Veteranclaims’s Blog

September 27, 2018

Training Letter 10-02 has since been rescinded due to its incorporation into the Veterans Benefit Administration (VBA) Adjudication Procedures Manual (M21-1), pt. III, subpt. iv, ch. 4, § D.1-3

Excerpt from decision below:

“However, the examiners and the Board ignored the “more than” portion of his statement. Id. Stating in 2010 that he experienced tinnitus for “more than 15 years” did not necessarily put its onset in 1995, but could indicate an earlier onset, including during his service. Id. (emphasis added.)
Mr. Navaira’s statements regarding the onset of his condition being during his service are also bolstered by the statements of his wife and daughter, both of whom indicated that he had experienced tinnitus for many years. His wife noted that he reported being annoyed by ringing in his ears right after returning from Vietnam. Similarly, his daughter, who was born in 1968, reported him complaining of ringing in his ears for as long as she could remember. For these reasons, the Court finds that the Board erred by rejecting Mr. Navaira’s lay statements as inconsistent and by relying on VA opinions that misconstrued his statement.
The Court also notes that, in March 2010, VA issued Training Letter 10-02, Adjudicating Claims for Hearing Loss and/or Tinnitus, which states that the “onset [of tinnitus]
may be gradual or sudden, and individuals are often unable to identify when tinnitus began.
Tinnitus can be triggered months or years after an underlying cause (such as hearing loss) occurs. Therefore, delayed-onset tinnitus must be considered.” VA Training Letter 10-02 at 5 (March 18,
6
2010). Accordingly, while Mr. Navaira has asserted that his tinnitus began during service, the examiners’ conclusions that his tinnitus could not have had its onset many years after service still directly contradicts VA’s own adjudicatory guidance that, not only is delayed-onset tinnitus a possibility, but also that the possibility must be considered during the adjudication of any claim for benefits for tinnitus.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 17-2683
ROMAN NAVAIRA, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

PIETSCH, Judge: Roman Navaira appeals through counsel a July 14, 2017, Board of
Veterans’ Appeals (Board) decision that denied entitlement to VA benefits for bilateral hearing loss and tinnitus and dismissed an appeal of VA benefits for hypertension. Mr. Navaira does not challenge the Board’s dismissal of his appeal for benefits for hypertension, and the Court deems any appeal of that matter abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997)(arguments not raised before the Court are considered abandoned on appeal).
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 as the
issue is of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the
part of the July 14, 2017, Board decision that denied entitlement to VA benefits for tinnitus and
hearing loss and remand the matters for readjudication consistent with this decision.
2
I. FACTS
Mr. Navaira served on active duty in the U.S. Army from February 1967 to January 1969,
including service in Vietnam. After finishing basic training, Mr. Navaira was sent to Radio
Operator School at Fort Dix, New Jersey. This course was approximately 10 weeks long and
involved wearing headsets for about six hours a day. During Mr. Navaira’s ninth week, he woke
up to a high-pitched ringing in his ears. He went to the emergency room, where he stayed
overnight after being told that his ear drum almost burst. He was, thereafter, removed from Radio
Operator School and enrolled in Transportation School, where he operated 18-wheelers, buses,
and dump trucks, among other vehicles. His separation examination reflects that he reported
having ear, nose, or throat problems, though his hearing was within normal range.
In April 2009, Mr. Navaira filed a claim for VA benefits for hearing loss and tinnitus,
among other conditions. He underwent a VA audiological examination in March 2010, at which
the examiner noted that he was exposed to noise during service with no significant noise
exposure after service. At the examination, Mr. Navaira reported ringing in his ears for more than
15 years. The examiner opined that Mr. Navaira’s hearing loss and tinnitus were less likely than
not caused by, or a result of, noise exposure while he was serving in the military. The examiner
explained that Mr. Navaira’s service medical records did not show a significant threshold shift in
his hearing during service. The examiner also stated that there was no evidence of tinnitus during
service or for many years after service, reiterating Mr. Navaira’s reports of having ringing in his
ears for more than 15 years.
At a May 2013 hearing before the Board, Mr. Navaira testified that, while he was
stationed in Vietnam, a fellow serviceman accidently pulled a grenade pin while undoing his belt
causing the grenade to explode about 15 yards from where Mr. Navaira was standing. He also
recounted his experience at Radio Operator School. He stated that ever since he returned from
Vietnam, he has had ringing in his ears. He also stated that, within a year of returning from
Vietnam, he underwent hearing tests as part of his employment with the civil service, which
demonstrated hearing loss. In June 2013, Mr. Navaira’s wife and daughter both submitted
statements indicating that he has had ringing in for his ears for 30 to 40 years.
3
In April 2014, the Board remanded Mr. Navaira’s claims to seek his employment records
and to obtain an addendum opinion because the March 2010 VA examiner did not review his
private medical records. In a September 2014 addendum opinion, the VA examiner noted that
Mr. Navaira’s hearing was normal at the time he separated from service. The examiner stated that
“[o]nce military noise exposure is removed[,] hearing would not be expected to get worse.” R. at
355. Thus, the examiner opined that Mr. Navaira’s current hearing loss was not caused or
aggravated by his military noise exposure. Regarding tinnitus, the examiner stated that Mr.
Navaira had normal hearing bilaterally at the time he left military service and that the onset of his
condition was many years after service. The examiner also stated that there were no objective
factors to attribute Mr. Navaira’s tinnitus to during service.
The Board issued the decision on appeal on July 14, 2017, continuing to deny Mr.
Navaira VA benefits for bilateral hearing loss and tinnitus. The Board acknowledged that Mr.
Navaira was exposed to hazardous levels of noise during service, but found that his hearing loss
and tinnitus did not begin during service and, thus, were not related to service. The Board stated
that Mr. Navaira’s accounts of when his tinnitus began were inconsistent and therefore not
probative.
On appeal, Mr. Navaira argues that the Board erred by relying on the March 2010 and
September 2014 VA medical opinions and finding that VA satisfied its duty to assist with respect
to his tinnitus and hearing loss claims. He argues that the examiners and the Board failed to
consider the theory of delayed-onset tinnitus, instead determining that his current tinnitus was not
related to service because it did not begin during service. He also argues that the examiners and
the Board incorrectly construed his statements regarding the onset of his tinnitus. Mr. Navaira
further argues that, although the Board conceded that he was exposed to hazardous noise during
service, the examiners relied only on the fact that his hearing loss was normal at separation from
service. For these reasons, he also argues that the Board’s reasons or bases were inadequate.
The Secretary argues that the Board properly denied entitlement to VA benefits for
tinnitus and hearing loss. He argues that throughout his appeal, Mr. Navaira has argued that his
tinnitus began during service and that he only now argues that it had a delayed onset. Thus, the
Secretary argues that the Board did not err in failing to consider that theory. The Secretary also
4
argues that the Board did not err in discounting Mr. Navaira’s lay statements as inconsistent and
finding that his wife and daughter’s statements lacked probative value. The Secretary contends
that the examiners did not render inadequate opinions by relying on normal audiometric results at
separation from service.

