Veteranclaims’s Blog

December 31, 2021

Single Judge Application; delayed onset tinnitus; the Board failed to do was assess whether the qualifying and contradictory language in the actual IOM report; The February 2017 examiner’s characterization of the IOM report as stating that there was an “insufficient scientific basis to conclude that permanent hearing loss/tinnitus directly attributable to noise exposure will develop long after noise exposure occurs” and that “a prolonged delay in the onset of noise-induced hearing loss/tinnitus was ‘unlikely,'” R. at 238, is at odds with what the IOM report actually expressed about tinnitus. The report did indeed find that there was insufficient evidence from studies “to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure.” IOM REPORT at 47. The report also found that the definitive studies to address this issue have not yet been done, but based on “data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur.” Id. These findings relate only to “permanent noise-induced hearing loss,” not to tinnitus.; What the report did say about tinnitus was that “[a] more complete understanding of the mechanisms by which tinnitus is generated will be needed before the existence of delayed onset of noise-induced tinnitus can be confirmed or rejected.” Id. at 119. In other words, the IOM report appears to say that it had not resolved the exact question the examiner was attempting to answer by citing the report. So, the February 2017 VA examiner cited the IOM report for something it did not say. Then the Board uncritically relied on the examiner’s citation of the IOM report, repeating the examiner’s characterization of the report’s statement—”that there were insufficient scientific bases . . . to conclude that permanent hearing loss/tinnitus directly attributable to noise exposure will develop long after noise exposure.” R. at 12-13. And the Board declared that it “place[d] high probative value on the opinion of the February 2017 VA examiner because her conclusions were based on [inter alia] . . . medical research.” R. at 13. What the Board failed to do was assess whether the qualifying and contradictory language in the actual IOM report—the only medical research it cited—affected the probative value of the examiner’s opinion or rendered it inadequate. See McCray v. Wilkie, 31 Vet.App. 243, 257 (2019).;

Filed under: Uncategorized — Tags: — veteranclaims @ 2:57 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-3759
DEBORAH LEAH VALENTINO, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before JAQUITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
JAQUITH, Judge: U.S. Marine Corps veteran Deborah Leah Valentino, who served on active duty from September 1985 to September 1989, Record (R.) at 1003, appeals a February 20, 2020, decision by the Board of Veterans’ Appeals (Board) denying her entitlement to service connection for tinnitus and a left knee disability.1 Because the Board made an unsupported conclusion about the delay in onset of tinnitus, its decision on that condition is set aside, and the matter is remanded. But because the appellant fails to demonstrate error in the Board’s left knee disability determination, the Court affirms that part of the decision.
I. BACKGROUND
In February 2017, the veteran underwent a compensation and pension (C&P) examination for hearing loss and tinnitus. The examiner found that the date and circumstances of tinnitus onset were unknown, but the veteran had been reporting tinnitus symptoms “‘for years.'” R. at 237. But the examiner determined that there was no objective evidence that the veteran had sustained noise
1 The Board also denied Ms. Valentino service connection for a right knee disability. R. at 3. Because the veteran has not challenged this part of the Board’s decision, the appeal as to this matter will be dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281-85 (2015) (en banc) (declining to review the merits of an issue not argued on appeal and dismissing that portion of the appeal).
2
injury during military service based on audiograms. Additionally, the examiner cited the veteran’s denial, on her 1989 patient questionnaire, that she had noises in her ears. R. at 237-38; see R. at 713. The examiner stated that there was “no objective evidence that [the] Veteran sustained noise injury during military service based on available audiograms.” R. at 238. The examiner also relayed findings from a 2006 Institute of Medicine (IOM) panel, stating that “there was insufficient scientific basis to conclude that permanent hearing loss/tinnitus directly attributable to noise exposure will develop long after noise exposure occurs.” R. at 238.2 The examiner continued: “The IOM panel concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss/tinnitus was ‘unlikely.'” R. at 238.
In January 2018, the veteran’s private primary care physician authored a positive nexus opinion as to her tinnitus. The physician verified that she reviewed the veteran’s service treatment records (STRs) and responded “yes” to the question posed to her—whether the veteran’s “current issues with tinnitus are as likely as not linked to noise exposure due to work in Motor Transport[3] around heavy trucks and machinery and around weapons on the firing range while on active duty in the United States Marine Corps?” R. at 114. The physician commented:
It is my professional opinion as [the] patient’s primary care physician as well as tapping back into my administrative and medical experiences during my time as a senior medical officer at the joint reserve base Naval Air Station in Louisiana that the primary patient’s chronic bilateral tinnitus is a presumed condition . . . based on the patient’s MOS during her military service.
