Veteranclaims’s Blog

October 16, 2021

Single Judge Application; tinnitus; Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (endorsing Clemons and explaining that “VA shall afford lenity to a veteran’s filings; evidence developed in processing that claim; claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim; The Board did not, however, address the reasonably raised issue of whether the veteran’s specific claim for tinnitus encompassed a claim for a vestibular condition manifesting in dizziness, as required by Clemons. In Clemons, the Court explained that, because lay claimants generally lack the medical knowledge to narrow the universe of a claim to a particular diagnosis, VA “should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim.” 23 Vet.App. at 5. “[T]he claimant’s intent in filing a claim is paramount to construing its breadth,” and factors relevant to that inquiry include “the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim.” Id. The Court ultimately held that the Board may not deny a claim because a lay claimant’s hypothesized diagnosis proves incorrect; rather, the Board must “confront[] the difficult questions of what current []condition actually exist[s] and whether it was incurred in or aggravated by service.” Id. at 6. In so doing, the Board must make “affirmative finding[s] as to the nature of the [claimant’s] condition.” Id. In short, “the fact that the [claimant] may be wrong about the nature of his [or her] condition does not relieve the Secretary of his duty to properly adjudicate the claim.” Id.; see generally Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (endorsing Clemons and explaining that “VA shall afford lenity to a veteran’s filings that fail to enumerate precisely the disabilities included within the bounds of a claim,” which “is best accomplished by looking to the veteran’s reasonable expectations in filing the claim and the evidence developed in processing that claim”).;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-0923
ANTONIO F. LOVE, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Antonio Fernando Love appeals through counsel an
October 22, 2019, Board of Veterans’ Appeals (Board) decision denying service connection for
tinnitus and degenerative disc disease (DDD) of the lumbar spine. Record (R.) at 5-12.1 For the
reasons that follow, the Court will set aside those portions of the October 2019 Board decision and
remand the matters for further development, if necessary, and readjudication consistent with this
decision.
I. FACTS
Mr. Love served on active duty in the U.S. Army from July 1979 to July 1982. R. at 1961.
In August 1981, he tore the medial meniscus in his left knee and underwent arthroscopic surgery
to repair it. R. at 3476-77. He was granted service connection in August 2001 for a left knee
1 In the same decision, the Board reopened a previously denied claim for service connection for major
depressive disorder. R. at 6-8. Because that determination is favorable to the veteran, the Court will not disturb it.
See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) (“The Court is not permitted to reverse findings of fact
favorable to a claimant made by the Board pursuant to its statutory authority.”). The Board also remanded claims for
service connection for major depressive disorder and entitlement to a disability evaluation in excess of 30% for a left
knee disability. R. at 11-12. Because a remand is not a final decision of the Board subject to judicial review, the
Court does not have jurisdiction to consider those claims at this time. See Howard v. Gober, 220 F.3d 1341, 1334
(Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order); 38 C.F.R. § 20.1100(b) (2020).
2
disability, status post medial meniscectomy with anterior cruciate ligament insufficiency with mild
lateral subluxation, R. at 3443-38, and in April 2003 for left knee traumatic arthritis, R. at 3411- 17. In January 2016, a VA regional office (RO) awarded a temporary total evaluation based on a
period of convalescence for a total left knee replacement, followed by a single 30% evaluation for
residuals of that surgery, including all previously service-connected left knee problems. R. at
2466-84. Medical records from that period reflect that he treated his left knee pain with Naproxen,
which caused dizziness. R. at 2985 (September 2010 VA joints examination), 3253 (April 2006
complaint of dizziness).
The veteran filed a claim for service connection for tinnitus in November 2016, R. at 2445-
49, which was denied by the RO in February 2017 for lack of evidence of a current disability, R.
at 2322-24. He timely disagreed with that decision in August 2017, R. at 978-85; the RO continued
the denial in a December 2017 Statement of the Case (SOC), R. at 604-36; and he perfected an
appeal later that month, R. at 600-01.
Meanwhile, in July 2017, Mr. Love filed a claim for service connection for lumbar spine
DDD, R. at 1941-42, which he attributed to his service-connected left knee problems, R. at 1889.
Specifically, he stated: “I have [DDD] in my lower back and it’s due to the weakness in my left
knee[,] 2003 where on my job I was attempting to lift a small container of metal when my left knee
buckled and I felt a snap in my lower back.” Id.
