Tinnitus, Liberalizing Law of 1976, 38 C.F.R. § 4.84b, Diagnostic Code 6260 (1976)

Excerpt from decision below: "The rating schedule was added to the Code of Federal Regulations in May 1964 and Diagnostic Codes 6260, 8045, and 8046 were codified without change. See 38 C.F.R. §§ 4.84b, 4.124a (1965); 29 Fed. Reg. 6718 (May 22, 1964). However, in March 1976, VA amended § 4.84b to provide a 10% disability rating for tinnitus that is "[p]ersistent as a symptom of head concussion[,] or acoustic trauma." 38 C.F.R. § 4.84b, Diagnostic Code 6260 (1976) (emphasis added); 41 Fed. Reg. 11291, 11298 (Mar. 18, 1976). Nevertheless, this liberalizing law does not entitle Mr. Girard to an effective date earlier than September 7, 2006, because he did not seek benefits for tinnitus until September 2007, more than one year after the March 1976 effective date of the liberalizing law." =================================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-2969 LULA J. GIRARD, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before HAGEL, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. HAGEL, Judge: Lula J. Girard, who is self-represented, appeals a July 28, 2009, Board of Veterans' Appeals (Board) decision denying her husband an effective date prior to September 7, 2006, for the award of a 10% disability rating for tinnitus. Record (R.) at 3-13. Mrs. Girard'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 they believe to require a precedential decision of the Court. Because the Board's determination that John C. Girard, Jr., was not entitled to an earlier effective date for the award of benefits for tinnitus was not clearly erroneous, the Court will affirm the July 28, 2009, Board decision. I. FACTS Mrs. Girard is the widow of veteran John C. Girard, Jr., who served on active dutyin the U.S. Army from June 1955 to May 1961. In May 1961, Mr. Girard filed a claim for VA benefits for a "hearing" disability. R. at 363. In July 1961, Mr. Girard underwent a VA audiological examination and reported to the examiner that his hearing loss and tinnitus began when he was "exposed to all the demolition noise in service." R. at 348. In May 1962, a VA regional office awarded Mr. Girard benefits for bilateral hearing loss and assigned a 10% disability rating. The regional office did not adjudicate a claim for benefits for tinnitus at that time. Mr. Girard did not appeal that decision and it became final. In September 2007, more than 45 years after the initial rating decision, Mr. Girard filed a claim for VA benefits for tinnitus. In January 2008, the regional office awarded Mr. Girard benefits for tinnitus and assigned a 10% disability rating, effective September 7, 2007, the date of his claim. Mr. Girard filed a timely Notice of Disagreement with that decision, requesting an earlier effective date. In February 2009, Mr. Girard filed a motion to revise the May 1962 regional office decision based on clear and unmistakable error that asserted that the regional office "ignored or overlooked" a diagnosis of tinnitus that was of record at the time of the decision. R. at 100. In May 2009, after further development including the assignment of a September 7, 2006, effective date for the award of benefits for tinnitus, the regional office determined that there was clear and unmistakable evidence in the May 1962 regional office decision because the evidence of record at that time "show[ed] treatment of a chronic disability [of tinnitus] within one year of discharge." R. at 47. Therefore, the regional officeassigned him a noncompensable disabilityrating for tinnitus from May 19, 1961, the date of his initial claim, to September 6, 2006, and a 10% disability rating effective thereafter. Mr. Girard filed a timely Notice of Disagreement with that decision, arguing that he was entitled to a higher disability rating because "the acoustic trauma to whichhewasexposed duringservicewasequivalenttoaconcussion," andhesubsequentlyperfected his appeal to the Board. R. at 40. In July 2009, the Board issued the decision currently on appeal, which denied entitlement to an effective date prior to September 7, 2006, for the award of a 10% disability rating for tinnitus.1 Specifically, the Board explained that tinnitus caused by acoustic trauma was not a compensable disability under the ratings schedule until March 1976 and that, pursuant to 38 C.F.R. § 3.114, the earliest effective date that could be assigned for Mr. Girard's tinnitus based on that liberalizing law The Court notes that the Board refers to an "earlier effective date claim" and a "[clear and unmistakable error] claim." R. at 7, 12. However, there is no such thing as a freestanding claim for an earlier effective date. Rudd v. Nicholson, 20 Vet.App. 296, 300 (2006). Likewise, "an assertion of clear and unmistakable error is a motion or a request, rather than a claim." Hillyard v. Shinseki, 24 Vet.App. 343, 355 ( 2011). 1 2 would be September 7, 2006, one year prior to the date of his claim, which was filed more than one year after March 1976. Mrs. Girard filed a timelyNotice of Appeal with that decision and indicated that her husband died three days after the Board issued its decision. In response to a Court order, Mrs. Girard filed a timely motion for substitution, which the Court granted nunc pro tunc to the date she filed her Notice of Appeal. II. ANALYSIS Mrs. Girard argues that the Board's determination that her husband was not entitled to an effective date earlier than September 7, 2006, for the award of benefits for tinnitus was clearly erroneous. The Court disagrees. A Board determination of the proper effective date is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Hanson v. Brown, 9 Vet.App. 29, 32 (1996); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). " A factual 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 conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). The Court may not substitute its judgment for the factual determinations of the Board on issues of material fact merely because the Court would have decided those issues differently in the first instance. See id. Generally, the effective date for an award of disability compensation benefits is "the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400 (2011); see also 38 U.S.C. § 5110(a). When VA revises a final decision based on clear and unmistakable error, the effective date is the "[d]ate from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision." 38 C.F.R. § 3.400(k). In addition, where disability compensation benefits are awarded or increased pursuant to a liberalizing law or administrative issue, "the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue." 38 U.S.C. § 5110; see also 38 C.F.R. § 3.114(a) (2011); 38 C.F.R. § 3. 400(p). Where, as here, "a 3 claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request." 38 C.F.R. § 3.114(a)(3). Because Mr. Girard was awarded benefits for tinnitus retroactive to May 19, 1961, based on a finding of clear and unmistakable error in the May 1962 regional office decision, the Court must rely on the law extant at that time to determine whether or not the Board's determination that he was not entitled to a compensable disability rating prior to September 7, 2006, was clearly erroneous. See 38 C.F.R. § 3.400(k). In May1962, the rating schedule provided a compensable disabilityrating only for tinnitus resulting from brain trauma or cerebral arteriosclerosis; 2 tinnitus resulting from any other cause, including acoustic trauma, was considered noncompensable. See VA SCHEDULE FOR RATING DISABILITIES 63, 112 (1945) (Diagnostic Codes 6260, 8045, and 8046). In the instant case, Mrs. Girard does not point to any evidence of record that demonstrates that her husband's tinnitus was caused by brain trauma or cerebral arteriosclerosis sufficient to warrant a compensable disability rating retroactive to May 1961. Rather, Mr. Girard previously asserted that he was entitled to a compensable disability rating prior to September 7, 2006, because "the acoustic trauma to which he was exposed duringservicewas equivalentto a concussion," which is consistent with a July1961 VA medical examination report indicating that his tinnitus was caused by noise exposure. R. at 40. Mr. Girard's theoryof entitlement is contradicted by the plain language of the diagnostic codes for rating tinnitus in 1962, which specifically provided for a 10% disability rating for tinnitus due to brain trauma and cerebral arteriosclerosis and a noncompensable disability rating for tinnitus due to all other causes, including acoustic trauma. Moreover, Mrs. Girard does not citeanylegalprecedenttosupportherhusband'sinterpretation oftheapplicablediagnostic codes. Although the Court is cognizant that Mrs. Girard is self-represented, her status as a pro se appellant does not relieve her of her burden of demonstrating error. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant has the burden of demonstrating error), aff'd, 232 F.3d 908 (Fed. Cir. 2000) (table). Consequently, the Court concludes that the Board's determination that Arteriosclerosis is "any of a group of diseases characterized by thickening and loss of elasticity of arterial walls." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 144 (32d ed. 2011). Cerebral arteriosclerosis is "arteriosclerosis of the arteries of the brain." Id. 2 4 Mr. Girard was not entitled to an earlier effective date for his award of benefits for tinnitus under the rating schedule in effect at the time of the May1962 regional office decision is not clearly erroneous. The rating schedule was added to the Code of Federal Regulations in May 1964 and Diagnostic Codes 6260, 8045, and 8046 were codified without change. See 38 C.F.R. §§ 4.84b, 4.124a (1965); 29 Fed. Reg. 6718 (May 22, 1964). However, in March 1976, VA amended § 4.84b to provide a 10% disability rating for tinnitus that is "[p]ersistent as a symptom of head injury, concussion[,] or acoustic trauma." 38 C.F.R. § 4.84b, Diagnostic Code 6260 (1976) (emphasis added); 41 Fed. Reg. 11291, 11298 (Mar. 18, 1976). Nevertheless, this liberalizing law does not entitle Mr. Girard to an effective date earlier than September 7, 2006, because he did not seek benefits for tinnitus until September 2007, more than one year after the March 1976 effective date of the liberalizing law. In such a situation, the earliest effective date that may be assigned pursuant to the liberalizing law is one year prior to the date of the receipt of Mr. Girard's claim–in this case, September 7, 2006. See 38 C.F.R. § 3.114(a)(3). Likewise, even assuming without deciding that a June 1999 amendment to the rating schedule for diseases of the ear, which transferred Diagnostic Code 6260 to § 4.87 and provided a 10% disability rating for recurrent tinnitus without any restriction on the cause of the condition was a liberalizing law, Mr. Girard would not be entitled to an earlier effective date pursuant to that amendment because he did not file his claim within one year of the effective date of that liberalizing law.3 See id.; see also 38 C.F.R. § 4.87 (1999); 64 Fed. Reg. 25202, 25210 (May 11, 1999). To the extent that Mrs. Girard argues that, but for the regional office's clear and unmistakable error in the May 1962 decision, VA would have reviewed her husband's entitlement to benefits for tinnitus on its own initiative within one year of the March 1976 amendment, thereby entitling him to an effective date commensurate with the enactment of that liberalizing law under § 3.114(a)(1), VA is not required to review a veteran's entitlement to benefits pursuant to a liberalizing law. See McCay v. Brown, 106 F.3d 1577, 1581 (Fed. Cir. 1997) ("[Section 3.114(a)] would permit [VA] to identify and apply the provisions of a liberalized law or administrative issue on their own initiative where feasible; or, where it is not feasible to identify potential beneficiaries administratively, to In June 2003, VA also amended the explanatory notes to § 4.87, Diagnostic Code 6260, which are not relevant to this appeal. 68 Fed. Reg. 25822, 25823 (May 14, 2003). 3 5 require the filing of an application" (quoting S. Rep. No. 87-2042, at 5 ( 1962), reprinted in 1962 U.S.C.C.A.N. 3260, 3264-65)); Spencer v. Brown, 4 Vet.App. 283, 288 (1993) ( explaining that 38 U.S.C. § 5110(g), the authorizing statute for § 3.114(a), "does not . . . create a requirement that VA adjudicate de novo a previously and finally denied claim when there has been an intervening liberalizing law that may affect the claimant's entitlement to benefits," but rather "presuppose[s] the existence of such a right [to a de novo adjudication]"). Accordingly, the Court cannot award Mr. Girard an earlier effective date under § 3.114(a)(1) based purely on speculation that VA may have timelyconductedthatdiscretionaryreviewiftheMay1962regionalofficedecisionha correctlyin the first instance. Consequently, the Court concludes that the Board's determination that Mr. Girard was not entitled to an earlier effective date for his award of benefits for tinnitus pursuant to a liberalizing law is not clearly erroneous. Mrs. Girard next argues that her husband did not file a claim for benefits for tinnitus before September 2007 because the Missouri Veterans Commission, which she claims was "acting on behalf of [VA]," "discouraged him from reapplying and refused to assist him in doing so" and misinformed him about the likelihood of success of such a claim. Appellant's Brief (Br.) at 2; Reply Br. at 1. As an initial matter, the Court takes judicial notice of the fact that, contrary to Mrs. Girard's contention, the Missouri Veterans Commission is part of the Missouri state government and not part of VA. See MISSOURI DEPARTMENT OF PUBLIC SAFETY: VETERANS COMMISSION, http://mvc.dps.mo.gov/ (last visited Sept. 7, 2011); see also Smith v. Derwinski, 1 Vet.App. 235, 238 (1991) ("Courts may take judicial notice of facts not subject to reasonable dispute." (citing FED. R. EVID. 201(b))); Brannon v. Derwinski, 1 Vet.App 314, 316-17 (1991). Although the Court is sympathetic to Mrs. Girard's situation, the Court cannot assign an earlier effective date based solely on principles of equity. See Moffitt v. Brown, 10 Vet.App. 214, 225 (1997 ) ("[T]his Court is not a court of equity and cannot provide equitable relief."). Mrs. Girard also asserts that the Board should have assigned her husband an earlier effective date for his award of benefits for tinnitus because he was "entitled to the benefit of the doubt when evidence is lacking to the contrary." Appellant's Br. at 2. However, the benefit of the doubt only applies "when there is an approximate balance of positive and negative evidence regarding anyissue material to the determination of a matter." 38 U.S.C. § 5107(b). Here, contrary to Mrs. Girard's 6 contention, the Board found that the preponderance of the evidence weighed against the assignment of an earlier effective date, a factual determination that she does not challenge on appeal. R. at 13. Consequently, the benefit of the doubt was not applicable, and the Board's determination in that regard was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Gilbert, 1 Vet. App. at 58. Finally, Mrs. Girard asserts that "only [Mr. Girard's] peace time service has been considered so far" in assigning an effective date for his award of benefits for tinnitus. Appellant's Br. at 3. However, Mrs. Girard fails to cite any statute, regulation, or other legal precedent, nor can the Court discern any, explaining why this distinction is relevant to the assignment of an effective date. Therefore, the Court concludes that Mrs. Girard has failedto carryher burden of demonstrating error in that regard. See Hilkert, 12 Vet.App. at 151. III. CONCLUSION Upon consideration of the foregoing, the July 28, 2009, Board decision is AFFIRMED. DATED: October 6, 2011 Copies to: Lula J. Girard VA General Counsel (027) 7

