Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-1717
BERTIS CUPIT, 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 appellant, Bertis Cupit, through counsel, appeals a November 19,
2018, Board of Veterans’ Appeals (Board) decision in which the Board denied service connection
for tinnitus. Record of Proceedings (R.) at 4-8. Additionally, the Board remanded the claims for
(1) service connection for psychiatric disorder, including post-traumatic stress disorder (PTSD),
antisocial personality disorder, and adjustment disorder with anxiety; and (2) an initial
compensable rating for osteoarthritis carpal metacarpal joint left thumb, status-post fracture. R. at
12-18. The remanded claims are not before the Court. See Hampton v. Gober, 10 Vet.App. 481,
483 (1997) (claims remanded by the Board cannot be reviewed by the Court).
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. See Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the
Board’s decision denying entitlement to service connection for tinnitus and remand the matter for
further proceedings consistent with this decision. The Court will also remand for initial
development and adjudication the reasonably raised claim for service connection for hearing loss.
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I. BACKGROUND
Appellant had active service in the U.S. Navy from June 1972 to June 1974. R. at 1227-28.
His DD Form 214 reflects that his military occupational specialty (MOS) was that of
Quartermaster. Review of the service treatment records reflects that at his May 1972 enlistment
examination, the appellant’s right ear puretone thresholds in decibels at 500, 1000, 2000 and 4000
Hertz were shown to be 15, 5, 10, and 5 respectively. R. at 1241. His left ear puretone thresholds
in decibels at 500, 1000, 2000, and 4000 Hertz were shown to be 20, 10, 15, and 10 respectively.
Id. At the May 1974 discharge examination, the appellant’s right ear puretone thresholds in
decibels were shown to be 20 at 500 Hertz, 15 at 1000 Hertz, 10 at 2000 Hertz, 10 at 3000 Hertz,
and 25 at 4000 Hertz. R. at 1237. In addition, his left ear puretone thresholds in decibels were
shown to be 10 at 500 Hertz, 10 at 1000 Hertz, 10 at 2000 Hertz, 15 at 3000 Hertz, and 15 at 4000
Hertz. Id.
In April 2012, the appellant filed a claim for several disorders, to include service
connection for tinnitus, which reportedly began in 1974. R. at 1875-84. In a statement the regional
office (RO) received in May 2012, the appellant related his current tinnitus to his exposure to inservice
acoustic trauma. R. at 1833. The appellant explained that he had served aboard the U.S.S.
Saratoga and was assigned to the “lower deck quarters[] that were adjacent to the steam catapults
for aircraft launches.” Id. According to the appellant, he was exposed to loud noises while working
in the enclosed “vents/voids” division, where they “chipped paint with air powered paint chippers
and seldom had proper hearing protection.” Id.
During a February 2010 treatment visit, the appellant reported that for 20 to 25 years he
had felt an ongoing ringing sensation in his ears that was louder in the left ear than the right. R. at
- A progress report that was noted to have been scanned in May 2010 reflects that the appellant
had been diagnosed with bilateral tinnitus for 10 to 12 years in duration. R. at 1820. The treatment
provider assessed the appellant with an impression of essential tinnitus, and noted that the
appellant’s hearing was “‘still pretty good'” and he had a “[history] of industrial noise exposure.”
Id.
The appellant was afforded several VA examinations in October 2013 to determine the
etiology of his claimed disorders. R. at 1441-43. In the general remarks section of one of the
examination reports, VA provided that the appellant had sought service connection for both
tinnitus and hearing loss and requested VA examinations and medical opinions for both disorders.
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R. at 1437. Based on audiological evaluation and her discussion with, the appellant, the VA
examiner diagnosed the appellant with bilateral sensorineural hearing loss in the frequency range
of 400 to 5000 Hertz, and in the frequency range of 6000 Hertz or higher frequencies. R. at 1442.
Although the appellant reported recurrent tinnitus that began in service, the examiner stated that
because the claims file had not been provided, she could not opine on the etiology of his tinnitus
or bilateral sensorineural hearing loss without resorting to speculation. R. at 1442-43.
