Joe L. Monzingo v. Eric K. Shinseki
2012 U.S. Vet. App. LEXIS 2324
Vet. App.2012Background
- Monzingo, a veteran, appealed a February 25, 2010 Board denial of benefits for bilateral hearing loss.
- Pre-induction in 1966 showed normal left hearing and some right ear loss (45 dB at 4k Hz).
- Separation in 1968 showed normal left hearing and right ear loss (35 dB at 4k Hz).
- 1984 RO granted tinnitus but denied bilateral hearing loss; decision became final.
- February 2008 VA exam diagnosed bilateral hearing loss with left ear not due to in-service acoustic trauma and right ear not aggravated by in-service acoustic trauma.
- Board relied on service-entry/separation data and the 2008 exam to deny benefits, noting improvement in right-ear acuity during service and lack of timely etiological opinion in a 2000 VA report.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constructive possession of Noise and Military Service and Tinnitus | Monzingo asserts these reports were constructively before the Board. | Secretary contends the reports were not actually or constructively before the Board. | No constructive possession; not reasonably expected to be part of record. |
| Judicial notice of the reports' findings | Court should take judicial notice and consider/remand on findings. | Findings are not universal notoriety and not subject to judicial notice. | Judicial notice declined; no remand to consider those findings. |
| Reason(s) or bases adequacy regarding continuity/tinnitus link | Board failed to address tinnitus as continuous symptomatology for hearing loss. | Evidence linking tinnitus to continuous hearing loss was not reasonably raised or present. | Board's reasons adequate; issues not reasonably raised by record. |
| Adequacy of the February 2008 VA examination | Examiner failed to provide detailed rationale and address studies on hearing loss. | Examination reviewed history, performed tests, and provided sufficient rationale. | Examination adequate and probative; no duty to return for clarification. |
| Whether improved right-ear acuity during service invalidates service connection | Noise and Military Service implies irreversible trauma; testing shows improvement. | Report not before/constructively before Board; findings not binding here. | Board's finding of improved acuity not clearly erroneous; Noise and Military Service not controlling. |
Key Cases Cited
- Bell v. Derwinski, 2 Vet.App. 611 (1992) (constructive possession of VA documents; record before the Board)
- Bowey v. West, 11 Vet.App. 106 (1998) (two documents not constructively before the Board; limits of constructive possession)
- Goodwin v. West, 11 Vet.App. 494 (1998) (documents not reasonably part of record; direct relationship required)
- Hilkert v. West, 12 Vet.App. 145 (1999) (burden on appellant to show error; reasons or bases required)
- Robinson v. Peake, 21 Vet.App. 545 (2008) (board must address issues reasonably raised by the record)
- Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008) (medical opinions; need for rationale to weigh competing opinions)
- Stefl v. Nicholson, 21 Vet.App. 120 (2007) (medical opinion must support its conclusion with analysis)
- D'Aries v. Peake, 22 Vet.App. 97 (2008) (adequate medical opinions based on history and examinations; full context)
- Acevedo v. Shinseki, 25 Vet.App. 286 (2012) (no reasons-or-bases requirement for medical examiners; read in context)
- Reonal v. Brown, 5 Vet.App. 458 (1993) (needed accuracy of factual premises in medical opinions)
- Horn v. Shinseki, 25 Vet.App. 231 (2012) (unexplained conclusory opinions; context of evaluation of medical opinions)