**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

[No. 01-623]{.smallcaps}

[Ellis C. Smith, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[R. James Nicholson,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Remand from the U.S. Court of Appeals for the Federal Circuit

(Argued February 17, 2005 Decided April 5, 2005 )

*Ronald L. Smith*, with whom *Landon E. Overby* and *J. Marc Burgess*
(nonattorney practitioners), all of Washington, D.C., were on the brief,
for the appellant.

*John D. McNamee*, with whom *Tim S. McClain*, General Counsel; *R.
Randall Campbell*, Assistant General Counsel; and *Brian B. Rippel*,
Deputy Assistant General Counsel, all of Washington, D.C., were on the
brief, for the appellee.

Before IVERS, *Chief Judge*, and STEINBERG and KASOLD, *Judges*.

STEINBERG, ***Judge***, filed the opinion of the Court. IVERS, *Chief
Judge*, filed an opinion concurring in part and dissenting in part.

STEINBERG, ***Judge***: Veteran Ellis Smith (the appellant), through
counsel, seeks review of a December 12, 2000, decision of the Board of
Veterans\' Appeals (BVA or Board) that, inter alia, granted a Department
of Veterans Affairs (VA) disability rating of 10% (but no higher)
effective from June 10, 1999, for his service-connected tinnitus
pursuant to 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260, but denied a
compensable rating prior to that date. Record (R.) at 3; *see* 38 C.F.R.
§ 4.87, DC 6260 (1999 & 2000). (\"Tinnitus\" is \"a noise in the ears,
such as ringing, buzzing, roaring or clicking.\" [Dorland\'s Illustrated
Medical Dictionary (Dorland\'s)]{.smallcaps} 1714 (28th ed. 1994).) The
parties each filed briefs, and the appellant filed a reply brief. (As
discussed below, this appeal has already been the subject of a June 23,
2003, decision by this Court, *Smith v. Principi*, 17 Vet.App. 168
(2003) (per curiam order) (*Smith I*), which was reversed, and the
matter was remanded, by the U.S. Court of Appeals for the Federal
Circuit (Federal Circuit), *Smith v. Principi*, No. 03-7212, 2004 WL
2030123 (Fed. Cir. Aug. 23, 2004) (*Smith II*).) Thereafter, the Court
ordered additional briefing from the parties, both parties filed
responses, **and the Court then heard oral argument in the case. At oral
argument, the Court ordered further supplemental briefing on the issue
of reversal regarding an earlier effective date, which had not been
addressed by the parties.** For the reasons set forth below, the Court
will vacate the December 2000 BVA decision in part, reverse it in part,
and remand the matters for proceedings consistent with this opinion.

**I. Relevant Background**

The veteran had active service in the U.S. Army from March 1966 to March
1969, including service in the Republic of Viet Nam (R. at 21) where he
reportedly was exposed to artillery fire. R. at 141. In 1994, he filed a
claim with a VA regional office (RO) for service connection for, inter
alia, bilateral hearing loss. R. at 69. Several VA audiological
examinations were conducted in order to assess his claim. R. at 88, 101,
142, 244-45. A report from an April 1995 VA audiological examination,
although inconclusive as to hearing loss, revealed that the veteran also
had tinnitus; he described his tinnitus as \"high pitched, periodic, and
of mild to moderate severity\", and as a condition that he had
experienced \"for the past 15 years\". R. at 88. In May 1995, the RO,
inter alia, granted service connection for hearing loss in the right ear
(rated as noncompensable), and denied the tinnitus claim as not well
grounded. R. at 92. The veteran submitted a Notice of Disagreement (NOD)
as to that decision, and in October 1995 the RO, inter alia, awarded
service connection for the veteran\'s tinnitus, rated as noncompensable,
effective from April 1995 (R. at 172); the RO found that \"the evidence
show\[ed\] a diagnosis of tinnitus due to acoustic trauma\", and that
\"\[r\]easonable doubt ha\[d\] been resolved in favor of the claimant
regarding acoustic trauma leading to his tinnitus because of his
assignment as a vehicle mechanic in service and his subjective history
of assignment in combat to an artillery unit.\" R. at 170. However, the
RO assigned a noncompensable disability rating on the ground that \"the
evidence \[did\] not show tinnitus which \[was\] persistent\". R. at
170. The veteran filed an NOD as to, inter alia, the noncompensable
rating for tinnitus. R. at 174.

At a 1997 hearing before the Board, the veteran provided sworn testimony
that he had experienced the \"ringing\" in both his left and right ears
for the past 15 years. R. at 244. In a November 1997 decision, the
Board, inter alia, remanded the veteran\'s tinnitus claim to the RO for
further development and to \"assess the present severity of hearing loss
in his left ear and bilateral tinnitus, since he indicated . . . that he
had been experiencing frequent draining and ringing in his ears.\" R.
275. In April 1999, the RO issued a Supplemental Statement of the Case
(SSOC) that, inter alia, continued a noncompensable rating for the
veteran\'s service-connected tinnitus, because under DC 6260 \"\[a\]
noncompensable evaluation is assigned unless the record shows
***persistent*** tinnitus as a symptom of head injury, concussion, or
acoustic trauma\", and that the veteran had reported
\"***occasional***\" tinnitus, not ***persistent*** tinnitus. R. at
289-92 (emphasis added).

On June 10, 1999, DC 6260 was revised to provide for a 10% rating for
\"\[t\]innitus, ***recurrent***\", and the requirement that, in order to
be compensable, the tinnitus must have resulted from \"head injury,
concussion\[,\] or acoustic trauma\" was deleted. 64 Fed. Reg. 25,202,
25,206 (May 11, 1999); 38 C.F.R. § 4.87, DC 6260 (1999 & 2004) (emphasis
added). The veteran subsequently filed a Substantive Appeal as to the
decision contained in the April 1999 SSOC; he asserted, inter alia, that
his \"service\[-\]connected tinnitus \[was\] still being evaluated under
the old criteria, which required ***persistent*** symptoms rather than
intermittent \[sic\] symptoms as the law now requires for a 10%
evaluation.\" R. at 398 (emphasis added).

In the December 12, 2000, BVA decision here on appeal, the Board
determined that the amended DC was more favorable than the pre-June 10,
1999, DC (hereinafter pre-1999 DC 6260) and applied that amended version
to the veteran\'s claim, as of June 10, 1999 (R. at 6-7, 9); the Board
concluded that prior to that date, the veteran had not satisfied the
criteria for a 10% rating under pre-1999 DC 6260 because his tinnitus
was not \"persistent\", which the Board defined as \"insistently
repetitive, ***or*** continuous, tenacious, ***or*** enduring\". R. at 8
(emphasis added). He sought review of that decision in this Court (R. at
397), where his appeal was reviewed by a three-judge panel in 2003.
*Smith I*, *supra*. At that time, he asserted, as he does today, (1)
that his tinnitus \"undeniably satisfie\[d\] the plain meaning of
\'persistent\'\" in pre-1999 DC 6260 and that the Board's conclusion to
the contrary was \"legal error\", and (2) that the Board had
misinterpreted both pre-1999 and then-current DC 6260 when it had failed
to award separate 10% disability ratings for each ear for his
service-connected tinnitus. *Smith I*, 17 Vet.App at 169.