Following these examination reports, VA noted the appellant’s assertions regarding his
service aboard the U.S.S. Saratoga and conceded the appellant’s in-service noise exposure. R. at
1387, 1389. VA found that because the claims file had not been provided, the VA examiner thus
could not opine on the etiology of the appellant’s hearing loss and tinnitus, and further clarification
was needed. Id. The claims file was apparently subsequently provided to the VA audiologist for
an addendum opinion addressing the etiology of the appellant’s hearing loss and tinnitus, and
whether these disorders “are related to the noise exposure from service aboard an aircraft carrier
in service.” Id.
In the November 2013 VA medical opinion, the VA staff physician reviewed the claims
file and noted that the audiograms at entrance and exit from service revealed no abnormality, and
“[t]herefore, it is less likely as not that the [appellant’s] current complaints of hearing loss and
tinnitus are related to in[ ]service noise exposure.” R. at 1383. The VA physician referenced the
September 2005 Institute of Medicine (IOM) study on military noise exposure, and explained that
the study holds that “‘there is no scientific basis for delayed or late onset noise-induced hearing
loss, i.e.[,] hearing normal at discharge and causally attributable to military noise exposure 20-30
years later.'” Id. The VA physician further explained that the study holds that with respect to cases
where the entrance and separation audiograms reveal no abnormality, “‘there was no scientific
basis for concluding that hearing loss that develops 20 or 30 years later is causally related to
military service,” and “[t]herefore, audiologists have no scientific basis for concluding that delayed
onset hearing losses exist.'” Id. According to the VA physician, “[b]ecause there was no hearing
loss at separation, this study concludes that there is no evidence to suggest [that the appellant’s]
hearing status would be impacted later in life because of the noise events in service.” Id. The VA
physician stated that although “[t]here are many possible causes for tinnitus . . . tinnitus is often
idiopathic,” and without evidence of noise induced hearing loss “and/or documentation of tinnitus
in the [appellant’s] service medical records, the etiology of any reported tinnitus does not appear
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to be related to acoustic trauma during military service, hearing loss or changes in hearing.” Id.
According to the VA physician, “[t]he cause of the [appellant’s] tinnitus appears to lie elsewhere.”
Id.
In the January 2014 rating decision, the RO denied service connection for tinnitus on the
basis that the condition neither occurred in nor was caused by service, and that no link between
this medical condition and military service was found. R. at 1332 (1324-34).
The appellant filed a Notice of Disagreement (NOD) with this decision in September 2014.
R. at 1271. In his NOD, the appellant asserts that his hearing test administrator told him he had
moderate to severe hearing loss in both ears. Id. In the August 2016 Statement of the Case (SOC),
the RO continued to deny service connection for tinnitus, because the appellant’s service treatment
records “did not document complaints, evaluation, diagnosis, and treatment for this condition
while active duty, nor is it noted at the time of discharge.” R. at 932, 895-933. In the August 2016
VA Form 9, the appellant perfected his appeal of his claim for service connection for tinnitus. R.
at 885. In the November 2018 decision, the Board determined that “[the appellant’s] tinnitus was
not incurred in service, did not manifest within one year of separation from active service, and is
not shown to be otherwise the result of military service, to include any noise exposure therein.” R.
at 4..
