Single Judge Application, Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011); FED. R. EVID. 803(7); Evidence Against If Ordinarily Would be Recorded

Excerpt from decision below: "Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (suggesting that the Board may consider failure of a fact to be recorded in a medical record to be substantive negative evidence where the missing fact would ordinarily be recorded); FED. R. EVID. 803(7) (noting that the absence of an entry in a record may be evidence against the existence of a fact if the entry would ordinarily be made)" ========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 09-4769 JOANN L. VOIGHT, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KASOLD, Chief Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. KASOLD, Chief Judge: Veteran Joann L. Voight appeals through counsel a September 9, 2009, decision of the Board of Veterans' Appeals (Board) that denied a higher initial disability rating for residuals of a lumbosacral (back) injury. Ms. Voight argues that (1) the Board failed to provide an adequate statement of its reasons or bases for denying an initial disability rating in excess of 20% based upon Deluca v. Brown, 8 Vet.App. 202 (1995) ( finding that an examination that "merely recorded the veteran's range of motion"without considering the functional loss due to pain upon motion was inadequate), (2) the medical examinations relied on by the Board were inadequate for assigning her disability compensation rating, and (3) the Board failed to provide an adequate statement of its reasons or bases for not referring her claim for extraschedular consideration. The Secretary disputes these arguments. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Board's decision will be in part affirmed, and in part set aside and the matter remanded for further adjudication. Ms. Voight's argument that the Board failed to provide an adequate statement of its reasons or bases for denying an initial disability rating in excess of 20% for her back injury based upon DeLuca v. Brown, 8 Vet.App. 202, 205-07 (1995) is not supported by the record. Ms. Voight's back condition is currently rated as an injury or disease of the spine and a disability rating is assigned based upon her range of motion. See 38 C.F.R. § 4.71a, Diagnostic Code ( DC) 5237 (2010) (providing a 20% disability rating when forward flexion of the spine is greater than 30 degrees and less than 60 degrees and a 40% rating when forward flexion is 30 degrees or less). To establish a 40% rating under DC 5237 for thoracolumbar spine, the forward flexion must be 30 degrees or less or have favorable ankylosis of the entire thoracolumbar spine. The Board explained that Ms. Voight's 70 to 90 degrees of flexion in her back did not meet the criteria for her currently assigned 20% disability rating under DC 5237, but recognized also that weakened movement, excess fatigability, and pain resulting in additional functional impairment could support a higher disability rating under DeLuca, supra, and 38 C.F.R. §§ 4.40, 4.45. Reviewing the medical evidence from August 2004, the Board found that in the most recent May 2007, VA examination, Ms. Voight had (1) lateral motions of 20 degrees bilaterally with back pain, (2) 70 degrees flexion and 15 degrees of extension with some pain, (3) no significant spasms, and (4) some back pain after 3 repetitions, however, with no loss of motion. Record (R.) at 8; see also R. at 118. The May 2007 VA medical examination report specifically referred to the DeLuca procedure and found no loss of motion. In addition, the May 2007 VA medical examination diagnosed Ms. Voight with herniated disc disease, and the Board considered a higher initial rating under the intervertebral disc syndrome code section. See 38 C.F.R. § 4.71a, DC 5243(2011) (providing a 40% disability rating for incapacitating back episodes lasting at least 4 weeks but less than 6 weeks during the last 12 months). With regard to a higher rating under DC 5243, the Board found Ms. Voight's testimony – that she experienced monthlyincapacitatingbackepisodes lasting from a few hours to four weeks– not credible. Because Ms. Voight sought treatment for her back condition at least once a month and because none of the treatment reports mentioned back flare-ups, the Board determined that the absence of any flareup treatment records outweighed her testimony concerning the frequency and duration of her back episodes. See Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (suggesting that the Board may consider failure of a fact to be recorded in a medical record to be substantive negative evidence where the missing fact would ordinarily be recorded); FED. R. EVID. 803(7) (noting that the absence of an entry in a record may be evidence against the existence of a fact if the entry would ordinarily be made); see also 38 C.F.R. § 4.71a, DC 5243 (2011) (requiring 2 incapacitating episodes of 4 to 6 weeks to warrant a 40% disability rating). Based on the record on appeal, the Board's findings that a disability rating higher than 20% for residuals of a back condition under either DC 5237 or DC 5243, with consideration of the DeLuca factors, was not warranted is plausible and not clearly erroneous. See Johnston v. Brown, 10 Vet.App. 80, 84 (1997) (Board's decision regarding the degree of disability under the rating schedule is a finding of fact subject to the "clearly erroneous" standard of review); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) ("'A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm convictionthatamistakehasbeen committed.'"