R. at 114.
The same physician authored a positive nexus opinion as to the veteran’s left knee disability. She once again verified that she reviewed the veteran’s STRs and concluded that the veteran’s current left knee impairment is as likely as not linked to the treatment for left knee pain and lateral collateral ligament laxity noted in the STRs. R. at 116. She explained:
It is my professional opinion as [the] patient’s primary care physician as well as tapping back into my administrative and medical experiences during my time as a senior medical officer at the joint reserve base Naval Air Station in Louisiana that the primary patient’s chronic left knee arthropathy with
2 The examiner relied upon this Institute of Medicine publication: INST. OF MED., NOISE AND MILITARY SERVICE: IMPLICATIONS FOR HEARING LOSS AND TINNITUS (Larry E. Humes et al. eds., 2006) (hereinafter IOM REPORT), https://www.nap.edu/catalog/11443/noise-and-military-service-implications-for-hearing-loss-and-tinnitus.
3 The appellant’s military occupational specialty (“MOS”) in the Marine Corps was as a motor vehicle operator. R. at 10.
3
multidirectional or laxity of the ligamentous structures is a presumed condition . . . based on the patient’s MOS during her military service.
R. at 116.
A VA examination for the veteran’s left knee followed in March 2019. Under the medical history section of the C&P examination, the examiner noted that the veteran’s left knee condition with osteoarthritis symptoms first occurred in 1985. R. at 52. Specifically, the veteran told the examiner that her condition “began while in boot camp from excessive running and rucking,” and she noticed pain in her left knee after stepping down to the ground from the 5-ton truck she was working on. Id. The examiner considered a 1986 STR stating that the veteran had left knee pain once during the week that lasted a couple of hours, “then subsided without sequelae or recurrence. Pt feels healthy” and “[k]nee benign exam except slight laxity to [lateral collateral ligament] on LEFT without signs of pain etc.” R. at 71. The examiner noted no evidence of chronic or persistent left knee issues in service and no complaints of knee issues or abnormal examinations at separation. Id. He considered a 2014 x-ray that “suspected left chondromalacia”4 and recommended an MRI to “address concern of a tiny calcific focus possibly related to a possible cruciate injury”; a 2015 MRI that found “[m]ild to moderate chronic ACL strain. Chondromalacia. Limited joint effusion”; and a 2017 MRI that showed “[m]inimal degenerative patellar spurring.” Id. The examiner ultimately concluded that the veteran’s left knee disability was more likely due to aging than service Id.
In the decision on appeal, the Board found that the veteran currently has tinnitus, and the Board conceded that she was exposed to loud noises because of her MOS as a motor vehicle operator. R. at 10. However, the Board found that her tinnitus wasn’t related to service because the veteran denied ringing in her ears or other ear problems at separation from service, and that VA examiner’s negative nexus opinion from February 2017 was most probative. R. at 10-13. The Board noted the examiner’s citation to the IOM panel statements as probative explanation for the suggestion that “had injury occurred due to noise exposure during service, such would have been demonstrated at the time, and not years later.” R. at 13. The Board found the private opinion from January 2018 to be of little probative value for three reasons: first, because the opinion was “based in part on the [physician’s] own experiences in the military, and not the Veteran’s experiences”;
4 “Chondromalacia” is “softening of the articular cartilage, most frequently in the patella.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 347 (33d ed. 2020).
4
second, because the physician erroneously concluded that tinnitus is a presumed condition based on the veteran’s MOS; and third, because the opinion was “otherwise without medical explanation or supporting rationale.” R. at 12.
As for the knee disabilities, the Board determined that the veteran currently suffers from left and right knee osteoarthritis, but that her disabilities were not related to service. R. at 6-10. The Board based this determination on VA examinations from April 2017 and March 2019.5 It noted that the March 2019 examiner highlighted that the veteran’s separation examination was normal and that he found no evidence that Ms. Valentino had chronic or persistent left knee issues during service. R. at 9. The Board found this examination probative because it was based on an accurate review of the veteran’s medical history and supported its conclusion—that the veteran’s knee disability is more likely due to aging —with a cogent medical discussion. R. at 9. It found the January 2018 private opinion as to the left knee not probative for the same reasons as the private tinnitus opinion—explaining that the Board knows of no law presuming a knee disability was service-connected to the veteran’s MOS, and the opinion was “otherwise without medical explanation or supporting rationale.” R. at 7. Lastly, the Board found that the veteran’s assertions that she experienced knee pain since service to not be credible because she denied joint complaints and had a normal examination when she separated from service, and the probative medical opinions indicate that her disabilities are due to age. R. at 9.
