Error: Bad annotation destination
United States Court of Appeals for the Federal Circuit

                                      05-7168



                                 ELLIS C. SMITH,

                                                          Claimant-Appellee,
                                         v.


               R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                          Respondent-Appellant.



      Ronald L. Smith, Disabled American Veterans, of Washington, DC, argued for
claimant-appellee. Of counsel was Donald E. Purcell.

       Claudia Burke, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-
appellant. With her on the brief were Peter D. Keisler, Assistant Attorney General,
David M. Cohen, Director, and Brian M. Simkin, Assistant Director. Of counsel on the
brief were David J. Barrans, Deputy Assistant General Counsel, and Jamie L. Mueller,
Attorney, United States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Senior Judge Jonathan R. Steinberg
United States Court of Appeals for the Federal Circuit


                                        05-7168



                                    ELLIS C. SMITH,

                                                       Claimant-Appellee,

                                            v.

                               R. JAMES NICHOLSON,
                             Secretary of Veterans Affairs,

                                                       Respondent-Appellant.



                               _____________________

                               DECIDED: June 19, 2006
                               _____________________

Before LOURIE, BRYSON, and GAJARSA, Circuit Judges.

LOURIE, Circuit Judge.

      The Department of Veterans Affairs (the “DVA”) appeals from the decision of the

United States Court of Appeals for Veterans Claims (the “Veterans Court”) reversing in

part, vacating in part, and remanding the decision of the Board of Veterans’ Appeals

(the “Board”), holding, inter alia, that 38 C.F.R. § 4.25(b) and 38 C.F.R. § 4.87, DC 6260

require the assignment of dual ratings for bilateral tinnitus. Smith v. DVA, 19 Vet. App.

63 (2005).    Because the Veterans Court erred in not deferring to the DVA’s

interpretation of its own regulations, we reverse and remand that portion of the court’s

decision. No other aspect of the court’s decision is on appeal.
                                     BACKGROUND

       Smith served on active duty in the U.S. Army from March 1966 to March 1969. A

report from an April 1995 VA audiological examination revealed that Smith had tinnitus.

In October 1995, a VA regional office (“RO”) found that Smith’s tinnitus was service

connected. However, the RO assigned a noncompensable disability rating to Smith’s

tinnitus because the evidence did not demonstrate that the tinnitus was “persistent” as

required by 38 C.F.R. § 4.87, DC 6260. In April 1999, the RO issued a supplemental

statement of the case reaffirming that Smith’s tinnitus was not persistent. Prior to June

10, 1999, DC 6260 (hereinafter “pre-1999 DC 6260”) provided for a 10% disability rating

for a veteran with tinnitus if the evidence demonstrated that the tinnitus was “persistent

as a symptom of head injury, concussion, or acoustic trauma.” On June 10, 1999, DC

6260 (hereinafter “post-1999 DC 6260”) was amended to provide a 10% disability rating

for tinnitus if the evidence demonstrated that the tinnitus was “recurrent.” 38 C.F.R. §

4.87, DC 6260 (2000).1 The requirement that tinnitus must be a “symptom of head

injury, concussion, or acoustic trauma” was deleted. Consequently, Smith appealed the

RO’s decision, asserting that his service-connected tinnitus should be evaluated under

the post-1999 DC 6260, which requires that his tinnitus be “recurrent,” rather than

“persistent.”

       In a December 2000 decision, the Board considered Smith’s claim under both the

pre-1999 DC 6260 and the post-1999 DC 6260 regulations. With regard to pre-1999

DC 6260, the Board affirmed the RO’s decision that Smith’s tinnitus was not

       1
              In May 2003, DC 6260 was further revised to include “Note (2): 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). This revision is not
applicable to this case because of its effective date.


05-7168                                     2
“persistent,” which the Board defined as “insistently repetitive, or continuous, tenacious,

or enduring.” Thus, the Board determined that Smith was not entitled to a 10% disability

rating prior to June 10, 1999. With regard to post-1999 DC 6260, the Board determined

that Smith’s tinnitus was “recurrent” and granted him a 10% disability rating, effective

June 10, 1999. Smith appealed from the Board’s decision, alleging that the evidence

demonstrated that his tinnitus was “persistent” under pre-1999 DC 6260 and that the

Board misinterpreted both pre-1999 and post-1999 DC 6260 by failing to award a

separate 10% disability rating for service-connected tinnitus in each ear.

