Veteranclaims’s Blog

September 1, 2011

Single Judge Application, Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), Tinnitus, Negative Evidence, Speculative Views and Negative Inference

Excerpt from decision below: ”

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The Board impermissibly treated the silence as to symptoms of tinnitus as though it were an affirmative medical opinion that the appellant had, at most, intermittent tinnitus. The Board impermissibly gave probative weight to the November 1996 medical report based on the Board’s speculative view and negative inferences. In addition, the Board failed to recognize that the November 1996 report stated that there was no history of tinnitus when, in fact, the evidence reflected that, at the time of this report, the appellant had already been granted service connection for tinnitus.
The Board also provided an inaccurate description of the December 2001 report. This report included a one-line statement written by the examiner noting that the appellant “reports constant, moderate, tonal tinnitus, [left ear], onset 1965.” R. at 10. The Board translated this statement as a statement from the appellant that “his tinnitus has been persistent since 1965,” and that the statement
attributed to him in the September 1999 report noting that the tinnitus was constant for several years is, therefore, “contrary” or “inconsistent” with this December 2001 notation. R. at 481, 483. First, the Court notes that the December 2001 statement can be read two ways: the onset of tinnitus was
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in 1965 or the onset of constant tinnitus was in 1965. The Board chose
the latter reading and declared it inconsistent with the September 1999 statement because the December 2001 statement noted a much earlier year during which the tinnitus was constant. Even accepting this latter reading, the two statements are not inconsistent because one includes the other–a period going back to 1965 would include the period going back “for several years.” In any event, absent the Board having sought clarification from the VA examiner with regard to the examiner’s recording of the notation in his report, see Bowling, 15 Vet.App. at 12, the Board should have attempted to read the September 1999 and December 2001 statements, both attributed to the appellant, consistent with each other, if possible.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1016
LESTER O. ACKERMAN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, Lester O. Ackerman, through counsel seeks
review of
a March 28, 2008, decision of the Board of Veterans’ Appeals (Board) that
denied entitlement to an
initial compensable evaluation for service-connected tinnitusNext Hit prior to
June 10, 1999. Both parties
filed briefs. This appeal is timely, and the Court has jurisdiction over
the claim pursuant to
38 U.S.C. §§ 7252(a) and 7266(a). A single judge may conduct this review.
See Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below,
the Court will reverse the
Board’s determination in its March 28, 2008, decision that the evidence
preponderates against a
compensable rating forthe appellant’s service-connected Previous HittinnitusNext Hit prior to
June 10, 1999, and remand
to the Board to award a 10% disability rating for Previous HittinnitusNext Hit with an
effective date not later than
February 10, 1995, and to further determine whether an effective date
earlier than February 10,
1995, is appropriate.
I. FACTS
Mr. Ackerman served on active duty in the Marine Corps from October 1964
to October
1968. Record (R.) at 393-94. In June 1989, Mr. Ackerman submitted his
claim for service
connection for, in pertinent part, deafness. R. at 398-401. During a
February 1995 VA examination,

