## Facts

- Ellis C. Smith, a U.S. Army veteran (active duty March 1966–March 1969), was diagnosed with tinnitus after a 1995 VA audiological examination.
- In 1995, a VA Regional Office found tinnitus service connected but assigned a noncompensable rating under then-current Diagnostic Code (DC) 6260 because the tinnitus was not shown to be “persistent.”
- DC 6260 was amended effective June 10, 1999, changing the compensable standard from “persistent” tinnitus tied to certain causes to “recurrent” tinnitus without that causal limitation.
- In 2000, the Board of Veterans’ Appeals addressed the claim under both versions of DC 6260 and treated tinnitus as warranting only a single 10% schedular evaluation, regardless of whether perceived in one ear or both.
- In 2005, the Court of Appeals for Veterans Claims held that VA regulations required separate 10% ratings for bilateral tinnitus.
- The Secretary of Veterans Affairs appealed only the portion of that decision requiring dual ratings for bilateral tinnitus.

## Issues

1. Whether 38 C.F.R. § 4.25(b) and 38 C.F.R. § 4.87, DC 6260 (pre-2003) require separate 10% disability ratings for tinnitus in each ear.
2. Whether the Veterans Court was required to defer to the Department of Veterans Affairs’ interpretation of DC 6260 as authorizing only a single 10% rating for tinnitus.

## Decision

- The Federal Circuit reversed the Veterans Court’s interpretation requiring dual ratings for bilateral tinnitus and remanded.
- The court held that DC 6260 authorizes only a single 10% disability rating for tinnitus, whether unilateral or bilateral.
- The court concluded the Veterans Court erred by failing to defer to the VA’s interpretation of its own regulation.
- No other part of the Veterans Court’s decision was before the Federal Circuit.

## Legal Principles

- When a regulation is ambiguous, a reviewing court must defer to an agency’s interpretation of its own regulation if the interpretation is not plainly erroneous or inconsistent with the regulatory text.
- For the relevant period, DC 6260 reasonably treats tinnitus as a single disability for rating purposes, permitting only one 10% schedular evaluation regardless of whether sound is perceived in one ear, both ears, or in the head.
- 38 C.F.R. § 4.25(b)’s general instruction to rate separate disabilities separately does not override a reasonable agency interpretation that a condition constitutes a single disability under the specific diagnostic code.
- A later regulatory note expressly limiting tinnitus to a single evaluation was treated as a clarification consistent with the VA’s longstanding interpretation.

## Conclusion

The Federal Circuit required deference to the VA’s reasonable interpretation of DC 6260 and held that veterans are entitled to only one 10% schedular rating for tinnitus, even when perceived bilaterally, reversing the Veterans Court’s contrary mandate for dual ratings.


Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006)