratings in accordance with experience.

However, in no event shall such a readjustment in the rating schedule

cause a veteran's disability rating in effect on the effective date of the

readjustment to be reduced unless an improvement in the veteran's

disability is shown to have occurred.

38 U.S.C. § 1155. Section 7252 of title 38 also provided then as it does now:

§ 7252. Jurisdiction; finality of decisions

(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). At the time of the filing of the original claim that gave rise to the decision here

on appeal, title 38 of the Code of Federal Regulations provided in relevant part:

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§ 4.25 Combined ratings table

....

(b) Except as otherwise provided in this schedule, the diseases

arising from a single disease entity, e.g., arthritis, multiple sclerosis,

cerebrovascular accident, etc., are to be rated separately, as are all

other disabling conditions, if any. All disabilities are then combined

as described in paragraph (a) of this section. The conversion to the

nearest degree divisible by 10 will be done only once per rating

decision, will combine the rating of all disabilities, and will be the last

procedure in determining the combined degree of disability.

*****

§ 4.87 Schedule of ratings— ear.

DISEASES OF THE EAR

Rating

....

6260 Tinnitus:

Persistent as a symptom of head injury,

concussion or acoustic trauma 10

Effective from June 10, 1999, the Secretary amended 6260 to provide:

6260 Tinnitus, recurrent 10

64 Fed. Reg. at 25,202; 38 C.F.R. § 4.87, DC 6260 (2000). Effective June 13, 2003, the Secretary

added the following note at the end of DC 6260:

NOTE (2): Assign only a single evaluation for recurrent tinnitus,

whether the sound is perceived in one ear, both ears, or in the

head.

68 Fed. Reg. at 25,822; 38 C.F.R. § 4.87, DC 6260 (2004).

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B. Pre-1999 Rating

1. Jurisdiction

In Smith II, the Federal Circuit reversed our determination that we had jurisdiction to review

the Board's interpretation of "persistent" in DC 6260 because our "decision [had] relied heavily on

[our] Wanner I decision", which the Federal Circuit had reversed in terms of its jurisdictional holding.

Smith II, 2004 WL 2030123 at *1; see Wanner I and Wanner II, both supra. The Federal Circuit then

remanded this case to us "for further proceedings consistent with [its] decision in Wanner [II]."

Smith II, supra. In Wanner II, the Federal Circuit held that this Court did not have jurisdiction to

invalidate the pre-1999 DC 6260 trauma requirement as inconsistent with 38 U.S.C. § 1110, as we

had done in Wanner I, 17 Vet.App. at 18. Wanner II, 370 F.3d at 1131. The Federal Circuit also

stated in Wanner II: "The Secretary's discretion over the [rating] schedule, including procedures

followed and content selected, is insulated from judicial review with one recognized exception limited

to constitutional challenges." Ibid. (language preceded by citation to Johnson v. Robison, 415 U.S.

361 (1974), for constitutional exception).

Nineteen days after Wanner II was decided, the Federal Circuit issued its opinion in Sellers,

supra. In Sellers, the Federal Circuit, making no reference to its opinion in Wanner II, concluded that

this Court had jurisdiction to review "the correct interpretation of [38 C.F.R. §] 4.130, specifically

the relationship between the [Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV)

(with which the preambulatory language in § 4.130 directs rating agencies to be "thoroughly familiar

. . . [in order] to properly implement the general rating formula")] and the general rating formula" for

mental disorders set forth at the end of § 4.130. Sellers, 372 F.3d at 1324. The Federal Circuit thrice

distinguished the review undertaken there from review of "the content of the rating criteria", which

"neither we nor the . . . Court [of Appeals for Veterans Claims] may review." Ibid. The dissenting

judge in Sellers agreed with the majority's distinction between review of the Board's interpretation

of a regulation, which is permissible, and the review of "the content of the ratings schedule", which

is not, but disagreed that what the appellants sought there amounted to review of interpretation rather

than of content. Id. at 1329.