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

Single Judge Application, 38 C.F.R. § 4.84b, Tinnitus, Liberalizing, 1976

Excerpt from decision below: "However, in March 1976, VA amended § 4.84b to provide a 10% disability rating for tinnitus that is "[p]ersistent as a symptom of head injury, concussion[,] or acoustic trauma." 38 C.F.R. § 4.84b, Diagnostic Code 6260 (1976) (emphasis added); 41 Fed. Reg. 11291, 11298 (Mar. 18, 1976). Nevertheless, this liberalizing law does not entitle Mr. Girard to an effective date earlier than September 7, 2006, because he did not seek benefits for tinnitus until September 2007, more than one year after the March 1976 effective date of the liberalizing law. In such a situation, the earliest effective date that may be assigned pursuant to the liberalizing law is one year prior to the date of the receipt of Mr. Girard's claim–in this case, September 7, 2006. See 38 C.F.R. § 3.114(a)(3). ================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-2969 LULA J. GIRARD, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before HAGEL, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent. HAGEL, Judge: Lula J. Girard, who is self-represented, appeals a July 28, 2009, Board ofVeterans' Appeals (Board) decision denying her husband an effective date prior to September 7,2006, for the award of a 10% disability rating for tinnitus. Record (R.) at 3-13. Mrs. Girard's Noticeof Appeal was timely, and the Court has jurisdiction to review the Board decision pursuant to38 U.S.C. § 7252(a). Neither party requested oral argument or identified issues they believe torequire a precedential decision of the Court. Because the Board's determination that John C. Girard,Jr., was not entitled to an earlier effective date for the award of benefits for tinnitus was not clearlyerroneous, the Court will affirm the July 28, 2009, Board decision.I. FACTSMrs. Girard is the widow of veteran John C. Girard, Jr., who served on active dutyin the U.S.Army from June 1955 to May 1961. In May 1961, Mr. Girard filed a claim for VA benefits for a"hearing" disability. R. at 363. In July 1961, Mr. Girard underwent a VA audiological examinationand reported to the examiner that his hearing loss and tinnitus began when he was "exposed to allthe demolition noise in service." R. at 348. In May 1962, a VA regional office awarded Mr. Girardbenefits for bilateral hearing loss and assigned a 10% disability rating. The regional office did notadjudicate a claim for benefits for tinnitus at that time. Mr. Girard did not appeal that decision andit became final.In September 2007, more than 45 years after the initial rating decision, Mr. Girard filed aclaim for VA benefits for tinnitus. In January 2008, the regional office awarded Mr. Girard benefitsfor tinnitus and assigned a 10% disability rating, effective September 7, 2007, the date of his claim.Mr. Girard filed a timely Notice of Disagreement with that decision, requesting an earlier effectivedate. In February 2009, Mr. Girard filed a motion to revise the May 1962 regional office decisionbased on clear and unmistakable error that asserted that the regional office "ignored or overlooked"a diagnosis of tinnitus that was of record at the time of the decision. R. at 100.In May 2009, after further development including the assignment of a September 7, 2006,effective date for the award of benefits for tinnitus, the regional office determined that there wasclear and unmistakable evidence in the May 1962 regional office decision because the evidence ofrecord at that time "show[ed] treatment of a chronic disability [of tinnitus] within one year ofdischarge." R. at 47. Therefore, the regional officeassigned him a noncompensable disability rating for tinnitus from May 19, 1961, the date of his initial claim, to September 6, 2006, and a 10%disability rating effective thereafter. Mr. Girard filed a timely Notice of Disagreement with that decision, arguing that he was entitled to a higher disability rating because "the acoustic trauma towhichhewasexposed duringservicewasequivalenttoaconcussion,"andhesubsequentlyperfectedhis appeal to the Board. R. at 40.In July 2009, the Board issued the decision currently on appeal, which denied entitlement toan effective date prior to September 7, 2006, for the award of a 10% disability rating for tinnitus.1 Specifically, the Board explained that tinnitus caused by acoustic trauma was not a compensable disability under the ratings schedule until March 1976 and that, pursuant to 38 C.F.R. § 3.114, the earliest effective date that could be assigned for Mr. Girard's tinnitus based on that liberalizing law The Court notes that the Board refers to an "earlier effective date claim" and a "[clear and unmistakable error]claim." R. at 7, 12. However, there is no such thing as a freestanding claim for an earlier effective date. Rudd v.Nicholson, 20 Vet.App. 296, 300 (2006). Likewise, "an assertion of clear and unmistakable error is a motion or a request, rather than a claim." Hillyard v. Shinseki, 24 Vet.App. 343, 355 (2011).12would be September 7, 2006, one year prior to the date of his claim, which was filed more than one year after March 1976.Mrs. Girard filed a timelyNotice of Appeal with that decision and indicated that her husband died three days after the Board issued its decision. In response to a Court order, Mrs. Girard fileda timely motion for substitution, which the Court granted nunc pro tunc to the date she filed herNotice of Appeal. II. ANALYSIS Mrs. Girard argues that the Board's determination that her husband was not entitled to an effective date earlier than September 7, 2006, for the award of benefits for tinnitus was clearly erroneous. The Court disagrees.A Board determination of the proper effective date is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Hanson v. Brown,9 Vet.App. 29, 32 (1996); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). "A factual 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 conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,395 (1948)). The Court may not substitute its judgment for the factual determinations of the Board on issues of material fact merely because the Court would have decided those issues differently inthe first instance. See id.Generally, the effective date for an award of disability compensation benefits is "the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400 (2011); see also 38 U.S.C. § 5110(a). When VA revises a final decision based on clear and unmistakable error,the effective date is the "[d]ate from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision." 38 C.F.R. § 3.400(k). In addition,where disability compensation benefits are awarded or increased pursuant to a liberalizing law or administrative issue, "the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue."38 U.S.C. § 5110; see also 38 C.F.R. § 3.114(a) (2011); 38 C.F.R. § 3.400(p). Where, as here, "a3claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of suchrequest." 