Jаcob WANNER, Appellant, and King L. Wright, Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Appellee.
Nos. 00-1888, 01-1012.
United States Court of Appeals for Veterans Claims.
Decided Feb. 12, 2003.
Argued Aug. 27, 2002.
King, 5 Vet.App. at 22-23. The Court‘s reasoning in King as to why the ROA should not consist of the entire “C” file remains sound and, if anything, it is strengthened in force by the recent amendment to
Accordingly, it is
ORDERED that the appellants’ motion to compel is denied. It is further
ORDERED that, within 30 days after the date of this order, the appellants file with the Clerk and serve on the Secretary a counterdesignation of the record or a statement that the appellants accept the content of the record as designated by the Secretary. It is further
ORDERED that these appeals are returned to the single judge for further proceedings.
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, DC, 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, DC, 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) awardеd 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 continuеd the prior noncompensable rating, but referred to his
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 also commented: “Claimed tinnitus does not warrant separate compensable evaluation as it is not shown in service оr 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
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 servicе-connected tinnitus would be rated as 10% disabling if recurrent. See38 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]. See38 C.F.R. § 4.87[DC] 6260 , effective as of June 10, 1999.
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
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 wartimе 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. 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 а 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 sig-
[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, 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
The Secretary argued initially in Wright that the appellant‘s increased-rаting 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
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
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
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
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
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 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 аn evaluation under [DCs] 6100, 6200, 6204, or other DC, except when tinnitus supports an evaluation under one of those DCs.”
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
The appellants argue that
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 “tо definitively state that recurrent tinnitus is assigned only one evaluation whether it is perceived in one ear, both ears, or an 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
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.
As to the constitutional argument, it is well settled that the Court possesses jurisdiction to review constitutional arguments generally; section 7261(a)(3) provides that the Court may “hold unlawful and set aside” regulations that are, inter alia, “contrary to constitutional right, power, privilege, or immunity“.
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. at 304. Although Court review is precluded as to intraschedular conflict, what should be considered a disability, and the appropriate rating for any disability, that
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 case. Section 7261(a)(3) permits the Cоurt 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“.
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“.
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] favor-
In appellant Wright‘s case, the Board cited Karnas and concluded that it was constrained by
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.
b. Appellant Wright‘s EED Claim: Reasons or Bases: In the Wright case, the Board correctly pointed out the requirements of Karnas and
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 references appear to pertain to the evaluatiоn 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
The Court notes that the first mention of the appellant‘s tinnitus is found in thе 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 Rеquirement: 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“.
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 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.
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“.
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“.
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.
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 readju-
VACATED AND REMANDED.