Single Judge Application, Delisio v. Shinseki, 25 Vet.App. 45, 53; Secretary's Duty Investigate Apparent and Potential Causes

Excerpt from decision below: "However, the appellant's failure to explicitly raise the theory is not fatal so long as it was reasonably raised by the record. See Robinson, 21 Vet.App. at 553 (noting that “[i]t is entirely possible that the record might ‘indicate’ a theory of entitlement, but that a lay appellant might not be sophisticated enough to recognize the theory”); see Delisio v. Shinseki, 25 Vet.App. 45, 53 ("upon the filing of a claim for benefits, the Secretary must investigate the reasonably apparent and potential causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing")." ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-2534 EDWARD R. BERNIGHT, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before PIETSCH, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. PIETSCH, Judge: The appellant appeals pro se from the May5, 2011, decision of the Board of Veterans' Appeals (Board) that denied entitlement to service connection for tinnitus. This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate when the issue is of "relative simplicity" and " the outcome is not reasonablydebatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Board's May 2011 decision will be affirmed. The Board remanded the issue of entitlement to service connection for hypertension. This claim is not before the Court because it was not the subject of a final Board decision. See Breeden v. Principi, 17 Vet.App. 478 (2004). I. FACTS The appellant served on active duty in the U.S. Navyfrom January1966 to March 1980. See Record (R.) at 3, 471, 491, 530. The record indicates that he is service connected for diabetes mellitus, type II, with bilateral lower extremity peripheral neuropathy, and has been assigned a 20% disability rating from November 9, 2007. In connection with the appellant's claim for hypertension, the regional office (RO) attempted to obtain the appellant's service medical records. R. at 460, 491- 92. A May 2008 memorandum to the file indicates that the National Personnel Records Center notifiedtheRO thatnoservicemedicalrecordswere availablefor the appellantand that the appellant indicated that he had no such records. R. at 460. The memorandum concluded that further attempts to obtain the appellant's records would be futile. Id. In May 2009, the appellant filed a claim for entitlement to service connection for tinnitus, asserting that he was exposed to acoustical trauma in service from fans, including cooling fans. R. at 104-07. In a letter received by the RO in June 2009, the appellant stated that he believed that his tinnitus was caused by the noisy environment created by "electronics and teletype in use while I was in the Navy." R. at 91-92. The appellant was provided a VA audiology examination in July 2009. R. at 48-51. He reported continuous ringing sounds in his ears occurring 90% of the time, with the onset of symptoms 4 years prior to the examination (or about 25 years after service ). R. at 49, 51. The appellant further reported in-service exposure to noise from fans, with no hearing protection, and post-service occupational noise exposure from work in electronic repair, with hearing protection. R. at 49. The audiologist diagnosed bilateral tinnitus, but concluded that it would be speculative to render an opinion regarding the relationship between tinnitus and service because the appellant's claims file was not available for review. R. at 51. In August 2009, the RO denied entitlement to service connection for bilateral tinnitus. R. at 69-72. The appellant filed a Notice of Disagreement. R. at 61-64. In April 2010, a VA audiologist provided a supplemental opinion based on review of the appellant's claims file and the July 2009 audiology examination. R. at 51. She opined that it is less likelythan not that the appellant's tinnitus is related to service, noting that there were no documented complaints of tinnitus in service and that the appellant's complaints of tinnitus began many years subsequent to service. Id. After VA continued its denial of the claim in a July 2010 Statement of the Case (R. at 31-47), the appellant perfected his appeal. R. at 29-30. The Board issued the decision on appeal on May 5, 2011. R. at 3-14. This appeal followed. 2 II. ANALYSIS Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 (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); see also Heuer v. Brown, 7 Vet.App. 379, 384 (1995). A finding of service connection, or no service connection, is a finding of fact reviewed under the " clearlyerroneous" standard of review. See Swann v. Brown, 5 Vet.App. 229, 232 (1993); 38 U.S.C. § 7261(a)(4). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, "is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). The Court cannot overturn factual determinations of the Board if they have a plausible basis in the record viewed in its entirety. Id. The Board found that the appellant was exposed to low levels of noise in service based on his militaryoccupational specialityof cryptologic technician. R. at8. Nevertheless,theBoard found that the preponderance of the evidence weighed against a finding that the appellant's tinnitus is directly related to his service. R. at 4, 9. The Board primarily relied on the April 2010 VA audiologist's opinion that it is less likely than not that the appellant's tinnitus is related to service. R. at 8-9. The Board found this opinion to be adequate, noting that it was detailed and that the examiner provided sufficient reasoning in support of her conclusion. R. at 6, 9. The appellant does not challenge this finding. The Board also considered the appellant's lay statements asserting that his tinnitus is related to service; however, the Board found that such statements do not constitute competent evidence because the etiology of the appellant's disability is a complex matter. R. at 