38 C.F.R. § 3.114(a)(3).Because Mr. Girard was awarded benefits for tinnitus retroactive to May 19, 1961, based ona finding of clear and unmistakable error in the May 1962 regional office decision, the Court must rely on the law extant at that time to determine whether or not the Board's determination that he was not entitled to a compensable disability rating prior to September 7, 2006, was clearly erroneous.See 38 C.F.R. § 3.400(k). In May 1962, the rating schedule provided a compensable disabilityratingonly for tinnitus resulting from brain trauma or cerebral arteriosclerosis;2tinnitus resulting from anyother cause, including acoustic trauma, was considered noncompensable. See VA SCHEDULE FORRATING DISABILITIES 63, 112 (1945) (Diagnostic Codes 6260, 8045, and 8046).In the instant case, Mrs. Girard does not point to any evidence of record that demonstratesthat her husband's tinnitus was caused by brain trauma or cerebral arteriosclerosis sufficient towarrant a compensable disability rating retroactive to May 1961. Rather, Mr. Girard previously asserted that he was entitled to a compensable disability rating prior to September 7, 2006, because"the acoustic trauma to which he was exposed duringservicewas equivalentto a concussion," whichis consistent with a July 1961 VA medical examination report indicating that his tinnitus was causedby noise exposure. R. at 40. Mr. Girard's theoryof entitlement is contradicted by the plain languageof the diagnostic codes for rating tinnitus in 1962, which specifically provided for a 10% disabilityrating for tinnitus due to brain trauma and cerebral arteriosclerosis and a noncompensable disabilityrating for tinnitus due to all other causes, including acoustic trauma. Moreover, Mrs. Girard doesnot citeanylegalprecedenttosupportherhusband'sinterpretation oftheapplicablediagnostic codes.Although the Court is cognizant that Mrs. Girard is self-represented, her status as a pro se appellantdoes not relieve her of her burden of demonstrating error. See Hilkert v. West, 12 Vet.App. 145, 151(1999) (en banc) (holding that the appellant has the burden of demonstrating error), aff'd, 232 F.3d908 (Fed. Cir. 2000) (table). Consequently, the Court concludes that the Board's determination thatArteriosclerosis is "any of a group of diseases characterized by thickening and loss of elasticity of arterialwalls." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 144 (32d ed. 2011). Cerebral arteriosclerosis is"arteriosclerosis of the arteries of the brain." Id.24Mr. Girard was not entitled to an earlier effective date for his award of benefits for tinnitus under therating schedule in effect at the time of the May1962 regional office decision is not clearlyerroneous.The rating schedule was added to the Code of Federal Regulations in May 1964 andDiagnostic Codes 6260, 8045, and 8046 were codified without change. See 38 C.F.R. §§ 4.84b,4.124a (1965); 29 Fed. Reg. 6718 (May 22, 1964). However, in March 1976, VA amended § 4.84b to provide a 10% disability rating for tinnitus that is "[p]ersistent as a symptom of head injury ,concussion[,] or acoustic trauma." 38 C.F.R. § 4.84b, Diagnostic Code 6260 (1976) (emphasisadded); 41 Fed. Reg. 11291, 11298 (Mar. 18, 1976). Nevertheless, this liberalizing law does not entitle Mr. Girard to an effective date earlier than September 7, 2006, because he did not seek benefits for tinnitus until September 2007, more than one year after the March 1976 effective date of the liberalizing law. In such a situation, the earliest effective date that may be assigned pursuantto the liberalizing law is one year prior to the date of the receipt of Mr. Girard's claim–in this case,September 7, 2006. See 38 C.F.R. § 3.114(a)(3). Likewise, even assuming without deciding thata June 1999 amendment to the rating schedule for diseases of the ear, which transferred DiagnosticCode 6260 to § 4.87 and provided a 10% disability rating for recurrent tinnitus without anyrestriction on the cause of the condition was a liberalizing law, Mr. Girard would not be entitled toan earlier effective date pursuant to that amendment because he did not file his claim within one yearof the effective date of that liberalizing law.3See id.; see also 38 C.F.R. § 4.87 (1999); 64 Fed. Reg.25202, 25210 (May 11, 1999).To the extent that Mrs. Girard argues that, but for the regional office's clear and unmistakableerror in the May 1962 decision, VA would have reviewed her husband's entitlement to benefits fortinnitus on its own initiative within one year of the March 1976 amendment, thereby entitling himto an effective date commensurate with the enactment of that liberalizing law under § 3.114(a)(1),VA is not required to review a veteran's entitlement to benefits pursuant to a liberalizing law. SeeMcCay v. Brown, 106 F.3d 1577, 1581 (Fed. Cir. 1997) ("[Section 3.114(a)] would permit [VA] toidentify and apply the provisions of a liberalized law or administrative issue on their own initiativewhere feasible; or, where it is not feasible to identify potential beneficiaries administratively, toIn June 2003, VA also amended the explanatory notes to § 4.87, Diagnostic Code 6260, which are not relevantto this appeal. 68 Fed. Reg. 25822, 25823 (May 14, 2003).35require the filing of an application" (quoting S. Rep. No. 87-2042, at 5 (1962), reprinted in 1962U.S.C.C.A.N. 3260, 3264-65)); Spencer v. Brown, 4 Vet.App. 283, 288 (1993) (explaining that38 U.S.C. § 5110(g), the authorizing statute for § 3.114(a), "does not. . . create a requirement thatVA adjudicate de novo a previously and finally denied claim when there has been an interveningliberalizing law that may affect the claimant's entitlement to benefits," but rather "presuppose[s] theexistence of such a right [to a de novo adjudication]"). Accordingly, the Court cannot award Mr.Girard an earlier effective date under § 3.114(a)(1) based purely on speculation that VA may havetimelyconductedthatdiscretionaryreviewiftheMay1962regionalofficedecisionhacorrectlyin the first instance. Consequently, the Court concludes that the Board's determination thatMr. Girard was not entitled to an earlier effective date for his award of benefits for tinnitus pursuantto a liberalizing law is not clearly erroneous.Mrs. Girard next argues that her husband did not file a claim for benefits for tinnitus beforeSeptember 2007 because the Missouri Veterans Commission, which she claims was "acting onbehalf of [VA]," "discouraged him from reapplying and refused to assist him in doing so" andmisinformed him about the likelihood of success of such a claim. Appellant's Brief (Br.) at 2; ReplyBr. at 1. As an initial matter, the Court takes judicial notice of the fact that, contrary to Mrs. Girard'scontention, the Missouri Veterans Commission is part of the Missouri state government and not partof VA.See MISSOURI DEPARTMENT OF PUBLIC SAFETY: VETERANS COMMISSION,http://mvc.dps.mo.gov/ (last visited Sept. 7, 2011); see also Smith v. Derwinski, 1 Vet.App. 235, 238(1991) ("Courts may take judicial notice of facts not subject to reasonable dispute." (citing FED. R.EVID. 201(b))); Brannon v. Derwinski, 1 Vet.App 314, 316-17 (1991). Although the Court issympathetic to Mrs. Girard's situation, the Court cannot assign an earlier effective date based solelyon principles of equity. See Moffitt v. Brown, 10 Vet.App. 214, 225 (1997) ("[T]his Court is not acourt of equity and cannot provide equitable relief.").Mrs. Girard also asserts that the Board should have assigned her husband an earlier effectivedate for his award of benefits for tinnitus because he was "entitled to the benefit of the doubt whenevidence is lacking to the contrary." Appellant's Br. at 2. However, the benefit of the doubt onlyapplies "when there is an approximate balance of positive and negative evidence regarding anyissuematerial to the determination of a matter." 38 U.S.C. § 5107(b). Here, contrary to Mrs. Girard's6contention, the Board found that the preponderance of the evidence weighed against the assignmentof an earlier effective date, a factual determination that she does not challenge on appeal. R. at 13.Consequently, the benefit of the doubt was not applicable, and the Board's determination in thatregard was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance withlaw." Gilbert, 1 Vet. App. at 58.Finally, Mrs. Girard asserts that "only [Mr. Girard's] peace time service has been considered so far" in assigning an effective date for his award of benefits for tinnitus. Appellant's Br. at 3.However, Mrs. Girard fails to cite any statute, regulation, or other legal precedent, nor can the Court discern any, explaining why this distinction is relevant to the assignment of an effective date.Therefore, the Court concludes that Mrs. Girard has failed to carry her burden of demonstrating error in that regard. See Hilkert, 12 Vet.App. at 151.III. CONCLUSION Upon consideration of the foregoing, the July 28, 2009, Board decision is AFFIRMED.DATED: October 6, 2011 Copies to:Lula J. Girard VA General Counsel (027)7

