Robert FOUNTAIN, Appellant, v. Robert A. MCDONALD, Secretary of Veterans Affairs, Appellee.
No. 13-0540.
United States Court of Appeals for Veterans Claims.
Feb. 9, 2015.
Will A. Gunn, General Counsel; Mary Ann Flynn, Assistant General Counsel; Mark D. Vichich, Acting Deputy Assistant General Counsel; and Christopher O. Adeloye, all of Washington, D.C., were on the brief for the appellee.
Before HAGEL, MOORMAN, and BARTLEY, Judges.
MOORMAN, Judge:
The appellant, Robert Fountain, through counsel, seeks review of a January 28, 2013, decision of the Board of Veterans Appeals (Board) denying service connection for tinnitus. On appeal, the appellant contends that the Board failed to provide an adequate statement of reasons or bases for rejecting his testimony concerning the continuity of his symptoms after service. The Secretary argues that any such error is harmless under Walker v. Shinseki, 708 F.3d 1331, 1339-40 (Fed.Cir.2013), because tinnitus is not listed under
I. FACTS
Mr. Fountain served on active duty in the U.S. Army from February 1977 to July 1980. Record (R.) at 408. During service, he was a motor transport operator, driving large engine diesel trucks. R. at 163, 408. Upon separation, he was diagnosed with bilateral hearing loss and, at that time, he filed an application for VA benefits for a problem with his “hearing.” R. at 311-12, 307. In December 1980, a VA regional office (RO) issued a decision granting entitlement to benefits for bilateral hearing loss, specifically sensory neural high frequency loss, at a noncompensable level. R. at 293.
In January 2009, Mr. Fountain filed a claim for VA benefits for tinnitus and a claim for an increase in VA benefits for his bilateral hearing loss. R. at 163. He stated that his hearing loss and tinnitus were “due to noise exposure while [he was] assigned to transportation units in the Army” and noted that “while assigned to [Fort] Benning[,] GA, a practice round exploded directly in front of my face, blowing off my helmet, causing temporary deafness and considerable tinnitus.” Id.
A May 20, 2009, VA audiological examination assessed Mr. Fountains complaints of tinnitus. R. at 133-35, 447. The audiologist opined that the tinnitus “is less likely as not (less than 50/50 probability) caused by or a result of in-service acoustic trauma.” R. at 135. The opinion was based on service treatment records and the VA examinations “conducted shortly after military separation that were all silent for complaint/diagnosis of tinnitus, plus the conceded history of military noise exposure.” Id. The report noted a review of service records that were silent for complaint or diagnosis of tinnitus but that showed hearing loss and a VA 1980 audiological examination report that stated that Mr. Fountain “did not report tinnitus.” R. at 447. The audiologist recorded Mr. Fountains current complaints of bilateral ringing in the ears and hearing loss and noted that his tinnitus was recurrent but
In May 2009, the RO denied Mr. Fountains claims. R. at 124. The RO conceded exposure to acoustic trauma based on Mr. Fountains military occupation but denied service connection for tinnitus, finding no nexus between his current tinnitus and service. R. at 126. The RO also denied a higher (compensable) rating for hearing loss. Mr. Fountain did not appeal this decision, and it became final.
In November 2010, Mr. Fountain filed a claim to reopen the disallowance of his tinnitus claim. R. at 120. He specifically referenced the 2009 RO decision having noted that, on his separation examination report dated October 29, 1980, he did not report having tinnitus. In response, he stated: “I do not recall ever being asked if I had tinnitus while in the service. I was not aware that tinnitus was actually a disability until recently. Tinnitus should have been granted because I was suffering from the disability while in the service.” Id. The RO denied his claim to reopen, finding that no new and material evidence on the issue of nexus had been submitted. R. at 82-87. In April 2011, Mr. Fountain filed a Notice of Disagreement (NOD) in which he stated that his November 2010 statement should be considered new and material evidence. R. at 79. He appealed to the Board in July 2012, reiterating that his tinnitus had its onset in the military and explaining that his “hearing problems” began with the explosion near his head, which caused temporary deafness in his ear, and “the constant exposure to noise on a continuous and daily basis while [he was] driving and servicing diesel engines.” R. at 37.