Mr. Love was afforded a VA joints examination in September 2017, and the examiner
opined that the veteran’s diagnosed DDD was less likely than not proximately due to or the result
of his service-connected left knee disability because “arthritis in one joint does not cause arthritis
in another joint.” R. at 901. Based on that opinion, the RO in September 2017 denied secondary
service connection for lumbar spine DDD. R. at 892-96. Mr. Love filed a Notice of Disagreement
(NOD) the next month, R. at 850-58, and timely perfected an appeal following an April 2018 SOC
that continued to deny the claim, R. at 224-25, 356-84.
Thereafter, the RO determined that an addendum medical opinion was needed to address
whether the veteran’s service-connected left knee problems aggravated his DDD. R. at 220-21.
The requested opinion was provided in July 2018, at which time the examiner opined that Mr.
Love’s lumbar spine DDD was less likely than not proximately due to or the result of his left knee
disability. R. at 210. The examiner reasoned that there was no causative link because the veteran’s
early episodes of back pain in 2003 and 2015 “preceded his left knee replacement surgery” and
3
later episodes immediately followed other injuries that were “independent of the status of his left
knee.” R. at 212. He offered a similar rationale as to aggravation, concluding that the veteran’s
DDD of the lumbar spine was not aggravated beyond its natural progression by his total left knee
replacement because his episodes of back pain both before and after the arthroplasty “involved
specific biomechanical issues unrelated to the knee, including putting up [a] Christmas tree and
bending over and reaching the wrong way.” Id. The next month, the RO issued a Supplemental
SOC continuing the denial of service connection for lumbar spine DDD, and the case was
subsequently certified to the Board. R. at 189-93.
In the October 2019 decision currently on appeal, the Board denied service connection for
tinnitus because it determined that the record did not contain evidence of a current disability,
highlighting that Mr. Love had “consistently denied having tinnitus” throughout the period on
appeal. R. at 9. The Board additionally found that, given that lack of evidence, the veteran was
not entitled to a VA medical examination with respect to that claim. Id. The Board then denied
service connection for lumbar spine DDD, including as secondary to the v eteran’s serviceconnected
left knee disability, because it found that there was no competent evidence of record
that contradicted the July 2018 examiner’s negative linkage opinion. R. at 9 -11. This appeal
followed.
II. JURISDICTION & STANDARD OF REVIEW
Mr. Love’s appeal is timely and the Court has jurisdiction to review the October 2019 Board
decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate.
See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
Establishing service connection generally requires medical or, in certain circumstances, lay
evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury;
and (3) a link between the claimed in-service disease or injury and the present disability. Shedden
v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Romanowsky v. Shinseki, 26 Vet.App. 289, 293
(2013). Secondary service connection may be awarded when a disability “is proximately due to
or the result of a service-connected disease or injury,” 38 C.F.R. § 3.310(a) (2020), including when
a service-connected disease or injury aggravates the claimed condition, see Libertine v. Brown,
9 Vet.App. 521, 522 (1996); Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc).
4
When the Secretary undertakes to provide a veteran with a VA medical examination or
obtain an opinion, he must ensure that the examination or opinion provided 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), “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)), and “sufficiently inform[s] the Board of a medical
expert’s judgment on a medical question and the essential rationale for that opinion,” Monzingo v.
Shinseki, 26 Vet.App. 97, 105 (2012) (per curiam). See also Acevedo v. Shinseki, 25 Vet.App.
286, 293 (2012) (“[A]n adequate medical report must rest on correct facts and reasoned medical
judgment so as [to] inform the Board on a medical question and facilitate the Board’s consideration
and weighing of the report against any contrary reports.”); Nieves-Rodriguez v. Peake, 22 Vet.App.
295, 301 (2008) (“[A] medical examination report must contain not only clear conclusions with
supporting data, but also a reasoned medical explanation connecting the two.”). A medical
examination or opinion that fails to address whether a service-connected disability aggravated the
claimed disability is inadequate to inform the Board on the issue of secondary service connection.
El-Amin v. Shinseki, 26 Vet.App. 136, 140 (2013).
The Board’s service connection and duty to assist determinations are findings of fact subject
to the “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); see D’Aries v. Peake,
22 Vet.App. 97, 104 (2008) (per curiam); Davis v. West, 13 Vet.App. 178, 184 (1999). “A factual
finding ‘is “clearly erroneous” when although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a mistake has been
committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990)
(explaining that the Court “is not permitted to substitute its judgment for that of the [Board] on
issues of material fact” and therefore may not overturn the Board’s factual determinations “if there
is a ‘plausible’ basis in the record for [those] determinations”).