In *Smith I*, **this Court**, on June 10, 2003, ordered the December 12,
2000, BVA decision reversed in part and vacated in part. *Smith I*, 17
Vet.App at 173. As to the meaning of \"persistent\" in pre-1999 DC 6260,
the Court held that \"because \'persistent\' and \'recurrent\' appear to
have overlapping definitions . . . the Board\'s conclusion that the
appellant\'s tinnitus was not \'persistent\' as required by pre-1999 DC
6260 was reached in a manner that was \'arbitrary, capricious, and an
abuse of discretion\'\" and therefore must be reversed. *Smith I*, 17
Vet.App. at 171. As to the issue of separate tinnitus ratings for each
ear, the Court held that this Court\'s precedential opinion in
*Wanner* *v. Principi*, 17 Vet.App. 4 (2003) (*Wanner I*), *rev\'d in
part,* 370 F.3d 1124 (Fed. Cir. 2004) (*Wanner II*), \"applies to the
instant case and requires a remand for readjudication, in light of
38 C.F.R. § 4.25(b) (2002) \[(requiring that \"disabilities arising from
a single disease entity . . . are to be rated separately\")\], of the
appellant\'s claim for two 10% ratings.\" *Smith I*, 17 Vet.App. at 171.
After the issuance of *Smith I*, the Secretary sought review of that
decision in the Federal Circuit as to our action on the question of the
interpretation of \"persistent\". On August 23, 2004, the Federal
Circuit reversed, stating:

\[T\]he decision on appeal relied heavily on the Court of Appeals for
Veterans Claims \[(CAVC)\] decision in *Wanner* \[*I*, *supra,*\] in
concluding that it had jurisdiction to review the \[DC\], which is
included in the rating schedule. Thus, we reverse the \[CAVC\]
determination in this case that it had jurisdiction and remand for
further proceedings consistent with our decision in *Wanner* \[*II,
supra*\].

*Smith II*, *supra.* In the *Wanner II* opinion, to which the
above-quoted passage refers, the Federal Circuit reversed this Court\'s
holding in *Wanner I*.

In *Wanner I*, this Court had concluded that it had jurisdiction to
review DC 6260 for consistency with 38 U.S.C. § 1110 and that such an
inquiry did not constitute a review of the rating schedule (which is
prohibited by 38 U.S.C. § 7252(b)). After reaching that conclusion, this
Court had then invalidated the trauma requirement contained in pre-1999
DC 6260 because it was \"in violation of \[the\] statutory right\"
provided in section 1110, and therefore \"not in accordance with law\"
pursuant to 38 U.S.C. § 7261(a)(3)(C) and (A), and because it was the
product of \"arbitrary and capricious\" rulemaking pursuant to section
7261(a)(3)(A). *Wanner* *I,* 17 Vet.App. at 17-18. The second issue that
this Court addressed in *Wanner I* was whether the rating schedule
allowed for the assignment of two 10% ratings for bilateral tinnitus.
*Wanner*, 17 Vet.App. at 13. As to that issue, the Court held, inter
alia, that by failing to address 38 C.F.R. § 4.25(b) (2002) the Board
had failed to provide an adequate statement of reasons or bases for its
determination that DC 6260 provides for only one 10% rating for
bilateral tinnitus (rather than two, one for each ear). *Ibid*.

In its reversal of *Wanner I*, the Federal Circuit held in *Wanner II*
that this Court\'s review of DC 6260 for consistency with section 1110
\"amount\[ed\] to a direct review of the content of the rating
schedule\", and that, in conducting such a review, this Court had acted
\"outside of its jurisdiction as provided by 38 U.S.C. § 7252(b)\".
*Wanner II*, 370 F.3d at 1131. Although the Federal Circuit there
reversed this Court's decision to strike the trauma requirement from
pre-1999 DC 6260, there is no indication that that court intended to
disturb our *Wanner I* reasons-or-bases remand for consideration of
§ 4.25(b). *Ibid*.

Likewise, in its review of *Smith I*, the Federal Circuit in *Smith II*
indicated no intent to disturb our *Smith I* reasons-or-bases remand for
readjudication in light of § 4.25(b). *See Smith II, supra*. The Federal
Circuit issued its mandate in *Smith II* on October 14, 2004, and the
matter is now back before this Court. *Ibid*. In preparation for the
current re-review of this matter, this Court on November 2, 2004,
ordered supplemental briefing from the parties to address the following
two issues: (1) To show cause why the Court should not remand to the
Board the matter of the rating under pre-1999 DC 6260 for the provision
of an adequate statement of reasons or bases, *see* 38 U.S.C. §
7104(d)(1), as to the Board\'s determination of the meaning of
\"persistent\" under that DC; and (2) to address the appellant\'s
argument that 38 C.F.R. § 4.25(b) (1999) entitled him to separate
ratings of 10% for tinnitus in each ear under DC 6260 (1998 & 1999).

**II. Contentions on Appeal**

***A. Pre-1999 Rating***

In its November 2, 2004, order, the Court directed the Secretary, inter
alia, to

> show cause why the Court should not remand to the Board the matter of
> the rating under pre-1999 DC 6260 for the provision of an adequate
> statement of reasons or bases, *see* 38 U.S.C. § 7104(d)(1), as to the
> Board\'s determination of the meaning of \"persistent\" under that DC
> in light of the Board\'s having selectively paraphrased the
> Secretary\'s Supplementa\[ry\] Information and not having taken into
> account all of the Secretary\'s relevant discussion therein, *see* 59
> Fed. Reg. 17,295, 17,297 (\[Apr.\] 12, 1994), and having relied on a
> single dictionary definition of \"persistent\", *see Theiss v.
> Principi*, 18 Vet.App 204, 210‑11 (2004) (criticizing General Counsel
> precedent opinion, on which Board had relied, for \"selective use of a
> narrow set of definitions\") . . . ; *see Smith I*, 17 Vet.App. at
> 170-71 . . . .

*Smith (Ellis) v. Principi*, 18 Vet.App. 448, 450 (2004) (per curiam
order). In his December 2004 supplemental brief filed in response to the
Court\'s November 2, 2004, order, the Secretary asserts that \"the Court
should remand the matter of the rating under pre-1999 DC 6260\" so that
the Board may provide an adequate statement of reasons or bases as to
its \"determination of the meaning of \'persistent\' under that DC\".
Secretary\'s (Sec\'y) Supplemental (Suppl.) Brief (Br). at 3. In his
January 2005 supplemental brief, the appellant \"concurs with the
Secretary on this issue\" and urges the Court to remand that issue.
Appellant\'s (App.) Suppl. Br. at 2. However, at oral argument the
appellant\'s counsel \"clarified\" to the Court that the appellant had
not abandoned his argument for reversal on this ground. The Court then
ordered from the bench that further supplemental briefs be submitted on
the reversal question. That briefing was completed on March 24, 2005.

In his March 9, 2005, supplemental memorandum of law, the Secretary
presents several arguments. First, he asserts that \"\[g\]iven that the
words \'persistent\' and \'recurrent\' and, by implication, the meaning
of those terms, are inarguably a part of the ratings schedule, this
Court lacks authority to review the matter.\" Sec\'y Suppl. Memorandum
(Mem.) at 6. In the alternative, he argues that, even if the Court
possessed the authority to review VA\'s interpretation of those terms,
the Court must defer to VA\'s interpretation because \"an agency\'s
interpretation of its own regulations must be given effect \'so long as
the interpretation sensibly conforms to the purpose and wording of the
regulations.\'\" *Id*. at 8. (citing *S*.* Cal. Edison Co. v. United
States*, 226 F.3d 1349, 1356-57 (Fed. Cir. 2000) (quoting *Martin v.
Occupational Safety and Health Review Comm\'n*, 499 U.S. 144, 150
(1991))). As support for VA\'s interpretation of \"persistent\" in
pre-1999 DC 6260, the Secretary asserts:

> \[F\]rom 1945 until 1999 the Secretary\'s rating code for tinnitus
> provided that in order to be compensable, tinnitus had to be constant.
> The precise term used from 1945 was \'continuous\' and from 1976 to
> 1999 it was \'persistent\'. . . .
>
> This requirement of persistence continued until the Secretary decided
> to liberalize the rating schedule as to tinnitus, replacing the
> requirement with a new, distinct term, \"recurrent.\" As the Secretary
> noted in the 1994 commentary to the proposed rulemaking \[(59 Fed Reg.
> at 17,297)\], the deliberate change to the word \"recurrent\"
> encompassed a new meaning, \"that tinnitus might not always be
> present, but that it does return at regular intervals.\" The
> Secretary\'s decision to revise the rating schedule was the
> culmination of a General Accounting Office study, which recommended
> that the rating schedule be reviewed and updated, recommendations by
> VA medical doctors and VA rating specialists, and recommendations by
> an outside consultant and panel of non-VA specialists on hearing and
> ear conditions, in order to update the schedule in accordance with the
> medical community\'s understanding of the impact of hearing disorders
> and other diseases. 59 Fed. Reg. at 17,295-96.