Based on Sellers, we conclude that the review sought here by the appellant involves the

Board's decision to interpret "persistent" in pre-1999 DC 6260 as requiring that tinnitus have an

element of constancy in order to be compensable. The nature of that review is not distinguishable

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from the review sought in Sellers, which the Federal Circuit characterized as involving the issue

whether "the regulation [§ 4.130] requires that VA consider symptoms of [post-traumatic stress

disorder (PTSD)] contained in the DSM-IV and make findings of fact as to whether a veteran suffered

increased occupational and social impairment [(a criterion in the general rating formula)] as

consequences of the severity of those [DSM-IV] symptoms." Id. at 1324. We recognize that the

Federal Circuit's remand in Smith II for further proceedings here directed that we act in a manner

"consistent with" Wanner II and did not refer to Sellers. However, we believe that we must read

Wanner II in light of Sellers, and, so synthesizing the applicable precedents, we conclude that the

issue before us today is the correct interpretation of a rating-schedule regulation, as in Sellers, and not

a direct challenge to the content of a rating-schedule regulation, as in Wanner II. We note further that

the Federal Circuit's remand in Smith II was premised on the fact that we had "relied heavily" on

Wanner I in finding jurisdiction previously; in contrast, we rely now on the Federal Circuit's

pronouncements in Wanner II and Sellers, for the holding that we have jurisdiction over the question

presented by the appellant regarding the correct interpretation of "persistent" in the pre-1999 DC

6260.

2. Merits

As previously noted, the appellant seeks reversal of the Board's determination that he did not

satisfy the "persistent" criterion for a 10% rating under pre-1999 DC 6260, but alternatively argues

that the Board's statement of reasons or bases is inadequate and that the matter should be remanded.

The Secretary agrees that the Board's statement of reasons or bases is inadequate (Suppl. Br. at 3) and

at oral argument contended that the matter should be remanded but not reversed. For the following

reasons, the Court agrees with the parties that the Board's statement of reasons or bases is inadequate

and that the matter should be remanded so that the Board may provide an adequate statement of

reasons or bases.

In his briefing to the Court, the Secretary notes that the Board decision in the instant case

failed to explain adequately the basis for its interpretation of "persistent" as applied to the evaluation

of tinnitus under pre-1999 DC 6260. Suppl. Br. at 3. The Board reached its decision (1) without

referring to the Secretary's conclusion that an attribute of constancy was not well suited for rating a

condition that , "under certain circumstances, comes and goes", 59 Fed. Reg. at 17,297; (2) by

paraphrasing only selectively from the Secretary's 1994 Supplementary Information, ibid.; and (3) by

13

basing its conclusion solely on one dictionary definition of "persistent" (R. at 8). See Theiss,

18 Vet.App. at 210-11 (criticizing General Counsel precedent opinion, upon which Board had relied,

for "selective use of a narrow set of definitions"); see also Suozzi v. Brown, 10 Vet.App. 307, 311

(1997) (holding that Secretary "defines 'corroboration' far too narrowly" in interpreting 38 C.F.R.

§ 3.304(f)). In this regard, the Court notes that "persistent" is defined generally as, inter alia,

"continuing" and "constantly repeated", whereas "recurrent" is defined generally as, inter alia,

"appearing or occurring again or periodically," WEBSTER 'S NEW WORLD DICTIONARY 1007, 1123

(3d ed. 1988), and that the Secretary has provided no regulatory guidance as to the meaning of either

"persistent" in pre-1999 DC 6260 or "recurrent" in current DC 6260; for example, neither is defined

or explained in terms of the frequency required to satisfy the rating criteria. Cf., e.g., 38 C.F.R.

§§ 4.88b, DC 6354 (providing ratings for chronic fatigue syndrome based on specific degree and

length of periods of incapacitation), 4.97, DC 6514 (providing ratings for sinusitis based on specific

number, degree, and length of episodes), 4.114, DC 7305 (providing "mild", "moderate", "moderately

severe", and "severe" ratings for ulcers based on specific frequency and length of symptoms) (2004).

