Veteranclaims’s Blog

September 25, 2020

Single Judge; To the extent that the Board intended to use the temporal gap between the appellant’s service and the date of her claim as negative evidence, it did not establish the factual predicate necessary to do so. See Maxson v. Gober, 230 F.3d 1330,1333 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet.App. 231, 240 n.7 (2012) (stating that, when the Board uses the absence of evidence as negative evidence, there must be “‘a proper foundation . . . to demonstrate that such silence has a tendency to prove or disprove a relevant fact.'” (quoting Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (Lance, J., dissenting)));

Filed under: Uncategorized — Tags: — veteranclaims @ 11:40 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-4793
BARBARA A. WEBB, 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: The pro se appellant, Barbara A. Webb, appeals a May 31, 2019, Board
of Veterans’ Appeals (Board) decision in which the Board denied her entitlement to disability benefits for tinnitus. R. at 5-10. This appeal is timely and the Court has jurisdiction over the matters on appeal pursuant to 38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition is appropriate when the issues are 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 Board’s decision and remand the matter on appeal for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Air Force from April 1969 until April 1973.
R. at 551. Her service separation medical examination reveals that she experienced “frequent and
severe” headaches in September 1971 that were not amenable to treatment. R. at 498. She also
has alleged that she fell and suffered head trauma during her active service. R. at 746, 850.
In March 2011, the appellant filed a claim for entitlement to disability benefits for tinnitus.
R. at 844-50. In June 2013, the VA regional office denied her claim. R. at 608-49.
2
In September 2013, a private audiologist opined that the appellant’s tinnitus likely is “due
to military noise exposure and the head injury suffered while in the military.” R. at 397. In
November 2015, a VA audiologist opined that the appellant’s tinnitus is not linked to her active
service and likely is a symptom of hearing loss. R. at 104. The examiner wrote that “there is no
evidence in [the appellant’s] medical records to support the onset of tinnitus while in service.” Id.
On May 31, 2019, the Board issued the decision presently under review. R. at 5-10.
II. ANALYSIS
The Secretary concedes that remand is warranted because the Board did not ensure that the
Secretary fulfilled his duty to assist. The Secretary allows that “VA failed to attempt to obtain all
of [the appellant’s] medical records of treatment at the [Royal Air Force] Upper Heyford base
hospital.” Secretary’s Brief at 4. The Secretary concedes that “this case should be remanded so
that VA can satisfy its duty to assist by attempting to obtain these records.” Id. at 5. The Court
accepts the Secretary’s concession and will remand this case for the Board to correct the error that
he identifies.
The Board also should address the following matters. First, the appellant reported that she
fell and struck her head during her active service. The blow was severe enough to cause her to
lose consciousness. She asserted before the Agency that this head trauma (as well as noise
exposure) caused her tinnitus to develop. R. at 746, 850.
The Board did not directly address her assertion. Instead, it noted that the appellant “denied
history of a head injury” when she left active service and that the report from her separation
examination “makes no reference to a head injury.” R. at 7.
The Board did not acknowledge a notation on the separation examination report that reveals
that the appellant had “frequent and severe headaches” in September 1971. R. at 498. The report
does not show what caused the appellant’s headaches to develop. The appellant has, however,
linked those headaches to her in-service fall. R. at 747. The Board should have considered whether
evidence that the appellant had “frequent and severe” headaches supports her assertion that she
suffered an acute in-service head injury that may have caused her tinnitus to develop. See
Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d
1355 (Fed. Cir. 2009); see also Thompson v. Gober, 14 Vet.App. 187, 188 (2000).
3
Second, the Board wrote that the “evidence of record shows that the [appellant] separated
from service in 1973 and her initial report of tinnitus was not until her March 2011 application for
service connection – decades after service.” R. at 8. To the extent that the Board intended to use the temporal gap between the appellant’s service and the date of her claim as negative evidence, it did not establish the factual predicate necessary to do so. See Maxson v. Gober, 230 F.3d 1330,1333 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet.App. 231, 240 n.7 (2012) (stating that, when the Board uses the absence of evidence as negative evidence, there must be “‘a proper foundation . . . to demonstrate that such silence has a tendency to prove or disprove a relevant fact.'” (quoting Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (Lance, J., dissenting))).
The Board also noted that the appellant’s “service treatment records do not show complaints of, or treatment for, ringing in the ears.” R. at 8. The Board may have meant to conclude that if the appellant had tinnitus in service, medical personnel would have treated it and noted it in a service medical record. If so, the Board did not support that conclusion with citation to appropriate authority. Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011).