As with any finding on a material issue of fact and law presented on the record, the Board
must support its service connection and duty to assist determinations with adequate reasons or
bases that enables the claimant to understand the precise basis for that determination and facilitates
review in this Court. 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57. To comply with this
5
requirement, the Board must analyze the credibility and probative value of evidence, account for
evidence that it finds persuasive or unpersuasive, and provide reasons for its rejection of material
evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per
curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
The Board is also required to address all issues and theories that are reasonably 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 1355 (Fed. Cir. 2009). In that regard, VA has a duty to “give
a sympathetic reading to the veteran’s filings by ‘determin[ing] all potential claims raised by the
evidence, applying all relevant laws and regulations.'” Szemraj v. Principi, 357 F.3d 1370, 1373
(Fed. Cir. 2004) (citing Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001)). This includes
“investigat[ing] the reasonably apparent and potential causes of the veteran’s condition and theories
of service connection that are reasonably raised by a sympathetic reading of the claimant’s filing.”
DeLisio v. Shinseki, 25 Vet.App. 45, 53 (2011). A claim for service connection may be expanded
beyond a veteran’s lay description of a disability to include any disability “that may reasonably be
encompassed by several factors including: the claimant’s description of the claim; the symptoms
the claimant describes; and the information the claimant submits or that the Secretary obtains in
support of the claim.” Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009) (per curiam order).
III. ANALYSIS
A. Tinnitus
Mr. Love argues that the Board erred in denying his claim for service connection for
tinnitus because, instead of narrowly focusing on the lack of record evidence of a diagnosis of that
condition, it should have broadly construed his claim based on the evidence of record as one for
service connection for a vestibular disorder, including as secondary to his service-connected left
knee disability. The veteran asserts that he was not competent to diagnose himself with a particular
vestibular disorder and that VA should have provided him with a medical examination to identify
the specific disorder when it received evidence reflecting complaints of dizziness associated with
the Naproxen he was taking for left knee pain. Appellant’s Brief (Br.) at 6-9. The Secretary
disputes these contentions and urges the Court to affirm the Board decision because, in his view,
the record did not reasonably raise a theory of secondary service connection and the Board’s
6
findings that a VA examination was not warranted and that the veteran did not have a current
tinnitus disability have a plausible basis in the record. Secretary’s Br. at 6-11.
The Court agrees with Mr. Love that the Board took too narrow a view of his claim. As
noted above, the Board denied service connection for tinnitus because the evidence of record did
not reflect a diagnosis of that condition. R. at 9 (denying the claim because, “[i]n the absence of
proof of a present disability for which service connection is sought, there is no valid claim of
service connection”). The Board did not, however, address the reasonably raised issue of whether
the veteran’s specific claim for tinnitus encompassed a claim for a vestibular condition manifesting
in dizziness, as required by Clemons.
In Clemons, the Court explained that, because lay claimants generally lack the medical
knowledge to narrow the universe of a claim to a particular diagnosis, VA “should construe a claim
based on the reasonable expectations of the non-expert, self-represented claimant and the evidence
developed in processing that claim.” 23 Vet.App. at 5. “[T]he claimant’s intent in filing a claim
is paramount to construing its breadth,” and factors relevant to that inquiry include “the claimant’s
description of the claim; the symptoms the claimant describes; and the information the claimant
submits or that the Secretary obtains in support of the claim.” Id. The Court ultimately held that
the Board may not deny a claim because a lay claimant’s hypothesized diagnosis proves incorrect;
rather, the Board must “confront[] the difficult questions of what current []condition actually
exist[s] and whether it was incurred in or aggravated by service.” Id. at 6. In so doing, the Board
must make “affirmative finding[s] as to the nature of the [claimant’s] condition.” Id. In short, “the
fact that the [claimant] may be wrong about the nature of his [or her] condition does not relieve
the Secretary of his duty to properly adjudicate the claim.” Id.; see generally Murphy v. Wilkie,
983 F.3d 1313, 1318 (Fed. Cir. 2020) (endorsing Clemons and explaining that “VA shall afford
lenity to a veteran’s filings that fail to enumerate precisely the disabilities included within the
bounds of a claim,” which “is best accomplished by looking to the veteran’s reasonable
expectations in filing the claim and the evidence developed in processing that claim”).