In addition, the Board failed to address the Secretary's comments in the 1994 Supplementary

Information (which explained the proposal (adopted in 1999) that changed "persistent" to "recurrent"

and eliminated the trauma requirement) suggesting that the Secretary had concluded that, to the extent

that "persistent" as used in the pre-1999 DC 6260 includes a meaning of "constant", it is unrealistic

to use "persistent" for evaluating tinnitus, and that a meaning of occurring at "regular intervals" is the

correct evaluation criterion. Specifically, the Secretary stated:

The evaluation for tinnitus ([DC] 6260) currently requires that the

condition be "persistent" in order to qualify for a 10 percent

evaluation. Tinnitus is a subjective sensation which, under certain

circumstances, comes and goes. The word "persistent" suggests a

meaning of ["]constant["], and we propose to replace it with

"recurrent," meaning that the tinnitus might not always be present, but

that it does return at regular intervals. Requiring that tinnitus be

"recurrent" will allow a realistic evaluation of the typical

disablement from this condition.

59 Fed. Reg. at 17,297 (emphasis added). Although the Secretary attempts to explain in his

supplemental memorandum of law, without any supporting authority, that the "requirement of

persistence was based, as far as practicable, upon the average impairment of earning capacity from

14

tinnitus as it was understood when the regulation was promulgated many years ago", and that "the

rating schedule was readjusted to reflect advances in medical knowledge and to accord with evolving

understandings of the average impairment of earning capacity occasioned by hearing loss and other

conditions" (Suppl. Mem. at 10-11), the Board did not set forth any such rationale; it is not the task

of the Secretary to rewrite the Board's decision through his pleadings filed in this Court. See Wanless

v. Principi, 18 Vet.App. 337, 343 (2004) (Steinberg, J., concurring) (noting that "Court's role is to

review whether the Board in its decision, rather than the Secretary in his brief, provided an adequate

statement of reasons or bases"). Finally, the Board also failed to consider and apply, as appropriate,

the basic canon of construction that "interpretive doubt is to be resolved in the veteran's favor" when

a regulatory term is found to be ambiguous and there is no regulatory history to shed light on its

meaning. Brown v. Gardner, 513 U.S. 115, 118 (1994); see Otero-Castro v. Principi, 16 Vet.App.

375, 380 (2002) (applying above Gardner rule to resolve ambiguity in DCs in favor of claimant).

Because of the Board's failure to address the above matters, the Court cannot adequately

review the appellant's claim for reversal or otherwise carry out effective judicial review of the Board's

denial of a compensable rating for his tinnitus under pre-1999 DC 6260. Accordingly, the matter will

be remanded. See 38 U.S.C. § 7104(a), (d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995) (noting

that Board is required to provide adequate written statement of reasons or bases for its findings and

conclusions on all material issues of fact and law presented on record; statement must be adequate

to enable claimant to understand precise basis for its decision, as well as to facilitate review in this

Court); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (same).

C. Relationship Between § 4.25(b) and DC 6260

1. Jurisdiction

Before we may consider the appellant's contentions regarding the correct interpretation of

§ 4.25(b), we must address the question of the Court's jurisdiction over this question. Again, we

conclude that what the appellant has asked us to do here is not a direct review of the content of the

rating schedule, which Wanner II and section 7252(b) proscribes, but rather a review of the Board's

interpretation of two regulatory provisions and their interrelationship. This is exactly what was

involved in Sellers, where the appellant was asserting that the § 4.130 language of the preambulatory

general reference to the DSM-IV nomenclature required that the specific DSM-IV nomenclature

pertaining to PTSD prevail over the "General Rating Formula for Mental Disorders" that applied to

15

PTSD under [38 C.F.R. § 4.130,] DC 9411 [2000,] as well as to 35 other specified mental disorders.

Sellers, 372 F.3d at 1322 (characterizing appellant's contention as "that in . . . § 4.130 VA adopted

the definition of PTSD contained in the DSM-IV" and thus VA must "look to the DSM-IV to properly

determine whether a veteran has total occupational and social impairment that results from his or her

service-connected [PTSD] disability"). Hence, we hold that we have jurisdiction to address the merits

of the appellant's reversal contention on this issue.

2. Merits

In this case, the Board concluded that "[t]he 10[%] rating being granted in this decision is the

only schedular evaluation available for tinnitus, and there are no other diagnostic codes potentially

applicable to this disorder." R. at 9. At oral argument, counsel for the Secretary represented that a

remand on this issue would be pointless because the Board on remand would have to apply G.C. Prec.

2-2003, which concluded that under the DC for tinnitus (DC 6260) no more than a 10% rating was

generally available. See 38 U.S.C. § 7104(c) (providing that Board bound to follow precedent

opinions of the General Counsel). Accordingly, the Court will address the merits.