Mr.Ackermanstatedthat since service “hisleft ear rings,although
inconsistently,” andtheexaminer
diagnosed him with “intermittent high frequency Previous HittinnitusNext Hit.” R. at 135-36.
In a May 1995 rating
decision, the VA regional office (RO) granted entitlement to service
connection for Previous HittinnitusNext Hit “with
a 0 percent evaluation assigned from June 26, 1989, on the basis [that]
this was part of the claimed
hearing loss.” R. at 125-29. The rating decision relied on Mr. Ackerman’s
prior complaints of
“inconstant left ear ringing,” and the VA medical examiner’s clinical
diagnosis of “intermittent
Previous HittinnitusNext Hit,” as evidence against a finding of “persistent” Previous HittinnitusNext Hit that
would warrant a 10% disability
rating. See R. at 127.
In a November 1996 VA examination report to evaluate hearing loss, the
examiner recorded
hearing test results and diagnosed bilateral high frequency hearing loss.
R. at 81-83. The report also
stated under “subj[ective findings]” that Mr. Ackerman reported ”
difficulty hearing in noise or in
groups of people” and also noted that Mr. Ackerman had no history of
Previous HittinnitusNext Hit. R. at 81.
In a September 1999 letter to VA, Mr. Ackerman’s representative argued
that the June 1999
change in law regarding rating assignments for Previous HittinnitusNext Hit claims made Mr.
Ackerman “eligible for a
10% service connected rating.” R. at 63. During a September 1999 VA
examination, Mr. Ackerman
reported experiencing “constant [left ear] Previous HittinnitusNext Hit for several years –
‘moderate’.” R. at 62.
In an October 1999 decision, the RO granted entitlement to a 10%
disability rating for
“recurrent”tinnitusbasedonchangestoDiagnosticCode(DC)
6260thatsubstitutedtherequirement
of “recurrent” Previous HittinnitusNext Hit for “persistent” Previous HittinnitusNext Hit. R. at 37-40; see 38 C.F.
R. § 4.87, DC 6260 (1999
and 2009) (providing for a 10% rating for “[t]innitus, recurrent”). The 10%
disability rating was
made effective only from the date of the regulatory change, June 10, 1999.
See 64 Fed. Reg. 25,202,
25,206 (May 11, 1999) (effective date of June 10, 1999). Mr. Ackerman was
awarded a
noncompensable disability rating prior to June 10, 1999. R. at 37-40.
A December 2001 VA examination report for evaluating hearing loss stated
only the
following as to Previous HittinnitusNext Hit: Mr. Ackerman “reports constant, moderate, tonal
Previous HittinnitusNext Hit AS [(i.e., left
ear)], onset 1965.” R. at 10-12.
An August 2002 Board decision denied Mr. Ackerman entitlement to a
compensable
evaluation for Previous HittinnitusNext Hit prior to June 10, 1999. R. at 643. In September
2003, this Court granted the
Secretary’s motion to remand for compliance with the notice provisions of
the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, § 3a, 114 Stat. 2096,
codified in part at
2

38 U.S.C. § 5103a. R. at 621, 623-28. In January 2004, the Board issued
a decision vacating and
remanding Mr. Ackerman’s claim to the RO for compliance with the Court’s
order. R. at 601-04.
After providing Mr. Ackerman with a VCAA notice letter, the RO issued two
Supplemental
Statements of the Case, in March and July 2004. R. at 570-76, 586-91, 594-
99. A March 2005
Board decision denied Mr. Ackerman’s claim. R. at 547-61. In April 2007,
this Court issued a
decision vacating and remanding the portion of the March 2005 Board
decision that denied
entitlement to a compensable evaluation for Previous HittinnitusNext Hit prior to June 10,
1999. R. at 491-92. In March
2008, the Board issued the decision on appeal.
On appeal before the Court, Mr. Ackerman argues that the Board “failed to
provide an
adequate statement of reasons or bases for its decision, and failed to
consider all information and
evidence.” Appellant’s Brief (App. Br.) at 4. The appellant also argues
that the Board’s decision was
contrary to 38 U.S.C. § 5107(b), which requires that, “[w]hen there is an
approximate balance of
positive and negative evidence regarding any issue material to the
determination of a matter, the
Secretary shall give the benefit of the doubt to the claimant.” He
contends that given the totality of
evidence in his favor, the Board did not give him the benefit of the doubt.
Id. at 5-6. The Secretary
argues that the Board’s decision has a plausible basis in the record and
is supported by an adequate
statement of reasons or bases. Secretary’s Brief (Sec’y Br.) at 4.
II. ANALYSIS
This is the thirdtime the matter of acompensable ratingfortheappellant’s
service-connected
Previous HittinnitusNext Hit for the period prior to June 10, 1999, is on appeal to this Court.
The record on appeal
essentially consists of four VA examiners’ reports, each of which contains
a notation by the
examiner regarding the appellant’s Previous HittinnitusNext Hit: (1) the February 1995 report
that stated that “since
[service], his left ear rings, although inconstantly” and the examiner
diagnosed him with
“intermittent high frequency Previous HittinnitusNext Hit” of the left ear, R. at 135; (2) the
November 1996 report that
stated that there was no history of Previous HittinnitusNext Hit, R. at 81; (3) the September
1999 report noting that the
appellant reported “constant [left ear] Previous HittinnitusNext Hit for several years –
‘moderate,'” R. at 62; and (4) the
December 2001 report noting that the appellant “reports constant, moderate,
tonal Previous HittinnitusNext Hit, [left ear],
onset 1965,” R. at 10. In the most recent remand from this Court in April
2007, the Court
determined that the Board failed to discuss, among other things, the
notation in the September 1999
3

