Singe Judge Appication, Service Connection on Secondary Basis, 38 C.F.R. § 3.310(a) (2011), Allen v. Brown, 7 Vet.App. 439, 448 (1995)

Excerpt from decision below: "A disability may be service connected on a secondary basis by demonstrating that the disability is either (1) "proximately due to or the result of [an already] service-connected disease or injury," 38 C.F.R. § 3.310(a) (2011), or (2) aggravated by an already service-connected disease or injury, "whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc). In addition, "VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations," regardless of the specific label attached to the claim. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001)." ======================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1878 ALBERT ROSEN, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before IVERS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30 (a), this action may not be cited as precedent. IVERS, Judge: Albert Rosen appeals through counsel a May 18, 2010, Board of Veterans' Appeals (Board) decision that denied entitlement to service connection for bilateral hearing loss and tinnitus. Record (R.) at 3-31. Mr. Rosen's Notice of Appeal was timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither party requested oral argument or identified issues that they believe require a precedential decision of the Court. Because the Board's decision is supported by an adequate statement of reasons or bases and is not otherwise clearly erroneous, the Court will affirm the May 2010 Board decision. I. FACTS Mr. Rosen served on active duty in the U.S. Army from September 1948 to August 1949 and from September 1950 to September 1952. R. at 293, 296. In January 1949, while flying during service, Mr. Rosen ruptured his right ear drum. R. at 230-31. Although he suffered a decrease in hearing as a result of that an incident, a September 1950 audiogram was " essentially negative" for hearing loss. R. at 230. At his September 1952 separation examination, Mr. Rosen satisfactorily completed a voice whisper test. R. at 222. Shortly after his separation from service, Mr. Rosen applied for and was granted service connection fortheresidualsofhisrupturedright eardream. SubsequentVAexaminationsconducted in 1960 and 1966 reflected normal hearing. R. at 195, 213. In January2006, Mr. Rosen filed a claim for service connection for bilateral hearing loss and tinnitus. R. at 179. In support of his claim, he submitted private treatment records showing a diagnosis of bilateral hearing loss. R. at 189. He also submitted a medical opinion from Dr. Suresh Raja that Mr. Rosen had hearing loss that is "worse than should be expected for a man his age" and that "it is as likely as not his hearing loss was incurred during his military service." R. at 172. In May 2006, Mr. Rosen was afforded a VA audiological examination. R. at 159. The examiner reviewed Mr. Rosen's claims file and recorded his medical history, including his reports of noise exposure in Korea. After performing audiological testing, the examiner opined that [Mr. Rosen]'s hearing loss and accompanying tinnitus are not as likely to be from noise exposure incurred in military service. Noise is most likely the cause of this hearing loss, but documentation shows normal hearing before discharge and initial testing done as a civilian was also within normal limits. Noise exposure was positive in the veteran's occupation. It is likely that this occupational noise exposure and aging of the mechanism is causal for [his] hearing loss. R. at 161. In a May 2006 rating decision, a VA regional office denied Mr. Rosen's claims for service connection for bilateral hearing loss and tinnitus. Mr. Rosen appealed that decision to the Board. In support of his appeal, he submitted an additional medical opinion from Dr. Raja, stating: Mr. Albert Rosen has been a patient of mine since December 2005. He has a history of military service and is a veteran of the Korean War. He was exposed to prolonged noise without hearing protection and thus has experienced sensorineural hearing loss and tinnitus. It is my opinion that his hearing problem and worsening tinnitus are more likely than not[ ] due to his active military service. R. at 151. In the May 2010 Board decision currently on appeal, the Board found that Mr. Rosen's bilateral hearing loss and tinnitus were not related to his active service. R. at 3-31. 2 II. ANALYSIS A. Secondary Service Connection On appeal, Mr. Rosen argues that the Board clearly erred by not addressing whether his hearing loss is secondary to his service-connected ruptured right ear drum. Appellant's Brief (Br.) at 5-7. In response, the Secretary asserts that the Board did address the theory of secondary service connection in its decision. A disability may be service connected on a secondary basis by demonstrating that the disability is either (1) "proximately due to or the result of [an already] service-connected disease or injury," 38 C.F.R. § 3.310(a) (2011), or (2) aggravated by an already service-connected disease or injury, "whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc). In addition, "VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations," regardless of the specific label attached to the claim. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). As with any finding or conclusion on a material issue of fact or law, the Board is required to provide a written statement of reasons or bases for it determination of a claimant's entitlement to secondary service connection. See 38 U.S.C. § 7104(d)(1). Here, the Court concludes that although the Board did not explicitly discuss the laws and regulations that pertain to secondary service connection, it nonetheless provided an adequate statement of reasons or bases addressing this theory of entitlement. First, the Board acknowledged that Mr. Rosen was service connected for the residuals of a ruptured right ear dream, and therefore analyzed his right and left ear hearing loss separately. The Board stated that "[Mr. Rosen] contends that he developed right ear hearing loss as the result of acoustic trauma, or due to a rupture of the tympanic membrane during service," therefore identifying Mr. Rosen's contention that there was a nexus between his current hearing loss and his service-connected condition. R. at 9. The Board next noted Mr. Rosen's in-service ruptured right ear drum, stating "[i] nsofar as this incident is raised as a cause of [his] right ear hearing loss, the Board concludes that [Mr. Rosen] did experience a ruptured right ear drum during service." R. at 10. The Board then discussed the fact that Mr. Rosen had some hearing loss after the in-service incident, but that later in- service and post service medical records showed normal hearing. The Board stated: "[W]ith evidence of the rupture of the tympanic 3 membrane [ ] during service, the determinative issue in regards to service connection for right ear hearing loss is whether there is a connection between the incident in service and [Mr. Rosen]'s current hearing loss." R. at 12. After discussing the probative value of the various medical opinions of record and concluding that Mr. Rosen did not have the required medical expertise to opine that his current hearing loss was related to his ruptured right ear drum, the Board concluded that Mr. Rosen's right ear hearing loss was not related to his active service, including to his ruptured right ear drum during service. R. at 16. Therefore, with regard to Mr. Rosen's argument that the Board erred when it failed to explicitly address secondary service connection, the Court holds that the Board's statement was adequate to facilitate judicial review. See Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990) (stating that the Board's statement of reasons or bases must be adequate to enable a claimant to understand the precise basis of the Board's decision, as well as to facilitate judicial review). Even assuming that the Board should have cited to 38 C.F.R. § 3.310, and specifically to its requirements, such an error was nonprejudicial because the Board nevertheless made factual findings relevant to a secondary- service-connection analysis. See 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1708 (2009) (holding that this Court must take due account of the rule of prejudicial error). B. Benefit of the Doubt Mr. Rosen's next argument on appeal is that the Board clearly erred in not affording him the benefit of the doubt in his appeal. Appellant's Br. at 8-10. In response, the Secretaryasserts that the Board properly weighed the evidence of record and determined that the preponderance of the evidence was against Mr. Rosen's claims and, therefore, that the benefit of the doubt was not applicable. "[W]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C. § 5107(b). The benefit of the doubt standard is only applicable when the requirement of an "approximate balance of positive and negative evidence" is met. Ferguson v. Principi, 273 F.3d 1072, 1076 (Fed. Cir. 2001). In the present case, the Court concludes that the Board underwent a detailed balancing of all of the evidence of record. It fully and adequately explained why the negative evidence of record 4 outweighed the evidence that was favorable to Mr. Rosen's claims, including the various medical opinions and lay statements of record. It then concluded that "the preponderance of the evidence is against service connection for right ear hearing loss, [left ear hearing loss, and tinnitus], with no reasonable doubt to resolve in the Veteran's favor." R. at 17, 24, 28. As noted above, the benefit of the doubt rule is not triggered unless there is an "approximate balance of positive and negative evidence." Ferguson, 273 F.3d at 1076. As the Board found that the preponderance of the evidence was against Mr. Rosen's claims and fully explained its conclusions, the benefit of the doubt doctrine had no applicability. The Court therefore concludes that the Board adequately explained its reasoning on this issue. See id. C. Inextricably Intertwined Claims Finally, Mr. Rosen argues that his claim for service connection for tinnitus is inextricably intertwined with his claim for service connection for bilateral hearing loss and, therefore, should his hearing loss claim be remanded, his tinnitus claim should also be remanded. Appellant's Br. at 11- 12. This Court has held that "where a decision on one issue would have a 'significant impact' upon another, and that impact in turn 'could render any review by this Court of the decision [on the claim] meaningless and a waste of judicial resources,' the two claims are inextricably intertwined." Henderson v. West, 12 Vet.App. 11, 20 (1998) (quoting Harris v. Derwinski, 1 Vet.App. 180, 183 (1991), overruled on other grounds by Tyrues v. Shinseki, 23 Vet.App. 166 ( 2009)). Here, for the reasons outlined above, the Court concludes that remand is not necessary for Mr. Rosen's bilateral hearing loss claim and, as a result, his argument that his tinnitus claim is inextricably intertwined with that claim is rendered moot. III. CONCLUSION Upon consideration of the foregoing, the May 18, 2010, Board decision is AFFIRMED. DATED: November 22, 2011 5 Copies to: Allan T. Fenley, Esq. VA General Counsel (027) 6