Single Judge Application, Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), Tinnitus, Negative Evidence, Speculative Views and Negative Inference

Excerpt from decision below: "

=========================
"The Board impermissibly treated the silence as to symptoms of tinnitus as though it were an affirmative medical opinion that the appellant had, at most, intermittent tinnitus. The Board impermissibly gave probative weight to the November 1996 medical report based on the Board's speculative view and negative inferences. In addition, the Board failed to recognize that the November 1996 report stated that there was no history of tinnitus when, in fact, the evidence reflected that, at the time of this report, the appellant had already been granted service connection for tinnitus.
The Board also provided an inaccurate description of the December 2001 report. This report included a one-line statement written by the examiner noting that the appellant "reports constant, moderate, tonal tinnitus, [left ear], onset 1965." R. at 10. The Board translated this statement as a statement from the appellant that "his tinnitus has been persistent since 1965," and that the statement
attributed to him in the September 1999 report noting that the tinnitus was constant for several years is, therefore, "contrary" or "inconsistent" with this December 2001 notation. R. at 481, 483. First, the Court notes that the December 2001 statement can be read two ways: the onset of tinnitus was
5


in 1965 or the onset of constant tinnitus was in 1965. The Board chose
the latter reading and declared it inconsistent with the September 1999 statement because the December 2001 statement noted a much earlier year during which the tinnitus was constant. Even accepting this latter reading, the two statements are not inconsistent because one includes the other–a period going back to 1965 would include the period going back "for several years." In any event, absent the Board having sought clarification from the VA examiner with regard to the examiner's recording of the notation in his report, see Bowling, 15 Vet.App. at 12, the Board should have attempted to read the September 1999 and December 2001 statements, both attributed to the appellant, consistent with each other, if possible."
============================================
----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1016
LESTER O. ACKERMAN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, Lester O. Ackerman, through counsel seeks
review of
a March 28, 2008, decision of the Board of Veterans' Appeals (Board) that
denied entitlement to an
initial compensable evaluation for service-connected tinnitusNext Hit prior to
June 10, 1999. Both parties
filed briefs. This appeal is timely, and the Court has jurisdiction over
the claim pursuant to
38 U.S.C. §§ 7252(a) and 7266(a). A single judge may conduct this review.
See Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below,
the Court will reverse the
Board's determination in its March 28, 2008, decision that the evidence
preponderates against a
compensable rating forthe appellant's service-connected Previous HittinnitusNext Hit prior to
June 10, 1999, and remand
to the Board to award a 10% disability rating for Previous HittinnitusNext Hit with an
effective date not later than
February 10, 1995, and to further determine whether an effective date
earlier than February 10,
1995, is appropriate.
I. FACTS
Mr. Ackerman served on active duty in the Marine Corps from October 1964
to October
1968. Record (R.) at 393-94. In June 1989, Mr. Ackerman submitted his
claim for service
connection for, in pertinent part, deafness. R. at 398-401. During a
February 1995 VA examination,


Mr.Ackermanstatedthat since service "hisleft ear rings,although
inconsistently," andtheexaminer
diagnosed him with "intermittent high frequency Previous HittinnitusNext Hit." R. at 135-36.
In a May 1995 rating
decision, the VA regional office (RO) granted entitlement to service
connection for Previous HittinnitusNext Hit "with
a 0 percent evaluation assigned from June 26, 1989, on the basis [that]
this was part of the claimed
hearing loss." R. at 125-29. The rating decision relied on Mr. Ackerman's
prior complaints of
"inconstant left ear ringing," and the VA medical examiner's clinical
diagnosis of "intermittent
Previous HittinnitusNext Hit," as evidence against a finding of "persistent" Previous HittinnitusNext Hit that
would warrant a 10% disability
rating. See R. at 127.
In a November 1996 VA examination report to evaluate hearing loss, the
examiner recorded
hearing test results and diagnosed bilateral high frequency hearing loss.
R. at 81-83. The report also
stated under "subj[ective findings]" that Mr. Ackerman reported "
difficulty hearing in noise or in
groups of people" and also noted that Mr. Ackerman had no history of
Previous HittinnitusNext Hit. R. at 81.
In a September 1999 letter to VA, Mr. Ackerman's representative argued
that the June 1999
change in law regarding rating assignments for Previous HittinnitusNext Hit claims made Mr.
Ackerman "eligible for a
10% service connected rating." R. at 63. During a September 1999 VA
examination, Mr. Ackerman
reported experiencing "constant [left ear] Previous HittinnitusNext Hit for several years -
'moderate'." R. at 62.
In an October 1999 decision, the RO granted entitlement to a 10%
disability rating for
"recurrent"tinnitusbasedonchangestoDiagnosticCode(DC)
6260thatsubstitutedtherequirement
of "recurrent" Previous HittinnitusNext Hit for "persistent" Previous HittinnitusNext Hit. R. at 37-40; see 38 C.F.
R. § 4.87, DC 6260 (1999
and 2009) (providing for a 10% rating for "[t]innitus, recurrent"). The 10%
disability rating was
made effective only from the date of the regulatory change, June 10, 1999.
See 64 Fed. Reg. 25,202,
25,206 (May 11, 1999) (effective date of June 10, 1999). Mr. Ackerman was
awarded a
noncompensable disability rating prior to June 10, 1999. R. at 37-40.
A December 2001 VA examination report for evaluating hearing loss stated
only the
following as to Previous HittinnitusNext Hit: Mr. Ackerman "reports constant, moderate, tonal
Previous HittinnitusNext Hit AS [(i.e., left
ear)], onset 1965." R. at 10-12.
An August 2002 Board decision denied Mr. Ackerman entitlement to a
compensable
evaluation for Previous HittinnitusNext Hit prior to June 10, 1999. R. at 643. In September
2003, this Court granted the
Secretary's motion to remand for compliance with the notice provisions of
the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, § 3a, 114 Stat. 2096,
codified in part at
2


