12-07 May 23, 2007

Bilateral Tinnitus Update On April 5, 2005, the U.S. Court of Appeals for Veterans Claims (CAVC) decided E.C. Smith v. Nicholson, CAVC, 01-623, April 5, 2005. In this case, the CAVC held that veterans with bilateral tinnitus, in claims filed prior to a June 13, 2003, the date of a Department of Veterans Affairs (VA) regulation change, were entitled to separate evaluations for tinnitus in each ear. See VA&R Memorandum, dated April 12, 2005. VA subsequently appealed the CAVC decision to the U.S. Court of Appeals for the Federal Circuit. On June 19, 2006, the U.S. Court of Appeals for the Federal Circuit issued a decision reversing the CAVC’s decision in Smith and also remanded it for proceedings consistent with its decision. See VA&R Bulletin 14-06, dated June 27, 2006. Smith subsequently sought to appeal the Federal Circuit decision to the U.S. Supreme Court. On January 22, 2007, the Supreme Court declined to hear the appeal, allowing the Federal Circuit decision, that veterans can receive only a single 10 percent rating for bilateral tinnitus, to stand. Please contact Steve Smithson, Deputy Director for Claims Service, VA&R, at (202) 263-2985 or ssmithson@legion.org, if you have any questions or concerns. ************************************************************************ _________________________ PETER S. GAYTAN, Director National Veterans Affairs and Rehabilitation Commission