Veteranclaims’s Blog

March 13, 2020

Single Judge Application; Training Letter 10-02 has been rescinded; M21-1 is not binding on the Board; obtaining examinations to a theory of delayed onset tinnitus; Mason v Wilkie, 2018 U.S. App. Vet. Claims LEXIS 647, *10 (May 14, 2018);

Filed under: Uncategorized — Tags: — veteranclaims @ 9:31 pm

from briefs:

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“In the face of several non-precedential decisions, see App.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 at 13 n.2, the Secretary relies on one to establish that Training Letter 10-02 has been rescinded and the M21-1 is not binding on the Board, see Sec.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 First, Appellant does not consider that Training Letter 10-02 has since been rescinded due to its incorporation into the Veterans Benefit Administration (VBA) Adjudication Procedures Manual (M21-1), pt.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. 19-0699
RODNEY L. MESSINGER, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

FALVEY, Judge: Air Force veteran Rodney L. Messinger appeals a November 27, 2018,
Board of Veterans’ Appeals decision that denied benefits for left ear hearing loss, tinnitus, and degenerative joint disease (DJD).1 This appeal is timely, the Court has jurisdiction to review the Board’s decision, and single-judge disposition is appropriate. See 38 U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
We are asked to decide whether the Board inadequately addressed the medical evidence
regarding hearing loss, relied on an inadequate tinnitus examination, and did not explain why it did not obtain a medical examination to address DJD. Because the Board inadequately addressed these matters, we will set aside that part of its decision that addressed left ear hearing loss, tinnitus, and DJD, and remand it for further proceedings.
1 The Board also remanded claims based on cardiomegaly, a skin condition, and an acquired psychiatric disorder. We lack authority to address these nonfinal matters. See 38 U.S.C. § 7252(a) (Court has “exclusive jurisdiction” to review final Board decisions); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (a Board remand “does not represent a final decision over which this Court has jurisdiction”). Additionally, the Board dismissed claims based on neck pain, allergic rhinitis, a lung condition, and bradycardia. However, Mr. Messinger raises no contentions of error with respect to those parts of the Board’s decision, and the Court will not address them on appeal. See Pederson v. McDonald, 27 Vet.App. 276, 283 (2015) (en banc) (“[T]his Court, like other courts, will generally decline to exercise its authority to address an issue not raised by an appellant in his or her opening brief.”).
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I. ANALYSIS
The duty to assist includes the duty to conduct an adequate medical examination. 38 U.S.C. § 5103A; Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007). The Secretary must provide a medical examination when the record shows (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the
Secretary to make a decision on the claim. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006). When deciding whether an examination is necessary, the Secretary shall consider the evidence of record, “taking into consideration all information and lay or medical evidence (including statements of the claimant).” 38 U.S.C. § 5103A(d)(2).
When VA seeks a medical examination, it should ensure that the examination is adequate.
Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A VA medical examination or opinion is adequate
“where it is based upon consideration of the veteran’s prior medical history and examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007), and “describes the disability . . . in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one,'” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)). To fully inform the Board, “a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008). The examiner’s rationale allows the Board to weigh the examiner’s opinion against
conflicting evidence. Stefl, 21 Vet.App. at 123.
The Board is required to support its decision with a written statement of its reasons or bases that is understandable by the claimant and facilitates review by this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). The statement of reasons or bases must explain the Board’s reasons for discounting favorable evidence, Thompson v. Gober, 14 Vet.App. 187, 188 (2000), discuss all issues raised by the claimant or the evidence of record, Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1335 (Fed. Cir. 2009), and discuss all provisions of law and regulation where they are made
3
“potentially applicable through the assertions and issues raised in the record,” Schafrath v.
Derwinski, 1 Vet.App. 589, 592 (1991).
Here, the Board discussion of the medical evidence is inadequate for each of the disabilities
on appeal. Regarding left ear hearing loss, the Board found that “the preponderance of the evidence
is against a finding that the veteran has left ear hearing loss.” Record (R.) at 11. However, the
Board failed to note that VA’s computerized list of his disabilities included “bilateral” hearing loss.
R. at 789. Additionally, although the Board relied in part on unfavorable 2014 and 2015 VA
examinations, the Board failed to note that the audiological threshold shifts recorded in those
examinations are the same shifts that a 2013 examiner used to diagnose right ear hearing loss. See
R. at 450 (2015 examination); R. at 523 (2014 examination); R. at 1695 (2013 examination). When