The Board in this case did not engage in the analysis set forth in Clemons. Instead, it
limited its consideration of service connection solely to the particular disability specified by Mr.
Love—tinnitus—without acknowledging the evidence of record suggesting that he may have been
seeking service connection for a vestibular disorder characterized by dizziness. See Clemons,
23 Vet.App. at 5-6. For example, the record contains complaints of dizziness, lightheadedness,
7
and loss of consciousness, R. at 269, 1191, 1996, 2704,2 including one complaint specifically
attributed to knee pain, R. at 3253 (“Today, [patient] still with knee pain. Occ [(occasional)] +
dizziness.”); medical records noting that the veteran was taking Naproxen to treat joint pain, R. at
272, 590, 593, 710, 712, 718, 720, 906, including pain related to left knee arthritis, R. at 2985; and
a doctor’s statement that Naproxen may cause dizziness, R. at 2985. Although the record also
reflects that the veteran repeatedly denied tinnitus, R. at 590, 713, 1192, 2706, those denials, when
viewed sympathetically in the context of the rest of the record—including the evidence listed
above, the fact that the veteran never described the claimed condition as involving ringing or
buzzing in the ears or any hearing problem whatsoever, and the veteran’s argument in his August
2017 NOD that VA may not “mischaracterize” his claim, R. at 985—reinforce the notion that the
veteran did not intend to limit his service-connection claim solely to tinnitus. At the very least,
that evidence triggered VA’s duty to address the scope of the claim and to determine whether,
consistent with Clemons, Mr. Love’s self-styled tinnitus claim was broad enough to encompass
service connection for a vestibular disorder characterized by dizziness, including as due to
medication that he was taking for treatment of his service-connected left knee disability. See
Clemons, 23 Vet.App. at 5-6. Absent further analysis by the Board, including a lack of affirmative
findings as to the nature of the claimed condition as mandated by Clemons, the Court must
conclude that the Board provided inadequate reasons or bases for so narrowly construing his claim.
See Clemons, 23 Vet.App. at 6 (holding that the Board erred “when it failed to weigh and assess
the nature of the current condition the [claimant] suffered when determining the breadth of the
claim before it”); see also DeLisio, 25 Vet.App. at 53.
That error also tainted the Board’s analysis of whether a VA medical examination was
warranted because the Board similarly focused solely on tinnitus when it decided that an
examination was not required in this case. In McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006),
the Court held that the duty to assist requires VA to provide a claimant with a medical examination
or opinion in pursuit of a claim for benefits when there is (1) competent evidence of a current
disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an
event, injury, or disease occurred in service or establishing certain diseases manifesting during an
2 In his brief, Mr. Love additionally cited a November 2017 primary care note that he asserts reflects
complaints of dizziness during the period on appeal. Appellant’s Br. at 8. However, the Secretary does not appear to
have included a copy of that document in the record of proceedings.
8
applicable presumptive period for which the veteran qualifies; (3) an indication that the disability
or persistent or recurrent symptoms of disability may be associated with the veteran’s service or
with another service-connected disability; and (4) insufficient competent evidence on file for the
Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)
(2020).
Although the Board did not specify the McLendon elements that it found lacking in this
case, see R. at 9, the record appears to contain evidence sufficient to satisfy each of those elements
if the tinnitus claim was broad enough to encompass a vestibular disorder characterized by
dizziness. As noted above, the record includes complaints of dizziness and other vestibular
symptoms during the appeal period, evidence of a service-connected left knee disability, and
evidence indicating that those symptoms may be associated with medication the veteran was taking
to treat that service-connected disability. Given that the record did not contain a medical opinion
addressing that theory of secondary service connection, the Board’s failure to consider whether
Mr. Love’s claim for service connection for tinnitus encompassed service connection for a
vestibular disorder characterized by dizziness rendered inadequate its reasons or bases for finding
that he was not entitled to a VA medical examination to assess the nature of his claimed disability.
See Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57. Remand of the claim is therefore
warranted so that the Board may address those reasonably raised issues. See Tucker v. West,
11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where the Board has
incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its
determinations, or where the record is otherwise inadequate”).
