Veteranclaims’s Blog

November 14, 2010

What to Look For When Reviewing Board Decisions, Reliance on Negative Evidence, citing Forshey

After the Veterans Court finding regarding Moray in Shade v. Shinseki, regarding the Board mis-application of new and material citing Moray, we went looking for other such instances. This another in the list of things to look for when reviewing a Board decision.

We found this example where the Board in 2007 uses the wrong definition of “negative evidence”, even though the Board cites to Mclendon in another section of this decision, yet fails to apply the correct McLendon holding as to how negative evidence is to be viewed.

Board Decision:
“The absence of evidence constitutes negative evidence tending to disprove the claim that the veteran suffered from hearing loss, tinnitus, or jungle rot, in service which resulted in chronic disability or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact).”

Veterans Court statement on “negative evidence”, citing McLendon:
“”In this regard, the Court finds that the Board focused its analysis on the fact that Mr. Nicholson’s service medical records did not show evidence of a hip disorder during service. The Court has held that the absence of evidence is not the same as negative evidence. See McLendon v. Nicholson, 20 Vet.App. 79, 85 (2006) (concluding that Board’s assessment derived from negative evidence does not constitute substantive evidence); 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”). Here, Mr. Nicholson stated on several occasions that he fell and injured his hip during service and that he subsequently experienced chronic hip pain after service. Although the Board stated that Mr. Nicholson was competent to testify to symptoms such as pain, the Board did not discuss the credibility of these statements. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.” (quoting Buchanan, 451 F.3d at 1337. Accordingly, the Court finds that the Board did not properly weigh all the evidence of record, to include Mr. Nicholson’s lay statements regarding injuring his hip in service and experiencing continuous symptoms since that time.”
++++++++++++++++++++++++++++++++++++++++

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Citation Nr: 0733348
Decision Date: 10/24/07 Archive Date: 11/02/07

DOCKET NO. 05-00 552
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri

THE ISSUES

1. Entitlement to service connection for bilateral hearing
loss.

2. Entitlement to service connection for tinnitus.

3. Entitlement to service connection for jungle rot.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of
the United States

ATTORNEY FOR THE BOARD

J. Connolly Jevtich, Counsel

INTRODUCTION

The veteran served on active duty from January 1965 to
January 1968.

This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a July 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri.

The Board notes that the veteran has submitted additional
evidence without initial RO review of this evidence; however,
it does not pertain to the issues on appeal. Accordingly,
there is no prejudice to the veteran and the Board will
proceed on the merits as to the issues on appeal.

FINDINGS OF FACT

1. Bilateral hearing loss was not manifest during service,
within one year of separation, and there is no current
diagnosis of bilateral hearing loss which is attributable to
service.

2. There is no current diagnosis of tinnitus which is
attributable to service.

3. There is no current diagnosis of jungle rot which is
attributable to service.

CONCLUSIONS OF LAW

1. Bilateral hearing loss was not incurred in or aggravated
by service and may not be presumed to have been incurred
therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 &
Supp. 2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007).

2. Bilateral tinnitus was not incurred or aggravated in
active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp.
2006); 38 C.F.R. §§ 3.303, 3.304 (2007).

3. Jungle rot was not incurred or aggravated in active
service. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2006);
38 C.F.R. §§ 3.303, 3.304 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the claimant’s claim, VA has met all
statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.

Prior to the initial adjudication of the claimant’s claim, a
letter dated in April 2004 fully satisfied the duty to notify
provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1);
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The
claimant was aware that it was ultimately the claimant’s
responsibility to give VA any evidence pertaining to the
claim. The VCAA letter told the claimant to provide any
relevant evidence in the claimant’s possession. See
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II). ). In particular, the VCAA notification:
(1) informed the claimant about the information and evidence
not of record that is necessary to substantiate the claim;
(2) informed the claimant about the information and evidence
that VA will seek to provide; (3) informed the claimant about
the information and evidence that the claimant is expected to
provide; and (4) requested that the claimant provide any
evidence in his possession that pertains to the claims, or
something to the effect that the claimant should “give us
everything you’ve got pertaining to your claim.” See
Pelegrini II.

The United States Court of Appeals for the Federal Circuit
(Federal Circuit) recently held that a statement of the case
(SOC) or supplemental statement of the case (SSOC) can
constitute a “readjudication decision” that complies with
all applicable due process and notification requirements if
adequate VCAA notice is provided prior to the SOC or SSOC.
See Mayfield v. Nicholson, No. 2007-7130 (Fed. Cir. Sept 17,
2007) (Mayfield III). As a matter of law, the provision of
adequate VCAA notice prior to a readjudication “cures” any
timing problem associated with inadequate notice or the lack
of notice prior to an initial adjudication. See Mayfield
III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333-
34).