assessing the evidence of hearing loss, the Board should have discussed this favorable evidence
and better explained how, given the examiners’ similar rationales, it found that the veteran did not
have left ear hearing loss. See Thompson, 14 Vet.App. at 188; Allday, 7 Vet.App. at 527.
At minimum, the evidence suggests that the veteran’s hearing may have worsened while
his claim remained pending. Because the issue before the Board was whether the veteran had a
qualifying disability under 38 C.F.R. § 3.385 at any time during the period on appeal, the Board
was obliged to consider the evidence of worsening. It could mean that the veteran now has a
qualifying disability when he didn’t earlier. In any case, the Board’s failure to explore this
possibility frustrates our review. See Allday, 7 Vet.App. at 527.
As for tinnitus, the veteran argued that service connection could be found even though his
symptoms did not arise for many years following service. But the Board ignored the veteran’s
delayed onset theory of service connection and did not specifically explain why service connection
for tinnitus could not be established based on delayed onset. The Board’s statement that “all the
evidence must be considered, including the [v]eteran’s lay statements” is a boilerplate recitation of
the law. It does not, as the Secretary argues, show that the Board actually addressed the veteran’s
lay statements, particularly when one of those lay statements is the veteran’s 2013 contention that
his tinnitus symptoms arose 30 years after service. R. at 12. Even if we accepted the premise of
the Secretary’s argument, this single sentence from the Board does not facilitate judicial review.
See Allday, 7 Vet.App. at 527.
Nor did the Board adequately address whether tinnitus could be related to his serviceconnected
right ear hearing loss. Although the Board asked the 2013 medical examiner to answer
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this question, the examiner did not respond, and the Board did not further address this in its
decision. See id. The Board’s statement of reasons or bases should have included a discussion of
these issues. See Robinson, 21 Vet.App. at 552; Allday, 7 Vet.App. at 527.
The Board also should have addressed whether the veteran’s DJD warranted a medical
examination. See McLendon, 20 Vet.App. at 81. The Board did not discuss section 5103A(d) or
explain why it found that a DJD examination was not warranted. However, the potential
applicability of that statute was raised by the record, which includes (1) the Board’s finding that
the veteran has DJD in his hands and knees, R. at 8; (2) the veteran’s statements that his mechanic
duties during service caused strain and overuse of his hands and knees, R. at 127, 1596; (3) the
supposition that the veteran’s continually straining and hitting his hands while working on aircraft
caused repetitive joint trauma that led to DJD, R. at 127; and (4) the Board’s findings that the
question of nexus required specialized medical knowledge that the record lacked, R. at 8. See
McLendon, 20 Vet.App. at 83 (suggesting that a medical examination would be required where a
veteran paratrooper asserts that repetitive jumps during service relate to his current arthritis). The
Board’s statement of reasons or bases should have discussed this reasonably raised statute. See
Schafrath, 1 Vet.App. at 592.
The Board’s statement of reasons or bases is rendered inadequate by its failure to address
the favorable evidence, reference all issues raised by the claimant and the evidence of record, and
discuss the potentially relevant section 5103A(d). See Robinson, 21 Vet.App. at 552; Thompson,
14 Vet.App. at 188; Schafrath, 1 Vet.App. at 592. Remand is warranted for the Board to provide
an adequate statement of reasons or bases and make relevant findings of fact in the first instance.
See Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate “where the Board has . . .
failed to provide an adequate statement of reasons or bases”); see also Hensley v. West, 212 F.3d
1255, 1263 (Fed. Cir. 2000) (“appellate tribunals are not appropriate fora for initial fact finding”).
To the extent that the appellant argues in favor of reversal, remand is the appropriate remedy when
the Board has provided an inadequate statement of reasons or bases and failed to address the
favorable evidence in the first instance. Tucker, 11 Vet.App. at 374.
Because the claim is being remanded, the Court need not address Mr. Messinger’s
additional arguments that would result in no broader remedy than a remand. See Mahl v. Principi,
15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need
to analyze and discuss all the other claimed errors that would result in a remedy no broader than a
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remand.”). In pursuing his claim on remand, the veteran will be free to submit additional argument
and evidence as to the remanded matter, and he has 90 days to do so from the date of the
postremand notice VA provides. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order); see also Clark v. O’Rourke, 30 Vet.App. 92, 97 (2018). The Board must consider
any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); see
also Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical
examination of the justification for the decision.”).
II. CONCLUSION
Based on the above, that part of the Board’s November 27, 2018, decision that addressed
left ear hearing loss, tinnitus, and DJD is SET ASIDE and the matter is REMANDED for further
proceedings.
DATED: March 11, 2020
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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