II. ANALYSIS
“[O]nce the Secretary undertakes the effort to provide an examination [or opinion] when
developing a service-connection claim, . . . he must provide an adequate one.” Barr v. Nicholson,
21 Vet.App. 303, 311 (2007). A medical examination or opinion is adequate “where it is based
upon consideration of the veteran’s prior medical history and examinations” and “describes the
disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability will
be a fully informed one.'” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison
v. Brown, 6 Vet.App. 405, 407 (1994)).
“Whether a medical opinion is adequate is a finding of fact that the Court reviews under
the ‘clearly erroneous’ standard.” D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (per curiam). A
finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, “is left
with the definite and firm conviction that a mistake has been committed.” United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). The
Board must provide a statement of the reasons or bases for its determination “adequate to enable
a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review
in this Court.” Allday v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert,
1 Vet.App. at 56-57.
In discussing the March 2010 VA examination, the Board noted that, at that examination,
Mr. Navaria reported experiencing tinnitus for more than 15 years, which the Board indicated
was “approximately 25 years after service.” Record (R.) at 9. The Board also reiterated the
examiner’s finding that Mr. Navaira’s hearing loss and tinnitus were not related to service because
they did not begin until many years after service. Regarding the September 2014 VA medical
opinion, the Board noted that the examiner stated that Mr. Navaira did not have a permanent
positive threshold shift greater than normal measurement variability at any frequency in either ear
5
during service. The Board relied on the examiner’s opinion that Mr. Navaira’s bilateral hearing
loss was less likely than not caused by his service because his bilateral hearing was normal at
separation and once military noise exposure was removed, his hearing would not be expected to
worsen. The Board also noted the examiner’s opinion that military noise exposure less likely as
not caused his tinnitus as there were no objective factors to which the etiology of tinnitus could
be attributed and his reported onset of tinnitus was approximately 25 years after service.
The Court agrees with Mr. Navaria that the Board erred by relying on the March 2010 and
September 2014 VA medical opinions and provided inadequate reasons or bases for denying his
claims. Regarding tinnitus, both examiners considered Mr. Navaira’s statement that he had
experienced tinnitus for “more than 15 years” as a statement that he had experienced tinnitus for
15 years, putting the condition’s onset approximately 25 years after service. R. at 768. Further,
the Board discounted Mr. Navaira’s statements regarding the onset of his condition, finding his
statement to the March 2010 examiner that he had experienced tinnitus for more than 15 years as
inconsistent with his statements that he had the condition since service.