At the outset, we note that, although the Board is bound by the precedent opinions of the VA

General Counsel, this Court is not so bound. See, e.g., Hatch v. Principi, 18 Vet.App. 527, 531

(2004) (citing Theiss, 18 Vet.App at 210, Cottle v. Principi, 14 Vet.App 329, 335 (2001), and Sabonis

v. Brown, 6 Vet.App 426, 429 (1994)); see also 38 U.S.C. §§ 7104(c), 7261. The Court reviews the

Secretary's interpretation of law de novo. See Hatch, supra.

After reviewing the Secretary’s analysis of the rating schedule with regard to tinnitus, the

Court concludes that he failed to take account of a basic canon of construction, specifically, to look

to the plain text of the regulation. "The basic principles that apply to construing statutes apply equally

to construing regulations. 'The starting point in interpreting a statute is its language.'" Otero-Castro,

supra (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993)) (internal citations

omitted). Here, the Secretary's interpretation cannot stand because it conflicts with the plain meaning

of the regluation. See DeLuca v. Brown, 8 Vet.App 202, 207 (1995) (holding that interpretation of

regulation by VA that conflicted with plain meaning of regulation not entitled to deference) (citing

Combee v. Principi, 4 Vet.App 78, 91 (1993) (quoting Martin, 499 U.S. at 151), rev'd on other

grounds sub. nom. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994)).

16

The Secretary stresses that none of the provisions in the section of the rating schedule relating

to ears address dual ratings, with the exception of DC 6207 regarding auricles, which specifically

provides for different ratings depending on whether one or both auricles are a complete loss. From

these observations, the Secretary derives the following interpretive principle:

Where separate ratings are permitted for like organs, the rating code

explicitly provides for such. See, e.g., 38 C.F.R. § 4.87, DC 6207

(Loss of auricle); []§ 4.115(b) (Testis, atrophy complete), and DC

7524 (Testis, removal); []§ 4.16, DC 7626 (Breast, surgery of). If the

Secretary had intended to provide separate ratings for tinnitus in the

schedule of ratings related to ears, he would have employed specific

language to do so, as he did for rating disability of the auricles (DC

6207).

Sec'y Br. at 7. Stated another way, the Secretary concludes that the drafters knew how to draft the

regulations to specify when each ear should be rated separately and, further, that the absence of any

such statement showed a clear intention to exclude individual ratings for each ear. R. at 8-9. An

examination of the plain text of the regulation, however, reveals that dual ratings for tinnitus were

not intended to be excluded.

As the appellant argues, § 4.25(b) provides the general rule for rating disabilities arising from

a single disease entity. That regulation states: "Except as otherwise provided in this schedule, the

disabilities arising from a single disease entity . . . are to be rated separately as are all other disabling

conditions, if any. All disabilities then are to be combined [for rating purposes] . . . ." 38 C.F.R.

§ 4.25(b) (emphasis added). Accordingly, under the plain reading of the regulation, each

service-connected disability arising from a single disease entity is to be rated separately, and the

ratings combined, unless otherwise provided by the Secretary. See Colayong v. West, 12 Vet.App.

524, 531 (1999); Esteban v. Brown, 6 Vet.App. 259, 261 (1994).

Although the Secretary correctly states that "[n]either the prior nor the amended regulation

contained any language suggesting that a separate tinnitus rating could be awarded for each ear", G.C.

Prec. 2-2003, this is not the test. An examination of DC 6260 reveals that tinnitus is listed as a

disease of the ear – making the provisions of § 4.25(b) applicable thereto as a "single disease entity" –

and that the rating schedule contains no exception to § 4.25(b) regarding tinnitus; that is, nothing in

the rating schedule limits a veteran with tinnitus in both ears to only one rating. The plain reading

and application of § 4.25(b) and DC 6260 results in a rating of 10% for each ear affected by a single

17

case of tinnitus and then a combination of those ratings. There is no need to look further to discern

the meaning of the regulation. "Where a statute's language is plain, and its meaning clear, no room

exists for construction. There is nothing to construe." Gardner v. Derwinski, 1 Vet.App 584, 588

(1991), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994).