38 U.S.C. § 5103a. R. at 621, 623-28. In January 2004, the Board issued
a decision vacating and
remanding Mr. Ackerman's claim to the RO for compliance with the Court's
order. R. at 601-04.
After providing Mr. Ackerman with a VCAA notice letter, the RO issued two
Supplemental
Statements of the Case, in March and July 2004. R. at 570-76, 586-91, 594-
99. A March 2005
Board decision denied Mr. Ackerman's claim. R. at 547-61. In April 2007,
this Court issued a
decision vacating and remanding the portion of the March 2005 Board
decision that denied
entitlement to a compensable evaluation for Previous HittinnitusNext Hit prior to June 10,
1999. R. at 491-92. In March
2008, the Board issued the decision on appeal.
On appeal before the Court, Mr. Ackerman argues that the Board "failed to
provide an
adequate statement of reasons or bases for its decision, and failed to
consider all information and
evidence." Appellant's Brief (App. Br.) at 4. The appellant also argues
that the Board's decision was
contrary to 38 U.S.C. § 5107(b), which requires that, "[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." He
contends that given the totality of
evidence in his favor, the Board did not give him the benefit of the doubt.
Id. at 5-6. The Secretary
argues that the Board's decision has a plausible basis in the record and
is supported by an adequate
statement of reasons or bases. Secretary's Brief (Sec'y Br.) at 4.
II. ANALYSIS
This is the thirdtime the matter of acompensable ratingfortheappellant's
service-connected
Previous HittinnitusNext Hit for the period prior to June 10, 1999, is on appeal to this Court.
The record on appeal
essentially consists of four VA examiners' reports, each of which contains
a notation by the
examiner regarding the appellant's Previous HittinnitusNext Hit: (1) the February 1995 report
that stated that "since
[service], his left ear rings, although inconstantly" and the examiner
diagnosed him with
"intermittent high frequency Previous HittinnitusNext Hit" of the left ear, R. at 135; (2) the
November 1996 report that
stated that there was no history of Previous HittinnitusNext Hit, R. at 81; (3) the September
1999 report noting that the
appellant reported "constant [left ear] Previous HittinnitusNext Hit for several years -
'moderate,'" R. at 62; and (4) the
December 2001 report noting that the appellant "reports constant, moderate,
tonal Previous HittinnitusNext Hit, [left ear],
onset 1965," R. at 10. In the most recent remand from this Court in April
2007, the Court
determined that the Board failed to discuss, among other things, the
notation in the September 1999
3


VA audiological evaluation that the appellant had "contant [left ear]
Previous HittinnitusNext Hit for several years -
'moderate'". R. at 492 (emphasis added).
In the decision on appeal, the Board discussed the September 1999 report,
and found that
"this report does not persuasively show constant Previous HittinnitusNext Hit in the pertinent
period prior to June 10,
1999." R. at 480 (emphasis added). The Board determined that the September
1999 report was "less
persuasive than the contrary evidence of record." R. at 483. The Board
stated:
If the veteran's September 1999 account of persistent Previous HittinnitusNext Hit for "
several years" is
understood to indicate that persistent Previous HittinnitusNext Hit existed prior to the
February 1995 and
[November] 1996 VA examination reports, then the veteran's account of his
symptoms on those earlier VA examination reports contradict the September
1999
account. If, instead, the veteran's September 1999 account of persistent
Previous HittinnitusNext Hit for
"several years" is understood to indicate a transition from intermittent
Previous HittinnitusNext Hit to
persistent Previous HittinnitusNext Hit at some point following the February 1995 and November
1996
examinations, then the September 1999 account appears to be contradicted
by his
subsequent December 2001 statement that his Previous HittinnitusNext Hit has been persistent
since
1965. Under either interpretation, the September 1999 VA examination
report's
reference to constant or persistent Previous HittinnitusNext Hit is inconsistent with the
veteran's other
statements and, thus, is accorded little probative value with regard to
determining
whether the veteran's Previous HittinnitusNext Hit was persistent prior to June 10, 1999.
R. at 481 (emphasis added).
The Court holds that reversal is required of the Board's determination
that the appellant did
not satisfy, prior to June 1999, the "persistent" criteria for a 10%
rating under the pre-1999 DC 6260.
The Board, in according little probative weight to the September 1999
report, noted that the report
did not "persuasively show constant Previous HittinnitusNext Hit." R. at 480-81. The Board did
not explain the basis
for requiring the appellant to have "constant" Previous HittinnitusNext Hit and that it be
shown "persuasively" in order
to meet the pre-June 1999 regulatory requirement that the Previous HittinnitusNext Hit be "
persistent." See Smith v.
Nicholson, 19 Vet.App. 63, 72 (2005) (noting conclusion in Secretary's
Supplementary Information
that an attribution of constancy was not well suited for rating a
condition that, "under certain
circumstances, comes and goes") (quoting 59 Fed. Reg. 17, 295, 17, 297 (
Apr. 12, 1994)). Similarly,
the Board assigned little weight to the term "inconstant" attributed to
the appellant in the September
1995 report as far as meeting the "persistent" requirement. The Board did
not attempt to interpret
or define the term "persistent" in terms of the frequency required to
satisfy the rating criteria.
4


Significantly,
theNovember1996andDecember2001reportsdonotconstituteevidencethat
is contrary to the September 1999 report. The Board's characterization of
the November 1996 report
is incorrect. The Board speculated that because the November 1996 report
did not refer to any
Previous HittinnitusNext Hit symptoms, the appellant was not experiencing any Previous HittinnitusNext Hit and
that the report "presents
suggestive evidence which does not corroborate the veteran's current
contentions regarding
persistent Previous HittinnitusNext Hit, and the report is more consistent with the veteran's
February 1995 description of
merely intermittent Previous HittinnitusNext Hit." R. at 480. This is an inaccurate
description of the November 1996
examination report. The diagnosis section of the report is silent
regarding Previous HittinnitusNext Hit. This Court and
the Federal Circuit have held that the Board may not equate the absence of
evidence with substantive
evidence. See McLendon v. Nicholson, 20 Vet.App. 79, 85 (2006); see also
Buchanan v. Nicholson,
451 F.3d 1331, 1336 (Fed. Cir. 2006) (stating that the Board erred in
relying on a medical examiner
who "ultimately relies not on the objective medical evidence, but rather
the absence of such in
reaching her opinion that the onset of [the appellant's] psychiatric
symptoms did not occur
during . . . service"); Bowling v. Principi, 15 Vet.App. 1, 8 (2001) (
holding that Board cannot rely
on the absence of evidence, and absent any affirmative evidence of
employability, the Board's
speculation cannot form the basis for a denial of the veteran's claim for
a rating of total disability
based on individual unemployability). The Board impermissibly treated the
silence as to symptoms
of Previous HittinnitusNext Hit as though it were an affirmative medical opinion that the
appellant had, at most,
intermittent Previous HittinnitusNext Hit.The Board impermissiblygaveprobativeweight
totheNovember1996medical
report based on the Board's speculative view and negative inferences. In
addition, the Board failed
to recognize that the November 1996 report stated that there was no
history of Previous HittinnitusNext Hit when, in fact,
the evidence reflected that, at the time of this report, the appellant had
already been granted service
connection for Previous HittinnitusNext Hit.
The Board also provided an inaccurate description of the December 2001
report. This report
included a one-line statement written by the examiner noting that the
appellant "reports constant,
moderate, tonal Previous HittinnitusNext Hit, [left ear], onset 1965." R. at 10. The Board
translated this statement as a
statement from the appellant that "his Previous HittinnitusNext Hit has been persistent since
1965," and that the statement
attributed to him in the September 1999 report noting that the Previous HittinnitusNext Hit
was constant for several years
is, therefore, "contrary" or "inconsistent" with this December 2001
notation. R. at 481, 483. First,
the Court notes that the December 2001 statement can be read two ways: the
onset of Previous HittinnitusNext Hit was
5