Suppl. Mem. at 4-5. Hence, the Secretary asserts that VA\'s
interpretation \"is an accepted and valid one,\" and that \"\[a\]lthough
there might be other definitions\" for \"persistent\" and \"recurrent\",
\"\[t\]his Court is not free to substitute a different definition\".
*Id*. at 8-9. In response, the appellant contends that under *Sellers v.
Principi*, 372 F.3d 1318 (Fed. Cir. 2004), \"this Court ha\[s\]
jurisdiction to review a VA interpretation of a regulation.\" App.
Suppl. Mem. at 3-4. He asserts further that the authorities cited by the
Secretary do not support his assertion that the Board\'s interpretation
of a regulation is entitled to deference from this Court (*id*. at 4);
rather, he contends that, although an agency\'s interpretation of a
statute is entitled to deference, at the time of the Board decision here
on appeal, as \"\[t\]he Secretary conceded at oral argument\[,\] . . .
there had been no interpretation of \[DC\] 6260 by VA or its General
Counsel\", and, therefore, there was then \"nothing to which the Court
could properly defer\", *ibid*. The appellant seeks reversal on this
issue.

***B. Separate Tinnitus Ratings***

The appellant asserts that he is entitled to dual 10% ratings for
tinnitus for essentially two reasons. First, he asserts that, pursuant
to 38 C.F.R. § 4.25(b), \"the general rule adopted by \[\] VA with
respect to rating all disabilities is that each service-connected
disability shall be separately rated and the ratings combined.\" App.
Br. at 10. Hence, the appellant asserts that he \"is entitled to have
the tinnitus in his ears separately rated in accordance with § 4.25(b),
unless the rating schedule provides an exception to the general rule.\"
App. Br. at 10. The appellant states further:

> When the Secretary intends to provide a single rating where a
> disability is either unilateral or bilateral, he provides for that
> single rating in unambiguous terms. . . . These provisions make clear
> that where the Secretary intends to make an exception to § 4.25 by
> limiting compensation to a single rating for a disability that is
> either unilateral or bilateral he knows how to do so. The Secretary
> having not provided a single rating for unilateral or bilateral
> tinnitus, separate ratings are required. *See* 38 C.F.R. § 4.25.

App. Br. at 12-13. Second, the appellant contends that \"\[w\]hen called
upon to construe an ambiguous statute providing benefits to veterans,
the Court will apply the principle that \'interpretive doubt is to be
resolved in the veteran\'s favor\'\" *Id*. at 11-12 (quoting *Brown v.
Gardner* \[hereinafter *Brown v. Gardner*\], 513 U.S. 115, 118 (1994)).
Hence, the appellant asserts, the \"mandatory canon of construction
enunciated in *Brown v. Gardner* and adopted by this Court in
*McCormick* \[*v. Gober*, 14 Vet.App. 39 (2000)\] and *Ryan* \[*v.
West*\], 13 Vet.App. 151 (1999) is directly applicable to this appeal.\"
Br. at 12.

The Secretary contends that the appellant is not entitled to a tinnitus
rating greater than 10% because the rating schedule does not allow for
dual ratings of 10% for bilateral tinnitus. Specifically, the Secretary
asserts:

> The rating schedule is not ambiguous. It explicitly prohibits
> pyramiding of disability evaluations. Where separate ratings are
> permitted for like organs, the rating code explicitly provides for
> such. *See, e.g.*, 38 C.F.R. § 4.87, DC 6207 (Loss of auricle); \[\] §
> 4.115(b) (Testis, atrophy complete), and DC 7524 (Testis, removal);
> \[\]§ 4.16, DC 7626 (Breast, surgery of). If the Secretary had
> intended to provide separate ratings for tinnitus in the schedule of
> ratings related to ears, he would have employed specific language to
> do so, as he did for rating disability of the auricles (DC 6207).

Sec\'y Br. at 7. As support for his assertion, the Secretary points to
the fact that VA amended the rating schedule, effective June 13, 2003,
by adding to DC 6260 \"Note 2\", which provides: \"Assign only a single
evaluation for recurrent tinnitus, whether the sound is perceived in one
ear, both ears, or in the head\", 38 C.F.R. § 4.87, DC 6260 (2004).
Suppl. Br. at 4. The Secretary asserts that \"Note 2 did not change the
way VA evaluates tinnitus . . . \[; r\]ather, the note was added to
reflect VA\'s standard practice\", and that \"Note 2\" would hence apply
to claims filed prior to the June 2003 effective date of that amendment,
such as in this case. *Ibid*. This position, according to the Secretary,
is consistent with VA General Counsel Precedent Opinion 2-2003 (May 13,
2003) \[hereinafter G.C. Prec. 2-2003\] and VA\'s Supplementary
Information contained in the preambulatory language of the proposed and
final rule amending DC 6260, 67 Fed. Reg. 59,033 (Sept. 19, 2002);
68 Fed. Reg. 25,822, 25,823 (May 14, 2003). Suppl. Br. at 3-4. According
to those documents, VA does not consider Note 2 to be a \"substantive
change\" but merely a clarification or \"restatement\" of that DC. As
G.C. Prec. 2-2003 states:

> As was stated in the notice of proposed rulemaking: \"This amendment
> involves no substantive change and is consistent with current
> practice.\" 67 Fed. Reg. at 59,033. Thus, the amendment restated in
> more explicit terms the rule reflected in prior VA regulations that
> only a single 10% rating for tinnitus is authorized regardless of
> whether tinnitus is perceived as unilateral, bilateral, or in the
> head.

G.C. Prec. 2-2003. The Secretary asserts further that the interpretation
provided by Note 2 \"is a reasonable interpretation based on the common
medical definition of tinnitus and should be given deference by the
Court\". Suppl. Br. at 5. As support for this assertion, he cites to
VA\'s Supplementary Information, published in conjunction with the
proposed rule, which stated that \"\[t\]rue tinnitus . . . appears to
arise from the brain rather than the ears\" and that true (subjective)
tinnitus is \"a central nervous system condition\", 67 Fed. Reg. at
59,033. As the medical authority for this assertion regarding tinnitus
being a central-nervous-system disorder, the Secretary cites to the
Supplementary Information published in explanation of the proposed and
final rule change. Suppl. Br. at 5 (citing 67 Fed. Reg. at 59,033 and 68
Fed. Reg. at 25,822). The Secretary then concludes:

> Because tinnitus is a central nervous system disorder, rather than a
> disorder of the ears, the sound that Mr. Smith perceives in each ear
> is in reality a single disability existing in his central nervous
> system. Section 4.25(b)\'s reference to \"disabilities arising from a
> single disease entity\" has no application in this case because he has
> only a single disability, a disability of the nervous system.