"If the intent of Congress is clear, that is the end of the matter." Chevron, U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 842 (1984). The quoted language from Gardner and Chevron

applies equally to regulations. See Otero-Castro, supra; Savage v. Gober, 10 Vet.App. 488, 495

(1997); see also Lee v. West, 13 Vet.App 388, 394 (2000).

Assuming, arguendo, that the regulation's language was not plain, the Court does not agree

with the Secretary's contention that an examination of other DCs shows an intent of the drafters to

exclude dual ratings unless the DC expressly provides for such dual rating. The Court has not found

in other parts of the rating schedule support for the Secretary's basic assertion with regard to § 4.25(b).

Although, on first impression, the rating schedule for loss of hearing, which provides expressly for

dual ratings, seems to support the Secretary's assertion that "where separate ratings are permitted for

like organs, the rating code explicitly provides for such", upon further examination, we conclude that

support for that assertion is wanting. For example, 38 C.F.R. §§ 4.85 and 4.86, relating to

"Evaluation of hearing impairment" and "Exceptional patterns of hearing impairment", both provide

for dual ratings; however, both of these sections rate only impairment without regard to an underlying

disease. See 38 C.F.R. §§ 4.85 and 4.86 (2004). Section 4.25(b), which by its very terms requires

separate ratings for each disability arising from a single disease entity, does not apply to §§ 4.85 and

4.86, and the drafters thus were required to provide specifically for dual ratings if they wanted that

result. Accordingly, §§ 4.85 and 4.86, which explicitly permit dual ratings for hearing loss, provide

no insight into whether such ratings are permitted for disability ratings based on an ear disease.

The Secretary points to the fact that within the rating schedule for "Diseases of the Ear" in

§ 4.87a (which includes tinnitus), the schedule specifically provides a higher rating for the loss of

both auricles as opposed to the loss of only one, where no such dual rating was specifically provided

for the other diseases listed in that section, including tinnitus. Br. at 7-8. The Secretary concludes

from this that the drafters of the schedule meant to preclude a dual rating for the other ear diseases

in that section, including tinnitus. Ibid. Even if this interpretation was not contrary to the plain text

of the regulation, which it is, it is still suspect. As previously noted, § 4.25(b) provides for separate

18

ratings for disabilities arising from a "single disease entity". If a distinct rating had not been provided

for the loss of both auricles, the application of § 4.25(b) would have required a 30% rating for the loss

of one ear and an additional 30% rating for the loss of the second ear; these would then have been

combined with each other and with ratings for other disabilities. Instead, the drafters provided a

rating of 30% for the complete loss of one auricle and 50% for the loss of both. The Court finds it

more likely than not that these separate ratings were provided specifically to preclude the application

of § 4.25(b), which would have resulted in a slightly higher combined rating of 51%, see 38 C.F.R.

§ 4.25(b) (Table I), than for the purpose of providing interpretative assistance in assessing whether

a dual rating was required for a disability arising from the other ear diseases. (We note that, although

38 C.F.R. § 4.25(b) provides that a 51% rating is to be rounded to 50%, the rating schedule for loss

of auricles does not reflect merely what would have been provided under 4.25(b). A 51% rating may

potentially affect a claimant's disability rating when combined with ratings from other disabilities.

As § 4.25(b) provides, the rounding procedure for reaching a combined rating will be applied only

once, after all the ratings are combined. See 38 C.F.R. § 4.25(b).)

Finally, regarding the interpretation of the rating schedule, the schedule for diseases of the eye

reveals that the drafters of the schedule knew exactly how to make exceptions from the application

of § 4.25(b) for disabilities arising from a disease. For example, 38 C.F.R. § 4.84(a), DC 6011

(2004), specifically states that atrophy of the retina, a disease of the eye, is limited to only one rating,

whether unilateral or bilateral. Such a limitation simply does not exist in the applicable DC for

tinnitus (DC 6260), and it appears doubtful that one could be added to the detriment of the veteran

once he filed his claim, either by interpretative analysis or amended regulation. See Fortuck v.