VA audiological evaluation that the appellant had “contant [left ear]
Previous HittinnitusNext Hit for several years –
‘moderate'”. R. at 492 (emphasis added).
In the decision on appeal, the Board discussed the September 1999 report,
and found that
“this report does not persuasively show constant Previous HittinnitusNext Hit in the pertinent
period prior to June 10,
1999.” R. at 480 (emphasis added). The Board determined that the September
1999 report was “less
persuasive than the contrary evidence of record.” R. at 483. The Board
stated:
If the veteran’s September 1999 account of persistent Previous HittinnitusNext Hit for ”
several years” is
understood to indicate that persistent Previous HittinnitusNext Hit existed prior to the
February 1995 and
[November] 1996 VA examination reports, then the veteran’s account of his
symptoms on those earlier VA examination reports contradict the September
1999
account. If, instead, the veteran’s September 1999 account of persistent
Previous HittinnitusNext Hit for
“several years” is understood to indicate a transition from intermittent
Previous HittinnitusNext Hit to
persistent Previous HittinnitusNext Hit at some point following the February 1995 and November
1996
examinations, then the September 1999 account appears to be contradicted
by his
subsequent December 2001 statement that his Previous HittinnitusNext Hit has been persistent
since
1965. Under either interpretation, the September 1999 VA examination
report’s
reference to constant or persistent Previous HittinnitusNext Hit is inconsistent with the
veteran’s other
statements and, thus, is accorded little probative value with regard to
determining
whether the veteran’s Previous HittinnitusNext Hit was persistent prior to June 10, 1999.
R. at 481 (emphasis added).
The Court holds that reversal is required of the Board’s determination
that the appellant did
not satisfy, prior to June 1999, the “persistent” criteria for a 10%
rating under the pre-1999 DC 6260.
The Board, in according little probative weight to the September 1999
report, noted that the report
did not “persuasively show constant Previous HittinnitusNext Hit.” R. at 480-81. The Board did
not explain the basis
for requiring the appellant to have “constant” Previous HittinnitusNext Hit and that it be
shown “persuasively” in order
to meet the pre-June 1999 regulatory requirement that the Previous HittinnitusNext Hit be ”
persistent.” See Smith v.
Nicholson, 19 Vet.App. 63, 72 (2005) (noting conclusion in Secretary’s
Supplementary Information
that an attribution of constancy was not well suited for rating a
condition that, “under certain
circumstances, comes and goes”) (quoting 59 Fed. Reg. 17, 295, 17, 297 (
Apr. 12, 1994)). Similarly,
the Board assigned little weight to the term “inconstant” attributed to
the appellant in the September
1995 report as far as meeting the “persistent” requirement. The Board did
not attempt to interpret
or define the term “persistent” in terms of the frequency required to
satisfy the rating criteria.
4