(quoting United States v.U.S. GypsumCo.,333U.S. 364, 395 (1948))). Moreover, the Board considered the May2007 VA examination that specifically mentioned and assessed the DeLuca procedure and found no loss of motion, and Ms. Voight points to no evidence in the record suggesting that anypain associated with her forward flexion movements limited her functionality to 30 degrees or less as required for a 40% disability rating, a rating that requires forward flexion to be limited to 30 degrees or less. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden of demonstrating error on appeal). Overall the Board's finding of a 20% disability rating is understandable and facilitative of judicial review. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (Board's 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"). Similarly, the record of proceedings does not support Ms. Voight's argument that the VA medical examinations are inadequate to evaluate the DeLuca factors because none explicitly state the point at which she experiences pain during movement. Although the more detailed, the better the report, the Board's determination that a report is adequate may be reversed only if it is clearly erroneous. See D'Aries v. Peake, 22 Vet.App. 97, 104 (2008) (Board's determination as to adequacy of medical examination is a question of fact); Gilbert, supra. Here, the 2007 VA medical examination report noted application of the DeLuca factors and that Ms. Voight had forward flexion of 70 degrees well beyond the 30 degrees or less required for a 40% disability rating. Although pain is noted, the report reflects the examiner's observation that there was no loss of motion due to pain, and, as noted above, Ms. Voight points to no evidence in the record indicating that her forward flexion movements were limited by pain to a functionality of 30 degrees or less as required for a 40% 3 disability rating. In sum, she fails to demonstrate that the Board's finding that the medical examination reports in the record were adequate or that the Board's reliance on these reports was clearly erroneous. See Hilkert, supra.; see also D'Aries, 22 Vet.App. at 103-104 (holding that a medical opinion is adequate where it is based upon the veteran's medical history, examinations, and also describes the disability in sufficient detail, and holding that whether a medical opinion is adequate is a finding of fact, which the Court reviews for clear error); Gilbert, supra. On the other hand, Ms. Voight's argument that the Board failed to provide an adequate statement of reasons or bases for the failure to refer her claim for extraschedular consideration is supported by the record. The Board denied the referral of an extraschedular rating without addressing the evidence of record indicating interference with employment. Ms. Voight testified in November 2007 that she (1) needed medication to perform her job, (2) frequently had to move around at work because of her back, and (3) went to work bent over and used an ice pack at work to control her back pain. In addition, Ms. Voight's mother submitted a letter stating that her daughter went to work with back pain and often she was unable to stand erect. Although the Board determined that referral for an extraschedular rating was not warranted because the schedular rating was adequate, such a finding still must be supported by an adequate statement of reasons or bases that explains whythe schedular rating is adequate. See Thun v. Peake, 22 Vet.App. 111, 115 (2009). This necessarilyincludes a discussion and assessment of whether a disability or its symptomatology is so severe that it prevents the veteran from working, and an explanation as to whether and why such interference with work is of the same degree and nature as contemplated by the schedular rating. See Barringer v. Peake, 22 Vet.App. 242, 244 (2008) ("As with all its decisions, the Board must provideanadequatestatementofreasons orbasesforthisdetermination"); Thompsonv.Gober, 14 Vet.App. 187, 188 (2000) (Board must provide an adequate statement of reasons or bases "for its rejection of any material evidence favorable to the claimant"). On remand, Ms. Voight may present, and the Board must consider any additional evidence and argument in support of the matters remanded. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). These matters are to be provided expeditious treatment on remand. See 38 U. S.C. § 7112. 4 Upon consideration of the foregoing, that part of the September 9, 2009, decision addressing extraschedular consideration is SET ASIDE, and the matter is REMANDED for further adjudication, and the remainder of the decision is AFFIRMED. DATED: October 14, 2011 Copies to: Michael A. Leonard, Esq. VA General Counsel (027) 5

