Veteranclaims’s Blog

October 25, 2011

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

Filed under: Uncategorized — veteranclaims @ 3:43 pm

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
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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.”
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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
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Copies to:
Perry A. Pirsch, Esq.
VA General Counsel (027)
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