On January 28, 2013, the Board issued the decision on appeal, finding that Mr. Fountains November 2010 and April 2011 statements were new and material evidence, but denying the claim. R. at 3-18. The Board stated that the statements were new and material evidence because “they suggest chronicity of symptoms in service and continuity of tinnitus after service, including providing a reason for the failure to mention tinnitus after service or to claim service connection for tinnitus for years after service” and they “offer an explanation for why he did not report or complain of tinnitus symptoms prior to his January 2009 claim.” R. at 10. In considering the merits, the Board found that Mr. Fountain had a current disability of tinnitus and was exposed to acoustic trauma in service because his statements of such exposure were credible “as they were supported by the evidence of record and are consistent with the duties and circumstances of his service.” R. at 13.
The Board, however, determined that the weight of the “competent” evidence was against a nexus between his current tinnitus and the loud noise exposure dur-
II. ANALYSIS
A. Parties Arguments
On appeal, Mr. Fountain argues that the Board failed to provide adequate reasons or bases for rejecting his testimony concerning the continuity of his symptoms since service. Additionally, he argues that the Board erred by categorically excluding his lay statements as incompetent on the question of tinnitus etiology. Noting that tinnitus is a subjective condition, the appellant maintains that his tinnitus can be substantiated by his testimony. Reply Brief (Br.) at 3-4. The appellant does not specifically discuss Walker, 708 F.3d at 1340, which clarified that continuity of symptomatology may be used to establish linkage to service only for the list of chronic conditions in
Relying on VA Training Letter 10-02, the appellant contends that the Board erred in relying on the May 2009 VA audiological report because the report failed to address the relationship between his current tinnitus and his service-connected sensorineural hearing loss, and the Board should have addressed this theory of secondary service connection.
The Secretary contends that any failure by the Board in discounting Mr. Fountains lay statements is harmless because, under
Regarding the competence of the lay evidence, the Secretary acknowledges that the Board determined that a layperson is not competent to diagnose the etiology of tinnitus but argues that the Board did not make a “sweeping generalization that all laypersons lack the competenc[e] to provide etiology opinions for all medical conditions; rather, [the Board made] a determination that addresses lay nexus evidence for tinnitus, specifically, due to the nature of the condition.” Secy Br. at 17. The Secretary further contends that a theory of secondary service connection for tinnitus was not reasonably raised by the record because VA Training Letter 10-02 is too general in its discussion of tinnitus to make a link between hearing loss and tinnitus more than speculative; there is some indication in the record that tinnitus may have been caused by postservice noise exposure to machinery and heavy equipment; and, the grant of service connection for hearing loss alone is insufficient to suggest a link between the two conditions. Id. at 20-21. Additionally, the Secretary argues that, even if the Board erred in its treatment of the appellants lay evidence, remand is not warranted because, when rendering the May 2009 opinion that the appellants condition is less likely than not related to service, the VA audiologist considered the appellants lay statements regarding the onset and continuity of his tinnitus symptoms. Id. at 23.
B. Statutory Interpretation
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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff‘d per curiam, 78 F.3d 604 (Fed. Cir.1996) (table);
For chronic diseases included in the provisions of
“Chronic disease” is statutorily defined in
In Walker, the veteran argued that bilateral hearing loss, although not enumerated in
Even though
§ 3.303(b) does not contain a specific cross reference to§ 3.309(a) , we think a harmonious reading of§§ 3.303(b) ,3.307(a) and3.309(a) supports an implicit cross reference to§ 3.309(a) in§ 3.303(b) . For the reasons explained above, we conclude that properly interpreted, and consistent with the Secretarys interpretation,§ 3.303(b) is constrained by§ 3.309(a) , regardless of the point in time when a veterans chronic disease is either shown or noted, in that the regulation is onlyavailable to establish service connection for the specific chronic diseases listed in § 3.309(a) .
Id. The Federal Circuit, however, did not address the issue presented here—whether a condition—tinnitus—although not listed specifically in the statute or the regulation, is encompassed by the listed category of “[o]rganic diseases of the nervous system.” Notably, the statute gives the Secretary the authority to add “other chronic diseases” to the statutory list.