Single Judge Application, Kahana, 24 Vet.App. at 435; Clearly Distinguish Between Credibility and Causation

Excerpt from decision below: "The Board's statement of reasons or bases is inadequate because it does not clearly distinguish between its analysis of credibility and causation.. The Board acknowledged that the record contains lay statements, from the appellant, asserting that his "bilateral hearing loss was incurred during his military service," but dismissed this evidence because the appellant is "not qualified to render an opinion concerning medical causation." R. at 11. The Board failed to address the value of these statements as lay evidence of observable symptomatology. The Board noted that the appellant, as a layperson, is not competent to address the etiology of his hearing loss, but undertakes no analysis concerning the credibility or competency of the appellant's symptom reporting. R. at 11. The Board's analysis implies that the appellant's lay statements lack credibility because they are not accompanied by contemporaneous medical evidence. R. at 9. However, "the Board can not determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Kahana v. Shinseki, 24 Vet.App. 428, 438 (2011) (Lance, J., concurring) (discussing 4 the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference). Lay persons are generally competent to provide evidence on observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The appellant stated that he first noticed his hearing loss and tinnitus while he was still in active duty service. R. at 137. "[T]he Board's categorical rejection and failure to analyze and weigh the appellant's lay evidence in accordance with established precedent renders its statement of reasons or bases inadequate." Kahana, 24 Vet.App. at 435." ============================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-4435 PHILLIP J. CHATWIN, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before LANCE, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. LANCE, Judge: The appellant, Phillip J. Chatwin, through counsel, appeals a November 9, 2009, Board of Veterans' Appeals (Board) decision that denied his claim for service connection for bilateral hearing loss. Record (R.) at 3-11. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will vacate the November 9, 2009, decision and remand the matter for further proceedings consistent with this decision. I. FACTS The appellant served in the U.S. Navy from June 1967 to June 1971. R. at 236. His occupation in service was electrician's mate, and he worked in the engine and boiler rooms onboard naval vessels in Vietnam. R. at 157-58, 236. Audiometric1 testing was done at entrance to service. R. at 182, 186. That testing showed that the appellant's puretone threshold at 4000 Hertz was 10 An audiometer is "an electronic device that produces acoustic stimuli of known frequency and intensity for the measurement of hearing." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 178 ( 32d ed. 2012) (hereinafter "DORLAND'S"). 1 decibels.2 R. at 186. The appellant's exit examination in 1971 did not include audiometric testing, but instead included a whispered voice test,3 which showed normal results. R. at 188. In July 1975, theappellanthadprivateaudiometric testing, which showed deteriorationinthe4000Hertzpuretone threshold to 40 decibels. R. at 159. The record before the Court contains several additional private treatment reports from treatment the appellant received after service but prior to his initial claim, ranging in date from 1973 to 2006. R. at 114-17, 122-23, 126-27. In addition to generally noting a history of ear disease, particularly in the right ear, the treatment records cite a pre-service cleft palate repair, R. at 126, a diagnosis of otitis, both media and externa,4 R. at 126, and a right tympanomastoidectomy.5 R. at 127. By January 2006, the appellant had been diagnosed privately with " bilateral mid to high toned sensorineural hearing loss" with speech discrimination of 80%. R. at 114. In December 2006, the appellant submitted a claim for service connection for bilateral hearing loss and tinnitus as a result of his noise exposure during service. R. at 137-38, 143-56. The appellant asserted that both conditions began while he was still on active duty service. R. at 137, 149. The appellant received a VA medical examination in September 2007. The examiner noted puretone threshholds at 4000 Hertz of 45 decibels in the appellant's right ear and 50 decibels in the appellant's