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December 13, 2017

Smith v. Principi, No. 01-623(DATED: June 10, 2003PER CURIAM); Tinnitis; Pre/Post 1999 DC 6260; Does Recurrent = Persistent; 59 Fed. Reg. at 17, 297;

Excerpt from decision below:

“Moreover, the Secretary’s comments in the Supplementary Information accompanying  his proposal of the adoption of the current DC point to the lack of clarity in pre-1999 DC 6260’s  use of “persistent”. The Secretary stated:     The evaluation for tinnitus . . . 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).”



No. 01-623



Before FARLEY, IVERS, and STEINBERG,  Judges.

O R D E R    The appellant, through counsel, seeks review of a December 12, 2000, decision of the  Board of Veterans’ Appeals (Board or BVA) that, inter alia, granted a Department of Veterans  Affairs (VA) rating of 10% (but no higher) effective June 10, 1999, for service-connected  bilateral tinnitus pursuant to Diagnostic Code (DC) 6260 but denied a VA compensable  disability rating prior to that date. Record (R.) at 3;  see   38 C.F.R. § 4.87, DC 6260 (1999,  2000). Prior to June 10, 1999, DC 6260 provided for a 10% rating for tinnitus where it was  “[p]ersistent as a symptom of head injury, concussion[,] or acoustic trauma.” 38 C.F.R. § 4.87a,  DC 6260 (1998). As revised effective June 10, 1999, DC 6260 provides for a 10% rating for “[t]innitus, recurrent”, and so provided at the time of the Board decision. 38 C.F.R. § 4.87, DC  6260 (2002) [hereinafter “current DC 6260”].     In its December 2000 decision, the Board determined that the amended, current DC  6260 was more favorable than the pre-June 10, 1999, DC (hereinafter pre-1999 DC 6260) and  applied that version to the veteran’s claims, as of June 10, 1999 (R. at 6-7, 9); the Board  concluded that prior to that date, the veteran did not satisfy the criteria for a 10% rating under  pre-1999 DC 6260 because his tinnitus was not “persistent”. R. at 8. The appellant has filed a  brief, the Secretary has filed a brief, and the appellant has filed a reply brief. As requested by  the Court,  Smith v. Principi  , No. 01-623, 2001 WL 668904 (Vet. App. June 8, 2001) (order)  (hereinafter  Smith I  ), the parties address, inter alia, arguments regarding waiver of this Court’s  consideration on appeal of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,  114 Stat. 2096 (Nov. 9, 2000) (VCAA).