       On June 10, 2003, the Veterans Court reversed in part, vacated in part and

remanded the Board’s decision. Smith v. Principi, 17 Vet. App. 168 (2003). First, the

court reversed the Board’s conclusion that Smith’s tinnitus was not “persistent” as

required by pre-1999 DC 6260, concluding that the Board’s decision was “arbitrary,

capricious, and an abuse of discretion,” and remanded for assignment of a 10%

disability rating and determination of an appropriate effective date. Second, the court

vacated the portion of the Board’s decision that denied two disability ratings for Smith’s

service-connected tinnitus, one for each ear, and remanded for the Board to consider

whether a single 10% rating is appropriate for bilateral tinnitus under 38 C.F.R. §

4.25(b), which provides that “disabilities arising from a single disease entity . . . are to

be rated separately.” Id.

       The DVA moved without opposition to vacate the Veterans Court’s decision and

remand the case for further proceedings consistent with this court’s recent decision in

Wanner v. Principi, 370 F.3d 1124 (Fed. Cir. 2004). In Wanner, we had reversed a

Veterans Court’s decision, concluding that it lacked jurisdiction to review the content of




05-7168                                      3
a rating schedule.    Because the Veterans Court in this case relied heavily on its

decision in Wanner, we reversed the court’s determination that it had jurisdiction in this

case and remanded for further proceedings consistent with our decision in Wanner.

Smith v. Principi, 108 Fed. Appx. 628 (Fed. Cir. 2004).

      On remand, the Veterans Court first held that it had jurisdiction to review both the

Board’s interpretation of the term “persistent” in pre-1999 DC 6260 and whether §

4.25(b) permits dual ratings for tinnitus. The Veterans Court reasoned that its review of

regulations DC 6260 and § 4.25(b) did not involve evaluating the content of a rating

schedule, but rather an interpretation of language in the regulations, subject matter over

which the Veterans Court has jurisdiction.      The Veterans Court then vacated the

Board’s decision with regard to the term “persistent” under pre-1999 DC 6260 and

remanded to the Board for an explanation of its interpretation of the term “persistent.”

With regard to the question whether pre-1999 and post-1999 DC 6260 permit dual

ratings for tinnitus, the court reversed the Board’s decision that DC 6260 did not

authorize the assignment of two 10% ratings for bilateral tinnitus and determined that

regulations § 4.25(b) and DC 6260 required such dual ratings for bilateral tinnitus. The

Veterans Court observed that the DVA’s interpretation of its regulations, DC 6260 and

§ 4.25(b), conflicted with their plain meaning. The Veterans Court noted that DC 6260

lists tinnitus as a “disease of the ear” and that § 4.25(b) provides for a separate rating

for each service-connected disability arising from a single disease, unless otherwise

provided.   Thus, the Veterans Court determined that a “plain reading” of those

regulations taken together results in a “rating of 10% for each ear affected by a single

case of tinnitus.”   Smith v. DVA, 19 Vet. App. at 75.         The Veterans Court then




05-7168                                     4
remanded for the Board to consider whether Smith had bilateral tinnitus, and, if so, for

assignment of a dual rating.

       The DVA timely appealed the Veterans Court’s decision regarding whether the

regulations permit a dual rating for bilateral tinnitus, and, as we explain below, we have

jurisdiction pursuant to 38 U.S.C. § 7292(a).

                                        DISCUSSION

       The scope of our review of a Veterans Court’s decision is limited by statute. 38

U.S.C. § 7292. Under § 7292(a), we may review a decision by the Veterans Court with

respect to the validity of “any statute or regulation . . . of any interpretation thereof (other

than a determination as to a factual matter) that was relied on by the [Veterans] Court in

making the decision.” This appeal involves the Veterans Court’s interpretation of certain

DVA regulations, and therefore we normally would have jurisdiction to consider that

interpretation under § 7292(a). We review interpretation of regulations by the Veterans

Court de novo and may set aside any regulation or interpretation of a regulation that we

find to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law; contrary to a constitutional right, power, privilege, or immunity; in excess of

statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or

without observation of a procedure required by law. 38 U.S.C. 7292(d)(1); Wanner, 370

F.3d at 1128.

