Veteranclaims’s Blog

July 7, 2010

Medical Opinions Must Consider and Account for Veteran’s Lay Testimony

This case is being presented because of it’s citation regarding medical expert and how that expert must include the lay evidence of the veteran.

It is unclear whether she considered the appellant’s lay statements in reaching her conclusion. See Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (noting that a medical opinion must be based on an accurate factual premise and on a
consideration of the veteran’s prior medical history and examinations and must
describe the disability in sufficient detail so that the Board’s “‘evaluation of the claimed disability will be a fully informed one.'” (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991))). In reevaluating the appellant’s claims for entitlement to service connection, the Board should consider whether this is an adequate medical examination on which to base a decision. See Dalton v. Nicholson, 21 Vet.App. 23, 39 (2007) (finding that a medical examination was inadequate where the examiner “impermissibly ignored the appellant’s lay assertions that he had sustained a back injury during service”); see also Mariano v. Principi, 17 Vet.App. 305, 312 (2003) (holding that a VA medical examiner’s conclusions were of “questionable probative value” because the examiner failed to consider certain information); cf. Coburn v. Nicholson, 19 Vet.App. 427, 432 (2006) (“[R]eliance on a veteran’s statements renders a medical report incredible only if the Board rejects the statements of the
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veteran.”).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-3075
RONALD D. AKERS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

SCHOELEN, Judge: The pro se appellant, Ronald D. Akers, appeals a June 9,
2008, Board
of Veterans’ Appeals (Board) decision in which the Board denied his claims
for entitlement to
service connection for bilateral Previous DocumenthearingNext Hit Previous HitlossNext Hit and tinnitus. Record of
Proceedings (R.) at 12. This
appeal is timely, and the Court has jurisdiction to review the Board’s
decision pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See
Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). Because the Board failed to address lay
evidence suggesting that the
appellant’s Previous HithearingNext Hit conditions have an etiology in service, the Court will
vacate the June 2008
decision and remand the matter to the Board for further proceedings.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from June 1970 to
January 1972. R.
at 239. His separation examination, dated January 1972, does not indicate
Previous HithearingNext Hit problems or
tinnitus. R. at 390-91.
A May 1996 VA medical examination indicates that the appellant was
suffering from
tinnitus. R. at 547. He filed a claim for entitlement to service
connection for an “injuryto both ears”
in August 1999. R. at 501-04. In conjunction with this application, the
appellant filed a statement