Principi, 17 Vet.App 173, 178 (2003); Karnas v. Derwinksi, 1 Vet.App 308, 312-13 (1991), overruled

in part on other grounds by Kuzma v. Principi, 341 F.3d 1327, 1329 (Fed. Cir. 2003); see also

38 U.S.C. § 1155 (stating that Secretary may not revise rating schedule so as to reduce veteran's

disability rating then in effect unless an improvement in veteran's disability is shown).

As to the Secretary's assertion that Note 2 "involves no substantive change" and that "the

amendment restated in more explicit terms the rule reflected in prior VA regulations that only a single

10% rating for tinnitus is authorized", this interpretation not only is inconsistent with the plain

meaning of the applicable regulation in this case, but also the support for this assertion is flawed.

19

Both the Secretary and the General Counsel quote the Supplementary Information published in the

Federal Register at the time of the promulgation of the final rule, which stated in relevant part:

To rate each ear separately for this single disability would violate the

prohibition on pyramiding, 38 CFR 4.14. Similarly, to rate each ear

separately would be a violation of the principle of 38 CFR 4.25(b) that

a "single disease entity" is to be given a single rating. A single

evaluation for a single disability is appropriate. We have made no

change based on this comment.

68 Fed. Reg. at 25,823 (emphasis added). The above-quoted passage misstates the law. In fact, this

passage states nearly the opposite of what § 4.25(b) provides, which is that "the disabilities arising

from a single disease entity . . . are to be rated separately". 38 C.F.R. § 4.25(b) (emphasis added).

Hence, pursuant to the review standard set forth in Westberry, the Court owes no deference to such

an interpretation, because it is both "plainly erroneous" and "inconsistent with [VA]'s own

regulation"as provided in § 4.25(b). Westberry, supra.

The Secretary asserts (both in his brief and at oral argument) that the policy embodied in Note

2 had been the "standard practice" for VA "since 1945", and that VA's interpretation of DC 6260 –

that such a policy had always been a part of the tinnitus rating – should be given deference by the

Court because it is "reasonable" and "based on the common medical definition of tinnitus". Suppl.

Br. at 5. However, the Secretary concedes (also at oral argument) that neither the "standard practice"

of awarding only a single 10% rating for tinnitus nor the "common medical definition of tinnitus" that

considered that condition a disability of the central nervous system, was set forth in a publicly

available document before VA's proposed rule in 2002. Hence, even if the regulations in this case

were ambiguous, the Court would find the argument that Note 2 embodied either a "standard VA

practice" or an established agency policy based on a "common medical definition" to be unpersuasive.

As the Secretary also conceded at oral argument, the paucity of information in regard to this "standard

VA practice" available prior to the Board's December 2000 decision in this case distinguishes this

case from Smiley v. Citibank, 517 U.S. 735 (1996), which affirmed the validity of an agency

regulation that had formally recognized a longstanding agency interpretation. Unlike in the instant

case, in Smiley, the agency had a publicly available track record of having interpreted an ambiguous

term in a manner consistent with the new regulation. Finally, to the extent that there is any reasonable

interpretive doubt regarding the meaning of § 4.25(b) and its application to DC 6260, and given the

20

lack of any publicly available agency interpretative history on this matter, such doubt is to be resolved

in favor of the veteran. See Brown v. Gardner, 513 U.S. at 117-18; Allen (William) v. Brown,

7 Vet.App. 439, 446-48 (1995) (en banc) (applying Gardner "interpretive doubt" rule); Otero-Castro,

supra.

Based on the plain language of the regulations, the Court holds that the pre-1999 and pre-

June 13, 2003, versions of DC 6260 required the assignment of dual ratings for bilateral tinnitus. In

light of this holding, the Court will reverse as "not in accordance with law", 38 U.S.C.

§ 7261(a)(3)(A), the Board's conclusion that "[t]he 10[%] rating being granted . . . is the only

schedular evaluation available for tinnitus", set aside the determination that no higher rating is

available to the appellant, and remand that matter for further proceedings consistent with this opinion.

III. Conclusion

Upon consideration of the parties' pleadings, oral argument, and the forgoing analysis, the

Court reverses the December 2000 BVA decision that bilateral tinnitus may not qualify for two 10%

ratings, one for each ear, and remands that matter for expeditious readjudication as to whether the

appellant has bilateral tinnitus, and, if so, for assignment of a rating consistent with this opinion.

