Veteranclaims’s Blog

March 8, 2020

Training Letter 10-02 has been rescinded

Filed under: Uncategorized — veteranclaims @ 8:45 pm

Training Letter 10-02 has been recended by VA and incorporated into M21

Brief Arguments Regarding Delayed Tinnitus & Training Letter 10-02, posted today;

MEMORANDUM DECISION in Messinger v. Wilkie, No. 19-0699

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

Appellant’s brief:

“In the face of several non-precedential decisions, see App. Br. at 13 n.2, the Secretary relies on one to establish that Training Letter 10-02 has been rescinded and the M21-1 is not binding on the Board, see Sec. Br at 21 (citing Vet. App. No. 17-1080). Yet, Appellant does not dispute these legal propositions. The Secretary appears to overlook that even in Mason v. Wilkie, the Court recognized the possibility of obtaining examinations that may be relevant to a theory of delayed onset tinnitus in the face of such legal propositions.1 See 2018 U.S. App. Vet. Claims LEXIS 647, *10 (May 14, 2018).”

Secretary’s Brief:

“Appellant next cites to “VA Training Letter 10-02” for the proposition that delayed onset tinnitus “must be considered during the adjudication of any claim for benefits for tinnitus.” App. Br. at 12. This argument is unpersuasive for several reasons. First, Appellant does not consider that Training Letter 10-02 has since been rescinded due to its incorporation into the Veterans Benefit Administration (VBA) Adjudication Procedures Manual (M21-1), pt.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. The most updated version of the M21-1 does not include any direction that the possibility of delayed onset tinnitus be considered.1 To the contrary, the M21-1 states: “In Noise and Military Service: Implications for Hearing Loss and Tinnitus (2006), the National Academy of Sciences reported that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is

1 The relevant portion of the M21-1 is located, in a continuously updated form, at https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014197/M21-1,-Part-III,-Subpart-iv,-Chapter-4,-Section-D—Conditions-of-the-Auditory-System

(Last visited October 7, 2019).

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extremely unlikely.” M21-1, pt. III, subpt. iv, ch. 4, § D.1.d. (emphasis added). Nowhere is there a discussion, or reference, to the possibility of delayed onset tinnitus.