       As an initial matter, however, we must consider whether we have jurisdiction to

hear this appeal at this time. We conclude that we do and agree with the DVA that,

even though the Veterans Court remanded the case to the Board, we have jurisdiction

over this appeal under the principles set forth in Williams v. Principi, 275 F.3d 1361




05-7168                                        5
(Fed. Cir. 2002).2 Generally, we do not have jurisdiction to review non-final judgments.

Adams v. Principi, 256 F.3d 1318, 1320 (Fed. Cir. 2001). We have determined that a

remand order from the Veterans Court is not considered a final judgment and hence is

usually not appealable. Id. In Williams, however, we set forth an exception to the

general rule that non-final decisions are not reviewable. As we explained in Williams:

       We will depart from the strict rule of finality when the Court of Appeals for
       Veterans Claims has remanded for further proceedings only if three
       conditions are satisfied: (1) there must have been a clear and final
       decision of a legal issue that (a) is separate from the remand proceedings,
       (b) will directly govern the remand proceedings or, (c) if reversed by this
       court, would render the remand proceedings unnecessary; (2) the
       resolution of the legal issues must adversely affect the party seeking
       review; and, (3) there must be a substantial risk that the decision would
       not survive a remand, i.e., that the remand proceeding may moot the
       issue.

275 F.3d at 1364 (footnotes omitted).

       With regard to the first condition, the Veterans Court interpreted regulations

§ 4.25(b) and DC 6260, concluding that they require a dual rating for bilateral tinnitus,

and remanding to determine if Smith has bilateral tinnitus. Thus, a clear final decision

was rendered on a legal issue—the interpretation of the regulations—and that

interpretation will directly govern the remand proceedings. In addition, our reversal of

that interpretation would render the remand order unnecessary because, if we

determine that the DVA’s interpretation is correct and that the regulations provide for a

single 10% disability rating for tinnitus, then determining whether Smith’s tinnitus is

bilateral will be irrelevant, as he will not be entitled to a rating greater than 10%. With

regard to the second condition, the interpretation of regulations § 4.25(b) and DC 6260

by the Veterans Court adversely affects the party seeking review, the DVA, because the

       2
             Smith does not in fact dispute that we have jurisdiction under Williams.


05-7168                                     6
court’s interpretation requires the DVA to issue a disability rating for bilateral tinnitus

contrary to its interpretation of the regulations. Finally, as for the third condition, the

remand proceeding, if not appealed now, would moot the legal issue because, if the

Board on remand applied the Veterans Court’s interpretation of regulations § 4.25(b)

and DC 6260 and granted Smith the benefit he seeks under that interpretation, the DVA

would be precluded from appealing that action. See 38 U.S.C. § 7252(a) (providing that

the Veterans Court “shall have exclusive jurisdiction to review decision of the Board of

Veterans’ Appeals. The Secretary may not seek review of any such decision.”).

Accordingly, we conclude that we have jurisdiction to review the decision of the

Veterans Court under Williams.

       Turning to the merits of the appeal, this case presents an issue with

consequences well beyond this case—whether the Veterans Court correctly interpreted

DVA regulations DC 6260 and § 4.25(b) to require dual (separate) 10% ratings for

bilateral tinnitus.   We understand that many appeals are pending, and have been

stayed, that will likely be governed by our decision.

       The DVA asserts that the Veterans Court’s interpretation contradicts the DVA’s

interpretation of its own regulations, and that the Veterans Court erred by not deferring

to the DVA’s interpretation of its own regulations.      The DVA contends that it has

interpreted § 4.25(b) and DC 6260 to permit a single rating for tinnitus, irrespective of

whether the disease affects both ears, and that it has been the standard practice of the

DVA to award a veteran with bilateral tinnitus a single disability rating under DC 6260.

According to the DVA, its interpretation of those regulations is a reasonable one as it is

supported by medical evidence and is embodied in numerous public documents. The




05-7168                                      7
DVA asserts that the regulations do not clearly address whether a veteran is entitled to

two separate ratings for bilateral tinnitus, and that its own interpretation of the

regulations is not inconsistent with the regulation. Because the DVA’s interpretation of

its own regulations is not plainly inconsistent with the regulations, the DVA contends

that its interpretation is entitled to substantial deference by the Veterans Court. Finally,

the DVA observes that the addition of Note 2 to DC 6260 was not a substantive change

to the regulation; in fact, it reflects the DVA’s past practice of awarding a single rating

for bilateral tinnitus.