II. ANALYSIS
A. Legal Landscape
Service connection usually requires evidence of a current disability, an in-service incurrence or aggravation of an injury or a disease, and a link between the two. Marcelino v. Shulkin, 29 Vet.App. 155, 157 (2018). The Board’s finding of service connection, or of no service connection, is a finding of fact that this Court reviews under the “clearly erroneous” standard pursuant to 38 U.S.C. § 7261(a)(4). See Swann v. Brown, 5 Vet.App. 229, 232 (1993). If the Court reviews the record in its entirety and the Board’s finding of fact is supported by a plausible basis, “‘the [Court] may not reverse it even though convinced that had it been sitting as trier of fact, it
5 The April 2017 examiner only opined to the right knee, whereas the March 2019 examiner only opined to the left knee. The appellant does not challenge the adequacy of the April 2017 examination. The Board also discussed a favorable opinion from a private physician in October 2014, which the Board found not probative, R. at 6-7—a determination the appellant has not challenged.
5
would have weighed the evidence differently.'” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)).
In every decision, the Board is required to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 57. To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for rejecting any 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 law does not impose any reasons-or-bases requirements on medical examiners, and the adequacy of medical reports need not “explicitly lay out the examiner’s journey from the facts to a conclusion,” but must be based upon a reading of the report as a whole. Monzingo v. Shinseki, 26 Vet.App. 97, 105-06 (2012) (per curiam), overruled on other grounds by Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). A medical opinion 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 probative value of a medical opinion is based on the factually accurate, fully articulated, sound reasoning for the conclusion. Id. at 304. “Both VA medical examiners and private physicians offering medical opinions in veterans benefits cases are nothing more or less than expert witnesses.” Id. at 302. Their opinions are assessed against the same standards; neither VA nor private doctor gets special or greater weight. See id.; D’Aries v. Peake, 22 Vet.App. 97, 107 (2008) (per curiam). The probative value of a medical opinion is based on the factually accurate, fully articulated, sound reasoning for the conclusion. As part of its responsibility to assess the credibility and weight to given to evidence, the Board may favor one medical expert over another when it gives an adequate statement of reasons and bases. Owens v. Brown, 7 Vet.App. 429, 433 (1995). The Court reviews the Board’s determination as to the adequacy of a medical opinion for clear error. D’Aries, 22 Vet.App. at 104.
B. Tinnitus
The Board’s suggestion that the IOM report supports the contention that “had injury occurred due to noise exposure during service, such would have been demonstrated at the time,
6
and not years later” is misplaced.6 See R. at 13. The February 2017 examiner’s characterization of the IOM report as stating that there was an “insufficient scientific basis to conclude that permanent hearing loss/tinnitus directly attributable to noise exposure will develop long after noise exposure occurs” and that “a prolonged delay in the onset of noise-induced hearing loss/tinnitus was ‘unlikely,'” R. at 238, is at odds with what the IOM report actually expressed about tinnitus. The report did indeed find that there was insufficient evidence from studies “to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure.” IOM REPORT at 47. The report also found that the definitive studies to address this issue have not yet been done, but based on “data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur.” Id. These findings relate only to “permanent noise-induced hearing loss,” not to tinnitus.
What the report did say about tinnitus was that “[a] more complete understanding of the mechanisms by which tinnitus is generated will be needed before the existence of delayed onset of noise-induced tinnitus can be confirmed or rejected.” Id. at 119. In other words, the IOM report appears to say that it had not resolved the exact question the examiner was attempting to answer by citing the report. So, the February 2017 VA examiner cited the IOM report for something it did not say. Then the Board uncritically relied on the examiner’s citation of the IOM report, repeating the examiner’s characterization of the report’s statement—”that there were insufficient scientific bases . . . to conclude that permanent hearing loss/tinnitus directly attributable to noise exposure will develop long after noise exposure.” R. at 12-13. And the Board declared that it “place[d] high probative value on the opinion of the February 2017 VA examiner because her conclusions were based on [inter alia] . . . medical research.” R. at 13. What the Board failed to do was assess whether the qualifying and contradictory language in the actual IOM report—the only medical research it cited—affected the probative value of the examiner’s opinion or rendered it inadequate. See McCray v. Wilkie, 31 Vet.App. 243, 257 (2019).