left ear, as well as speech discrimination of 94%. R. at 91-92. The 2007 VA examiner also noted that the appellant's whispered voice test might not have captured "the presence of a high frequency hearing loss at time of discharge." R. at 93. Ultimately, the examiner opined that the appellant's hearing loss was not related to military service, but did not provide any rationale for that opinion. R. at 93. The audiometry results for the pre-induction examination are reported in ASA values, but were converted to ISO (ANSI) units to allow data comparison with later examination results. R. at 6. A whispered voice test is performed by standing behind the test subject, occluding and rubbing the external auditory ear canal of the non-tested ear, and whispering three random numbers or letters from about two feet (arm's length) from the tested ear. Iain R. C. Swan & George G. Browning, The Whispered Voice as a Screening Test for Hearing Impairment, 35 JOURNAL OF THE ROYAL COLLEGE OF GENERAL PRACTITIONERS, 197 (April 1985). Otitis is an "inflamation of the ear, often with pain, fever, hearing loss, tinnitus, and vertigo." DORLAND'S at 1350. Otitis media is an inflamation of the middle ear, and otitis externa is inflamation of the external ear canal. Id. at 1350-51. "Mastoidectomy with tympanectomy." DORLAND'Sat 1993. A mastoidectomy is the "excision of the mastoid air cells or the mastoid process." Id. at 1112. A tympanectomy is the " excision of the tympanic membrane." Id. at 1992. 5 4 3 2 2 In October 2007, the regional office (RO) granted service connection for bilateral tinnitus, rated at 10%, but denied service connection for bilateral hearing loss. R. at 80-83. The appellant formally appealed to the Board. R. at 49-52. In July 2009, VA requested a VA medical expert records evaluation. R. at 43. The medical expert was specifically asked to review the 2007 examiner's opinion in light of the 1975 claims file record indicating a puretone threshold of 40 decibels at 4000 Hertz for the right ear, which would meet the VA disability standard. Id. The VA medical expert was also asked to provide an opinion as to whether or not the appellant's hearing loss is related to military service and to provide a rationale for that opinion. Id. The VA medical expert concluded that because the appellant demonstrated no hearing loss at the end of military service, first showed hearing loss in 1975, and hearing loss due to noise exposure occurs immediately, the appellant's hearing loss was therefore not likely due to his military service, but rather to the aging process, other accoustical trauma, and the right tympanomastoidectomy. R. at 40. However, the records examiner did not discuss the limitations of the whispered voice test for documenting high frequency hearing loss, which were mentioned by the 2007 VA examiner. Instead, the records examiner noted that the appellant's whisper test was normal and opined that any high frequency loss the appellant suffered at discharge "was not enough to indicate any Previous DocumentinjuryNext Hit [from] his military service." R. at 39. The Board relied heavily on both VA examinations in its November 2009 denial of the appellant's claim for bilateral hearing loss. R. at 3-11. This appeal timely followed. II. ANALYSIS Although the appellant's brief is not a model of clarity, it appears that he argues, inter alia, that the Board provided inadequate reasons or bases for its decision because it disregarded, without analysis, favorable evidence in the form of the appellant's lay statements that he began experiencing hearing loss during service, Appellant's Brief (Br.) at 20, and relied upon the 2009 VA medical expertopinion,whichwasallegedlybasedontheinaccurate factual premise that the whispered voice test at exit from service would have captured any high frequency hearing loss due to the appellant's military service. Id. at 16. A decision of the Board must include 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; that 3 statement must be adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate informed review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56- 57 (1990). 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 its rejection of 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); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, supra. In its statement of reasons or bases, the Board correctly stated, but did not correctly apply, the legal criteria required to establish service connection for a disability. R. at 8-11. Establishing service connection generally requires medical evidence 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 nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza, supra; 38 C.F.R. § 3.303 (2011). The Board's statement of reasons or bases is inadequate because it does not clearly distinguish between its analysis of credibility and causation. The Board acknowledged that the record contains lay statements, from the