*Ibid*. At oral argument, when asked what was the medical basis for the
central-nervous-system thesis, the Secretary\'s counsel could not
provide any citation to authority. Finally, the Secretary contends that
**VA\'s interpretation should control here because an agency\'s
interpretation of its own regulation is entitled to \"substantial
deference\", unless that interpretation is \'\"plainly erroneous or
inconsistent with the regulation.\'\" Suppl. Br. at 4 (quoting
*Westberry v. Principi*, 255 F.3d 1377, 1382 (Fed. Cir. 2001)).**

**III. Analysis**

***A. Applicable Law and Regulation***

At the time of the BVA decison here on appeal, section 1155 of title 38
of the U.S. Code provided, and provides now, in relevant part:

**§ 1155. Authority for schedule for rating disabilities**

> The Secretary shall adopt and apply a schedule of ratings of
> reductions in earning capacity from specific injuries or combination
> of injuries. The ratings shall be based, as far as practicable, upon
> the average impairments of earning capacity resulting from such
> injuries in civil occupations. The schedule shall be constructed so as
> to provide ten grades of disability and no more, upon which payments
> of compensation shall be based, namely, 10 percent, 20 percent, 30
> percent, 40 percent, 50 percent, 60 percent, 70 percent, 80 percent,
> 90 percent, and total, 100 percent. The Secretary shall from time to
> time readjust this schedule of ratings in accordance with experience.
> However, in no event shall such a readjustment in the rating schedule
> cause a veteran\'s **disability rating in effect on the effective date
> of the readjustment to be reduced unless an improvement in the
> veteran\'s disability is shown to have occurred.**

38 U.S.C. § 1155. Section 7252 of title 38 also provided then as it does
now:

**§ 7252. Jurisdiction; finality of decisions**

> **(b) Review in the Court shall be on the record of proceedings before
> the Secretary and the Board. The extent of the review shall be limited
> to the scope provided in section 7261 of this title. The Court may not
> review the schedule of ratings for disabilities adopted under section
> 1155 of this title or any action of the Secretary in adopting or
> revising that schedule.**

38 U.S.C. § 7252(b). At the time of the filing of the original claim
that gave rise to the decision here on appeal, title 38 of the Code of
Federal Regulations provided in relevant part:

**§ 4.25 Combined ratings table**

. . . .

> \(b\) Except as otherwise provided in this schedule, the diseases
> arising from a single disease entity, e.g., arthritis, multiple
> sclerosis, cerebrovascular accident, etc., are to be rated separately,
> as are all other disabling conditions, if any. All disabilities are
> then combined as described in paragraph (a) of this section. The
> conversion to the nearest degree divisible by 10 will be done only
> once per rating decision, will combine the rating of all disabilities,
> and will be the last procedure in determining the combined degree of
> disability.

\* \* \* \* \*

> **§ 4.87 Schedule of ratings--- ear.**

[Diseases of the Ear]{.smallcaps}

> Rating

. . . .

> 6260 Tinnitus:
>
> Persistent as a symptom of head injury,
>
> concussion or acoustic trauma 10

Effective from June 10, 1999, the Secretary amended 6260 to provide:

> 6260 Tinnitus, recurrent 10

64 Fed. Reg. at 25,202; 38 C.F.R. § 4.87, DC 6260 (2000). Effective June
13, 2003, the Secretary added the following note at the end of DC 6260:

> [Note (2)]{.smallcaps}: Assign only a single evaluation for recurrent
> tinnitus, whether the sound is perceived in one ear, both ears, or in
> the head.

68 Fed. Reg. at 25,822; 38 C.F.R. § 4.87, DC 6260 (2004).

***B. Pre-1999 Rating***

***1. Jurisdiction***

In *Smith II*, the Federal Circuit reversed our determination that we
had jurisdiction to review the Board\'s interpretation of \"persistent\"
in DC 6260 because our \"decision \[had\] relied heavily on \[our\]
*Wanner I* decision\", which the Federal Circuit had reversed in terms
of its jurisdictional holding. *Smith II*, 2004 WL 2030123 at \*1; *see
Wanner I* and *Wanner II,* both *supra*. The Federal Circuit then
remanded this case to us \"for further proceedings consistent with
\[its\] decision in *Wanner* \[*II*\].\" *Smith II, supra*. In *Wanner
II*, the Federal Circuit held that this Court did not have jurisdiction
to invalidate the pre-1999 DC 6260 trauma requirement as inconsistent
with 38 U.S.C. § 1110, as we had done in *Wanner I*, 17 Vet.App. at 18.
*Wanner II*, 370 F.3d at 1131. The Federal Circuit also stated in
*Wanner II*: \"The Secretary\'s discretion over the \[rating\] schedule,
including procedures followed and content selected, is insulated from
judicial review with one recognized exception limited to constitutional
challenges.\" *Ibid*. (language preceded by citation to *Johnson v.
Robison*, 415 U.S. 361 (1974), for constitutional exception).

Nineteen days after *Wanner II* was decided, the Federal Circuit issued
its opinion in *Sellers, supra*. In *Sellers*, the Federal Circuit,
making no reference to its opinion in *Wanner II*, concluded that this
Court had jurisdiction to review \"the correct interpretation of \[38
C.F.R. §\] 4.130, specifically the relationship between the
\[*Diagnostic and Statistical Manual of Mental Disorders IV* (DSM-IV)
(with which the preambulatory language in § 4.130 directs rating
agencies to be \"thoroughly familiar . . . \[in order\] to properly
implement the general rating formula\")\] and the general rating
formula\" for mental disorders set forth at the end of § 4.130.
*Sellers*, 372 F.3d at 1324. The Federal Circuit thrice distinguished
the review undertaken there from review of \"the content of the rating
criteria\", which \"neither we nor the . . . Court \[of Appeals for
Veterans Claims\] may review.\" *Ibid*. The dissenting judge in
*Sellers* agreed with the majority\'s distinction between review of the
Board\'s interpretation of a regulation, which is permissible, and the
review of \"the content of the ratings schedule\", which is not, but
disagreed that what the appellants sought there amounted to review of
interpretation rather than of content. *Id*. at 1329.

Based on *Sellers*, we conclude that the review sought here by the
appellant involves the Board\'s decision to interpret \"persistent\" in
pre-1999 DC 6260 as requiring that tinnitus have an element of constancy
in order to be compensable. The nature of that review is not
distinguishable from the review sought in *Sellers*, which the Federal
Circuit characterized as involving the issue whether \"the regulation
\[§ 4.130\] requires that VA consider symptoms of \[post-traumatic
stress disorder (PTSD)\] contained in the DSM-IV and make findings of
fact as to whether a veteran suffered increased occupational and social
impairment \[(a criterion in the general rating formula)\] as
consequences of the severity of those \[DSM-IV\] symptoms.\" *Id*. at
1324. We recognize that the Federal Circuit\'s remand in *Smith II* for
further proceedings here directed that we act in a manner \"consistent
with\" *Wanner II* and did not refer to *Sellers*. However, we believe
that we must read *Wanner II* in light of *Sellers*, and, so
synthesizing the applicable precedents, we conclude that the issue
before us today is the correct interpretation of a rating-schedule
regulation, as in *Sellers*, and not a direct challenge to the content
of a rating-schedule regulation, as in *Wanner* *II.* We note further
that the Federal Circuit\'s remand in *Smith II* was premised on the
fact that we had \"relied heavily\" on *Wanner I* in finding
jurisdiction previously; in contrast, we rely now on the Federal
Circuit\'s pronouncements in *Wanner II* and *Sellers*, for the holding
that we have jurisdiction over the question presented by the appellant
regarding the correct interpretation of \"persistent\" in the pre-1999
DC 6260.