It is undisputed by the parties, and the Court agrees, that the phrase “[o]rganic diseases of the nervous system,” contained in both
The language at issue found in
Lacking the formalities of notice-and-comment rulemaking, the Secretarys Training Letter 10-02 is entitled to deference “only in so far as it has ‘the power to persuade.‘” Wanless v. Shinseki, 618 F.3d 1333, 1338 (Fed.Cir.2010) (applying Skidmore, 323 U.S. at 140, to the Secretarys use of a VA General Counsel Opinion to interpret statutory provision in
We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.
323 U.S. at 140 (emphasis added). Therefore, the degree to which the Secretarys interpretations of ambiguous statutes are given deference “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, ... and all those factors which give it power to persuade.” Id.
The Secretary maintains that the basis for his policy to exclude tinnitus as encompassed within “[o]ther organic disease of nervous system” is that tinnitus is a symptom rather than an illness or disease, and the classification as a symptom rather than a disease “is consistent with” the definition of “tinnitus” provided by NIDCD, i.e., the definition in a fact sheet from the National Institutes of Health. Secy Sept. 8, 2014, Suppl. Mem. at 3 (quoting Appendix at 4).
The appellant contends that the Secretarys position is inharmonious with other provisions of the veterans benefits scheme and a constrictive interpretation unfavorable to veterans. The appellant argues that the Secretarys interpretation against the inclusion of tinnitus within
The Training Letter states, in part:
- Sensorineural hearing loss may be service-connected as a presumptive condition under
38 [C.F.R. §] 3.309(a) because it is an organic disease of the nervous system. - Unlike hearing loss, tinnitus may not be service-connected as a presumptive condition under
38 [C.F.R. §] 3.309(a) because it is a subjective symptom rather than an organic disease of the nervous system.
Appendix at 10. The Training Letter also describes both sensorineural hearing loss and tinnitus:
Sensorineural hearing loss (SNHL) (also called neurosensory hearing loss, and sometimes informally called nerve deafness) is due to a problem in the inner ear or in the auditory (Cranial Nerve VIII) nerve between the inner ear and the brain. It most often occurs when the tiny hair cells in the cochlea are
injured, and there may also be nerve fiber damage. The two most common causes of SNHL are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise). ... E. Tinnitus
1. What is it? Subjective tinnitus is a phantom auditory sensation that is perceived as a sound when there is no outside source of the sound. It is a symptom rather than an illness or disease. Tinnitus may be perceived in one or both ears or anywhere in the head, and although it is commonly perceived in the ears, it originates in the central nervous system.
....
3. What are its causes? Tinnitus is a symptom that is associated with many conditions, including acute noise exposure and noise-induced hearing loss. Sensorineural hearing loss, such as from presbycusis or acoustic trauma, is the most common cause of tinnitus. However, the etiology of tinnitus often cannot be identified, because there are so many potential causes that it is impossible to select one. In addition to sensorineural hearing loss, other known causes are Menieres disease, head injury (including traumatic brain injury), otosclerosis, cerebrovascular disease, neoplasms, numerous types of ototoxic medications, hypertension, kidney disease, dental disorders, and many other medical conditions.
Id. at 4-5.
In addition to the above statement acknowledging both that tinnitus “originates in the central nervous system” and that “[s]ensorineural hearing loss, such as from presbycusis or acoustic trauma, is the most common cause of tinnitus,” the Training Letter, in its discussion of VA examinations, recognizes that tinnitus may be associated with hearing loss. For example, the Training Letter requires that a VA audiologist “indicate whether tinnitus is as likely as not a symptom associated with hearing loss” if there “is a claim and/or current complaint of tinnitus” and “if hearing loss is present.” Id. at 15. The Training Letter also states that “acoustic trauma means sudden hearing loss (and possibly tinnitus) resulting from a single short-term exposure to an extremely loud noise, such as an explosion or gunshot” and notes that “VA defines acoustic trauma in the stricter sense of a short-term severe episode of loud noise exposure that causes damage to the inner ear.” Id. at 15-16.