appellant, asserting that his " bilateral hearing loss was incurred during his military service," but dismissed this evidence because the appellant is "not qualified to render an opinion concerning medical causation." R. at 11. The Board failed to address the value of these statements as lay evidence of observable symptomatology. The Board noted that the appellant, as a layperson, is not competent to address the etiology of his hearing loss, but undertakes no analysis concerning the credibility or competency of the appellant's symptom reporting. R. at 11. The Board's analysis implies that the appellant's lay statements lack credibility because they are not accompanied by contemporaneous medical evidence. R. at 9. However, " the Board can not determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Kahana v. Shinseki, 24 Vet.App. 428, 438 (2011) (Lance, J., concurring) (discussing 4 the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference). Lay persons are generally competent to provide evidence on observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The appellant stated that he first noticed his hearing loss and tinnitus while he was still in active duty service. R. at 137. "[T]he Board's categorical rejection and failure to analyze and weigh the appellant's lay evidence in accordance with established precedent renders its statement of reasons or bases inadequate ." Kahana, 24 Vet.App. at 435. The appellant also asserts that the VA medical examination and VA medical expert review were inadequate. An adequate medical opinion must be "accurate and fully descriptive . . . with emphasis upon the limitation of activity imposed by the disabling condition." 38 C.F.R. § 4.1 (2011). It must be based on an accurate factual premise and on a consideration of the veteran's prior medical history and examinations, and must describe the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one.'" Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)); see also Floyd v. Brown, 9 Vet.App. 88, 93 (1996). The opinion "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions" and must "provide sufficient detail for the Board to make a fully informed evaluation of whether direct service connection is warranted." Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007); see also Hicks v. Brown, 8 Vet.App. 417, 421 (1995) (inadequate evaluation frustrates judicial review). The 2007 VA examination, taken alone, would have been inadequate as the examiner did not provide a rationale for his or her conclusion that the appellant's bilateral hearing loss was not related to military service. R. at 93. The 2009 VA medical expert reviewer did provide a rationale for his opinion that the appellant's hearing loss is not related to his military service, but did not address the whispered voice test limitations raised by the 2007 examiner. R. at 40. When these medical opinions are taken together with the appellant's favorable lay testimony that symptoms arose while the appellant was in service, the Court concludes that the failure of the medical opinions to fully address the limitations of the whispered voice test with respect to detecting high frequency hearing 5 loss renders them insufficiently detailed to allow for a fully informed decision on service connection for the appellant's hearing loss. Furthermore, the 2009 examiner clearly relied on the factual premise that the appellant's "first indication of hearing loss was in 1975" in determining that hearing loss did not manifest immediately and was therefore not related to service. R. at 40. If the medical examiner relied on an inaccurate factual premise, his opinion is "of no probative value." Kahana, 24 Vet.App. at 439 (Lance, J., concurring); Reonal v. Brown, 5 Vet.App. 458, 461 (1993). If the Board finds that the appellant's lay statements that his hearing loss began during service are credible, the 2009 expert records examination, upon which the Board heavily relied, would not be adequate. On remand, the Board should request a medical opinion that addresses any limitations of the whispered voice test for detecting hearing loss of the type recorded in 1975 and, if necessary, provides an adequate evaluation of the etiology of the appellant's hearing loss and addresses whether there is a nexus with the appellant's military service. Accordingly, the Court will vacate the November 9, 2009, Board decision. Given this disposition, the Court need not address the appellant's remaining arguments because the likelihood of further development on remand renders judicial review on the current record premature. See Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009). On remand, the appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by Board or Court). III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's November 9, 2009, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: October 17, 2011 6 Copies to: Perry A. Pirsch, Esq. VA General Counsel (027) 7