Supreme Court turns down DAV request to review bilateral tinnitus.

The U.S. Supreme Court decision not to review a federal appeals court ruling against separate ratings for service-connected bilateral tinnitus means that veterans suffering from the condition can only receive one 10 percent disability rating even though both ears are affected.

Bilateral tinnitus, or severe or constant ringing in the ears due to hearing damage, was previously rated as a 10 percent disability by the Department of Veterans Affairs, but the DAV successfully challenged the regulations, arguing that two separate 10 percent disability ratings should be awarded for service-connected tinnitus in both ears.

"The U.S. Court of Appeals for Veterans Claims (CAVC) held in April 2005 that, based on the language of the regulations, the VA was required to assign dual ratings for bilateral tinnitus," said Deputy General Counsel for Veterans Claims Ronald L. Smith. "That means that veterans who filed a claim for service connection for tinnitus in both ears, or who claimed an increased rating for that condition, prior to a VA regulations change on June 13, 2003, may be entitled to receive combine disability compensation based on two 10 percent ratings for tinnitus."

The veterans court also ruled the law did not permit any of those ratings to be reduced in the future, unless the severity of the tinnitus actually improved.

The VA, however, appealed the decision to the U.S. Federal Circuit Court, which reversed the decision in June 2006, ruling that the CAVC erred by failing to defer to the VA's interpretation of its own regulation.

The DAV sought to file an appeal with the U.S. Supreme Court, which was opposed by the U.S. Justice Department. On Jan. 22, 2007, the high court issued its decision to decline to hear the appeal.

The Supreme Court's decision allows the Federal Circuit's decision to stand that veterans can receive only a single 10 percent disability rating for tinnitus in both ears.

"The legal process is over," said Smith. "But we can ask members of Congress to enact legislation to authorize two 10 percent disability ratings for bilateral tinnitus. It is a fair and just action. Just as veterans are born with two legs, two arms and two eyes, they are also born with two ears to hear. If both are damaged, it is the same as both legs, arms or eyes being damaged. Common sense rules that two disability ratings be awarded."