***2. Merits***

As previously noted, the appellant seeks reversal of the Board\'s
determination that he did not satisfy the \"persistent\" criterion for a
10% rating under pre-1999 DC 6260, but alternatively argues that the
Board\'s statement of reasons or bases is inadequate and that the matter
should be remanded. The Secretary agrees that the Board\'s statement of
reasons or bases is inadequate (Suppl. Br. at 3) and at oral argument
contended that the matter should be remanded but not reversed. For the
following reasons, the Court agrees with the parties that the Board\'s
statement of reasons or bases is inadequate and that the matter should
be remanded so that the Board may provide an adequate statement of
reasons or bases.

In his briefing to the Court, the Secretary notes that the Board
decision in the instant case failed to explain adequately the basis for
its interpretation of \"persistent\" as applied to the evaluation of
tinnitus under pre-1999 DC 6260. Suppl. Br. at 3. The Board reached its
decision (1) without referring to the Secretary\'s conclusion that an
attribute of constancy was not well suited for rating a condition that ,
\"under certain circumstances, comes and goes\", 59 Fed. Reg. at 17,297;
(2) by paraphrasing only selectively from the Secretary\'s 1994
Supplementary Information, *ibid*.; and (3) by basing its conclusion
solely on one dictionary definition of \"persistent\" (R. at 8). *See
Theiss*, 18 Vet.App. at 210-11 (criticizing General Counsel precedent
opinion, upon which Board had relied, for \"selective use of a narrow
set of definitions\"); *see also Suozzi v. Brown*, 10 Vet.App. 307, 311
(1997) (holding that Secretary \"defines \'corroboration\' far too
narrowly\" in interpreting 38 C.F.R. § 3.304(f)). In this regard, the
Court notes that \"persistent\" is defined generally as, inter alia,
\"continuing\" and \"constantly repeated\", whereas \"recurrent\" is
defined generally as, inter alia, \"appearing or occurring again or
periodically,\" [Webster\'s New World Dictionary]{.smallcaps} 1007, 1123
(3d ed. 1988), and that the Secretary has provided no regulatory
guidance as to the meaning of either \"persistent\" in pre-1999 DC 6260
or \"recurrent\" in current DC 6260; for example, neither is defined or
explained in terms of the frequency required to satisfy the rating
criteria. *Cf., e.g.*, 38 C.F.R. §§ 4.88b, DC 6354 (providing ratings
for chronic fatigue syndrome based on specific degree and length of
periods of incapacitation), 4.97, DC 6514 (providing ratings for
sinusitis based on specific number, degree, and length of episodes),
4.114, DC 7305 (providing \"mild\", \"moderate\", \"moderately severe\",
and \"severe\" ratings for ulcers based on specific frequency and length
of symptoms) (2004).

In addition, the Board failed to address the Secretary\'s comments in
the 1994 Supplementary Information (which explained the proposal
(adopted in 1999) that changed \"persistent\" to \"recurrent\" and
eliminated the trauma requirement) suggesting that the Secretary had
concluded that, to the extent that \"persistent\" as used in the
pre-1999 DC 6260 includes a meaning of \"constant\", it is unrealistic
to use \"persistent\" for evaluating tinnitus, and that a meaning of
occurring at \"regular intervals\" is the correct evaluation criterion.
Specifically, the Secretary stated:

> The evaluation for tinnitus (\[DC\] 6260) currently requires that the
> condition be \"persistent\" in order to qualify for a 10 percent
> evaluation. Tinnitus is a subjective sensation which, under certain
> circumstances, comes and goes. The word \"persistent\" suggests a
> meaning of \[\"\]constant\[\"\], and we propose to replace it with
> \"recurrent,\" meaning that the tinnitus might not always be present,
> but that it does return at regular intervals. ***Requiring that
> tinnitus be \"recurrent\" will allow a realistic evaluation of the
> typical disablement from this condition.***

59 Fed. Reg. at 17,297 (emphasis added). Although the Secretary attempts
to explain in his supplemental memorandum of law, without any supporting
authority, that the \"requirement of persistence was based, as far as
practicable, upon the average impairment of earning capacity from
tinnitus as it was understood when the regulation was promulgated many
years ago\", and that \"the rating schedule was readjusted to reflect
advances in medical knowledge and to accord with evolving understandings
of the average impairment of earning capacity occasioned by hearing loss
and other conditions\" (Suppl. Mem. at 10-11), the Board did not set
forth any such rationale; it is not the task of the Secretary to rewrite
the Board\'s decision through his pleadings filed in this Court. *See
Wanless v. Principi*, 18 Vet.App. 337, 343 (2004) (Steinberg, J.,
concurring) (noting that \"Court\'s role is to review whether the Board
in its decision, rather than the Secretary in his brief, provided an
adequate statement of reasons or bases\"). Finally, the Board also
failed to consider and apply, as appropriate, the basic canon of
construction that \"interpretive doubt is to be resolved in the
veteran\'s favor\" when a regulatory term is found to be ambiguous and
there is no regulatory history to shed light on its meaning. *Brown v.
Gardner*, 513 U.S. 115, 118 (1994); *see Otero-Castro v. Principi*, 16
Vet.App. 375, 380 (2002) (applying above *Gardner* rule to resolve
ambiguity in DCs in favor of claimant).

Because of the Board\'s failure to address the above matters, the Court
cannot adequately review the appellant\'s claim for reversal or
otherwise carry out effective judicial review of the Board\'s denial of
a compensable rating for his tinnitus under pre-1999 DC 6260.
Accordingly, the matter will be remanded. *See* 38 U.S.C. § 7104(a),
(d)(1); *Allday v. Brown*, 7 Vet.App. 517, 527 (1995) (noting that Board
is required to provide adequate written statement of reasons or bases
for its findings and conclusions on all material issues of fact and law
presented on record; statement must be adequate to enable claimant to
understand precise basis for its decision, as well as to facilitate
review in this Court); *Gilbert v. Derwinski*, 1 Vet.App. 49, 56-57
(1990) (same).

***C. Relationship Between § 4.25(b) and DC 6260***

***1. Jurisdiction***

Before we may consider the appellant\'s contentions regarding the
correct interpretation of § 4.25(b), we must address the question of the
Court\'s jurisdiction over this question. Again, we conclude that what
the appellant has asked us to do here is not a direct review of the
content of the rating schedule, which *Wanner II* and section 7252(b)
proscribes, but rather a review of the Board\'s interpretation of two
regulatory provisions and their interrelationship. This is exactly what
was involved in *Sellers*, where the appellant was asserting that the §
4.130 language of the preambulatory general reference to the DSM-IV
nomenclature required that the specific DSM-IV nomenclature pertaining
to PTSD prevail over the \"General Rating Formula for Mental Disorders\"
that applied to PTSD under \[38 C.F.R. § 4.130,\] DC 9411 \[2000,\] as
well as to 35 other specified mental disorders. *Sellers*, 372 F.3d at
1322 (characterizing appellant\'s contention as \"that in . . . § 4.130
VA adopted the definition of PTSD contained in the DSM-IV\" and thus VA
must \"look to the DSM-IV to properly determine whether a veteran has
total occupational and social impairment that results from his or her
service-connected \[PTSD\] disability\"). Hence, we hold that we have
jurisdiction to address the merits of the appellant\'s reversal
contention on this issue.

***2. Merits***

**In this case, the Board concluded that \"\[t\]he 10\[%\] rating being
granted in this decision is the only schedular evaluation available for
tinnitus, and there are no other diagnostic codes potentially applicable
to this disorder.\" R. at 9.** At oral argument, counsel for the
Secretary represented that a remand on this issue would be pointless
because the Board on remand would have to apply G.C. Prec. 2-2003, which
concluded that under the DC for tinnitus (DC 6260) no more than a 10%
rating was generally available. *See* 38 U.S.C. § 7104(c) (providing
that Board bound to follow precedent opinions of the General Counsel).
Accordingly, the Court will address the merits.

