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May 19, 2011

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

Filed under: Uncategorized — Tags: , , — veteranclaims @ 1:45 pm

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)
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