B. Lumbar Spine DDD
Mr. Love also argues that the July 2017 VA addendum opinion was inadequate for
adjudication purposes because the examiner provided insufficient rationale to support his negative
causation and aggravation opinions. He therefore asserts that the Board either clearly erred in
relying on that opinion or provided inadequate reasons or bases for finding it probative.
Appellant’s Br. at 3-6. The Secretary responds that the opinion was well-supported and urges the
Court to affirm the Board’s denial of the lumbar spine claim. Secretary’s Br. at 12-14.
The Court agrees with Mr. Love that the July 2017 VA addendum opinion was inadequate
in two respects. First, although the examiner concluded that Mr. Love’s service-connected left
knee problems did not cause his lumbar spine DDD, his rationale for that opinion did not
9
adequately address the veteran’s assertion that he initially injured his back in 2003 when his left
knee buckled while he was lifting a container of metal at work. R. at 1889. The examiner’s
summary of the claims file did not mention that incident, see R. at 211, and he did not discuss it
when listing the back injuries that he determined to be “independent of the status of the left knee,”
R. at 212.
Moreover, to the extent that the examiner generally noted that the veteran’s back pain began
in 2003, he stated only that Mr. Love’s service-connected left knee disability did not cause his
lumbar spine DDD because his first episode of back pain “preceded his left knee replacement
surgery,” R. at 212. However, the relevant causation question was not whether the veteran’s left
knee arthroplasty caused his lumbar spine DDD, but whether his service -connected left knee
problems caused that condition. In that regard, the examiner’s rationale overlooked the fact that
Mr. Love has been service connected for left knee problems, including ligamental insufficiency
and lateral subluxation, since 2001, and failed to address whether the claimed left knee weakness
led to the 2003 occupational injury caused or contributed to his current lumbar spine DDD.
Although there is no reasons-or-bases requirement imposed on examiners, Monzingo, 26
Vet.App. at 105; Acevedo, 25 Vet.App. at 293, an examiner must provide the Board with the
medical information necessary to make a fully informed decision on the claim, see Stefl,
21 Vet.App. at 123; Ardison, 6 Vet.App. at 407. The July 2017 VA examiner failed to do so.
Accordingly, the Court concludes that the Board clearly erred in finding that opinion adequate to
adjudicate the issue of whether the veteran’s service-connected left knee disability caused his
current lumbar spine DDD. See D’Aries, 22 Vet.App. at 104; Ardison, 6 Vet.App. at 407 (holding
that the Board errs when it relies on an inadequate medical examination).
Second, while the examiner provided an aggravation opinion, his rationale for that opinion
addressed only causation. Specifically, the examiner concluded that Mr. Love’s service-connected
left knee disability did not aggravate his lumbar spine DDD because he had episodes of back pain
both before and after the arthroplasty and the precipitating incidents for those episodes “involved
specific biomechanical issues unrelated to the knee, including putting up [a] Christmas tree and
bending over and reaching the wrong way.” R. at 212. That rationale speaks only to causation
and does not provide any insight into whether the veteran’s left knee problems may have worsened
his lumbar spine DDD. See Garner v. Tran, _ Vet.App. , , No. 18-5865, 2021 WL
266547, at *7 (Jan. 26, 2021) (explaining that focusing on the underlying cause of the claimed
10
disability “fails to illuminate” whether a service-connected disability results in any additional
functional impairment associated with the claimed disability); El-Amin, 26 Vet.App. at 140
(holding that a causation opinion does “not rule out the possibility” that a claimed disability was
aggravated to some degree by a service-connected disability). Consequently, the Court concludes
that the Board also clearly erred in relying on the July 2017 VA addendum opinion to deny service
connection for lumbar spine DDD based on a theory of aggravation. See D’Aries, 22 Vet.App. at
104; Ardison, 6 Vet.App. at 407. Remand is therefore warranted for the Board to obtain a new
medical opinion that adequately addresses whether the veteran’s service -connected left knee
disability caused or aggravated his claimed lumbar spine DDD. See Garner,
Vet.App. at __,
2021 WL 266547, at *8; Tucker, 11 Vet.App. at 374.
IV. CONCLUSION
Upon consideration of the foregoing, the portions of the October 22, 2019, Board decision
denying service connection for tinnitus and DDD of the lumbar spine are SET ASIDE and those
matters are REMANDED for further development, if necessary, and readjudication consistent with
this decision.
DATED: February 23, 2021
Copies to:
Josef A. Loukota, Esq.
VA General Counsel (027)

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.