However, the examiners and the Board ignored the “more than” portion of his statement. Id. Stating in 2010 that he experienced tinnitus for “more than 15 years” did not necessarily put its onset in 1995, but could indicate an earlier onset, including during his service. Id. (emphasis added.)
Mr. Navaira’s statements regarding the onset of his condition being during his service are also bolstered by the statements of his wife and daughter, both of whom indicated that he had experienced tinnitus for many years. His wife noted that he reported being annoyed by ringing in his ears right after returning from Vietnam. Similarly, his daughter, who was born in 1968, reported him complaining of ringing in his ears for as long as she could remember. For these reasons, the Court finds that the Board erred by rejecting Mr. Navaira’s lay statements as inconsistent and by relying on VA opinions that misconstrued his statement.
The Court also notes that, in March 2010, VA issued Training Letter 10-02, Adjudicating Claims for Hearing Loss and/or Tinnitus, which states that the “onset [of tinnitus]
may be gradual or sudden, and individuals are often unable to identify when tinnitus began.
Tinnitus can be triggered months or years after an underlying cause (such as hearing loss) occurs. Therefore, delayed-onset tinnitus must be considered.” VA Training Letter 10-02 at 5 (March 18,
6
2010). Accordingly, while Mr. Navaira has asserted that his tinnitus began during service, the examiners’ conclusions that his tinnitus could not have had its onset many years after service still directly contradicts VA’s own adjudicatory guidance that, not only is delayed-onset tinnitus a possibility, but also that the possibility must be considered during the adjudication of any claim for benefits for tinnitus. Here, the Board did not explain why it accepted the March 2010 and
September 2014 VA examinations that did not consider the possibility of delayed onset tinnitus
in compliance with VA’s published guidance. See 38 U.S.C. § 7104(d)(1); Nieves-Rodriguez v.
Peake, 22 Vet.App. 295, 301 (2008); Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994).
Regarding hearing loss, the Court again agrees with Mr. Navaira that the Board erred in
relying on inadequate VA medical opinions where the examiners required that Mr. Navaira’s
hearing loss be shown during service without providing sufficient rationale. This Court has held
that, when audiometric test results at separation from service “do not meet the regulatory
requirements for establishing a ‘disability’ at that time, [a claimant] may nevertheless establish
service connection for a current hearing disability by submitting evidence that the current
disability is causally related to service.” Hensley v. Brown, 5 Vet.App. 155, 160 (1993).
Here, the examiners failed to explain why Mr. Navaira’s hearing loss had to have
manifested upon separation for there to be a nexus between his current disability and service.
Although the September 2014 examiner stated that once military noise exposure was removed,
Mr. Navaira’s hearing would not be expected to worsen, that ignores the fact that the law
recognizes that hearing loss can develop many years after noise exposure. See Godfrey v.
Derwinski, 2 Vet.App. 352, 356 (1992) (concluding that, where there was no evidence of the
veteran’s hearing disability until many years after separation from service, “[i]f evidence should
sufficiently demonstrate a medical relationship between the veteran’s in-service exposure to loud
noise and his current disability, it would follow that the veteran incurred an injury in service; the
requirements of [38 U.S.C. § 1110] would be satisfied.”). The Board again provided no
discussion of this issue. Accordingly, the Court finds that the Board erred by relying on
inadequate medical opinions and failed to provide adequate reasons or bases for its decision.
Because the Court finds remand is warranted, the Court will decline to address Mr.
Navaira’s other arguments at this time. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (noting
7
that the factual and legal context may change following a remand to the Board and explaining
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, Mr. Navaira is free to submit additional evidence and
argument on the remanded matter, and the Board is required to consider any such relevant
evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v.
West, 12 Vet.App. 369, 372 (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).
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court,
and the parties’ pleadings, that part of the July 14, 2017, Board decision that denied entitlement
to VA benefits for hearing loss and tinnitus is VACATED and the matters are REMANDED for
readjudication consistent with this decision.
DATED: September 25, 2018
Copies to:
Tessa S. Stillings, Esq.
VA General Counsel (027)

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