The Secretarys position excluding tinnitus from an “organic disease of the nervous system,” as expressed in VA Training Letter 10-02, is not persuasive, and the Court does not adopt it, for several reasons. First, to the extent the Secretary bases his position on tinnitus being a mere symptom, this is inconsistent with a key component of VAs benefit scheme, the VA rating schedule, specifically
First, as the appellant argues, the Training Letters reasoning is inconsistent with the treatment of tinnitus in the veterans benefits scheme. See Arneson v. Shinseki, 24 Vet.App. 379, 383 (2011) (stating that statutory terms are interpreted “‘in their context and with a view to their place in the overall statutory scheme‘” (quoting Tyler v. Cain, 533 U.S. 656, 662, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001))). The central conceit of the Training Letter, with regard to tinnitus, is that tinnitus cannot be considered an organic disease of the nervous system for VA compensation purposes because it is “a symptom rather than an illness or disease.” Appendix at 4. However, VA treats tinnitus as an independent, stand-alone illness or disease rather than simply a symptom for VA compensation purposes. See
Second, various language in the Training Letter supports the appellants proposed interpretation. Although the Training Letter bases the exclusion of tinnitus from “organic diseases of the nervous system” on the conclusion that tinnitus is a mere symptom (a dubious assertion, as explained above), the Training Letter acknowledges that tinnitus “originates in the central nervous system.” Appendix at 4. Tinnitus thus appears, by the Secretarys admission, to meet the statutory requirement that the condition be “of the nervous system.”
Third, the thoroughness of the Secretarys consideration is not evident from the Training Letter. See id. (identifying factors affecting persuasiveness of Agencys position as including “the thoroughness evident in [the Agencys] consideration“). Although the Training Letter contains a list of references, which include medical fact sheets, the Letter does not discuss the medical evidence upon which it relies for its various medical conclusions. Appendix at 17. For instance, in stating categorically that tinnitus is not a disease, the Letter does not define “disease.” But VA has previously defined “disease” as “any deviation from or interruption of the normal structure or function of any part, organ, or system of the body as manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown.” VA Gen. Coun. Prec. 82-90 (first released as 1-85 on Mar. 5, 1985) (citing DORLANDS at 385 (26th ed.1974)). Further, this Court observed in Quirin v. Shinseki, 22 Vet.App. 390 (2009), that VA had identified that a key factor in determining whether a condition is a disease is whether the condition is “‘capable of improving or deteriorating.‘” 22 Vet.App. at 394 (quoting VA Gen. Coun. Prec. 82-90). Although the NIDCD fact sheet, highlighted by the Secretary in his supplemental memorandum, states that tinnitus is not a disease, it also states that tinnitus sometimes “gets worse,” that patients can work with their doctors to “reduce the severity of the noise and its impact,” and that it may be caused when a shock wave of an explosion “damages brain tissue in areas that help process sound” or when “the brains neural circuits [are] trying to adapt to the loss of sensory hair cells” in the inner ear that “help transmit sound to the brain.” Appendix at 18, 19. Based on the above, it is unclear why tinnitus would not be considered a disease for purposes of
Fourth, earlier agency pronouncements support treating tinnitus as an “organic disease[] of the nervous system” under
To the extent the Secretary argues that tinnitus is a not a condition “of the nervous system,” the prior VA pronouncements undermine that argument as well. In the Final Rule, VA describes tinnitus as “a central nervous condition.” 68 Fed.Reg. 25,822. Referencing a VA booklet on hearing impairment in the Final Rule, VA explains: “[D]amage in the inner ear may be a precursor for subjective tinnitus, but [] subjective tinnitus is generated within the central auditory pathways. Comparing tinnitus, a central nervous condition, to hearing loss, a disability from damage to an organ of special sense (the ear) is not a valid comparison.” Id. In the proposed rulemaking, VA explains that “[t]rue (subjective) tinnitus does not originate in the inner ear, although damage to the inner ear may be a precursor of subjective tinnitus” and that it “appears to arise from the brain rather the ears.” 67 Fed.Reg. 59,033 (2002) (proposed rule); Appendix at 28. The General Counsel Opinion supports this understanding of tinnitus. See VA Gen. Coun. Prec. 2-03 at paras. 2-3 (May 22, 2003) (discussing rulemaking and collecting medical treatises and manuals describing tinnitus as a disorder of the nervous system); see also Osman v. Peake, 22 Vet. App. 252, 256 (2008) (noting that VA General Counsel precedent opinions “constitute a body of experience and informed judgment” on VAs part).