In any event, the Board finds that any deficiency in the
notice to the claimant or the timing of these notices is
harmless error. See Overton v. Nicholson, 20 Vet. App. 427,
435 (2006) (finding that the Board erred by relying on
various post-decisional documents to conclude that adequate
38 U.S.C.A. § 5103(a) notice had been provided to the
claimant, the Court found that the evidence established that
the claimant was afforded a meaningful opportunity to
participate in the adjudication of the claim, and found that
the error was harmless, as the Board has done in this case.)

If any notice deficiency is present, the Board finds that the
presumption of prejudice on VA’s part has been rebutted in
this case by the following: (1) based on the communications
sent to the veteran over the course of this appeal, the
claimant clearly has actual knowledge of the evidence he is
required to submit in this case; and (2) based on the
claimant’s contentions as well as the communications provided
to the claimant by VA, it is reasonable to expect that the
claimant understands what was needed to prevail. See also
Simmons v. Nicholson, 487 F. 3d 892 (2007); see also Sanders
v. Nicholson, 487 F. 3d 881 (2007).

VA also fulfilled its duty to obtain all relevant evidence
with respect to the issue on appeal. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159. The claimant’s service medical records,
VA medical treatment records, and identified private medical
records have been obtained, to the extent available.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no
indication in the record that any additional evidence,
relevant to the issue decided herein, is available and not
part of the claims file. The records satisfy 38 C.F.R.
§ 3.326. The veteran has not been examined by VA, but the
Board finds that a VA examination is not warranted in this
case, as discussed in detail below.

Since the Board has concluded that the preponderance of the
evidence is against the claim of service connection, any
questions as to the appropriate disability rating or
effective date to be assigned are rendered moot, and no
further notice is needed. See Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006).

Service Connection

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304.

Hearing loss disability is defined by regulation. For the
purposes of applying the laws administered by VA, impaired
hearing will be considered to be a disability when the
auditory threshold in any of the frequencies 500, 1000, 2000,
3000, 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

Since November 1, 1967, audiometric results have been
reported in standards set forth by the International
Standards Organization (ISO)-American National Standards
Institute (ANSI). Service department audiometric charts
dated after November 1, 1967 are presumed to be in ISO-ANSI
units unless otherwise specified, while such charts in VA
medical records dated after June 30, 1966, are similarly
presumed to be in ISO-ANSI units. In this case, the service
department records dated prior to November 1, 1967 have been
converted and those dated after November 1967 are presumed to
be in ISO-ANSI units.

The United States Court of Appeals for Veterans Claims
(Court) has held that “the threshold for normal hearing is
from 0 to 20 dB [decibels], and higher threshold levels
indicate some degree of hearing loss.” See Hensley v. Brown,
5 Vet. App. 155, 157 (1993).

In addition, organic disease of the nervous system such as
sensorineural hearing loss will be presumed to have been
incurred in or aggravated by service if it had become
manifest to a degree of 10 percent or more within one year of
the veteran’s separation from service. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This
presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§
3.307, 3.309.

Further, VA regulation provides that, with chronic disease
shown as such in service (or within an applicable presumptive
period under section 3.307) so as to permit a finding of
service connection, subsequent manifestations of the same
chronic disease at any later date, however remote, are
service connected, unless clearly attributable to
intercurrent causes. For the showing of chronic disease in
service there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word “chronic.” When the disease identity is
established (leprosy, tuberculosis, multiple sclerosis,
etc.), there is no requirement of an evidentiary showing of
continuity. Continuity of symptomatology is required only
where the condition noted during service (or in the
presumptive period) is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b).

In addition, service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).

A claim for service connection generally requires competent
evidence of a current disability; proof as to incurrence or
aggravation of a disease or injury in service, as provided by
either lay or medical evidence, as the situation dictates;
and competent evidence as to a nexus between the inservice
injury or disease and the current disability. Cohen v.
Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet.
App. 465 (1994).

A claim for service connection generally requires competent
evidence of a current disability; proof as to incurrence or
aggravation of a disease or injury in service, as provided by
either lay or medical evidence, as the situation dictates;
and competent evidence as to a nexus between the inservice
injury or disease and the current disability. Cohen v.
Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet.
App. 465 (1994).