Significantly,
theNovember1996andDecember2001reportsdonotconstituteevidencethat
is contrary to the September 1999 report. The Board’s characterization of
the November 1996 report
is incorrect. The Board speculated that because the November 1996 report
did not refer to any
Previous HittinnitusNext Hit symptoms, the appellant was not experiencing any Previous HittinnitusNext Hit and
that the report “presents
suggestive evidence which does not corroborate the veteran’s current
contentions regarding
persistent Previous HittinnitusNext Hit, and the report is more consistent with the veteran’s
February 1995 description of
merely intermittent Previous HittinnitusNext Hit.” R. at 480. This is an inaccurate
description of the November 1996
examination report. The diagnosis section of the report is silent
regarding Previous HittinnitusNext Hit. This Court and
the Federal Circuit have held that the Board may not equate the absence of
evidence with substantive
evidence. See McLendon v. Nicholson, 20 Vet.App. 79, 85 (2006); see also
Buchanan v. Nicholson,
451 F.3d 1331, 1336 (Fed. Cir. 2006) (stating that the Board erred in
relying on a medical examiner
who “ultimately relies not on the objective medical evidence, but rather
the absence of such in
reaching her opinion that the onset of [the appellant’s] psychiatric
symptoms did not occur
during . . . service”); Bowling v. Principi, 15 Vet.App. 1, 8 (2001) (
holding that Board cannot rely
on the absence of evidence, and absent any affirmative evidence of
employability, the Board’s
speculation cannot form the basis for a denial of the veteran’s claim for
a rating of total disability
based on individual unemployability). The Board impermissibly treated the
silence as to symptoms
of Previous HittinnitusNext Hit as though it were an affirmative medical opinion that the
appellant had, at most,
intermittent Previous HittinnitusNext Hit.The Board impermissiblygaveprobativeweight
totheNovember1996medical
report based on the Board’s speculative view and negative inferences. In
addition, the Board failed
to recognize that the November 1996 report stated that there was no
history of Previous HittinnitusNext Hit when, in fact,
the evidence reflected that, at the time of this report, the appellant had
already been granted service
connection for Previous HittinnitusNext Hit.
The Board also provided an inaccurate description of the December 2001
report. This report
included a one-line statement written by the examiner noting that the
appellant “reports constant,
moderate, tonal Previous HittinnitusNext Hit, [left ear], onset 1965.” R. at 10. The Board
translated this statement as a
statement from the appellant that “his Previous HittinnitusNext Hit has been persistent since
1965,” and that the statement
attributed to him in the September 1999 report noting that the Previous HittinnitusNext Hit
was constant for several years
is, therefore, “contrary” or “inconsistent” with this December 2001
notation. R. at 481, 483. First,
the Court notes that the December 2001 statement can be read two ways: the
onset of Previous HittinnitusNext Hit was
5

in 1965 or the onset of constant Previous HittinnitusNext Hit was in 1965. The Board chose
the latter reading and
declared it inconsistent with the September 1999 statement because the
December 2001 statement
noted a much earlier year during which the Previous HittinnitusNext Hit was constant. Even
accepting this latter reading,
the two statements are not inconsistent because one includes the other–
a period going back to 1965
would include the period going back “for several years.” In any event,
absent the Board having
sought clarification from the VA examiner with regard to the examiner’s
recording of the notation
in his report, see Bowling, 15 Vet.App. at 12, the Board should have
attempted to read the
September 1999 and December 2001 statements, both attributed to the
appellant, consistent with
each other, if possible. Indeed, reading the December 2001 statement to
mean that the appellant’s
Previous HittinnitusNext Hit (rather than constant Previous HittinnitusNext Hit) had its onset in 1965 is
consistent with the medical history
description given in the September 1999 report. Under medical history, the
September 1999 report
stated that, after suffering a concussion with bleeding from the left ear
in late 1965 or early 1966,
the appellant was hospitalized for several days: “At that time, he had
difficulty hearing from his left
ear. He also developed Previous HittinnitusNext Hit in his left ear. He was placed back on
active duty, without any
sequela. He has continued to manifest some hearing loss on the left ear
with a slight worsening
which he feels is due to his age. He also has significant Previous HittinnitusNext Hit in the
left ear.” R. at 56.
With respect to the 1995 examination report, it includes the examiner’s
statement that the
appellant reported that “his left ear rings, although inconstantly,” and
the examiner’s impression was
of “intermittent high frequency Previous HittinnitusNext Hit.” R. at 135. Although the Board
incorrectly stated that this
report stated that “his left ear rings, although inconsistently,” R. at
479 (emphasis added), the Board
correctly noted that the examiner diagnosed the appellant with ”
intermittent high frequency Previous HittinnitusNext Hit
A.S. [(left ear)].” The appellant argues that the use of the word ”
intermittent” in the 1995
examination report should not be considered evidence of the appellant’s
condition at that time
because the appellant could have actually meant “persistent.” App. Br. at
5. He contends that
“[u]nder the current definition for persistent a lay person could have
used the word ‘intermittent’ to
describe the same condition.” Id. The Court notes that it was the examiner,
not the appellant, who
diagnosedthe appellant’s conditionas”intermittent high frequency Previous HittinnitusNext Hit”
based on theappellant’s
then-contemporaneous report of having “inconstant” ringing. R. at 135-36.
The Court holds that the Board provided an inadequate statement of reasons
or bases for
relying on the 1995 report in determining that a 10% rating for Previous HittinnitusNext Hit
was not warranted for the
6