in 1965 or the onset of constant Previous HittinnitusNext Hit was in 1965. The Board chose
the latter reading and
declared it inconsistent with the September 1999 statement because the
December 2001 statement
noted a much earlier year during which the Previous HittinnitusNext Hit was constant. Even
accepting this latter reading,
the two statements are not inconsistent because one includes the other–
a period going back to 1965
would include the period going back "for several years." In any event,
absent the Board having
sought clarification from the VA examiner with regard to the examiner's
recording of the notation
in his report, see Bowling, 15 Vet.App. at 12, the Board should have
attempted to read the
September 1999 and December 2001 statements, both attributed to the
appellant, consistent with
each other, if possible. Indeed, reading the December 2001 statement to
mean that the appellant's
Previous HittinnitusNext Hit (rather than constant Previous HittinnitusNext Hit) had its onset in 1965 is
consistent with the medical history
description given in the September 1999 report. Under medical history, the
September 1999 report
stated that, after suffering a concussion with bleeding from the left ear
in late 1965 or early 1966,
the appellant was hospitalized for several days: "At that time, he had
difficulty hearing from his left
ear. He also developed Previous HittinnitusNext Hit in his left ear. He was placed back on
active duty, without any
sequela. He has continued to manifest some hearing loss on the left ear
with a slight worsening
which he feels is due to his age. He also has significant Previous HittinnitusNext Hit in the
left ear." R. at 56.
With respect to the 1995 examination report, it includes the examiner's
statement that the
appellant reported that "his left ear rings, although inconstantly," and
the examiner's impression was
of "intermittent high frequency Previous HittinnitusNext Hit." R. at 135. Although the Board
incorrectly stated that this
report stated that "his left ear rings, although inconsistently," R. at
479 (emphasis added), the Board
correctly noted that the examiner diagnosed the appellant with "
intermittent high frequency Previous HittinnitusNext Hit
A.S. [(left ear)]." The appellant argues that the use of the word "
intermittent" in the 1995
examination report should not be considered evidence of the appellant's
condition at that time
because the appellant could have actually meant "persistent." App. Br. at
5. He contends that
"[u]nder the current definition for persistent a lay person could have
used the word ‘intermittent' to
describe the same condition." Id. The Court notes that it was the examiner,
not the appellant, who
diagnosedthe appellant's conditionas"intermittent high frequency Previous HittinnitusNext Hit"
based on theappellant's
then-contemporaneous report of having "inconstant" ringing. R. at 135-36.
The Court holds that the Board provided an inadequate statement of reasons
or bases for
relying on the 1995 report in determining that a 10% rating for Previous HittinnitusNext Hit
was not warranted for the
6


period prior to February 1995. As noted above, the Board failed to
explain how the term
"persistent", on the one hand, and "inconstant" and "intermittent," on the
other hand, are indeed
different for purposes of the award of benefits under the pre-June 1999 DC
6260. Accordingly, the
Court cannot carry out effective judicial review of the Board's denial of
a compensable rating for
the appellant's Previous HittinnitusNext Hit prior to February 1995. Therefore, the Board's
decision with regard to
Previous HittinnitusNext Hit for the time frame from June 1989, the date he filed his claim,
until February 1995, will be
vacated and the matter remanded for readjudication. See 38 U.S.C. § 7104(
a), (d)(1); Allday v.
Brown, 7 Vet.App 517, 527 (1995).
Because there is no evidence contrary to the September 1999 report, which
established that
the appellant had "constant" Previous HittinnitusNext Hit "for several years" prior to
September 1999, the Board's denial
of a 10% rating prior to June 10, 1999, will be reversed, and the Board
will be directed to assign a
10% disability rating with an effective date not later than February 10,
1995. See Rose v. West,
11 Vet.App. 169, 172 (1998) (reversing Board decision and remanding for
Board to award service
connection where no evidence rebutting medical evidence of nexus existed);
see also Traut v.
Brown, 6 Vet.App. 495, 500 (1994) (where medical evidence of record
addresses all elements of
service connection, is uncontradicted by competent evidence, and
definitively supports appellant's
position, reversal rather than remand is appropriate). It is
uncontroverted that the appellant had
constant, moderate Previous HittinnitusNext Hit for several years prior to September 1999. The
preponderance of the
evidence in this record does not weigh against his claim; indeed, in the
absence of any negative
evidence, it weighs in his favor. Previous HitTinnitusNext Hit reported as "constant"
satisfies the lower threshold
regulatory requirement that Previous HittinnitusNext Hit be "persistent." Smith, 19 Vet.App.
at 73 ("'The word
"persistent" suggests a meaning of ["]constant["], and we propose to
replace it with "recurrent,"
meaning that the Previous HittinnitusNext Hit might not always be present, but that it does
return at regular intervals.'")
(quoting 59 Fed. Reg. at 17,297 (Secretary's 1994 Supplemental Information
)).
Upon review of the record on appeal as a whole, the Board's finding that
there is evidence
contrary to the September 1999 examination report is not plausible and the
Court has a firm
conviction that it is wrong, and it will be reversed. See Gilbert v.
Derwinski, 1 Vet.App. 49, 52
(1990). This Court may reverse a Board finding of fact as "clearly
erroneous" when, reviewing the
evidence in its entirety, there is no plausible basis for the Board's
decision and the Court possesses
a "'definite and firm conviction that a mistake has been committed.'"
Hersey v. Derwinski,
7


2 Vet.App. 91, 95 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.
S. 364, 395 (1948));
see 38 U.S.C. § 7261(a)(4) (providing that the Court may "set aside or
reverse" a finding of material
fact adverse to the claimant if the finding is "clearly erroneous").
Reversal may be appropriate even
if the record contains "some controverting evidence (that is, evidence
that is not in the appellant's
favor)." Padgett v. Nicholson, 19 Vet.App. 133, 147 (2004) (en banc) (
unanimously rejecting
proposition that "a Board finding cannot be clearly erroneous unless the
evidence against that
finding is uncontroverted") (opinion issued nunc pro tunc to November 2,
2004, sub nom. Padgett
v. Peake, 22 Vet.App. 159 (2008)).
III. CONCLUSION
Based on the foregoing analysis and a review of the record on appeal, the
Board's
determinationinitsMarch28,2008,decisionthattheevidencepreponderates
againstacompensable
rating for the appellant's service-connected Previous HittinnitusNext Hit prior to June 10,
1999, is REVERSED and the
matter is REMANDED to the Board to award a 10% disability rating for
Previous HittinnitusNext Document with an effective
date not later than February 10, 1995, and to determine whether an
effective date earlier than
February 10, 1995, is appropriate and for further action consistent with
this decision. The matter
is to be provided expeditious treatment on remand. See 38 U.S.C. § 7112;
see also Kay v. Principi,
16 Vet.App. 529, 534 (2002) (appellant may present additional evidence and
argument in support
of matters remanded, and the Board must consider any evidence and argument
so presented).
DATED: September 29, 2009
Copies to:
Joseph Werner, Esq.
VA General Counsel (027)
8