The Court has consistently held that, under the law cited
above, “[a] determination of service connection requires a
finding of the existence of a current disability and a
determination of a relationship between that disability and
an injury or disease incurred in service.” Watson v. Brown,
4 Vet. App. 309, 314 (1993). This principle has been
repeatedly reaffirmed by the Federal Circuit, which has
stated, “a veteran seeking disability benefits must establish
. . . the existence of a disability [and] a connection
between the veteran’s service and the disability.” Boyer v.
West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).

The existence of a current disability is the cornerstone of a
claim for VA disability compensation. See Degmetich v.
Brown, 104 F. 3d 1328 (1997) (holding that the VA’s and the
Court’s interpretation of sections 1110 and 1131 of the
statute as requiring the existence of a present disability
for VA compensation purposes cannot be considered arbitrary
and therefore the decision based on that interpretation must
be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed.
Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992).

In the absence of proof of a present disability, there can be
no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143-
44 (1992).

In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. Gilbert v. Derwinski, 1 Vet. App.
49 (1990). To do so, the Board must assess the credibility
and weight of all the evidence, including the medical
evidence, to determine its probative value, accounting for
evidence that it finds to be persuasive or unpersuasive, and
providing reasons for rejecting any evidence favorable to the
appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992).

The service medical records reveal that the veteran was seen
in September 1966 for an infected foot and was noted to have
severe cellulitis. Several small pustules were lanced and
cultured. The veteran was given Penicillin. Within three
days, the veteran was noted to be doing better. No further
treatment or diagnosis was made.

The service medical records further reveal that the veteran
had no complaints, findings, treatment, or diagnosis of
hearing loss or tinnitus during service. The veteran did,
however, make other medical complaints. The absence of
evidence constitutes negative evidence tending to disprove
the claim
that the veteran suffered from hearing loss,
tinnitus, or jungle rot, in service which resulted in chronic
disability or persistent symptoms thereafter. See Forshey v.
West, 12 Vet. App. 71, 74 (1998), aff’d sub nom. Forshey v.
Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that
the definition of evidence encompasses “negative evidence”
which tends to disprove the existence of an alleged fact).

With regard to inservice audiological evaluations, on the
entrance examination in January 1965, on the audiological
evaluation, puretone thresholds, in decibels, were as
follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
0(15)
0(10)
0(10)
N/A
0(5)
LEFT
0(15)
0(15)
0(10)
N/A
0(5)

On the January 1968 separation examination, the ears, feet,
and skin were normal. On the audiological examination,
puretone thresholds, in decibels, were as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
15
0
5
N/A
0
LEFT
15
0
15
N/A
5

Hearing was shown to be within normal limits during service.
See Hensley.

Post-service, there are no pertinent records concerning
hearing loss within the first post-service year.

With regard to claimed bilateral hearing loss and bilateral
tinnitus, there are no post-service findings, treatment or
diagnosis. Although the veteran’s representative asserts
that a VA examination should be conducted, the Board finds
that a VA examination is not warranted.

Pursuant to VA’s duty to assist, VA will provide a medical
examination or obtain a medical opinion based upon a review
of the evidence of record if VA determines it is necessary to
decide the claim. 38 C.F.R. § 3.159(c)(4)(i). A medical
examination or medical opinion may be deemed necessary where
the record contains competent medical evidence of a current
diagnosed disability, establishes that the veteran suffered
an event, injury or disease in service, and indicates that
the claimed disability may be associated with the established
event, injury or disease in service. See Id. The record
before VA need only (1) contain competent evidence that the
veteran has persistent or recurrent symptoms of current
disability and (2) indicate that those symptoms may be
associated with the veteran’s active military service.
Duenas v. Principi, 18 Vet. App. 512 (2004).

In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court
noted that the third prong of 38 C.F.R. § 3.159(c)(4)(I),
requires that the evidence of record “indicate” that the
claimed disability or symptoms may be associated with
service, establishes a low threshold. See also Locklear v.
Nicholson, 20 Vet. App. 410, at 418 (2006).

In this case, the low threshold is not met. The service
medical records are negative. The veteran was a wheeled
vehicle mechanic during service. There is no record of any
acoustic trauma, although this is asserted. The veteran was
never put on any hearing profile, he did not report any
hearing problems, and his hearing was within normal limits
throughout service. There were no complaints, findings,
treatment, or diagnosis since service separation in 1968.
The VA records dated from 2001 onward are also negative.

Accordingly, there is no indication that any current
complaints of bilateral hearing loss and tinnitus are
etiologically related to service to include to event, injury
or disease in service. Thus, there is no current diagnosis
of either bilateral hearing loss or bilateral tinnitus.