9. The Court finds no error in this determination or the Board's alternate determination that, even if the appellant's opinion were to be accorded some probative value, it is outweighed by the VA medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (the Board may determine that a specific medical issue is the type of issue for which layevidence is not competent); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that it is the Board, not the Court, that is responsible for 3 assessing the credibility and weight to be given to evidence and that the Court may overturn the Board's assessments only if they are clearly erroneous). In his brief, the appellant fails to identify any specific error with the Board's determination. He admits that he did not have tinnitus at the time of his discharge from service but asserts, without citation to the record, that tinnitus may not develop for years after exposure and that he was exposed to loud noise from teletype machines during 10 years of his service. Appellant's Br. at 3. These assertions essentially constitute a disagreement with the way the Board weighed the evidence and do not demonstrate clear error. With regard to the issue of nexus to service, the Board discussed the evidence of record and, as noted above, appropriately relied on the VA audiologists's opinion. R. at 8-9. The Board also discussed and considered the record evidence indicating that the appellant had in-service exposure to noise from teletype machines. Id. The Court notes that the appellant offers evidence on appeal that is not contained in the record of proceedings, including his own assessment of the noise level to which he was exposed in service, written materials from a local VA office regarding tinnitus, and citation to an article regarding hearing loss and tinnitus. However, because there is no indication that this evidence was part of the record before VA, the Court will not consider it. See 38 U.S.C. § 7252(b) (the Court's review is limited to the record of proceedings before the Secretaryand the Board); see also Wellhead v. West, 11 Vet.App. 251, 252 (1998). Accordingly, the appellant has failed to demonstrate that the Board clearly erred in determining that the evidence did not sufficiently demonstrate that his tinnitus is directly related to service. Based upon a review of the record of proceedings, the Court concludes that there is a plausible basis for the Board's determination in this regard and that the Board provided an adequate statement of reasons or bases for its determination. See Gilbert, 1 Vet. App. at 52; see also Allday v. Brown, 7 Vet.App. 517, 527 (1995) (the Board's statement of reasons or bases for its decision "must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate informed review in this Court"). The appellant also argues that his tinnitus should be service connected as secondary to his service-connected diabetes. Appellant's Brief (Br.) at 5; see 38 C.F.R. § 3.310 (2012) (secondary service connection is awarded when a disability is proximately due to, or aggravated by, a service- 4 connected disease or injury); Allen v. Brown, 7 Vet.App. 439, 448 (1995) ( en banc). He reproduces in his brief written material from a local VA office indicating that diabetes can cause tinnitus. Appellant's Br. at 5. The Board did not address this issue. The Board has a duty to address all issues reasonably raised either by the appellant or by the contents of the record. Robinson v. Peake, 21 Vet.App. 545, 552–56 (2008 ), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Court agrees with the Secretary that the appellant did not raise to VA the issue of secondary service connection. However, the appellant's failure to explicitly raise the theory is not fatal so long as it was reasonably raised by the record. See Robinson, 21 Vet.App. at 553 (noting that “[i]t is entirely possible that the record might ‘indicate’ a theory of entitlement, but that a lay appellant might not be sophisticated enough to recognize the theory”); see Delisio v. Shinseki, 25 Vet.App. 45, 53 ("upon the filing of a claim for benefits, the Secretary must investigate the reasonably apparent and potential causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised bya sympathetic reading of the claimant's filing"). In this case, the appellant has not identified, and the Court cannot find, any indication that the issue of secondary service connection was reasonably raised by the evidence of record. See Robinson, supra; Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (“ An appellant bears the burden of persuasion on appeals to this Court.”), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). The appellant's filings with VA do not raise this issue and there is no evidence in the record of proceedings that the appellant's diabetes may have caused or aggravated his tinnitus. Although the Board has an obligation to analyze claims beyond the arguments explicitly made, the Board is not required "to assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision." Robinson, 21 Vet.App. at 553. Accordingly, "[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory." Robinson, 557 F.3d at 1361. Although the appellant presents in his brief evidence that diabetes can cause tinnitus, this evidence does not appear in the record on appeal and the appellant has not shown that he submitted this evidence to VA. Rather, the appellant appears to have submitted this evidence to the Court in the first instance. Thus, the Court finds that the Board did not err in failing to consider service 5 connection for the appellant's tinnitus as secondaryto his service- connected diabetes. This decision, however, does not preclude the appellant from raising the issue to VA. III. CONCLUSION Uponconsideration oftheforegoinganalysis, therecordonappeal, andtheparties'pleadings, the May 5, 2011, Board decision is AFFIRMED. DATED: August 14, 2012 Copies to: Edward R. Bernight VA General Counsel (027) 6