II. ANALYSIS
The appellant contends that the Board failed to discuss or adjudicate the appellant’s
“reasonably raised claim of entitlement to service connection for hearing loss.” Appellant’s (Brief)
Br. at 8. According to the appellant, pursuant to our decision in Beverly v. Nicholson, “‘[w]here such review of all documents and oral testimony reasonably reveals that the claimant is seeking a particular benefit, the Board is required to adjudicate the issue of the claimant’s entitlement to such a benefit or, if appropriate, to remand the issue to the [RO] for development and adjudication of the issue; however, the Board may not simply ignore an issue so raised.”19 Vet.App. 394, 404-05 (2005) (quoting Brannon v. West, 12 Vet.App. 32, 34 (1998) (quoting Suttmann v. Brown, 5 Vet.App. 127, 132 (1993)
In arguing that the record reasonably raised the claim for service connection for hearing
loss, the appellant referenced, among other things, service treatment records; the October 2013
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VA examination report; internal VA documents conceding the appellant’s exposure to acoustic
trauma during service aboard an aircraft carrier and reflecting that the appellant has claims pending
for both tinnitus and hearing loss; the November 2013 VA medical opinion; and the January 2014
rating decision, to name a few. Appellant’s Br. at 9-10. According to the appellant, the evidence
of record reflects that at various points throughout the appeal, he related his tinnitus to hearing loss
experienced during service, “and that the VA investigated the issue insofar as it sought an opinion
that addressed the relationship between [the appellant’s] service and his hearing loss.” Id. at 10. In
light of the evidence of record, the appellant argues, VA should have adjudicated his hearing loss
claim and remand is required for the Board to adjudicate this claim. Id. at 10-11. The appellant
also referenced the VA Adjudication Procedures Manual (M21-1), pt. iii, subpt. iv, ch. 4, § D.3.a,
which provides that when “‘only tinnitus is claimed but the evidence shows the presence of hearing
loss that may be related to an in-service event or injury, the adjudicator should solicit a claim for
SC [service connection] for hearing loss.'” Id. at 11.
In response, the Secretary counters that neither the appellant, nor the evidence of record,
raises a claim for service connection for hearing loss. Secretary’s Br. at 14. Specifically, the
Secretary contends that the record is absent any formal claim of entitlement to service connection
for hearing loss, and the “[a]ppellant fails to allege otherwise.” Id. The Secretary also maintains
that the record does not reasonably raise an informal claim of entitlement to service connection for
hearing loss. Id. According to the Secretary, no authority “supports the proposition that a service
treatment record can serve as an informal claim of entitlement to service connection,” and no
authority supports the assertion “that a treatment record or VA report of examination can serve as
an informal claim of entitlement to service connection.” Id. at 14-15. Although the Secretary
accepts that M21-1 supports the appellant’s argument, he asserts that M21-1 “is not binding on the
Board and it simply does not support [a]ppellant’s position, in light of the evidence of record
showing that [a]ppellant’s hearing loss was not related to an in-service event.” Id. at 16. The
Secretary further maintains that “[t]here was no basis for the Board to adjudicate a claim of
entitlement to service connection for hearing loss that was not filed, and that [a]ppellant
assiduously avoids asserting that he filed.” Id. at 17.
The Board has a duty to address all issues reasonably raised either by the appellant or by
the contents of the record, see Robinson v. Peake, 21 Vet.App. 545, 552-56 (2008), aff’d sub nom.
Robinson v. Shinseki, 557 F.3d 1355 (Fed .Cir. 2009), and the Court has jurisdiction to determine
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whether the Board erred in failing to address an issue reasonably raised. See Barringer v. Peake,
22 Vet.App. 242, 244 (2008). However, “the Board is not required to anticipate a claim for a
particular benefit where no intention to raise it was expressed.” Brannon, 12 Vet.App. at 34; see
MacPhee, 459 F.3d at 1326-27 (recognizing that, unless service connection and benefits for a
disability disclosed in medical records are first claimed, the medical records themselves do not
constitute an informal claim for benefits). “[W]here there can be found no intent to apply for VA
benefits, a claim for entitlement to such benefits has not been reasonably raised.” Criswell v.
Nicholson, 20 Vet.App. 501, 504 (2006).
The Court notes that, prior to March 2015, regulations provided for informal claims, but
the definition of “claim” was amended in March 2015, eliminating informal claims in favor of a
system that requires claimants to submit certain preliminary information on a standardized form.
79 Fed. Reg. 57,660-01 (Sept. 25, 2014). In this regard, the appellant filed his claim for tinnitus in
April 2012, and he underwent the VA examination that he asserts reasonably raised the hearing
loss claim in October 2013, more than a year before the regulatory amendment became effective.
R. at 1441-43, 1883. As discussed, in an internal document, VA requested that the appellant be
afforded VA examinations in connection with his claims, and it was noted that he sought service
connection for both tinnitus and hearing loss. R. at 1437. In addition to evaluating the appellant
in connection with his claimed tinnitus, the October 2013 VA examiner also conducted an
audiological examination to determine the degree of the appellant’s hearing loss, diagnosing the
appellant with both tinnitus and bilateral sensorineural hearing loss. R. at 1441-43. Furthermore,
the VA examiner also offered etiological opinions for both the appellant’s hearing loss and tinnitus.