With regard to claimed jungle rot, the service medical
records are also negative. Although the veteran was treated
for an infected foot and cellulitis, the feet and skin were
normal at separation. There were no complaints on separation
examination. There was no inservice diagnosis of jungle rot.
Following service, there is no post-service diagnosis. An
October 2001 evaluation noted that the veteran reported that
he had jungle rot during service and that his feet were
black. Currently, he had minor cracks between his toes with
dead skin. There was no reported etiological relationship
indicated between current complaints to service nor was the
veteran diagnosed as having jungle rot or the residuals
thereof. The Board finds that since the service medical
records are negative, the post-service record is negative for
jungle rot, and the October 2001 evaluation did not attribute
the skin abnormalities to service to include jungle rot
during service, further VA examination is not warranted.

The veteran contends that bilateral hearing loss, bilateral
tinnitus, and jungle rot, are related to service. The
veteran can attest to factual matters of which he had first-
hand knowledge, e.g., experiencing pain in service, reporting
to sick call, being placed on limited duty, and undergoing
physical therapy. See Washington v. Nicholson, 19 Vet. App.
362, 368 (2005). However, the veteran as a lay person has
not been shown to be capable of making medical conclusions,
thus, his statements regarding causation are not competent.
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus,
while the veteran is competent to report what comes to him
through his senses, he does not have medical expertise. See
Layno. Therefore, he cannot provide a competent opinion
regarding diagnosis and causation.

However, the Federal Circuit has held that lay evidence is
one type of evidence that must be considered and competent
lay evidence can be sufficient in and of itself. The Board,
however, retains the discretion to make credibility
determinations and otherwise weigh the evidence submitted,
including lay evidence. See Buchanan v. Nicholson, 451 F.3d
1331, 1335 (Fed. Cir. 2006). This would include weighing the
absence of contemporary medical evidence against lay
statements.

In Barr v. Nicholson, 21 Vet App 303 (2007), the Court
indicated that varicose veins was a condition involving
“veins that are unnaturally distended or abnormally swollen
and tortuous.” Such symptomatology, the Court concluded,
was observable and identifiable by lay people. Because
varicose veins “may be diagnosed by their unique and readily
identifiable features, the presence of varicose veins was not
a determination ‘medical in nature’ and was capable of lay
observation.” Thus, the veteran’s lay testimony regarding
varicose vein symptomatology in service represented competent
evidence.

In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007),
the Federal Circuit determined that lay evidence can be
competent and sufficient to establish a diagnosis of a
condition when (1) a layperson is competent to identify the
medical condition (noting that sometimes the layperson will
be competent to identify the condition where the condition is
simple, for example a broken leg, and sometimes not, for
example, a form of cancer), (2) the layperson is reporting a
contemporaneous medical diagnosis, or (3) lay testimony
describing symptoms at the time supports a later diagnosis by
a medical professional. The relevance of lay evidence is not
limited to the third situation, but extends to the first two
as well. Whether lay evidence is competent and sufficient in
a particular case is a fact issue.

Once evidence is determined to be competent, the Board must
determine whether such evidence is also credible. See Layno,
supra (distinguishing between competency (“a legal concept
determining whether testimony may be heard and considered”)
and credibility (“a factual determination going to the
probative value of the evidence to be made after the evidence
has been admitted”)). See Barr.

The veteran is competent to state that he had inservice
hearing problems and ringing in his ears. He is also
competent to state that his feet had skin problems. However,
the veteran is not competent to state whether his hearing was
within normal limits on audiological evaluation nor is he
competent to make etiological medical assessments. Further,
he made no complaints of hearing loss or tinnitus during
service. Although he was seen for an infected foot and
cellulitis, contemporaneous records indicate that these
medical problems apparently resolved by separation. There
was no inservice diagnosis of jungle rot. As noted, the
service medical records were negative for such reports and
specifically found that the ears, feet, and skin, were all
normal when the veteran was separated. There is no current
medical nexus between claimed disabilities and service.
There are no current diagnoses. As such, his contentions to
the contrary are not credible.

Conclusion

Service connection is not warranted for bilateral hearing
loss on a direct or presumptive basis, for bilateral
tinnitus, or for jungle rot.

The evidence in this case is not so evenly balanced so as to
allow application of the benefit-of-the-doubt rule as
required by law and VA regulations. 38 U.S.C.A. § 5107(b);
38 C.F.R. § 3.102. The preponderance is against the
veteran’s claims, and they must be denied.

ORDER

Service connection for bilateral hearing loss is denied.

Service connection for bilateral tinnitus is denied.

Service connection for jungle rot is denied.

____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs

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