Bilateral tinnitus

 

It is estimated that 40 million people in the U.S. suffer from bilateral tinnitus, with 10 million of those severely affected.   The prevalence of bilateral tinnitus is highest in the 40-70 age group, and more common in men than in women probably because of exposure to loud noises as the cause of injury to both ears.  Bilateral tinnitus can have a great impact to reduce the quality of life.  Ludwig Von Beethoven wrote in a letter to a friend in 1801, “only my ears whistle and buzz continuously day and night.  I can say I am living a wretched life.”

 

Bilateral tinnitus has many possible causes, which are usually a problem or injury that affects the entire body.  The causes of bilateral tinnitus tend to be less life threatening (loud noises, aspirin toxicity) than the causes of unilateral tinnitus (tumor, aneurysm).  Any serious disorder should be ruled out by means of a thorough history and physical examination.  In general, pulsatile tinnitus, unilateral tinnitus, and tinnitus associated with other unilateral otologic symptoms represent potentially more serious underlying disease than bilateral tinnitus.

 

DAV involved in bilateral tinnitus claims

On April 5, 2005, the United States Court of Appeals for Veterans Claims (CAVC) ruled in the protracted legal fight, Smith v. Nicholson.  In this case, the DAV argued on behalf of Mr. Smith that he was properly entitled to two separate 10% disability ratings (total of 20% disability) for service-connected tinnitus, i.e., equal ringing in his right and left ears. The U.S. Department of Veterans Affairs (VA) conversely argued in Smith’s case, and in many other similar cases, that the VA Schedule for Rating Disabilities provided for only one total 10% rating, regardless if the veteran had unilateral or bilateral tinnitus.

The CAVC 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 bilateral tinnitus, or who claimed an increased rating for that condition, prior to June 13, 2003, may be entitled to receive combined disability compensation based on a 20% disability rating for bilateral 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.

However, the decision of the CAVC in the Smith case for bilateral tinnitus has not yet become final. The VA appealed that decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit) on June 22, 2005. The Federal Circuit handed down its decision on June 19, 2006. That decision reversed the decision of the CAVC that held veterans are entitled to two separate 10% ratings for service connected bilateral tinnitus. The Federal Circuit held that prior to its amendment in June 2003, diagnostic code 6260 was ambiguous as to whether tinnitus was a single disability and that the CAVC erred by failing to defer to the VA’s reasonable interpretation of its own regulation.

The Federal Circuit's decision does not become final until the conclusion of any proceeding before the Supreme Court of the United States. The DAV filed a petition for a writ of certiorari with the Supreme Court on September 19, 2006, on behalf of Mr. Smith. On December 19, 2006, the United States filed its opposition to our petition for a writ of certiorari and a decision on whether they grant the petition will probably come during the first quarter of 2007.

If the petition is denied, then the Federal Circuit’s decision becomes final. If the petition is granted, then the Federal Circuit’s decision will not become final until the Supreme Court issues its decision.

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