Finally, examining the Board decisions issued since Walker undermines the persuasiveness of the Secretarys reasoning. As the Court stated in its order requesting supplemental memoranda from the parties in this case, a majority of Board decisions considering the issue have determined that tinnitus is an organic disease of the nervous system under
The Court is mindful that Board decisions are nonprecedential,
The Court additionally notes the appellants argument that the inclusion of hypertension on the list in
Accordingly, the Court concludes that the statutory language is ambiguous, and the Secretarys interpretation is not persuasive and therefore not entitled to respect. The interpretation is not presented with sufficient supporting rationale, is provided in a Training Letter that is internally inconsistent, and fails to reconcile the position in the Training Letter with the VA benefits scheme that considers tinnitus a compensable disability. See Skidmore, 323 U.S. at 140; Sursely, supra; see also Sharp, 23 Vet.App. at 275 (rejecting VA interpretation of ambiguous language where the Secretary offered no support for his interpretation); Osman, 22 Vet.App. at 259-60 (rejecting VA General Counsel interpretation that was inconsistent with a prior interpretation).
The Court will therefore adopt the interpretation urged by the veteran, that
The Court further holds that Walker is not dispositive as precluding establishing service connection for tinnitus on the basis of continuity of symptomatology, see Walker, 708 F.3d at 1340, and the appellant is not precluded from seeking VA benefits for his claimed tinnitus by way of the chronicity or continuity-of-symptomatology provisions of
C. Board Errors
Regarding the appellants contention that the Board erred in rejecting his testimony concerning the continuity of his symptoms since service, he specifically asserts that the Board improperly relied on the absence of direct postservice medical evidence of tinnitus and improper assumptions about the severity of his tinnitus symptomatology.
The Board found the appellants statements regarding the continuity of his symptoms not credible based on the lack of medical evidence of tinnitus until many years after service. The Board may weigh a claimants lay statements against the absence of contemporary medical evidence, as it did here. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed.Cir.2006). However, the Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation. See Horn v. Shinseki, 25 Vet.App. 231, 239 (2012). In Horn, this Court held that the absence of evidence cannot be substantive negative evidence without “a proper foundation ... to demonstrate that such silence has a tendency to prove or disprove a relevant fact.” 25 Vet.App. at 239 n. 7. The Court cited precedent “referencing Federal Rule of Evidence 803(7), to the effect that ‘the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded.‘” Id. (citing Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011)); see also AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed.Cir.2013) (citing Horn and Buczynski with approval and holding that the absence of documentation of a claimed sexual assault in service cannot be considered evidence that the assault did not occur because the failure to report such assaults is typical of active duty victims); Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed.Cir.2009) (holding that this Court did not err in disregarding an inconclusive medical report because it was “not pertinent evidence, one way or the other,” regarding service connection).
Here, the Board found that the lack of medical evidence of a diagnosis of or treatment for tinnitus until many years after service weighed against the appellants claim and his credibility. For a number of reasons, the Court finds that
In this regard, the Court notes that the VA audiologist in May 2009 noted that the appellants tinnitus was recurrent but not constant and that it “occurs an average of at least once or twice daily for an average duration of 30 seconds per episode.” R. at 133. The Court agrees with the appellants argument that the Board “made an improper assumption about ‘the relative severity, common symptomatology, and usual treatment’ of the Veterans tinnitus by pointing to the absence of medical evidence but without citing to any independent medical evidence to corroborate its finding.” App. Br. at 20. The Board erred in failing to support its finding that tinnitus did not exist during service based on the Boards assertion that the appellant would have sought treatment for it or noted it at the time of his separation. R. at 14; see Kahana v. Shinseki, 24 Vet.App. 428, 434 (2011) (holding that, where the record is devoid of any medical evidence establishing “the relative severity, common symptomatology, and usual treatment of an ACL [(anterior cruciate ligament)] injury,” the Board violated this Courts holding in Colvin v. Derwinski, 1 Vet.App. 171 (1991), in stating that, “given the nature of the appellants injury, some documentation in his SMRs is expected“). Additionally, the Board did not consider the extent of the appellants tinnitus symptoms when it made an adverse credibility determination based on the appellants “lack of complaints or treatment for tinnitus to medical professionals for 29 years after discharge from service.” R. at 16.