At the outset, we note that, although the Board is bound by the
precedent opinions of the VA General Counsel, this Court is not so
bound. *See, e.g.*, *Hatch v. Principi,* 18 Vet.App. 527, 531 (2004)
(citing *Theiss*, 18 Vet.App at 210, *Cottle v. Principi*, 14 Vet.App
329, 335 (2001), and *Sabonis v. Brown*, 6 Vet.App 426, 429 (1994));
*see also* 38 U.S.C. §§ 7104(c), 7261. The Court reviews the
Secretary\'s interpretation of law de novo. *See Hatch*, *supra*.

After reviewing the Secretary's analysis of the rating schedule with
regard to tinnitus, the Court concludes that he failed to take account
of a basic canon of construction, specifically, to look to the plain
text of the regulation. \"The basic principles that apply to construing
statutes apply equally to construing regulations. \'The starting point
in interpreting a statute is its language.\'\" *Otero-Castro*, *supra*
(quoting *Good Samaritan Hosp*. *v. Shalala*, 508 U.S. 402, 409 (1993))
(internal citations omitted). Here, the Secretary\'s interpretation
cannot stand because it conflicts with the plain meaning of the
regluation. *See **DeLuca v. Brown*****, 8 Vet.App 202, 207 (1995)
(holding that interpretation of regulation by VA that conflicted with
plain meaning of regulation not entitled to deference) (citing *Combee
v. Principi*, 4 Vet.App 78, 91 (1993) (quoting *Martin*, 499 U.S. at
151), *rev\'d on other grounds sub. nom. Combee v. Brown*, 34 F.3d 1039
(Fed. Cir. 1994))*.***

The Secretary stresses that none of the provisions in the section of the
rating schedule relating to ears address dual ratings, with the
exception of DC 6207 regarding auricles, which specifically provides for
different ratings depending on whether one or both auricles are a
complete loss. From these observations, the Secretary derives the
following interpretive principle:

> **Where separate ratings are permitted for like organs, the rating
> code explicitly provides for such. *See, e.g.*, 38 C.F.R. § 4.87, DC
> 6207 (Loss of auricle); \[\]§ 4.115(b) (Testis, atrophy complete), and
> DC 7524 (Testis, removal); \[\]§ 4.16, DC 7626 (Breast, surgery of).
> If the Secretary had intended to provide separate ratings for tinnitus
> in the schedule of ratings related to ears, he would have employed
> specific language to do so, as he did for rating disability of the
> auricles (DC 6207).**

Sec\'y Br. at 7. Stated another way, the Secretary concludes that the
drafters knew how to draft the regulations to specify when each ear
should be rated separately and, further, that the absence of any such
statement showed a clear intention to exclude individual ratings for
each ear. R. at 8-9. An examination of the plain text of the regulation,
however, reveals that dual ratings for tinnitus were not intended to be
excluded.

As the appellant argues, § 4.25(b) provides the general rule for rating
disabilities arising from a single disease entity. That regulation
states: \"***Except as otherwise provided in this schedule***, the
disabilities arising from a single ***disease*** entity . . . ***are to
be rated separately*** as are all other disabling conditions, if any.
All disabilities then are to be combined \[for rating
purposes\] . . . .\" 38 C.F.R. § 4.25(b) (emphasis added). Accordingly,
under the plain reading of the regulation, each service‑connected
disability arising from a single ***disease*** entity is to be rated
separately, and the ratings combined, unless otherwise provided by the
Secretary. *See Colayong v. West*, 12 Vet.App. 524, 531 (1999); *Esteban
v. Brown*, 6 Vet.App. 259, 261 (1994).

Although the Secretary correctly states that \"\[n\]either the prior nor
the amended regulation contained any language suggesting that a separate
tinnitus rating could be awarded for each ear\", G.C. Prec. 2-2003, this
is not the test. An examination of DC 6260 reveals that tinnitus is
listed as a ***disease*** of the ear -- making the provisions of
§ 4.25(b) applicable thereto as a \"single disease entity\" -- and that
the rating schedule contains no exception to § 4.25(b) regarding
tinnitus; that is, nothing in the rating schedule limits a veteran with
tinnitus in both ears to only one rating. The plain reading and
application of § 4.25(b) and DC 6260 results in a rating of 10% for each
ear affected by a single case of tinnitus and then a combination of
those ratings. There is no need to look further to discern the meaning
of the regulation. \"Where a statute\'s language is plain, and its
meaning clear, no room exists for construction. There is nothing to
construe.\" *Gardner v. Derwinski*, 1 Vet.App 584, 588 (1991), *aff\'d
sub nom*. *Gardner v. Brown*, 5 F.3d 1456 (Fed. Cir. 1993), *aff\'d*,
513 U.S. 115 (1994). \"If the intent of Congress is clear, that is the
end of the matter.\" *Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc.*, 467 U.S. 837, 842 (1984). The quoted language from
*Gardner* and *Chevron* applies equally to regulations. *See
Otero-Castro, supra*; *Savage v. Gober*, 10 Vet.App. 488, 495 (1997);
*see also Lee v. West*, 13 Vet.App 388, 394 (2000).

Assuming, arguendo, that the regulation\'s language was not plain, the
Court does not agree with the Secretary\'s contention that an
examination of other DCs shows an intent of the drafters to exclude dual
ratings unless the DC expressly provides for such dual rating. The Court
has not found in other parts of the rating schedule support for the
Secretary\'s basic assertion with regard to § 4.25(b). Although, on
first impression, the rating schedule for loss of hearing, which
provides expressly for dual ratings, seems to support the Secretary\'s
assertion that \"where separate ratings are permitted for like organs,
the rating code explicitly provides for such\", upon further
examination, we conclude that support for that assertion is wanting. For
example, 38 C.F.R. §§ 4.85 and 4.86, relating to \"Evaluation of hearing
impairment\" and \"Exceptional patterns of hearing impairment\", both
provide for dual ratings; however, both of these sections rate only
***impairment*** without regard to an underlying disease. *See* 38
C.F.R. §§ 4.85 and 4.86 (2004). Section 4.25(b), which by its very terms
requires separate ratings for each ***disability*** arising from a
single ***disease*** entity, does not apply to §§ 4.85 and 4.86, and the
drafters thus were required to provide specifically for dual ratings if
they wanted that result. Accordingly, §§ 4.85 and 4.86, which explicitly
permit dual ratings for hearing loss, provide no insight into whether
such ratings are permitted for disability ratings based on an ear
***disease***.

The Secretary points to the fact that within the rating schedule for
\"Diseases of the Ear\" in § 4.87a (which includes tinnitus), the
schedule specifically provides a higher rating for the loss of both
auricles as opposed to the loss of only one, where no such dual rating
was specifically provided for the other diseases listed in that section,
including tinnitus. Br. at 7-8. The Secretary concludes from this that
the drafters of the schedule meant to preclude a dual rating for the
other ear diseases in that section, including tinnitus. *Ibid*. Even if
this interpretation was not contrary to the plain text of the
regulation, which it is, it is still suspect. As previously noted,
§ 4.25(b) provides for separate ratings for disabilities arising from a
\"single disease entity\". If a distinct rating had not been provided
for the loss of both auricles, the application of § 4.25(b) would have
required a 30% rating for the loss of one ear and an additional 30%
rating for the loss of the second ear; these would then have been
combined with each other and with ratings for other disabilities.
Instead, the drafters provided a rating of 30% for the complete loss of
one auricle and 50% for the loss of both. The Court finds it more likely
than not that these separate ratings were provided specifically to
preclude the application of § 4.25(b), which would have resulted in a
slightly higher combined rating of 51%, *see* 38 C.F.R. § 4.25(b) (Table
I), than for the purpose of providing interpretative assistance in
assessing whether a dual rating was required for a disability arising
from the other ear diseases. (We note that, although 38 C.F.R. § 4.25(b)
provides that a 51% rating is to be rounded to 50%, the rating schedule
for loss of auricles does not reflect merely what would have been
provided under 4.25(b). A 51% rating may potentially affect a
claimant\'s disability rating when combined with ratings from other
disabilities. As § 4.25(b) provides, the rounding procedure for reaching
a combined rating will be applied only once, after all the ratings are
combined. *See* 38 C.F.R. § 4.25(b).)