R. at 1442-43. Following this evaluation, the internal VA document noted that further clarification
was needed, and the appellant’s claim was referred to another VA physician for an addendum
opinion addressing the etiology of his hearing loss and tinnitus, and whether either disorder is
related to his conceded noise exposure. R. at 1389. In the November 2013 VA opinion, the VA
physician provided etiological opinions for both the appellant’s tinnitus and hearing loss. R. at - Moreover, in his September 2014 NOD, the appellant asserted that the hearing test
administrator verbally informed him that he had moderate to severe hearing loss in both ears, and
in his August 2016 VA Form 9, the appellant explicitly requested that the Board grant him service
connection for hearing loss along with tinnitus. R. at 885, 1271. Given these considerations, the
Court concludes that the record reasonably raised a claim for service connection for hearing loss.
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The appellant also argues that VA erred by failing to provide an adequate medical opinion
to address the nature and cause of his hearing loss and tinnitus. Appellant’s Br. at 12. According
to the appellant, the conclusions reached by the November 2013 VA examiner were erroneous
“because the examiner based these conclusions on a misreading of [the appellant’s] in-service
audiograms” and not on the “‘landmark’ Institute of Medicine study.” Id. The Secretary responds
that the November 2013 VA medical opinion was adequate “because the opinion was based on
consideration of [a]ppellant’s prior medical history and described the disability in sufficient detail”
and thus the Board’s assessment of the claimed disability was an informed one. Secretary’s Br. at - The Secretary notes that the November 2013 VA examiner characterized the appellant’s entrance
and separation audiograms as revealing normal hearing. Id. at 7. According to the Secretary,
although the appellant attempts to argue otherwise, “he and his attorney have not demonstrated
competence to refute the November 2013 examiner’s assessment of the in-service audiograms.” Id.
at 7. The Secretary also argues that “[a]ppellant and his attorney have not demonstrated
competence to interpret the medical findings presented in a September 2005 IOM study on military
noise exposure that was discussed by the November 2013 examiner.” Id. at 7-8.
In the November 19, 2018, decision, the Board reviewed and recited the evidence of record,
to include the service treatment records, the postservice treatment records, the October 2013 VA
audiological evaluation report, and the November 2013 addendum opinion. R. at 5-8. Although
the appellant reported that his tinnitus began during military service at the October 2013 VA
examination, the Board found these statements “internally inconsistent with the [appellant’s]
previous reports during his private treatment in February 2010, when he was initially seeking
treatment for that condition,” and the service treatment records that were absent any complaints or
reports of tinnitus or ringing sensation in his ears. R. at 7. The Board determined that the November
2013 VA opinion is the most probative evidence of record, and that this evidence “specifically
outweighs any probative value with regard[] to the [appellant’s] lay statements regarding onset and
continuity of symptomatology in this case.” R. at 8.
When the Secretary undertakes to provide a veteran with a VA medical examination or
opinion, he must ensure that that examination or opinion 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
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‘evaluation of the claimed disability will be a fully informed one,'” id. (internal quotation marks
omitted) (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.”).
The Court reviews the Board’s determination regarding the adequacy of a medical
examination or opinion under the “clearly erroneous” standard of review set forth in 38 U.S.C.
§ 7261(a)(4). See D’Aries v. Peake, 22 Vet.App. 97, 104 (2008). “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)).
The Court agrees with the appellant that the November 2013 VA physician “did not provide
a rationale for her finding that [the appellant] displayed normal hearing at separation from service.”