Additionally, the Court vacates the December 2000 BVA decision with respect to the Board's decision

to interpret "persistent" in pre-1999 DC 6260 as requiring an element of constancy, and remands that

matter for readjudication and for consideration of our holding regarding § 4.25(b) to pre-1999 DC

6260. Furthermore, the Court invalidates G.C. Prec. 2-2003 to the extent that it is inconsistent with

§ 4.25(b) and pre-June 2003 DC 6260 as herein construed. On remand, the Secretary will ensure

expeditious appropriate further development and issuance of a readjudicated decision supported by

an adequate statement of reasons or bases, see 38 U.S.C. §§ 1110, 5100-5103, 5103A, 5107, 7104(a),

(d)(1); 38 C.F.R. § 4.25(b), 4.87, DC 6260 (pre-1999 and pre-June 13, 2003), all consistent with this

opinion and in accordance with 38 U.S.C. § 7112 (as added by the Veterans Benefits Act of 2003,

Pub. L. No. 108-183, § 707(b), 117 Stat. 2651, 2673) (requiring Secretary to "take such actions as

may be necessary to provide for the expeditious treatment by the Board of any claim that is remanded

to the Secretary by the Court"); see Vargas-Gonzalez v. Principi, 15 Vet.App. 222, 225-30 (2001)

(holding that section 302 of Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446,

§ 302, 108 Stat. 4645, 4658, predecessor of section 7112, applies to all elements of claim remanded

21

by the Court or Board), and in accordance with all applicable law and regulation. See Allday,

7 Vet.App. at 533-34. On remand, the appellant will be free to submit additional evidence and

argument on the remanded claims, and the Board is required to consider any such evidence and

argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A remand by this Court or by the Board

confers 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 Board's

new final decision is mailed to the appellant. See Marsh v. West, 11 Vet.App. 468, 472 (1998).

REVERSED IN PART, VACATED IN PART, AND REMANDED.

IVERS, Chief Judge, concurring in part and dissenting in part: I must respectfully dissent

from the majority opinion with respect to the issue of the Court's jurisdiction as discussed in III.B.1.

The Court has jurisdiction to determine its jurisdiction over a case. See Henderson v. West,

12 Vet.App. 11 (1998). In my view, the majority's decision to remand the question of the appellant's

entitlement to a compensable rating under the pre-1999 DC 6260 is outside this Court's jurisdiction

pursuant to 38 U.S.C. §§ 502 and 7252(b) and contrary to the Federal Circuit's decisions in Wanner

v. Principi, 370 F.3d 1124 (Fed.Cir. 2004)(Wanner II) and Smith v. Principi, No. 03-7212, 2004 WL

2030123 (Fed. Cir. Aug. 23, 2004)(Smith II).

In the case underlying the appeal before us, the Federal Circuit granted the Secretary's motion

to vacate and remand this Court's decision in Smith v. Principi, 17 Vet.App. 168 (2003)(Smith I) as

inconsistent with Wanner II. See Smith II. In so doing, the Federal Circuit stated:

In Wanner [II], we reversed the Court of Appeals for Veterans Claims' determination

that it had jurisdiction to review the rating schedule, absent a constitutional

challenge. In the instant case, the decision on appeal relied heavily on the Court of

Appeals for Veterans Claims' Wanner decision [Wanner v. Principi, 17 Vet.App. 4

(2003)(Wanner I)] in concluding that it had jurisdiction to review the Diagnostic

Code, which is included in the ratings schedule. Thus, we reverse the Court of

Appeals for Veterans Claims' determination in this case that it had jurisdiction and

remand for further proceedings consistent with our decision in Wanner [II].

22

Smith II, at *2. In concluding that this Court did not have jurisdiction to review the ratings schedule,

the Federal Circuit in Wanner II reviewed the jurisdictional provisions of title 38, 38 U.S.C. §§ 502

and 7252(b). 370 F.3d at 1129. Section 502 specifically excludes from judicial review by this Court

actions of the Secretary "relating to the adoption or revision of the schedule of ratings for disabilities

adopted under section 1155 of this title." 38 U.S.C. § 502; see also id. In addition, section 7252(b)

states that this 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) (emphasis added); see also id. Noting that "the clarity of the legislative scheme makes

resort to the legislative history [of the Veterans Judicial Review Act, Pub. L. No. 100-687, 102 Stat.