Finally, regarding the interpretation of the rating schedule, the
schedule for diseases of the eye reveals that the drafters of the
schedule knew exactly how to make exceptions from the application of
§ 4.25(b) for disabilities arising from a disease. For example,
38 C.F.R. § 4.84(a), DC 6011 (2004), specifically states that atrophy of
the retina, a disease of the eye, is limited to only one rating, whether
unilateral or bilateral. Such a limitation simply does not exist in the
applicable DC for tinnitus (DC 6260), and it appears doubtful that one
could be added to the detriment of the veteran once he filed his claim,
either by interpretative analysis or amended regulation. *See Fortuck v.
Principi*, 17 Vet.App 173, 178 (2003); *Karnas v. Derwinksi*, 1 Vet.App
308, 312-13 (1991), *overruled in part on other grounds by Kuzma v.
Principi*, 341 F.3d 1327, 1329 (Fed. Cir. 2003); *see also* 38 U.S.C.
§ 1155 (stating that Secretary may not revise rating schedule so as to
reduce veteran\'s disability rating then in effect unless an improvement
in veteran\'s disability is shown).

As to the Secretary\'s assertion that Note 2 \"involves no substantive
change\" and that \"the amendment restated in more explicit terms the
rule reflected in prior VA regulations that only a single 10% rating for
tinnitus is authorized\", this interpretation not only is inconsistent
with the plain meaning of the applicable regulation in this case, but
also the support for this assertion is flawed. Both the Secretary and
the General Counsel quote the Supplementary Information published in the
Federal Register at the time of the promulgation of the final rule,
which stated in relevant part:

> To rate each ear separately for this single disability would violate
> the prohibition on pyramiding, 38 CFR 4.14. Similarly, to rate each
> ear separately would be a violation of the principle of 38 CFR 4.25(b)
> that a \"***single disease entity\" is to be given a single rating*.**
> A single evaluation for a single disability is appropriate. We have
> made no change based on this comment.

68 Fed. Reg. at 25,823 (emphasis added). The above-quoted passage
misstates the law. In fact, this passage states nearly the opposite of
what § 4.25(b) provides, which is that \"the ***disabilities arising
from a single disease entity . . . are to be rated separately***\". 38
C.F.R. § 4.25(b) (emphasis added). Hence, pursuant to the review
standard set forth in *Westberry*, the Court owes no deference to such
an interpretation, because it is both \"plainly erroneous\" and
\"inconsistent with \[VA\]\'s own regulation\"as provided in § 4.25(b).
*Westberry*, *supra*.

The Secretary asserts (both in his brief and at oral argument) that the
policy embodied in Note 2 had been the \"standard practice\" for VA
\"since 1945\", and that VA\'s interpretation of DC 6260 -- that such a
policy had always been a part of the tinnitus rating -- should be given
deference by the Court because it is \"reasonable\" and \"based on the
common medical definition of tinnitus\". Suppl. Br. at 5. However, the
Secretary concedes (also at oral argument) that neither the \"standard
practice\" of awarding only a single 10% rating for tinnitus nor the
\"common medical definition of tinnitus\" that considered that condition
a disability of the central nervous system, was set forth in a publicly
available document before VA\'s proposed rule in 2002. Hence, even if
the regulations in this case were ambiguous, the Court would find the
argument that Note 2 embodied either a \"standard VA practice\" or an
established agency policy based on a \"common medical definition\" to be
unpersuasive. As the Secretary also conceded at oral argument, the
paucity of information in regard to this \"standard VA practice\"
available prior to the Board\'s December 2000 decision in this case
distinguishes this case from *Smiley v. Citibank*, 517 U.S. 735 (1996),
which affirmed the validity of an agency regulation that had formally
recognized a longstanding agency interpretation. Unlike in the instant
case, in *Smiley*, the agency had a publicly available track record of
having interpreted an ambiguous term in a manner consistent with the new
regulation. Finally, to the extent that there is any reasonable
interpretive doubt regarding the meaning of § 4.25(b) and its
application to DC 6260, and given the lack of any publicly available
agency interpretative history on this matter, such doubt is to be
resolved in favor of the veteran. *See Brown* *v*. *Gardner*, 513 U.S.
at 117-18; *Allen (William) v. Brown*, 7 Vet.App. 439, 446-48 (1995) (en
banc) (applying *Gardner* \"interpretive doubt\" rule); *Otero-Castro*,
*supra*.

Based on the plain language of the regulations, the Court holds that the
pre-1999 and pre-June 13, 2003, versions of DC 6260 required the
assignment of dual ratings for bilateral tinnitus. In light of this
holding, the Court will reverse as \"not in accordance with law\", 38
U.S.C. § 7261(a)(3)(A), the Board\'s conclusion that **\"\[t\]he 10\[%\]
rating being granted . . . is the only schedular evaluation available
for tinnitus**\", set aside the determination that no higher rating is
available to the appellant, and remand that matter for further
proceedings consistent with this opinion.

**III. Conclusion**

Upon consideration of the parties\' pleadings, oral argument, and the
forgoing analysis, the Court reverses the December 2000 BVA decision
that bilateral tinnitus may not qualify for two 10% ratings, one for
each ear, and remands that matter for expeditious readjudication as to
whether the appellant has bilateral tinnitus, and, if so, for assignment
of a rating consistent with this opinion. Additionally, the Court
vacates the December 2000 BVA decision with respect to the Board\'s
decision to interpret \"persistent\" in pre-1999 DC 6260 as requiring an
element of constancy, and remands that matter for readjudication and for
consideration of our holding regarding § 4.25(b) to pre-1999 DC 6260.
Furthermore, the Court invalidates G.C. Prec. 2-2003 to the extent that
it is inconsistent with § 4.25(b) and pre-June 2003 DC 6260 as herein
construed. On remand, the Secretary will ensure expeditious appropriate
further development and issuance of a readjudicated decision supported
by an adequate statement of reasons or bases, *see* 38 U.S.C. §§ 1110,
 5100-5103, 5103A, 5107, 7104(a), (d)(1); 38 C.F.R. § 4.25(b), 4.87, DC
6260 (pre-1999 and pre-June 13, 2003), all consistent with this opinion
and in accordance with 38 U.S.C. § 7112 (as added by the Veterans
Benefits Act of 2003, Pub. L. No. 108-183, § 707(b), 117 Stat. 2651,
2673) (requiring Secretary to \"take such actions as may be necessary to
provide for the expeditious treatment by the Board of any claim that is
remanded to the Secretary by the Court\"); *see Vargas-Gonzalez v.
Principi*, 15 Vet.App. 222, 225-30 (2001) (holding that section 302 of
Veterans\' Benefits Improvements Act of 1994, Pub. L. No. 103-446,
§ 302, 108 Stat. 4645, 4658, predecessor of section 7112, applies to all
elements of claim remanded by the Court or Board), and in accordance
with all applicable law and regulation. *See Allday*, 7 Vet.App. at
533‑34. On remand, the appellant will be free to submit additional
evidence and argument on the remanded claims, and the Board is required
to consider any such evidence and argument. *See Kay v. Principi*, 16
Vet.App. 529, 534 (2002). A remand by this Court or by the Board confers
on an appellant the right to VA compliance with the terms of the remand
order and imposes on the Secretary a concomitant duty to ensure
compliance with those terms. *See Stegall v. West*, 11 Vet.App. 268, 271
(1998). A final decision by the Board following the remand herein
ordered will constitute a new decision that, if adverse, may be appealed
to this Court only upon the filing of a new Notice of Appeal with the
Court not later than 120 days after the date on which notice of the
Board\'s new final decision is mailed to the appellant. *See Marsh
v. West*, 11 Vet.App. 468, 472 (1998).