Appellant’s Br. at 13. Indeed, in Hensley v. Brown 5 Vet.App. 155, 157 (1993), the Court determined that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels reflect some degree of hearing loss. Review of the May 1974 separation examination reflects that the appellant’s right ear hearing threshold at 4000 Hertz is 25 decibels, R. at 1237, and
pursuant to Hensley v. Brown, this does reveal some level of hearing loss – especially when compared to the May 1972 enlistment examination which reflects his right ear hearing threshold at 4000 Hertz to be 5 decibels, R. at 1241. Therefore, the appellant’s hearing as measured by the
audiogram at separation cannot be characterized as completely “normal,” which is how the
November 2013 VA physician described his hearing. R. at 1383. Moreover, coupled with the
September 2005 IOM study that purportedly reveals no evidence to suggest that the appellant’s
“hearing status would be impacted later in life because of the noise events in service,” the VA
physician’s conclusion that “there was no hearing loss at separation” is based on a factually
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inaccurate premise. In this regard, comparing the audiogram at enlistment, with the audiogram at
separation, reflects a 20-decibel decrease in the appellant’s right ear puretone threshold at 4000
Hertz. R. at 1237, 1241. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (stating that a medical
examination that is based on an inaccurate factual history lacks probative value).
In addition, the VA physician did not provide an adequate opinion regarding the etiology
of the appellant’s tinnitus. The VA physician determined that “[i]n the absence of a noise induced
hearing loss and/or documentation of tinnitus in the [appellant’s] service medical records,” the
etiology of his tinnitus “does not appear to be related to acoustic trauma during military service,
hearing loss or changes in hearing.” R. at 1383. Yet, as discussed above, the service treatment
records did reflect evidence of hearing loss in the appellant’s right ear at the time of his separation
from service. Moreover, the VA physician determined that “[t]he cause of the [appellant’s] tinnitus
appears to lie elsewhere” without attributing his tinnitus to a potential postservice cause, rendering
the statement somewhat speculative and of little probative value. In light of the fact that the VA
opinion relied upon by the Board is speculative and based on an inaccurate factual premise, the
Court finds that the November 2013 VA opinion is inadequate and the claim should be remanded
for the Board to afford the appellant another VA audiological opinion.
The appellant also contends that the Board erred by failing to provide adequate reasons or
bases for its findings and conclusions. Appellant’s Br. at 20. In response, the Secretary argues that
the Board’s finding the appellant’s lay evidence neither competent nor credible, coupled with the
lack of argument showing inadequacy in the Board’s decision, reflects that “the Board plausibly
concluded that the most probative evidence of record failed to support a finding of service
connection for tinnitus.” Secretary’s Br. at 13.
The Court concludes that the Board provided an inadequate statement of reasons or bases
for relying on the November 2013 VA medical opinion and not following VA Training Letter 10- - Based on service treatment records and the September 2005 IOM study, the November 2013
VA examiner found no evidence that in-service acoustic trauma would affect the appellant’s
“hearing status . . . later in life.” R. at 1383. Yet VA Training Letter 10-02 directs that “delayedonset
tinnitus must be considered” and that “[t]innitus can be triggered months or years after an
underlying cause (such as hearing loss) occurs.” VA Training Letter 10-02, at 5 (Mar. 2010). Thus,
remand is required for the Board to ensure that the directives of VA Training Letter 10-02 are met,
and to obtain new medical examinations or, if necessary, clarifications of examinations. See Tucker
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v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate “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”); see also 38 C.F.R. § 4.2 (2020) [?](“[I]f [an
examination report] does not contain sufficient detail, it is incumbent upon the rating board to
return the report as inadequate for evaluation purposes.”).
Given this disposition, the Court need not, at this time, address any other arguments and
issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order)
(holding 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”). Accordingly, the Court will remand the reasonably raised claim for
service connection for hearing loss along with the remanded claim for service connection for
tinnitus. Because the Board has not yet adjudicated his hearing loss claim, it would be premature
for the Court to address the appellant’s additional hearing loss arguments. On remand, the appellant
is free to submit those arguments, as well as any additional arguments and evidence pertinent to
the remanded tinnitus and hearing loss claims, to the Board in accordance with Kutscherousky v.
West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such
evidence or argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the
Board that “[a] remand is meant to entail a critical examination of the justification for the [Board’s]
decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and its directives must be performed
expeditiously in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and a review of the
record, the Board’s November 19, 2018, decision is VACATED and the matter is REMANDED
to the Board for further proceedings consistent with this decision.
DATED: September 22, 2020
Copies to:
Byron M. Moore, Esq.
VA General Counsel (027)
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