Single Judge Application, Barr v. Nicholson, 21 Vet.App., Tinnitus

Excerpt from decision below:
"1. Tinnitus
In this case, as noted by the Board, Mr. Robinson asserts that he has
suffered from the
symptoms of ringing in his ears since his time in service, although he has
also stated that his tinnitus
began in 2004. In addition, Mr. Robinson's Form DD-214 states that his
primary military
occupational specialty was a cannon crewmember, which would confirm his
assertions that he was
subjected to extensive noise exposure during service. However, the Board
makes no mention of this
fact and instead focused its analysis on the fact that Mr. Robinson
reported conflicting dates of onset
for his tinnitus.
The evidence of record demonstrates that Mr. Robinson currently
experiences tinnitus, that he was subject to noise exposure as a cannon crewmember during service, and that he has experienced intermittent symptoms of tinnitus since his active service. See Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (stating that "[l]ay testimony is competent . . . to establish the presence
4


of observable symptom[s] and 'may provide sufficient support for a claim
of service connection'" (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994))). Accordingly, the Court concludes that the Board failed to provide an adequate statement of reasons or bases as to why Mr. Robinson was not entitled to a VA examination for his tinnitus, because it did not address his military occupational
specialityas a cannon crewmember duringservice in conjunction with his lay statements concerning his ongoing symptoms. See Duenas, 18 Vet.App. 517-18."
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----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4689
ALEIVY J. ROBINSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Aleivy J. Robinson appeals through counsel a November 18,
2009, Board
of Veterans' Appeals (Board) decision that denied entitlement to VA
benefits for tinnitus, a skin
disorder, and right and left foot disorders.1
The Court has jurisdiction pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a) to review the November 2009 Board decision.
Because the Board's
determination that Mr. Robinson was not entitled to VA examinations for
these conditions is not
supported by adequate reasons or bases, the Court will vacate the November
2009 Board decision
and remand the matter for readjudication consistent with this decision.
I. FACTS
Mr. Robinson served on active duty in the U.S. Armyfrom July1988 to
July1992, including
service in Southwest Asia during the Persian Gulf War. During service, Mr.
Robinson was treated
The November 2009 Board decision also denied Mr. Robinson's claim for VA
benefits for bilateral hearing
loss; however, in his brief, Mr. Robinson makes no arguments as to this
claim. The Court therefore deems any argument
pertaining to this issue abandoned. See Grivois v. Brown, 6 Vet.App. 136,
138 (1994) (issues or claims not argued on
appeal are considered abandoned).
1


for skin conditions that included athletes foot and skin peeling between
his toes and for a groin rash
diagnosed as probable herpes simplex. On his May 1992 report of medical
history, he noted that he
experienced hearing loss, but the examiner noted that there were no
circumstantial problems.
In August 1994, Mr. Robinson underwent a general VA examination. At that
time, his skin
was noted to be normal.
In March 2006, Mr. Robinson submitted a claim for VA benefits for a skin
disorder, tinnitus,
and left and right foot disabilities. Mr. Robinson stated that he
experienced a persistent bad rash
since 1993 and that, despite seeing several dermatologists, it had not
cleared. He next stated that,
"in 1988, while on active duty, [my] feet began to become painful after
jumping out of airplanes and
landing on feet." Record (R.) at 656. He also stated that he experienced "
problem with hearing
started within the last two years. Ringing tone in ears on and off. At
times I become unable to
balance." Id.
In support of his claim for a skin disorder, Mr. Robinson submitted
private medical records
documenting treatment for a skin condition diagnosed as subacute
dermatitis in December 2004.
He also submittedVA medical center treatment records reflectingtreatment
for dermatitis from May
to June 2006. Finally, in May 2006, Mr. Robinson submitted a statement
elaborating on his left and
right foot disorders, stating that this disability was not related to his
flat feet noted in service. He
stated that he recorded 42 parachute jumps during service and that this,
combined with long road
marches, caused his feet to hurt, including Achilles tendinitis.
In a September 2006 rating decision, a VA regional office found that Mr.
Robinson was not
entitled to VA benefits for tinnitus, a skin disorder, and left and right
foot disorders. Mr. Robinson
appealed that decision.
Additional VA medical center treatment records dated June 2006 to January
2007 reflect
continued treatment for dermatitis and eczema. Mr. Robinson also submitted
additional private
medical records, dated March to May 2006, reflecting treatment for his
skin, including flare-ups of
dermatitis and a rash on his feet.
In September 2009, Mr. Robinson testified at a Board hearing that his skin
problems began
during service but that he did not begin seeking medical treatment until
approximately 2001 when
2


the condition worsened. He also testified that his skin condition had
been diagnosed as various
disorders throughout the years.
In the November 2009 Board decision currently on appeal, the Board found
that Mr.
Robinson was not entitled to VA benefits for tinnitus, a skin condition,
or left and right foot
disorders. The Board noted that Mr. Robinson had not been afforded a VA
examination for any of
the disabilities on appeal. The Board explained that the criteria for
affordinga VA examination were
not met as to each disability, stating that:
[The record] contains no evidence of tinnitus in service or any persuasive
indication
that [Mr. Robinson]'s current tinnitus is related to service. There is no
evidence of
a chronic skin disorder in service with the same symptom[s] as [his]
current skin
disorders. In addition there is no indication that [his] current skin
disorders are
related to his active service. Regarding [his] claim for right and left
foot disorders,
the evidence again does not indicate that [ ] any current foot disorder is
related to
service. The Board finds that there is otherwise sufficient evidence to
decide the
claims.
R. at 6-7.
On appeal, Mr. Robinson argues that the Board erred in not properly
considering the lay
evidence of record and not affording him examinations. In response, the
Secretary disputes these
contentions and argues that the Court should affirm the November 2009
Board decision.
II. ANALYSIS
A. Entitlement to VA Medical Examinations
Pursuant to 38 C.F.R. § 3.159(c)(4)(i) (2010), VA must provide a claimant
a medical opinion
or examination
if the information and evidence of record does not contain sufficient
competent
medical evidence to decide the claim, but:
(A) Contains competent lay or medical evidence of a current diagnosed
disability or persistent or recurrent symptoms of disability;
(B) Establishes that the veteran suffered an event, injuryor disease in
service,
or has a disease or symptoms of a disease listed in [38 C.F.R.] § 3.309,
§ 3.313, § 3.316, and § 3.317 manifesting during an applicable
presumptive
3


period provided the claimant has the required service or triggering event
to
qualify for that presumption; and
(C) Indicates that the claimed disability or symptoms may be associated
with
the established event, Previous DocumentinjuryNext Document, or disease in service or with another service-connected disability. See also 38 U.S.C. § 5103A(d)(2).
In McLendon v. Nicholson, the Court observed that the third prong of § 3.
159(c)(4)(i), which requires that the evidence of record "indicate" that "the claimed disability or symptoms may be associated with the established event," establishes "a low threshold." 20 Vet.App. 79, 83 (2006)(emphasis added). The Court went on to note that:
The types of evidence that 'indicate' that a current disability 'may be
associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id.
In addition, the Board is required to provide an adequate statement of
reasons or bases for its conclusion. See Duenas v. Principi, 18 Vet.App. 512, 517-18 (2004) ( citing Tucker v. West, 11 Vet.App. 369, 374 (1998)).

1. Tinnitus
In this case, as noted by the Board, Mr. Robinson asserts that he has
suffered from the symptoms of ringing in his ears since his time in service, although he has also stated that his tinnitus began in 2004. In addition, Mr. Robinson's Form DD-214 states that his primary military occupational specialty was a cannon crewmember, which would confirm his assertions that he was subjected to extensive noise exposure during service. However, the Board makes no mention of this
fact and instead focused its analysis on the fact that Mr. Robinson reported conflicting dates of onset for his tinnitus.
The evidence of record demonstrates that Mr. Robinson currently experiences tinnitus, that
he was subject to noise exposure as a cannon crewmember during service,
and that he has
experienced intermittent symptoms of tinnitus since his active service.
See Barr v. Nicholson,
21 Vet.App. 303, 307 (2007) (stating that "[l]ay testimony is competent
. . . to establish the presence
4


of observable symptom[s] and 'may provide sufficient support for a claim
of service connection'"(quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994))). Accordingly, the Court concludes that the Board failed to provide an adequate statement of reasons or bases as to why Mr. Robinson was not entitled to a VA examination for his tinnitus, because it did not address his military occupational
speciality as a cannon crewmember duringservice in conjunction with his lay statements concerning his ongoing symptoms. See Duenas, 18 Vet.App. 517-18. On remand, the Board should either provide Mr. Robinson with a VA medical examination or discuss this evidence and determine whether Mr. Robinson has tinnitus and whether it is connected to service, or whether a VA medical examination is not warranted.