indicating that, while in service, he was assigned to the artillery and
that he did not use ear
protection. R. at 478. He further stated that he “worked with and around
artillery for the entire two
years of active duty . . . and was seen on several occasions for ringing
in [his] ears and the
accompanying flashes and spots in [his] eyes.” Id. (emphasis in original).
He added that his
Congressperson “intervened and assisted in having my orders for Vietnam
changed because of the
great concern that I would pass out constantly due to the noise.” Id. In
April 2000, the regional
office (RO) denied the appellant’s claim, characterized as one for
entitlement to service connection
for tinnitus. R. at 471.
A VA treatment record dated July 2002 reveals that the appellant
complained of decreased
Previous HithearingNext Hit and tinnitus and that he reported militarynoise exposure. R. at
444. In September 2002, the
appellant attempted to reopen his claim for entitlement to service
connection for bilateral tinnitus.
R. at 459. Additionally, he submitted a claim for entitlement to service
connection for bilateral
Previous HithearingNext Hit Previous HitlossNext Hit. Id. A September 2002 VA treatment record shows that the
appellant reported a history
of bilateral tinnitus, constant in nature, that “seems to have worsened
over the past year or so.” R.
at 440. The assessment was tinnitus “[l]ikely due to noise exposure and
Previous HithearingNext Hit Previous HitlossNext Hit.” R. at 444.
A February 2004 RO decision denied both of the appellant’s claims. R. at
384.
In an April 2005 statement, the appellant described an in-service incident
in which he was
hit by a pole and experienced “ringing in [his] ears.” R. at 214. In a
January 2007 VA medical
report, an examiner noted that the appellant’s Previous HithearingNext Hit was measured as
normal at the time of his
separation and that he worked as a mechanic. R. at 39. She opined that it
was “not as likely as not
that service noise exposure contributed to [the appellant’s] present
Previous HithearingNext Hit Previous HitlossNext Hit bilaterally.” Id.
Additionally, the examiner noted that the appellant had reported bilateral
tinnitus since 1970. Id.
However, she also recognized that there were no medical records of
tinnitus until 1996. Id. The
examiner was therefore of the opinion that it was “not [at] least as
likely as not that the present
bilateral tinnitus was related [to] Previous HithearingNext Hit Previous HitlossNext Hit from [s]ervice noise
exposure as Previous HithearingNext Hit was
considered normal at separation.” R. at 40. In February 2007, a VA
examiner diagnosed the
appellant with subjective tinnitus. R. at 44. The examiner stated that “[t]
he tinnitus he describes is
a subjective phenomenon which, unfortunately, is upsetting to him but
cannot really be quantified.”
Id.
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In the June 2008 Board decision here on appeal, the Board denied the
appellant’s claims for
entitlement to service connection for bilateral Previous HithearingNext Hit Previous HitlossNext Hit and tinnitus.
R. at 12. The Board
acknowledged that the appellant suffered from both of these conditions and
that he had complained
of noise exposure in service. R. at 10. However, the Board determined that ”
the competent,
probativeevidenceestablishes that thereis nomedicalrelationship,ornexus,
between each disability
and the [appellant’s] period of service.” R. at 11.
II. ANALYSIS
On appeal, the appellant asserts generally that the Board erred in denying
his service-
connection claims. Appellant’s Brief (Br.) at 1-2. He argues that the
Board failed to consider that
his Previous HithearingNext Hit Previous HitlossNext Hit could be related to his being hit by a pole in service,
as he asserted in April 2005.
Id. at 3. He asserts that the Board failed to obtain letters from his
brothers, who are also auto
mechanics but who, he asserts, do not suffer from tinnitus. Id. He also
complains that portions of
the record are illegible because of poor printing quality. Id. at 4.
Finally, he asserts that his Previous HithearingNext Hit
was not checked in service. Id. The Secretary argues that the “evidence
fails to reveal a direct
correlation between [the appellant’s] current bilateral Previous HithearingNext Hit Previous HitlossNext Hit and
tinnitus with his alleged
service-related noise exposure.” Secretary’s Br. at 8. He contends that
the decision should be
affirmed. Id. at 14.
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) in-service incurrence or
aggravation of a disease or injury;
and (3) a nexus between the claimed in-service disease or injury and the
present disability. See
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v.
West, 12 Vet.App. 247, 252
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table); 38 C.F.R. § 3.303 (2009).
The Board must consider all evidence of record and discuss all ”
potentially applicable”
provisions of law and regulation. 38 U.S.C. § 7104(a). The Board’s
decision must include an
adequate statement of the reasons or bases for its findings and
conclusions on all material issues of
fact and law presented in the record; that statement must be adequate to
enable an appellant to
understand the precise basis for the Board’s decision, as well as to
facilitate informed review in this
3

Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (
1995); Gilbert v.
Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement,
the Board must analyze
the credibility and probative value of the evidence, account for the
evidence it finds persuasive or
unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
claimant. See Caluza, 7 Vet.App. at 506.
In this case, the Board based its decision on a finding that the appellant
had failed to show
a nexus between his currently diagnosed Previous HithearingNext Hit conditions and his
complaints of noise exposure
in service. R. at 11-12. The Board observed “no evidence of any complaints,
findings, or diagnosis
of Previous HithearingNext Hit Previous HitlossNext Hit or tinnitus until more than 24 years after the [
appellant’s service].” R. at 11. The
Board was of the opinion that such a lengthydelaybetween medical
evidencedocumentinga Previous HithearingNext Hit
condition and the appellant’s postservice occupation in a field in which
he might be exposed to loud
noise weighed against a finding that his Previous HithearingNext Hit conditions were related
to service. Id. The Board
also considered the January 2007 medical opinion, which revealed an
opinion that the appellant’s
Previous HithearingNext Hit conditions were not related to service. Id.
However, the Board never weighed the credibility or probative value of the
appellant’s lay
testimony revealing that he has not only suffered from a Previous HithearingNext Hit condition
in the years since service,
but that he actually had a Previous HithearingNext Hit condition while in service.
Specifically, in a November 1999
statement, the appellant reported that, while in service, he was “seen on
several occasions for ringing
in [his] ears.” R. at 478 (emphasis in original). Additionally, in April
2005, the appellant stated that
he was hit in the head with a pole in service and that he experienced
ringing in his ears at that time.
R. at 214. This evidence indicates that either one or both of the
appellant’s current Previous HithearingNext Hit
disabilities (there is some evidence suggesting they are related (R. at
444)) may have had an onset
in service and before he began his postservice career as an auto mechanic.
The appellant is
competent to describe symptoms he observed, Layno v. Brown, 6 Vet.App. 465,
469 (1994), and a
ringing in the ears would seem to be a symptom capable of lay observation.
The Board should have
discussed the credibility of this lay evidence and weighed the probative
value of it against the other
evidence of record.
The Court acknowledges that this evidence is inconsistent with service
medical records
(SMRs) showing normal Previous HithearingNext Hit at separation. R. at 390-91. But it is the
Board’s responsibility to
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determine the credibility and appropriate weight to be assigned to
evidence, Washington v.
Nicholson, 19 Vet.App. 362, 368 (2005), and the Court will not engage in a
factfinding mission to
determine the appropriate credibilityand probative value to be given to
the appellant’s laytestimony.
See Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) (“Fact-finding
in veterans cases is to be
done by the expert [Board], not by the Veterans Court.”). Because the
Board failed to adequately
consider lay evidence suggesting an onset of Previous HithearingNext Hit problems in service,
the Court will vacate the
Board’s decision and remand the matter so that the Board may consider this
issue. See Tucker v.
West, 11 Vet.App. 369, 374 (1998) (finding that a remand is the
appropriate remedy “where the
Board has incorrectly applied the law, failed to provide an adequate
statement of reasons or bases
for its determinations, or where the record is otherwise inadequate”).
On remand, the Board should also consider the need for an additional
medical examination.
In this case, the Board relied on the January 2007 VA medical examination
to find that there was no
nexus between the appellant’s current Previous HithearingNext Hit conditions and service. R.
at 11. However, the
medical examiner’s conclusion is supported by the rationale that the
appellant’s separation
examination revealed normal Previous HithearingNext Hit and that there was no documented
medical evidence showing
a Previous HithearingNext Document condition for many years after service. R. at 52. It is unclear
whether she considered the
appellant’s lay statements in reaching her conclusion. See Ardison v.
Brown, 6 Vet.App. 405, 407
(1994) (noting that a medical opinion must be based on an accurate factual
premise and on a
considerationoftheveteran’s priormedical historyand examinations and must
describethedisability
in sufficient detail so that the Board’s “‘evaluation of the claimed
disability will be a fully informed
one.'” (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991))). In
reevaluating the appellant’s
claims for entitlement to service connection, the Board should consider
whether this is an adequate
medical examination on which to base a decision. See Dalton v. Nicholson,
21 Vet.App. 23, 39
(2007) (finding that a medical examination was inadequate where the
examiner “impermissibly
ignored the appellant’s lay assertions that he had sustained a back injury
during service”); see also
Mariano v. Principi, 17 Vet.App. 305, 312 (2003) (holding that a VA
medical examiner’s
conclusions were of “questionable probative value” because the examiner
failed to consider certain
information); cf. Coburn v. Nicholson, 19 Vet.App. 427, 432 (2006) (“[R]
eliance on a veteran’s
statements renders a medical report incredible only if the Board rejects
the statements of the
5

veteran.”). If the Board chooses to rely on this medical examination, it
should state the reasons why
the examination is adequate.
Given this disposition, the Court will not, at this time, address the
other arguments and issues
raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (
per curiam order) (holding
that “[a] narrow decision preserves for the appellant an opportunity to
argue those claimed errors
before the Board at the readjudication, and, of course, before this Court
in an appeal, should the
Board rule against him”). On remand, the appellant is free to submit
additional evidence and
argument on the remanded matters, and the Board is required to consider
anysuch relevant evidence
and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating
that, on remand, the Board
must consider additional evidence and argument in assessing entitlement to
benefit sought);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court has held that
“[a] remand is meant to entail a critical examination of the justification
for the decision.” Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed
expeditiously, in accordance
with 38 U.S.C. § 7112 (requiring Secretary to provide for “expeditious
treatment” of claims
remanded by the Court).
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, the Board’s June 9, 2008, decision is VACATED, and the matter is
REMANDED to the
Board for further proceedings consistent with this decision.
DATED: June 30, 2010
Copies to:
Ronald D. Akers
VA General Counsel (027)
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