period prior to February 1995. As noted above, the Board failed to
explain how the term
“persistent”, on the one hand, and “inconstant” and “intermittent,” on the
other hand, are indeed
different for purposes of the award of benefits under the pre-June 1999 DC
6260. Accordingly, the
Court cannot carry out effective judicial review of the Board’s denial of
a compensable rating for
the appellant’s Previous HittinnitusNext Hit prior to February 1995. Therefore, the Board’s
decision with regard to
Previous HittinnitusNext Hit for the time frame from June 1989, the date he filed his claim,
until February 1995, will be
vacated and the matter remanded for readjudication. See 38 U.S.C. § 7104(
a), (d)(1); Allday v.
Brown, 7 Vet.App 517, 527 (1995).
Because there is no evidence contrary to the September 1999 report, which
established that
the appellant had “constant” Previous HittinnitusNext Hit “for several years” prior to
September 1999, the Board’s denial
of a 10% rating prior to June 10, 1999, will be reversed, and the Board
will be directed to assign a
10% disability rating with an effective date not later than February 10,
1995. See Rose v. West,
11 Vet.App. 169, 172 (1998) (reversing Board decision and remanding for
Board to award service
connection where no evidence rebutting medical evidence of nexus existed);
see also Traut v.
Brown, 6 Vet.App. 495, 500 (1994) (where medical evidence of record
addresses all elements of
service connection, is uncontradicted by competent evidence, and
definitively supports appellant’s
position, reversal rather than remand is appropriate). It is
uncontroverted that the appellant had
constant, moderate Previous HittinnitusNext Hit for several years prior to September 1999. The
preponderance of the
evidence in this record does not weigh against his claim; indeed, in the
absence of any negative
evidence, it weighs in his favor. Previous HitTinnitusNext Hit reported as “constant”
satisfies the lower threshold
regulatory requirement that Previous HittinnitusNext Hit be “persistent.” Smith, 19 Vet.App.
at 73 (“‘The word
“persistent” suggests a meaning of [“]constant[“], and we propose to
replace it with “recurrent,”
meaning that the Previous HittinnitusNext Hit might not always be present, but that it does
return at regular intervals.'”)
(quoting 59 Fed. Reg. at 17,297 (Secretary’s 1994 Supplemental Information
)).
Upon review of the record on appeal as a whole, the Board’s finding that
there is evidence
contrary to the September 1999 examination report is not plausible and the
Court has a firm
conviction that it is wrong, and it will be reversed. See Gilbert v.
Derwinski, 1 Vet.App. 49, 52
(1990). This Court may reverse a Board finding of fact as “clearly
erroneous” when, reviewing the
evidence in its entirety, there is no plausible basis for the Board’s
decision and the Court possesses
a “‘definite and firm conviction that a mistake has been committed.'”
Hersey v. Derwinski,
7

2 Vet.App. 91, 95 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.
S. 364, 395 (1948));
see 38 U.S.C. § 7261(a)(4) (providing that the Court may “set aside or
reverse” a finding of material
fact adverse to the claimant if the finding is “clearly erroneous”).
Reversal may be appropriate even
if the record contains “some controverting evidence (that is, evidence
that is not in the appellant’s
favor).” Padgett v. Nicholson, 19 Vet.App. 133, 147 (2004) (en banc) (
unanimously rejecting
proposition that “a Board finding cannot be clearly erroneous unless the
evidence against that
finding is uncontroverted”) (opinion issued nunc pro tunc to November 2,
2004, sub nom. Padgett
v. Peake, 22 Vet.App. 159 (2008)).
III. CONCLUSION
Based on the foregoing analysis and a review of the record on appeal, the
Board’s
determinationinitsMarch28,2008,decisionthattheevidencepreponderates
againstacompensable
rating for the appellant’s service-connected Previous HittinnitusNext Hit prior to June 10,
1999, is REVERSED and the
matter is REMANDED to the Board to award a 10% disability rating for
Previous HittinnitusNext Document with an effective
date not later than February 10, 1995, and to determine whether an
effective date earlier than
February 10, 1995, is appropriate and for further action consistent with
this decision. The matter
is to be provided expeditious treatment on remand. See 38 U.S.C. § 7112;
see also Kay v. Principi,
16 Vet.App. 529, 534 (2002) (appellant may present additional evidence and
argument in support
of matters remanded, and the Board must consider any evidence and argument
so presented).
DATED: September 29, 2009
Copies to:
Joseph Werner, Esq.
VA General Counsel (027)
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