2. Skin Disorder
Here, the Board stated that Mr. Robinson's skin disorders during service
did not manifest the
same symptoms as his current skin disorder and, therefore, a VA medical
examination was not
warranted. However, the Board failed to discuss the fact that Mr. Robinson
was treated for athletes
foot and peeling between his toes during service and that, in a
February2006 private medical record,
Mr. Robinson was treated for a rash on his feet and lower extremities.
Moreover, throughout his
private and VA medical center treatment records, Mr. Robinson has stated
that his skin disorder
affects his "whole body . . . from head to toe." R. at 36. Further, Mr.
Robinson's private and VA
medical center treatment records reflect that his skin disorder is prone
to flare-ups. For example, his
condition is worse at some visits than at others. In addition to being
treated for a skin disorder
during service and having a currently diagnosed skin disorder, Mr.
Robinson has consistently
maintained throughout the course of his appeal that his skin disorder
continued to afflict him after
service, but that he did not seek medical treatment until approximately
2001 when the condition
worsened.
Accordingly, the Court concludes that the Board failed to provide an
adequate statement of
reasons or bases for its determination that Mr. Robinson was not entitled
to a VA medical examination for his skin disorder. On remand, the Board should either provide Mr. Robinson with a VA medical examination or adequately discuss Mr.Robinson's current symptoms, his skin disorder during service, and his statements that he has experienced ongoing symptoms since service, in
5


determining whether a VA medical examination is not warranted. See Duenas,
18 Vet.App. 517-18.
3. Left and Right Foot Disorders
With regard to Mr. Robinson's left and right foot disorders, the Board
found that he was not
entitled to a VA medical examination because there was no evidence to
indicate that these disorders
were related to service. However, throughout the course of this appeal, Mr.
Robinson has
maintained that his current left and right foot disorders were the result
of parachute jumps during
service. Mr. Robinson's DD-214 reflects that he was awarded the
parachutist badge during service.
Nonetheless, the Board failed to mention in its decisionMr.
Robinson'slaystatementsaboutinjuring
his feet during parachute jumps, the fact that he was awarded the
parachutist badge, or that he has
experienced continuous symptoms since service.
Accordingly, the Court again concludes that the Board failed to provide an
adequate
statement of reasons or bases as to why Mr. Robinson was not afforded a VA
medical examination
for his left and right foot disorders. On remand, the Board should either
provide Mr. Robinson with
a VA medical examination or discuss this evidence in explaining why Mr.
Robinson is not entitled
to such an examination. See Duenas, 18 Vet.App. at 517-18.

B. Other Arguments
In his brief, Mr. Robinson also argues that the Board failed to properly
account for his lay
statements and that the Board's finding that he was not entitled to VA
benefits for a skin disorder was
clearly erroneous. However, because the Court is remanding Mr. Robinson's
claims for further
development as to whether he is entitled to VA medical examinations for
his disabilities on appeal,
which will require the Board to take into account Mr. Robinson's lay
statements, the Court need not
further address this argument at this time. Similarly, because the Board
will readjudicate Mr. Robinson's claim for VA benefits for a skin disorder on remand, the Court need not further address whether the Board's determination was clearly erroneous at this time. The Court reminds the Board that it "cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence," and that "competent lay evidence can be sufficient in and of itself" to support a finding of serviceconnection. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).
6


On remand, Mr. Robinson is free to submit additional evidence and
argument in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that "[
a] remand is meant to
entail a critical examination of the justification for the decision."
Fletcher v. Derwinski, 1 Vet.App.
394, 397 (1991). In addition, the Board shall proceed expeditiously, in
accordance with 38 U.S.C.
§ 7112 (expedited treatment of remanded claims).

III. CONCLUSION
Upon consideration of the foregoing, the November 18, 2009, Board decision
is VACATED
and the issues are REMANDED for readjudication and further development, if
necessary.
DATED: May 12, 2011
Copies to:
R. Edward Bates, Esq.
VA General Counsel (027)
7

Tinnitus is No. 1 disabilty among veterans of Iraq and Afghanistan

Tinnitus or ringing in the ears is now "the No. 1 cause of disability among veterans that served in Afghanistan and Iraq", according to Theresa Schulz, a 21-year veteran of military audiology. Was the failure to issue combat soldiers the reason for these disabilities?

Political Affairs.net
http://www.politicalaffairs.net/article/articleview/8125/

"What? What?" Failure To Supply Earplugs Cost GIs Their Hearing

By Sherwood Ross

Thousands of GIs have suffered preventable hearing loss because they were not supplied with earplugs to reduce the din of battle. Many have a permanent ringing in their ears they will suffer throughout their lives.

The condition is widespread. In 2006, the Veterans Administration paid out more than a half billion dollars to veterans with tinnitus, a condition which affects nearly half of those troops exposed to blasts.

The US Army Center for Health Promotion and Preventive Medicine conducted a study 141,000 GIs between April, 2003, and March, 2004, that showed tinnitus – ringing in the ears – accounted for more than 30 per cent of post-deployment-related diagnoses.

“There were not adequate supplies of earplugs to fit all deploying soldiers,” the Center found. “There was also failure of an Army medical readiness automation system…to provide unit commanders with information regarding troops having adequate hearing protection…Finally, there is evidence…that soldiers having blast injuries may not have been referred to audiology for adequate evaluation and treatment,” the Center said.

In part as a result of this malfeasance, of the 1.3 million soldiers that have been deployed in the two current wars, 70,000 are collecting disability pay for tinnitus and 58,000 more are collecting for hearing loss. That adds up to 128,000 GIs, or one in 10 deployed.

Additional resources:
Podcast #92 - Racist Origins of the Financial Crisis



According to an article in the February 9th issue of The New Yorker, from which the data for this article is taken, author Jerome Groopman writes, “the Pentagon had failed to anticipate the kind of hearing-protection devices that were needed. Even soldiers who were provided with earplugs were given insufficient instruction in their use; mistakenly believing that the earplugs could interfere with low-frequency sounds, like whispered commands during search-and-destroy operations, many chose not to use them.”

Groopman quotes Theresa Schulz, a 21-year veteran of military audiology, as saying hearing loss accompanying tinnitus is now the No. 1 cause of disability among veterans” that served in Afghanistan and Iraq.

Schulz earlier penned an article for Hearing Health titled, “Troops Return with Alarming Rates of Hearing Loss.” It lamented: “Unfortunately, the resources required to accomplish the hearing conservation mission throughout the armed forces are diminishing just as the problem worsens.” Positions for active-duty audiologists, she noted, were being scaled back. “In the Army,” she wrote, “only forty-six per cent of those soldiers who require an annual hearing evaluation – because they are exposed to hazardous noise as a part of their routine duties – received one last year.”

Perry Jefferies, a retired 48-year-old Army first sergeant that served in Iraq said that while hearing trauma was loudest during combat, he had been exposed to it at other times during his military career. On the weapons range in basic training, he said, “we only wore one earplug, so you could hear the instructor when he yelled at you.” And while learning how to fire a machine gun “we had no hearing protection. Afterwards, blood was coming out of one of my ears.” Jefferies, the magazine said, had ruptured his right eardrum. In battle, Jefferies heard explosions as US helicopters fired missiles into enemy ammunition bunkers; on another occasion, he heard a massive explosion at a nearby Iraqi fort so powerful it rocked his Humvee. “I felt like I was under water for a few minutes,” he said. Since then Jefferies suffers from tinnitus, which he describes as “a high, steady electronic tone. And my ears feel heavy and blocked.”

Jefferies, who is receiving 10 percent disability compensation for tinnitus, told Groopman, “It is hard to hear in a bar or restaurant, hard to discern certain words, and I have to turn up the TV.” At time, the ringing in his ears wakes him out of his sleep.

Of late, the military has attempted to make improved hearing protection more widely available, Groopman writes. Schulz says it is using a device akin to an earplug with a filter that admits most sounds but blocks gunfire. A more sophisticated device called QuietPro that blocks the sound of explosions has been adopted by the Marines.

Col. Kathy Gates, director of the Army Audiology and Speech Center, of Washington, DC, told the magazine all soldiers must be instructed in the use of the combat-arms earplugs, noting “A soldier with hearing loss is impaired in battle.”

One wounded veteran told Groopman it was easy to tell which soldiers weren’t wearing their earplugs: “They were the ones saying, ‘What? What?’”

When governments want their citizens to fight their wars they appeal to their patriotism. How little some regimes truly care about their people as human beings, though, is shown by the many troops they send into battle with insufficient protection for their bodies and their vehicles, and also if they deny them their deserved care and compensation upon their return home.