       Smith responds that the Veterans Court correctly determined that the plain

meaning of the regulations entitles him to two separate disability ratings for service-

connected tinnitus affecting both ears. According to Smith, DC 6260 refers to tinnitus

as a “disease of the ear.” Accordingly, if the disease, i.e., tinnitus, results in a disability

in both ears, then the plain language of § 4.25(b) entitles the veteran to two separate

10% ratings. In addition, if the DVA intended to provide for one rating for a disease with

two disabilities, it would do so expressly in a regulation. Smith also responds that the

Veterans Court was correct in not deferring to the DVA’s interpretation of its regulation

because that interpretation is inconsistent with the regulation’s plain meaning.

Moreover, Smith observes that the DVA’s interpretation of its own regulations is found

only in unpublished opinions or litigating documents, which are not entitled to deference.

According to Smith, the DVA did not publish its interpretation of DC 6260 until it added

Note 2 to DC 6260 in 2003, and that interpretation cannot be applied retroactively.




05-7168                                       8
      We agree with the DVA that the Veterans Court erred by not deferring to the

DVA’s interpretation of its own regulations. At issue is the interpretation of language in

regulations, not statutes. The relevant regulations are as follows:

      § 4.25 Combined ratings table.

             (b) Except as otherwise provided in this schedule, the disabilities
      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 to be combined as
      described in paragraph (a) of this section.

38 C.F.R. § 4.25(b) (emphasis added).

      § 4.87 Schedule of ratings--ear.

      DISEASES OF THE EAR                                     Rating

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

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

      6260 Tinnitus, recurrent………………………………………...10

38 C.F.R. § 4.87, DC 6269 (2000).

      The Supreme Court has held that an agency’s interpretation of its own

regulations is entitled to substantial deference by the courts. See United States v.

Cleveland Indians Baseball Co., 532 U.S. 200 (2001); Auer v. Robbins, 519 U.S. 452,

461-62 (1997); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); Martin v.

Occupational Safety & Health Review Comm’n, 499 U.S. 144, 151 (1991); Udall v.

Tallman, 380 U.S. 1, 16 (1965). As the Court has further recognized, when a court is

interpreting an administrative regulation, it “must necessarily look to the administrative

construction of the regulation if the meaning of the words used is in doubt.” Bowles v.




05-7168                                     9
Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). The administrative construction

becomes “of controlling weight unless it is plainly erroneous or inconsistent with the

regulation.” Id. In addition, such deference is afforded to an agency’s interpretation of

its own regulations even when that interpretation is offered in informal rulings such as in

a litigating document. Auer, 519 U.S. at 461; Cathedral Candle Co. v. U.S. Int’l Trade

Comm’n, 400 F.3d 1353, 1363-64 (Fed. Cir. 2005); Am. Express Co. v. United States,

262 F.3d 1376, 1382-83 (Fed. Cir. 2001).

       Applying those principles to this case, we conclude that the Veterans Court erred

in not deferring to the DVA’s interpretation of its own regulations, § 4.25(b) and DC

6260, which limits a veteran to a single disability rating for tinnitus, regardless whether

the tinnitus is unilateral or bilateral. First, we consider whether the language of the

regulations § 4.25(b) and DC 6260 leaves “in doubt” whether tinnitus in each ear

constitutes separate disabilities. We conclude that it does. Section 4.25(b) provides

that “[e]xcept 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.”   38 C.F.R. § 4.25(b). Thus, § 4.25(b) is a general rule requiring separate

disability ratings for each disability arising from a single disease. The question here is

whether tinnitus in both ears constitutes separate disabilities.      The Veterans Court

observed that under DC 6260, tinnitus is listed as a disease of the ear, implicating §

4.25(b), which also uses the term “disease.”       But, while tinnitus is listed under the

heading “diseases of the ear,” DC 6260 does not address whether tinnitus, as perceived

in one ear, two ears, or otherwise, is a single disability.        The plain language of

regulations § 4.25(b) and DC 6260 clearly does not resolve that question.