REVERSED IN PART, VACATED IN PART, AND REMANDED.

IVERS, *Chief Judge*, concurring in part and dissenting in part: I must
respectfully dissent from the majority opinion with respect to the issue
of the Court\'s jurisdiction as discussed in III.B.1. The Court has
jurisdiction to determine its jurisdiction over a case. *See Henderson
v. West*, 12 Vet.App. 11 (1998). In my view, the majority\'s decision to
remand the question of the appellant\'s entitlement to a compensable
rating under the pre-1999 DC 6260 is outside this Court\'s jurisdiction
pursuant to 38 U.S.C. §§ 502 and 7252(b) and contrary to the Federal
Circuit\'s decisions in *Wanner v. Principi*, 370 F.3d 1124 (Fed.Cir.
2004)(*Wanner II*) and *Smith v. Principi*, No. 03-7212, 2004 WL 2030123
(Fed. Cir. Aug. 23, 2004)(*Smith II)*.

In the case underlying the appeal before us, the Federal Circuit granted
the Secretary\'s motion to vacate and remand this Court\'s decision in
*Smith v. Principi*, 17 Vet.App. 168 (2003)(*Smith I*) as inconsistent
with *Wanner II.* *See Smith II.* In so doing, the Federal Circuit
stated:

> In *Wanner* \[*II*\], we reversed the Court of Appeals for Veterans
> Claims\' determination that it had jurisdiction to review the rating
> schedule, absent a constitutional challenge. In the instant case, the
> decision on appeal relied heavily on the Court of Appeals for Veterans
> Claims\' *Wanner* decision \[*Wanner v. Principi*, 17 Vet.App. 4
> (2003)(*Wanner I*)\] in concluding that it had jurisdiction to review
> the Diagnostic Code, which is included in the ratings schedule. Thus,
> we reverse the Court of Appeals for Veterans Claims\' determination in
> this case that it had jurisdiction and remand for further proceedings
> consistent with our decision in *Wanner* \[*II*\].

*Smith II,* at \*2. In concluding that this Court did not have
jurisdiction to review the ratings schedule, the Federal Circuit in
*Wanner II* reviewed the jurisdictional provisions of title 38, 38
U.S.C. §§ 502 and 7252(b). 370 F.3d at 1129. Section 502 specifically
excludes from judicial review by this Court actions of the Secretary
\"relating to the adoption or revision of the schedule of ratings for
disabilities adopted under section 1155 of this title.\" 38 U.S.C.
§ 502; *see also id.* In addition, section 7252(b) states that this
Court \"may not review the schedule of ratings for disabilities adopted
under section 1155 of this title *or any action of the Secretary in
adopting or revising that schedule*.\" 38 U.S.C. § 7252(b) (emphasis
added); *see also id.* Noting that \"the clarity of the legislative
scheme makes resort to the legislative history \[of the Veterans
Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105 (1988)\]
unnecessary,\" the Federal Circuit added:

> Senate Report 100-418 explains: \"The Committee bill contains one
> restriction on the scope of review of VA rules and regulations: *A
> court would not be permitted to direct or otherwise order that any
> part of the disability rating schedule issued or adopted by the
> Administrator be modified*.\" . . . A report from the House of
> Representatives reflects a similar understanding, explaining that, in
> response to \"apprehension . . . that the VA schedule for rating
> disabilities. . . would be destroyed by piecemeal review of individual
> rating classifications,\" the bill \"*has* *expressly precluded review
> of the schedule* . . . .\" H.R. Rep. 100-963 at 28. The language in
> the legislative history is not limited to the percentages of the
> disability ratings . . . but matches the statutes in broadly
> precluding judicial review of the contents of the disability rating
> schedule in toto.

370 F.3d at 1130 (emphasis added). The Federal Circuit concluded that
the \"review undertaken by the Veterans Court here amounts to a direct
review of the content of the rating schedule\" and \"was an action
outside of its jurisdiction as provided by 38 U.S.C. § 7252(b).\" 370
F.3d at 1131.

The majority presently claims that it is not reviewing the contents of
the rating schedule, but \"the Board\'s interpretation of \'persistent\'
in pre-1999 DC 6260,\" and, consequently, this review is \"not
distinguishable from the review sought in *Sellers*.\" *Ante* at 10.
However, the Court\'s analysis here moves well beyond the interpretation
of the ratings criteria as discussed in *Sellers*. In that case, the
Federal Circuit upheld this Court\'s \"interpretation of 38 C.F.R.
§ 4.130 with respect to the relationship between the DSM-IV and the
general rating formula.\" 372 F.3d at 1321. With respect to the issue of
this Court\'s jurisdiction, the Federal Circuit focused on the character
of the arguments raised by the appellants: \"Appellant\'s are
challenging VA\'s interpretation of a regulation. The Veterans Court,
therefore, had jurisdiction under 38 U.S.C. § 7252(a).\" 372 F.3d at
1324.

The crucial difference between *Sellers* and this case is that the
appellants in *Sellers* were not challenging the content of the ratings
schedule insofar as the ratings schedule reflected the medically
recognized symptoms of PTSD. The Secretary\'s instruction that
\"\[r\]ating agencies must be thoroughly familiar with \[the DSM-IV\] to
properly . . . apply the general rating formula for mental disorders in
\[section\] 4.130\" established an ambiguous relationship between the
ratings criteria for PTSD and DSM-IV. The Court interpreted the limits
of that relationship without reviewing \"any action of the Secretary in
adopting or revising that schedule.\" 38 U.S.C. § 7252(b).

While cloaking their actions in the reasons-and-bases rubric, the
majority here dives directly into the content of the ratings schedule by
evaluating the meaning of \"persistent\" in the pre-1999 DC 6260 and
\"recurrent\" in the current DC 6260 against the medical definition of
tinnitus. By proposing to examine the reasonableness of the terms
\"persistent\" and \"recurrent\" as accurate symptoms of tinnitus, the
Court is announcing its intent to directly review the contents of the
ratings schedule and infringing on the Secretary\'s authority under 38
U.S.C. § 1155 to \"adopt and apply a schedule of ratings of reductions
in earning capacity from specific injuries or combination of injuries.\"
*Sellers* is inapplicable in this case because the majority, in
\"interpreting\" the meaning of \"persistent\" in the pre-1999 DC 6260
and \"recurrent\" in the current DC 6260, would engage in a \"review
\[of\] the schedule of ratings for disabilities adopted under section
1155 of this title or any action of the Secretary in adopting or
revising that schedule.\" 38 U.S.C. § 7252(b). The Federal Circuit\'s
language in *Wanner II* is instructive: \"The review undertaken by the
Veterans Court here amounts to a direct review of the contents of the
rating schedule and is indistinguishable from the review of \'what
should be considered a disability\' that the Veterans Court itself
recognized as impermissible.\" 370 F.3d at 1131.

Moreover, it is irrelevant for jurisdictional purposes that the Court is
remanding the issue to the Board. If the Court had jurisdiction, it
would merely be postponing an eventual judicial review of an action
\"relating to the adoption or revision of the schedule of ratings for
disabilities adopted under section 1155 of this title.\" 38 U.S.C.
§ 502. The only appropriate course of action in this case is to dismiss
the claim as outside the Court\'s jurisdiction pursuant to 38 U.S.C. §§
502 and 7252(b), and the Federal Circuit\'s decisions in *Wanner II* and
*Smith II.*