The appellant argues principally (1) that tinnitus that “periodically comes and goes over  at least a 15-year period undeniably satisfies the plain meaning of ‘persistent'” in pre-1999 DC  6260 and, thus, the Board’s conclusion to the contrary was “legal error” (Brief (Br.) at 4-5, 8-9),  and (2) that the Board misinterpreted both pre-1999 and current DC 6260 when it failed to award  two separate 10% disability ratings, one for each ear, for his service-connected tinnitus (Br. at  10-12). The Secretary counters these arguments and requests, inter alia, affirmance of the BVA  decision. Br. at 5-14.       In November 2002, the Court stayed this case pending disposition of  Wanner v.  Principi  , which involved, inter alia, some of the same issues presented in the instant appeal.   Smith v. Principi  , No. 01-623, 2002 WL 31749086 (Vet. App. Nov. 25, 2002) (order). The  Court issued an opinion in  Wanner   in February 2003.   Wanner  , 17 Vet.App. 4 (2003)  (consolidated with  Wright v. Principi  , No. 01-1012). In  Wanner  , the Court held, inter alia, that  by failing to address 38 C.F.R. § 4.25(b) (2002), which provides that all disabilities “are to be  rated separately”, the Board failed to provide an adequate statement of reasons or bases for its  determination that DC 6260 provides for only one rating for bilateral tinnitus (rather than two,  one for each ear).   Wanner  , 17 Vet.App. at 13. The Court also held that the trauma requirement  contained in pre-1999 DC 6260 is “in violation of a statutory right” and “not in accordance with  law” pursuant to 38 U.S.C. § 7261(a)(3)(C) and (A), respectively, because that requirement  conflicts with the directive in section 1110 that ”  any   veteran thus disabled” will receive  disability compensation and because that requirement is the product of “arbitrary and capricious”  rulemaking pursuant to section 7261(a)(3)(A).   Wanner  , 17 Vet.App. at 17-18. The Court then  invalidated the trauma requirement in pre-1999 DC 6260, vacated the Board decision, and  ordered the Board on remand (1) to apply only the “persistent” criterion of pre-1999 DC 6260 to  the appellants’ claims for compensable ratings prior to June 10, 1999, not the trauma  requirement, and (2) to consider § 4.25(b) in reassessing the appellant’s claim for two 10%  ratings for his bilateral tinnitus.   Wanner  , 17 Vet.App. at 18-19. The  Wanner   precedent applies  to the instant case and requires a remand for readjudication, in light of § 4.25(b), of the  appellant’s claim for two 10% ratings.     In the instant case, the Board stated in determining that the veteran did not satisfy the  requirements for a 10% rating under pre-1999 DC 6260:   The proposed amendment to [DC 6260] indicated that tinnitus is a subjective sensation which,  under certain circumstances, comes and goes. 59 Fed. Reg. [17,295,] 17[,]297 (Apr[.] 12, 1994)  [(Supplementary Information)]. The requirement that the tinnitus be “recurrent” means that it  might not always be present, but that it returns at regular intervals.   Id  . . . .  . . . .  The evidence does not show that the criteria for a compensable rating were met under the old  regulations. The veteran was granted service connection for tinnitus as due to in-service  acoustic trauma, resolving reasonable doubt in his favor. However, it must be noted that no  medical professional has definitively concluded that the etiology of the veteran’s tinnitus is noise  exposure, and the medical evidence shows several incidents of head trauma since the veteran’s  separation from service, as well as post-service noise exposure. Accordingly, the medical  evidence is not at least in equipoise with respect to assigning an acoustic trauma etiology to the  veteran’s tinnitus. It is speculative at best. While the medical evidence supporting such a  conclusion was not present, the RO concluded that there was sufficient evidence to support a  grant of service connection.   However, the medical evidence clearly establishes that the veteran’s tinnitus is not persistent.   Persistent is defined as insistently repetitive or continuous, tenacious, or enduring.   Webster’s II  New College Dictionary   at 820 (1995). The veteran’s statements indicate that the tinnitus is not  enduring, continuous, or repetitive. Rather, it occurs occasionally or periodically.   Although  there may be time periods during which he experiences several days of tinnitus per week,  there are also time periods during which it is not noticeable. Therefore, under [pre-1999 DC  6260], a noncompensable disability rating for tinnitus was proper.  . . . For the reasons discussed above, the medical evidence did not establish that the veteran’s tinnitus is persistent or due to acoustic trauma, and there is no reasonable doubt on this issue that  could be resolved in his favor. Accordingly, the Board concludes that the preponderance of the  evidence is against the claim for a compensable disability rating for tinnitus prior to June 10,             at 7-8 (emphasis added).     The difference between the requirements of “persistent” and “recurrent” in the pre-1999  and current DCs, respectively, as applicable to the condition of tinnitus, appears negligible, if  indeed there is a meaningful distinction. “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). “Persistent” is defined as, inter alia, “continuing” and  “constantly repeated”, whereas “recurrent” is defined as, inter alia, “appearing or occurring again  or periodically.”   WEBSTER’S NEW WORLD DICTIONARY  1007, 1123 (3d ed. 1988).   Based on the plain meaning of these words, it seems extremely difficult for an adjudicator to  determine objectively that something that is “recurrent” is not also “persistent”.   See Good  Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) (“[t]he starting point in interpreting a  statute is its language”). 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 (2002) (providing ratings for chronic fatigue syndrome  based on specific degree and length of periods of incapacitation), 4.97, DC 6514 (2002)  (providing ratings for sinusitis based on specific number, degree, and length of episodes), 4.114,  DC 7305 (2002) (providing “mild”, “moderate”, “moderately severe”, and “severe” ratings for  ulcers based on specific frequency and length of symptoms).    Moreover, the Secretary’s comments in the Supplementary Information accompanying  his proposal of the adoption of the current DC point to the lack of clarity in pre-1999 DC 6260’s  use of “persistent”. The Secretary stated:     The evaluation for tinnitus . . . 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). Hence, based on the recognition that, because tinnitus  may come and go, requiring that tinnitus be “persistent” in order to be compensable would be  unrealistic to the extent that “persistent” were to be read as suggesting a meaning of “constant”,  the Secretary promulgated current DC 6260.   