VFW Supports Veteran’s Supreme Court Case

WASHINGTON (December 20, 2006) – The Veterans of Foreign Wars of the U.S. filed an Amicus, or Friend of the Court brief this afternoon in the U.S. Supreme Court on behalf of veteran Ellis C. Smith, who is seeking to overturn a lower court decision that allowed the Department of Veterans Affairs to rate tinnitus as a single disability, regardless of whether it affects one or both ears.

“Military service is inherently noisy, especially during wartime, and most especially when roadside bombs are the predominant threat to our troops overseas,” said VFW Commander-in-Chief Gary Kurpius, a Vietnam veteran from Anchorage, Alaska.

“The VFW intervened in this court case to protect the rights of all veterans who were denied similar claims,” he said. “It’s an active advocacy role that places the VFW at the forefront of other veterans’ organizations, and one that more than 700 VFW-accredited service officers perform daily on behalf of our country’s 24 million veterans, 2.2 million servicemembers, and their families.”

This is believed to be the fourth time in its 107-year history that the VFW has become involved in a case before the nation’s highest court.

Smith, an Army veteran, suffers from service-connected tinnitus in both ears. The VA approved his initial claim but as a single disability. Currently, a single tinnitus disability rating is 10 percent, which is compensated at $112 per month. A dual tinnitus disability rating is 20 percent, or $218 per month. Smith appealed the decision to the U.S. Court of Appeals for Veterans Claims and won his case on April 5, 2005, on the grounds that the VA’s disability rating schedule did not expressly preclude a separate disability rating for tinnitus in each ear.

The VA appealed this ruling to the U.S. Federal Circuit Court of Appeals and won its case on June 19, 2006. The Federal Court agreed that the VA’s regulations were ambiguous, but ruled that the VA was entitled to interpret its own regulations.

Prior to that decision, the VA had withheld more than 4,000 VFW-assisted tinnitus claims. Once Smith’s favorable decision was overturned, the VA activated those cases and summarily denied them.

VFW service officers are now helping those affected veterans preserve their appeals, either within the VA or at the Court of Appeals for Veterans Claims. To date, more than 800 have already appealed their denials to the veterans court.

Regardless of how the high court rules, the VA has changed the rating schedule so that all new tinnitus claims will be adjudicated as a single — not dual — disability.

“Making a unilateral decision that changes the rules on how you care for the wounded and disabled in the middle of a war is not the issue before the Supreme Court today,” added Kurpius, “but it will definitely be an issue the VFW will take up with the VA when the new 110th Congress convenes in January.”

Go to www.vfw.org to read the complete Amicus brief .