DAV PREVAILS IN FIGHT
OVER TINNITUS CLAIMS

On April 5, 2005, the United States Court of Appeals for Veterans Claims handed down its decision in Smith v. Nicholson. The DAV had argued on behalf of Mr. Smith that he was entitled to two separate ten percent disability ratings for service-connected tinnitus, i.e., ringing, in his right and left ears. The Department of Veterans Affairs (VA) argued in Smith’s case, as well as a large number of other cases, that the schedule for rating disabilities provided for only one ten percent rating, regardless of whether the tinnitus was present in only one ear or both ears.

The Court held that: “Based on the plain language of the regulations, the Court holds that the pre-1999 and pre-June 13, 2003 versions of [diagnostic code] 6260 required the assignment of dual ratings for bilateral tinnitus.” Veterans who filed a claim for service connection for tinnitus in both ears, or who claimed an increased rating for that condition, prior to June 13, 2003, may be entitled to receive combined disability compensation based on two ten percent ratings for tinnitus. Additionally, the law does not permit any such ratings to be reduced in the future, unless the severity of the tinnitus is shown to have actually improved.

Veterans who believe that they may be entitled to benefits based on the Smith precedent should promptly contact their DAV National Service Officer.