See ibid  . It appears, therefore, that the Secretary  has already determined that a reading of “persistent” as a more strict standard than “recurrent”  insofar as constancy is concerned applies an unrealistic evaluation criterion for this condition.  Yet, that is what the Board appears to have done. The Board paraphrased only  selectively   from  the Supplementary Information passage quoted in full above and omitted any reference to the  Secretary’s concession that an attribute of constancy was not well suited for evaluating tinnitus.      at 7. Instead, the Board based its conclusion solely on one dictionary definition of  “persistent”. R. at 8. That interpretation of “persistent” “defines [the regulatory term] too  narrowly” as applied to tinnitus.   Suozzi v. Brown  , 10 Vet.App. 307, 311 (1997) (holding that  Secretary “defines ‘corroboration’ far too narrowly” in interpreting requirement in 38 C.F.R. §  3.304(f) that there must be “credible supporting evidence that the claimed in-service stressor  actually occurred” in order for service connection to be awarded for post-traumatic stress  disorder).     In light of this flawed analysis and, despite the Board’s conclusion to the contrary,  because “persistent” and “recurrent” appear to have overlapping definitions, the Court holds that  the Board’s conclusion that the appellant’s tinnitus was not “persistent” as required by pre-1999  DC 6260 must be reversed because it was reached in a manner that was “arbitrary, capricious,  [and] an abuse of discretion.”   See   38 U.S.C. § 7261(a)(3)(A) (directing Court to “hold unlawful  and set aside decisions” of the Board found to be “arbitrary, capricious, an abuse of discretion, or  otherwise not in accordance with law”);  Bailey v. Derwinski  , 1 Vet.App. 441, 446-48 (1991)  (reversing as product of arbitrary and capricious decisionmaking process Board decision that  veteran did not have arthritis in his shoulder, because Board rejected evidence pertaining to that  condition that was almost identical to evidence on basis of which Board had previously awarded  service connection for post- traumatic osteoarthritis of wrists and remanding for determination  of degree of disability based on this reversed finding); R. at 88, 101, 142, 161, 170, 242-45,  286;  see also Wanner  , 17 Vet.App. at 18 (holding that the inclusion of trauma requirement in  pre-1999 DC 6260 “constitute[d] ‘arbitrary and capricious’ rulemaking [because it] exclude[d]  certain veterans from receiving compensation based on the way in which they incurred their  service-connected disabilities”). Furthermore, in light of the regulatory history, the ambiguity as  to the meaning of “persistent”, and the Secretary’s failure to include a manageable definition in  the DC, the Court must resolve all reasonable interpretive doubt in favor of the veteran.   See  Brown v. Gardner  , 513 U.S. 115, 118 (1994);  Allen (William) v. Brown  , 7 Vet.App. 439, 446  (1995) (en banc);  Kilpatrick v. Principi  , 16 Vet.App. 1, 6 (2002),  aff’d,   327 F.3d 1375 (Fed. Cir.  2003);  see also   Jones (Ethel) v. West  , 136 F.3d 1296, 1299 n.2 (Fed. Cir. 1998). Accordingly,  the Court will order the Board on remand to award a rating of 10% and to assign an effective  date pursuant to 38 U.S.C. § 5110.     The Court notes three additional matters. First, the Secretary’s statement that the  “[a]ppellant makes the alternative argument that the Court should remand his appeal in order that  the Secretary consider the VCAA” and the Secretary’s argument that there is “no basis” for such  a remand (Br. at 11-13) are misplaced. Prior to the filing of the designation of the record, the  Secretary himself filed a motion for a partial remand based on the VCAA; the appellant objected  to such a remand, and the Court denied the Secretary’s motion without prejudice.   Smith I  ,  supra  .  Second, the Court notes that any issue regarding the Board’s statement that “the medical  evidence is not at least in equipoise with respect to assigning an acoustic trauma etiology to the  veteran’s tinnitus”, although that statement is questionable and likely carries no force in law (  see     at 161 (RO finding that “[r]easonable doubt has been resolved in favor of the claimant  regarding acoustic trauma leading to tinnitus because of his assignment as a vehicle mechanic in  service and his subjective history of assignment in combat to an artillery unit”)), is moot in light  of the invalidation of the trauma requirement in pre-1999 DC 6260.   See Wanner  ,  supra  . Third,  the Court notes the issuance on May 14, 2003, of a final VA regulation amending the current DC  6260, at “Note (2)”, and providing for “only a single evaluation for recurrent tinnitus, whether  the sound is perceived in one ear, both ears, or in the head.” 68 Fed. Reg. 25,822 (May 14,  2003). This amendment does not alter the Board’s obligation to apply  Wanner  here.    On the basis of the above analysis and the holdings in  Wanner  ,  supra  , the Court (1) will  reverse that part of the December 2000 Board decision that determined that the appellant’s  tinnitus was not “persistent” as required by pre-1999 DC 6260 and will remand the matter for  assignment of a 10% rating and an appropriate effective date and (2) will vacate that part of the  December 2000 Board decision that denied two ratings for the appellant’s service-connected  tinnitus, one for each ear, and will remand the matter for expeditious further development, if  warranted, and issuance of a readjudicated decision supported by an adequate statement of  reasons or bases,  see  38 U.S.C. §§ 1110, 7104(a), (d)(1); 38 U.S.C. §§ 5103(a), 5103A, 5106,  5107, 5110; 38 C.F.R. §§ 4.25(b); 4.87, DC 6260 (2002); 4.87a, DC 6260 (1998);  DeSousa v.  Gober  , 10 Vet.App. 461, 467 (1997);  Fletcher      Derwinski  , 1 Vet.App. 394, 397 (1991), all  consistent with  Wanner  ,  supra  , and this order, 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) [hereinafter VBIA § 302];     see Vargas-Gonzalez v.  Principi  , 15 Vet.App. 222, 225-30 (2001) (holding that VBIA § 302 applies to all elements of a  claim remanded by Court or Board), and with all applicable law and regulation.   See Allday v.  Brown  , 7 Vet.App. 517, 533-34 (1995). On remand, the appellant will be free to submit  additional evidence and argument on the remanded claims in accordance with  Kutscherousky v.  West  , 12 Vet.App. 369, 372-73 (1999) (per curiam order) (concluding that 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 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).    Upon consideration of the foregoing, it is


ORDERED that the December 2000 BVA decision is REVERSED IN PART and  VACATED IN PART and the matters are REMANDED for readjudication in accordance with  the provisions of this order and pursuant to  Wanner  ,  supra  .

DATED:   June 10, 2003PER CURIAM.


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