05-7168                                      10
       The Veterans Court determined that the meaning of the regulations is clear,

leaving no doubt that dual ratings for bilateral tinnitus are required under the

regulations. We do not agree with the Veterans Court’s analysis.         According to the

Veterans Court, “nothing in the rating schedule limits a veteran with tinnitus in both ears

to only one rating”; the court thus concluded that 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.” Smith v. DVA, 19 Vet. App. at 75.       As the DVA observed, however, the

Veterans Court necessarily presumed that tinnitus in one ear constitutes one disability,

and that tinnitus in two ears constitutes two disabilities. Without such an assumption,

however, which the DVA has reasonably rejected as not supported by the text of the

regulations, the plain language of the regulations still leaves the pertinent inquiry

unresolved and does not compel the conclusion that tinnitus in two ears constitutes two

disabilities. Because the regulations here leave in doubt whether tinnitus in each ear

can be a separate disability, they are ambiguous, and the DVA was entitled to apply its

own construction to the ambiguous regulations.

       Having concluded that the regulations leave the pertinent inquiry unresolved,

deference must be afforded to the DVA’s interpretation as long as that interpretation is

not “plainly erroneous or inconsistent with the regulations.”       Thus, we must also

consider whether the DVA’s interpretation of the regulations—that tinnitus in both ears

is one disability—is “plainly erroneous or inconsistent with the regulations”; we

determine that it is not. The DVA argues that its interpretation that tinnitus constitutes

both a disease and a disability is founded upon its analysis of medical principles.

Although we do not evaluate those principles, there is a lack of evidence in the record




05-7168                                     11
that the DVA’s interpretation is plainly erroneous. The DVA’s interpretation is also not

inconsistent with the regulations, as the regulations do not address whether tinnitus is

one disability.

       There is also “no reason to suspect that the interpretation does not reflect the

agency’s fair and considered judgment on the matter in question” and it is entitled to

deference.    Auer, 519 U.S. at 462.     Smith argues that the DVA’s interpretation is

expressed in unpublished statements or in litigating positions, neither of which gives

notice to the public or is entitled to deference.    We disagree.    First, the DVA has

consistently interpreted the regulations to allow a maximum 10% disability rating for

tinnitus, and that interpretation is reflected in various public documents.     See e.g.,

Cromley v. Brown, 7 Vet. App. 376, 378 (1995) (“As the Board noted, the appellant is

already rated at 10%, the highest level possible under the regulations for tinnitus.”);

Wanner, 17 Vet. App. at 9 (quoting the Board’s statement that its 10% disability rating to

a veteran “remains the maximum disability rating available under [DC 6260]”);

VAOPGCPREC 2-2003 (“Diagnostic Code 6260 (currently codified at 38 C.F.R. § 4.87),

as in effect prior to June 10, 1999 . . . authorized a single 10% disability rating for

tinnitus, regardless of whether tinnitus is perceived as unilateral, bilateral, or in the

head.”); 67 Fed. Reg. 59,033 (Sept. 19, 2002) (stating, in connection with the proposed

addition of Note 2, that the amendment making explicit that tinnitus receives a single

evaluation, “whether the sound is perceived in one ear, both ears, or in the head”

involves “no substantive change and is consistent with current practice”).3



       3
              Board decisions that reflect the DVA’s interpretation of DC 6260 and §
4.25(b) as authorizing a maximum 10% rating for tinnitus are publicly available through
the Board’s internet decision database. See e.g., Citation No. 9630919, Docket No. 95-


05-7168                                    12
       Second, and more importantly, even if the DVA’s interpretation were not reflected

in published documents and was only reflected in litigating documents, that would still

not be a basis for declining to defer to the agency’s interpretation of its own regulation.

In Auer, the Supreme Court afforded deference to an agency’s interpretation of its

regulations even when that interpretation was first expressed in an amicus brief to the

Court. 519 U.S. at 461. Contrary to Chevron deference, which applies to an agency’s

interpretation of a statute and generally requires relatively formal administrative

procedures such as notice and comment rulemaking or formal adjudication, an agency’s

interpretation of its regulations does not require observance of those formalities in order

to be afforded deference. Thus, the Veterans Court erred in not deferring to the DVA’s

interpretation of its own regulations.

                                         CONCLUSION

       Because the Veterans Court erred in not deferring to the agency’s reasonable

interpretation of its own regulations, we reverse the decision of the Veterans Court and

remand for proceedings consistent with our decision.

                             REVERSED AND REMANDED.




09 946 (Oct. 30, 1996); Docket No. 93-22 991 (Sept. 15, 1999); Citation No. 9932638,
Docket No. 95-27 246 (Nov. 18, 1999).


05-7168                                      13