4105 (1988)] unnecessary," the Federal Circuit added:

Senate Report 100-418 explains: "The Committee bill contains one restriction on the

scope of review of VA rules and regulations: A court would not be permitted to direct

or otherwise order that any part of the disability rating schedule issued or adopted

by the Administrator be modified." . . . A report from the House of Representatives

reflects a similar understanding, explaining that, in response to "apprehension . . .

that the VA schedule for rating disabilities. . . would be destroyed by piecemeal

review of individual rating classifications," the bill "has expressly precluded review

of the schedule . . . ." H.R. Rep. 100-963 at 28. The language in the legislative

history is not limited to the percentages of the disability ratings . . . but matches the

statutes in broadly precluding judicial review of the contents of the disability rating

schedule in toto.

370 F.3d at 1130 (emphasis added). The Federal Circuit concluded that the "review undertaken by

the Veterans Court here amounts to a direct review of the content of the rating schedule" and "was

an action outside of its jurisdiction as provided by 38 U.S.C. § 7252(b)." 370 F.3d at 1131.

The majority presently claims that it is not reviewing the contents of the rating schedule, but

"the Board's interpretation of 'persistent' in pre-1999 DC 6260," and, consequently, this review is "not

distinguishable from the review sought in Sellers." Ante at 10. However, the Court's analysis here

moves well beyond the interpretation of the ratings criteria as discussed in Sellers. In that case, the

Federal Circuit upheld this Court's "interpretation of 38 C.F.R. § 4.130 with respect to the relationship

between the DSM-IV and the general rating formula." 372 F.3d at 1321. With respect to the issue

of this Court's jurisdiction, the Federal Circuit focused on the character of the arguments raised by

the appellants: "Appellant's are challenging VA's interpretation of a regulation. The Veterans Court,

therefore, had jurisdiction under 38 U.S.C. § 7252(a)." 372 F.3d at 1324.

23

The crucial difference between Sellers and this case is that the appellants in Sellers were not

challenging the content of the ratings schedule insofar as the ratings schedule reflected the medically

recognized symptoms of PTSD. The Secretary's instruction that "[r]ating agencies must be

thoroughly familiar with [the DSM-IV] to properly . . . apply the general rating formula for mental

disorders in [section] 4.130" established an ambiguous relationship between the ratings criteria for

PTSD and DSM-IV. The Court interpreted the limits of that relationship without reviewing "any

action of the Secretary in adopting or revising that schedule." 38 U.S.C. § 7252(b).

While cloaking their actions in the reasons-and-bases rubric, the majority here dives directly

into the content of the ratings schedule by evaluating the meaning of "persistent" in the pre-1999 DC

6260 and "recurrent" in the current DC 6260 against the medical definition of tinnitus. By proposing

to examine the reasonableness of the terms "persistent" and "recurrent" as accurate symptoms of

tinnitus, the Court is announcing its intent to directly review the contents of the ratings schedule and

infringing on the Secretary's authority under 38 U.S.C. § 1155 to "adopt and apply a schedule of

ratings of reductions in earning capacity from specific injuries or combination of injuries." Sellers

is inapplicable in this case because the majority, in "interpreting" the meaning of "persistent" in the

pre-1999 DC 6260 and "recurrent" in the current DC 6260, would engage in a "review [of] 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). The Federal Circuit's language

in Wanner II is instructive: "The review undertaken by the Veterans Court here amounts to a direct

review of the contents of the rating schedule and is indistinguishable from the review of 'what should

be considered a disability' that the Veterans Court itself recognized as impermissible." 370 F.3d at

1131.

Moreover, it is irrelevant for jurisdictional purposes that the Court is remanding the issue to

the Board. If the Court had jurisdiction, it would merely be postponing an eventual judicial review

of an action "relating to the adoption or revision of the schedule of ratings for disabilities adopted

under section 1155 of this title." 38 U.S.C. § 502. The only appropriate course of action in this case

is to dismiss the claim as outside the Court's jurisdiction pursuant to 38 U.S.C. §§ 502 and 7252(b),

and the Federal Circuit's decisions in Wanner II and Smith II.

24