Second, even if the M21-1 contained a reference to the theory of delayed onset tinnitus, the Board was under no obligation to address it unless Appellant or the record reasonably raised the issue while the case was before the Agency. Overton v. Wilkie, 30 Vet.App. 257, 264 (2018). In this instance, neither Appellant nor the evidence of record reasonably raised the possibility that his current tinnitus is in the delayed onset category due to his in-service noise exposure.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 13-2583
TERRANCE P. RASHID, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENBERG, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
GREENBERG, Judge: The appellant, Terrance P. Rashid, appeals through counsel that part
of a May 6, 2013, Board of Veterans’ Appeals (Board) decision denying him entitlement to benefits
based on service connection for tinnitus.1 Record (R.) at 3-17. The appellant argues that the Board
(1) relied on an inadequate medical examination; (2) failed to provide adequate reasons or bases for
its decision; and (3) erroneously failed to remand his tinnitus claim as being inextricably intertwined
with his pending hearing loss claim. Appellant’s Brief at 1. Review by a single judge is authorized
by 38 U.S.C. § 7254(b) and is appropriate here. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26
(1990). As noted by Justice Alito in the Supreme Court’s decision in Henderson v. Shinseki, the
Court’s scope of review in this appeal is “similar to that of an Article III court reviewing agency
action under the Administrative Procedure Act, 5 U.S.C. § 706.” 131 S. Ct. 1197, 1201 n.2 (2011)
(citing 38 U.S.C. § 7261). For the following reason, the Court will vacate that part of the May 2013
decision on appeal and remand the matter of tinnitus for readjudication.
1 The Board also remanded a claim for entitlement to benefits based on service connection for an acquired
psychiatric disability, to include post-traumatic stress disorder. Record at 13-16. The Court lacks jurisdiction over this
claim. See Hampton v. Gober, 10 Vet.App. 481, 482 (1997).
The appellant served on active duty with the U.S. Air Force from August 1963 to August
R. at 406. His service included a year as a site development specialist (AFSC 55350)–an
engineer–at U-Tapao Air Base in Thailand. R. at 404. The appellant has stated that “[w]hile on
active duty in the Air Force I was exposed to large amounts of acoustical trauma . . . and have had
tinnitus since I was on active duty.” R. at 383. He has also stated that he did not use hearing
protection during his in-service noise exposure. R. at 298. The appellant’s hearing was examined
when he entered service and again upon separation. R. at 412-20.
The appellant underwent a VA audiological examination in May 2009. R. at 343-44. The
examiner reviewed the appellant’s claims file and noted that “hearing tests at enlistment and at
separation indicated hearing within [normal] limits in both ears.” R. at 343-44. The examiner noted
the appellant’s statement “that he was exposed to loud sounds” during service, including three
months on a flight line and exposure to artillery fire during a month in Vietnam. R. at 343. The
examiner also noted that the appellant “report[ed] occupational noise exposure as an engineer at a
fertilizer plant” where he worked for 30 years after his military service. R. at 343. However, the
appellant explained that the noise exposure was minimal, because he was usually in an office and
only “spent about one hour each day on the manufacturing floor,” and even then that exposure was
“with the use of hearing protection.” R. at 343. The examiner also reported that the appellant’s
“[r]ecreational noise exposure includes hunting, limited use of a motorcycle.” R. at 343. Finally,
the examiner recorded that the appellant “reports intermittent tinnitus in both ears since serving in
the military.” R. at 343.
The examiner diagnosed the appellant with intermittent tinnitus in both ears. R. at 344. She
concluded that “[g]iven that the veteran’s hearing was within normal limits in both ears on his
separation audiogram, and given his 30 year history of occupational noise exposure, it is less likely
as not that the veteran’s current tinnitus is due to his military noise exposure.” R. at 344.
On May 6, 2013, the Board issued the decision on appeal, relying on the May 2009
examination to deny service 2 connection for tinnitus. R. at 13. The Board found that the May 2009
VA audiological opinion was the “only competent and probative medical opinion on the question”
2 The Board mistakenly refers to the May 2009 examination as being given in August 2009 instead. See R. at 11.
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of whether the appellant’s tinnitus was service related. R. at 11. The Board noted that the examiner
had “determined that 30 years of such occupational noise exposure was a more likely etiology than
noise exposure during the Veteran’s period of service more than 40 years prior” and accordingly
denied the claim. R. at 11-12. This appeal ensued.
The Court concludes that the Board provided an inadequate statement of reasons or bases for
its reliance on the May 2009 examination. See Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990)
(the Board’s statement of reasons or bases “must be adequate to enable a claimant to understand the
precise basis for the Board’s decisions, as well as to facilitate review of this Court”). The examiner’s
conclusion that the appellant’s current tinnitus was caused by post-service occupational noise
exposure is unsupported by any rationale. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304
(2008) (concluding that a medical opinion is not entitled to any weight “if it contains only data and
conclusions”). This is especially problematic because the appellant has stated that, whereas he
always used hearing protection post-service when exposed to noise on the manufacturing floor, he
did not use hearing protection during his in-service noise exposure. R. at 298. It is therefore unclear
how the examiner reached her conclusion; as a result, the examination lacks sufficient detail to fully
inform the Board of the basis for the examiner’s opinion. See Stefl v. Nicholson, 21 Vet.App. 102,
123 (2007) (a medical examination is adequate “where it is based upon consideration of the veteran’s
prior medical history and examinations and also describes the disability, if any, in sufficient detail
so that the Board’s evaluation of the claimed disability will be a fully informed one.'”) (quoting
Ardison v. Brown, 6 Vet.App. 405, 407 (1994)). Remand is required so that the Board can provide
an explanation for relying on the May 2009 opinion or obtain an examination that provides an
adequate rationale.
Because the Court is remanding, it will not address the appellant’s remaining arguments. See
Dunn v. West, 11 Vet.App. 462, 467 (1998). On remand, the Board must make all necessary credibility determinations as to the appellant’s lay statements about tinnitus symptoms and noise exposure, and the Board must also take into account that tinnitus can manifest years after an underlying cause. See VA Training Letter 10-028 at 5 (stating that “[t]innitus can be triggered months or years after an underlying cause (such as hearing loss) occurs,” and that “delayed-onset tinnitus must be considered”). As well, on remand, the appellant may present, and the Board must
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consider, any additional evidence and arguments. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
This matter is to be provided expeditious treatment on remand. See 38 U.S.C. § 7112; see also
Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410, n., 1 L. Ed. 436 (1792) (“[M]any unfortunate and
meritorious [veterans], whom Congress have justly thought proper objects of immediate relief, may
suffer great distress, even by a short delay, and may be utterly ruined, by a long one.”).
For the foregoing reasons, the appealed part of the May 6, 2013, Board decision is
VACATED, and the matter is REMANDED for readjudication.
DATED: September 30, 2014
Copies to:
Amy B. Kretkowski, Esq.
VA General Counsel (027)
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