Third, the Board concluded that the appellant is competent to describe when her symptoms began, but her statements are not credible.1 The Board did not make similar competence and credibility determinations about her statements describing her in-service fall and head injury and her assertion that her duties routinely brought her near operating aircraft. It should do so on remand. Robinson, 21 Vet.App. at 552.
If the Board determines that the appellant competently and credibly reported her in-service
injury, then it should note that she fell in an airplane hangar. If she accurately reported her injury, then her statement shows that she was present in an airplane hangar and seems to support her assertion that she regularly passed near aircraft.2
1 The Board may wish to revisit this conclusion. The Board noted that the appellant’s post-traumatic stress disorder produces “mild memory loss . . . such as forgetting names, directions, or recent events.” R. at 9. The Board found that this “memory loss only serves to further call into question the veracity of her current lay statements regarding the initial onset of her tinnitus decades ago, as well as any symptoms reported to have occurred shortly after discharge.” Id. It is unclear why that is the case. The appellant’s memory loss apparently applies to “recent events.” Id. The Board’s decision contains no indication that the appellant’s memory loss applies to distant events such as those that happened during service. Also, the effect of mild memory loss on distant recall seems to be a medical matter that cannot be understood without medical support. Kahana, 24 Vet.App. at 435.
2 The Board relied entirely on the appellant’s service personnel records to conclude that she did not work
around jet engines. The Board did not address the appellant’s description of the unique features of her service. R. at
7.
4
Fourth, the Board based its credibility determination mostly on a March 2010 treatment
record stating that the appellant “denied tinnitus at that time.” R. at 7. The appellant asserted to
the Agency that the physician who examined her in March 2010 included in her report a “history
check list show[ing] hearing/tinnitus listed together and she did ask me about my hearing but she
did not mention tinnitus. . . . She also asked me if I suffered vasomotor symptoms and I do not see
that in her report.” R. at 40. The appellant argued that “it doesn’t make sense, as [VA] stated, that
my private treatment records show I reported tinnitus since 1971 and then my outpatient treatment
records, as recorded by [a physician] who was seeing me for bronchitis, show I denied tinnitus in
2010.” R. at 40. The Board noted these arguments, but did not respond. It should address them
on remand. Robinson, 21 Vet.App. at 552
Fifth, the Board dismissed the September 2013 private audiologist’s opinion because it “is
based on an inaccurate factual premise, namely that [the appellant’s military occupational
specialty] was security police.” R. at 10; see Reonal v. Brown, 5 Vet.App. 458, 461 (1993). The
Board assumed that the audiologist linked the appellant’s tinnitus only to in-service noise exposure.
The audiologist, however, opined that “the tinnitus is due to military noise exposure and the head
injury suffered while in the military.” R. at 397. The Board made no findings concerning the
adequacy of the examiner’s conclusion that the appellant’s head injury contributed to her present
disorder. See Monzingo v. Shinseki, 26 Vet.App. 97, 102 (2012) (per curiam).
Finally, the boilerplate statements supporting the Board’s conclusion that the May 2015
VA medical examiner’s opinion is adequate are not sufficient. See Nieves-Rodriguez v. Peake, 22
Vet.App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007). The examiner stated
that “there is no evidence of head trauma.” R. at 104. She did not discuss the appellant’s in-service
headaches. The examiner concluded that “there is no evidence in [the appellant’s] medical records
to support the onset of tinnitus while in service.” Id. Again, she did not discuss the appellant’s
headaches. More importantly, she did not bring her medical expertise to bear. She instead only
made a factual notation about the contents of the record that the Board could have made itself and
then stated a conclusion. There seems to be no analysis connecting the two.3 Nieves-Rodriguez,
22 Vet.App. at 301 (holding that a medical opinion must “contain not only clear conclusions with
supporting data, but also a reasoned medical explanation connecting the two”).
3 The Board found that the examiner concluded that the appellant’s tinnitus is a symptom associated with
hearing loss. The examiner did not explain that conclusion. R. at 104.
5
Because many factual questions remain in doubt, the Court, by law, must remand this case
for the Board to reconsider the claim on appeal. See Hensley v. West, 212 F.3d 1255, 1263 (Fed.
Cir. 2000) (stating that “appellate tribunals are not appropriate fora for initial fact finding”); see
also Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand, rather than reversal, generally is
appropriate where the Board has failed to provide an adequate statement of reasons or bases for its
determinations).
On remand, the appellant is entitled to raise any argument that she wishes for the Board to
consider, and the Board must respond. Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999)
(per curiam order); Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board is required by law
“to provide . . . expeditious treatment” to the matter remanded by the Court. 38 U.S.C. § 7112.
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs and a review of the record,
the Board’s May 31, 2019, decision is VACATED and the claim on appeal is REMANDED for
further proceedings consistent with this decision.
DATED: September 23, 2020
Copies to:
Barbara A. Webb
VA General Counsel (027)

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