Robert Fountain v. Robert A. McDonald
2015 U.S. Vet. App. LEXIS 154
| Vet. App. | 2015Background
- Veteran Robert Fountain served in the Army 1977–1980; separation records show sensorineural hearing loss and VA later granted service connection for bilateral hearing loss.
- Fountain claimed tinnitus in 2009, alleging onset from in-service acoustic trauma (explosion) and continuous postservice symptoms; a 2009 VA audiology exam diagnosed recurrent tinnitus but opined it was less likely than not related to service.
- The RO denied the tinnitus claim (2009); Fountain sought to reopen in 2010 and appealed to the Board; the Board (Jan. 28, 2013) found current tinnitus and in-service acoustic trauma but denied nexus, discounting his lay testimony and giving great weight to the VA opinion.
- Fountain argued the Board failed to provide adequate reasons for rejecting his continuity-of-symptom testimony and improperly treated lay etiology evidence as incompetent; Secretary argued any error was harmless because tinnitus is not a chronic disease under 38 C.F.R. § 3.309(a).
- The Court requested supplemental briefing on whether tinnitus fits within § 3.309(a)’s "other organic diseases of the nervous system" category and whether Walker v. Shinseki bars continuity-of-symptom claims for tinnitus.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether tinnitus qualifies under § 3.309(a) as an "other organic disease[] of the nervous system" for continuity-of-symptom presumptions | Fountain: tinnitus is at least sometimes a CNS/organic disease (esp. with acoustic trauma), VA treats it as a compensable disability, and VA materials acknowledge central origin | Secretary: Training Letter and NIDCD treat tinnitus as a symptom (not disease); Walker limits continuity proof to conditions listed in § 3.309(a) and tinnitus is not listed | Court: Statute/regulation ambiguous; Secretary's Training Letter is not persuasive under Skidmore; adopts veteran's interpretation — tinnitus (at least where acoustic trauma is shown) can be included in § 3.309(a) |
| Whether the Board gave adequate reasons for discounting Fountain’s lay testimony on continuity of symptoms | Fountain: Board failed to justify adverse inference from lack of contemporaneous records and wrongly assumed he would have reported tinnitus earlier | Secretary: Absence of earlier reports and VA exam notes support discounting; May 2009 opinion considered Fountain's lay history | Court: Board failed to establish foundation for treating silence as substantive negative evidence, made improper assumptions about symptom severity and claim-filing, and mischaracterized record; remand required |
| Whether lay testimony about tinnitus etiology is competent | Fountain: tinnitus is subjective and observable; lay testimony can be competent to establish continuity/nexus in some cases | Secretary: Etiology is medical; Board permissibly concluded lay evidence is incompetent for tinnitus etiology | Court: Board applied outdated/broad rule; must apply current law (e.g., Davidson) and analyze competence case-by-case; remand to reassess |
| Whether secondary service connection (tinnitus secondary to service-connected hearing loss) was reasonably raised and considered | Fountain: Record and VA guidance (Training/Fast Letters) link tinnitus and hearing loss; secondary theory was reasonably raised | Secretary: Training Letter does not establish a reliable link; May reflect postservice exposures | Court: Secondary theory was reasonably raised; the May 2009 exam failed to follow VA guidance to opine on association with hearing loss; remand for adequate exam/opinion |
Key Cases Cited
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir.) (§ 3.303(b) continuity presumption applies only to chronic diseases in § 3.309(a))
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (agency interpretations merit weight according to persuasiveness)
- Brown v. Gardner, 513 U.S. 115 (1994) (interpretive doubt resolved in veteran's favor)
- Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir.) (lay evidence can be competent on causation in appropriate circumstances)
- Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.) (Board may weigh lay reports against absent contemporaneous medical evidence, but must have foundation)