Second, the Court finds inadequate the Boards reasons for finding the appellant not credible because he did not file a claim for VA disability compensation for tinnitus before 2009, although he had previously filed other claims for compensation. R. at 15-16. The Board may not rely solely on the fact that the appellant did not file, at a particular point, a claim for VA benefits for tinnitus at the same time that he filed a claim for another condition: The Board erred in not explaining why filing the tinnitus claim would have been expected to have occurred earlier in light of the appellants statements, including that he was
Third, in weighing the evidence, the Board stated that “at a post-service VA examination in 1980[,] the Veteran denied tinnitus.” R. at 17. In so stating, the Board apparently was attempting to summarize the May 2009 VA audiological examination report and to note that the “VA examiner accurately noted the history.” Id. The Boards statement that the appellant had “denied tinnitus,” however, is incorrect. The May 2009 examiner referred to an October 1980 VA audiological examination report in which the “veteran did not report tinnitus.” R. at 447. There is no evidence of record before the Court reflecting a denial of tinnitus during service or after service.
Fourth, in addition to finding the lay statements not credible, which the Board will be required to reassess on remand, the Board also determined that “tinnitus is not the type of disorder that a lay person can provide competent evidence on questions of etiology.” R. at 18. In making this determination, the Board failed to provide an adequate statement of reasons or bases in light of the governing caselaw. Specifically, the Board did not apply the relevant, current law concerning lay testimony, and the Boards applying the broad rule that lay evidence is incompetent on the issue of in-service causation for tinnitus, without further explanation, is deficient in light of
The Court also agrees with the appellants contention that the Board erred when it failed to consider a theory of secondary service connection for tinnitus based on the appellants service-connected bilateral hearing loss. The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record. Robinson v. Peake, 21 Vet.App. 545, 553 (2008), aff‘d sub. nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed.Cir.2009). By the time VA requested the May 2009 VA audiological examination, the appellant had already been service connected for sensorineural bilateral hearing loss, and the RO conceded the appellants exposure to acoustic trauma during service based on the appellants military occupation. The results of audiological examinations performed when the appellant entered service in 1976, when he separated in 1980, and when he underwent a VA audiological examination in 2009 revealed the following puretone hearing thresholds:
| 500 Hertz | 1000 Hertz | 2000 Hertz | 3000 Hertz | 4000 Hertz | ||
| Right | 1976 | 5 | 5 | 5 | 5 | 0 |
| 1980 | 35 | 40 | 30 | N/A | 30 | |
| 2009 | 15 | 20 | 25 | 35 | 35 | |
| Left | 1976 | 5 | 5 | 5 | 10 | 5 |
| 1980 | 35 | 35 | 30 | N/A | 30 | |
| 2009 | 25 | 30 | 30 | 30 | 35 |
R. at 133 (2009 VA examination report), 312 (1980 separation report), 337 (1976 enlistment report) (all results in decibels).
In VA Training Letter 10-02, the Director of the Compensation and Pension Service instructed that for tinnitus opinions, certain standard guidelines be followed. The Director instructed that certain language be given to examiners:
b. If there is no record in the service treatment records of tinnitus, but there is a claim or complaint of tinnitus, the audiologist is asked on the examination protocol to offer an opinion about an association to hearing loss, or an event, injury, or illness in service, if it is within the scope of his or her practice. 1) If the examiner states that tinnitus is a symptom that is associated with hearing loss, the tinnitus should be service connected and separately evaluated under [DC] 6260 if the hearing loss is determined to be service connected.
VA Training Letter 10-02 at F.5.b.1 (emphasis added). Additionally, VA Fast Letter 08-10 requires that in requesting an opinion about the etiology of tinnitus, “[i]f hearing loss is also present, the audiologist must provide an opinion about the association of tinnitus to hearing loss.” VA Fast Letter 08-10 (Apr. 17, 2008).
Here, the claim for tinnitus and the fact that the appellant was already service connected for hearing loss based on in-service acoustic trauma, and in light of the Train-
In pursuing the matter on remand, the appellant is free to submit additional evidence and argument on the remanded matters, 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 benefit sought); Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam order). “A remand is meant to entail a critical examination of the justification for the decision. The Court expects that the [Board] will reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this case.” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court, and the parties pleadings, the January 28, 2013, Board decision is VA-CATED and the claim for service connection for tinnitus is REMANDED for readjudication consistent with this opinion.
Randy L. PEDERSON, Appellant, v. Robert A. MCDONALD, Secretary of Veterans Affairs, Appellee.
No. 13-1853.
United States Court of Appeals for Veterans Claims.
Feb. 13, 2015.