The Board thus failed to give an adequate statement of reasons or bases for its decision to give the February 2017 examiner’s opinion great probative weight. See id. at 254. Until the Board meaningfully considers the contents of the audiology opinion from February 2017, the Court cannot effectively review the Board’s tinnitus determination. See 38 U.S.C. § 7104(d)(1); Allday,
6 The Board was endorsing the February 2017 examiner’s reliance on the IOM report but mistakenly described the examiner as “the November 2017 VA examiner.” R. at 13.
7
7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-57; see also Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (holding that when evaluating medical text evidence and medical opinion evidence as to an unsettled medical question, the Board must bear in mind the reasonable doubt doctrine); see also 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.”). On remand, the appellant is free to submit additional evidence and argument on the remanded matter, including the specific arguments raised here on appeal, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
C. Left Knee Disability
The veteran argues that the March 2019 VA medical opinion was based on a lack of corroborating evidence and included conclusory findings, and the Board should have instead relied on the private medical opinion. See Appellant’s Brief (Br.) at 4-8, 10-13. However, she fails to demonstrate clear error in either the March 2019 opinion or the Board’s decision. The examiner’s statement that there was no evidence of chronic or persistent left knee issues during service and no documentation of issues at separation is not using the absence of evidence as substantive negative evidence. See R. at 71. It is a reasoned explanation for his conclusion that the left knee disability is more likely due to the natural process of aging. The examiner pointed to the veteran’s documented knee injury in her 1986 STRs wherein she felt pain once during the week that “subsided without sequelae or recurrence.” R. at 71; see R. at 910. Such a notation in the veteran’s STRs that her knee pain happened once and did not reoccur is not an absence of evidence, but affirmative evidence that her knee pain was temporary rather than chronic. And that concept is further bolstered by the veteran’s attestations in her post-service examinations that she didn’t have knee pain or knee issues. See R. at 711-716, 880-886.
By the same token, the veteran’s argument that the examiner “provided no rationale to support [the] bald conclusion [that the veteran’s knee disability was more likely due to the natural aging process]” is unavailing. Appellant’s Br. at 7; see R. at 71. The examiner noted that no knee problems showed up until 25 years after service. See R. at 71. He cited the MRI of the veteran’s left knee in 2015 and the x-ray evidence in 2014, 2017, and 2019. The 2017 x-ray showed “only
8
minimal degenerative patellar spurring,” and the 2019 x-ray report “reads ‘normal radiographic series of left knee.'” Id. The March 2019 VA examiner based his opinion that the veteran’s left knee complaints “are more likely than not the result of the natural aging process” on all of these circumstances—the transitory nature of her in-service knee problem, her knee health at separation, the passage of 25 years until any knee condition was noted, and the medical evidence of her left knee condition 2014-19. Id.
In contrast, the Board found the private medical opinions to be inadequate—the first (October 2014) opinion as a resubmission of something submitted in support of a claim for a lower extremity nerve condition, and the second, in January 2018, because of its lack of rationale. The Board observed that the 2018 private physician highlighted her own military experience rather than the veteran’s and simply concluded that the veteran’s left knee disability was a “presumed” condition based on the veteran’s MOS. R. at 7, 116. The veteran does not challenge the Board’s rejection of the asserted presumption of service connection based on the veteran’s MOS, and the veteran’s suggestion that the doctor’s military experience gives her opinion controlling weight is unpersuasive.
On this record, the Board’s decision to credit the VA examiners over the private physicians was not clearly erroneous, and the Board’s statement of reasons or bases for that decision was adequate. See D’Aries, 22 Vet.App. at 107; Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table) (“An appellant bears the burden of persuasion on appeals to this Court . . . .”).
III. CONCLUSION
Based on the foregoing, the Board’s February 20, 2020, decision denying entitlement to service connection for tinnitus is SET ASIDE, and the matter is REMANDED for further consideration consistent with this decision. The Board’s determination as to the veteran’s left knee condition is AFFIRMED. The appeal as to the veteran’s right knee disability is DISMISSED.
9
DATED: December 30, 2021
Copies to:
Alexandra M. Jackson, 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.

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

Powered by WordPress.com.