Veteranclaims’s Blog

November 28, 2011

Singe Judge Appication, Service Connection on Secondary Basis, 38 C.F.R. § 3.310(a) (2011), Allen v. Brown, 7 Vet.App. 439, 448 (1995)

Filed under: Uncategorized — veteranclaims @ 5:04 pm

Excerpt from decision below:
“A disability may be service connected on a secondary basis by demonstrating that the disability is either (1) “proximately due to or the result of [an already] service-connected disease or injury,” 38 C.F.R. § 3.310(a) (2011), or (2) aggravated by an already service-connected disease or injury, “whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition.” Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc). In addition, “VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations,” regardless of the specific label attached to the claim. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1878
ALBERT ROSEN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before IVERS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30 (a),
this action may not be cited as precedent.
IVERS, Judge: Albert Rosen appeals through counsel a May 18, 2010, Board
of Veterans’
Appeals (Board) decision that denied entitlement to service connection for
bilateral hearing loss and
tinnitus. Record (R.) at 3-31. Mr. Rosen’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 that they believe require a
precedential decision of the Court.
Because the Board’s decision is supported by an adequate statement of
reasons or bases and is not
otherwise clearly erroneous, the Court will affirm the May 2010 Board
decision.
I. FACTS
Mr. Rosen served on active duty in the U.S. Army from September 1948 to
August 1949 and
from September 1950 to September 1952. R. at 293, 296. In January 1949,
while flying during
service, Mr. Rosen ruptured his right ear drum. R. at 230-31. Although he
suffered a decrease in
hearing as a result of that an incident, a September 1950 audiogram was ”
essentially negative” for
hearing loss. R. at 230. At his September 1952 separation examination, Mr.
Rosen satisfactorily
completed a voice whisper test. R. at 222.

Shortly after his separation from service, Mr. Rosen applied for and was
granted service
connection fortheresidualsofhisrupturedright eardream.
SubsequentVAexaminationsconducted
in 1960 and 1966 reflected normal hearing. R. at 195, 213.
In January2006, Mr. Rosen filed a claim for service connection for
bilateral hearing loss and
tinnitus. R. at 179. In support of his claim, he submitted private
treatment records showing a
diagnosis of bilateral hearing loss. R. at 189. He also submitted a
medical opinion from Dr. Suresh
Raja that Mr. Rosen had hearing loss that is “worse than should be
expected for a man his age” and
that “it is as likely as not his hearing loss was incurred during his
military service.” R. at 172.
In May 2006, Mr. Rosen was afforded a VA audiological examination. R. at
159. The
examiner reviewed Mr. Rosen’s claims file and recorded his medical history,
including his reports
of noise exposure in Korea. After performing audiological testing, the
examiner opined that
[Mr. Rosen]’s hearing loss and accompanying tinnitus are not as likely to
be from
noise exposure incurred in military service. Noise is most likely the
cause of this
hearing loss, but documentation shows normal hearing before discharge and
initial
testing done as a civilian was also within normal limits. Noise exposure
was positive
in the veteran’s occupation. It is likely that this occupational noise
exposure and
aging of the mechanism is causal for [his] hearing loss.
R. at 161.
In a May 2006 rating decision, a VA regional office denied Mr. Rosen’s
claims for service
connection for bilateral hearing loss and tinnitus. Mr. Rosen appealed
that decision to the Board.
In support of his appeal, he submitted an additional medical opinion from
Dr. Raja, stating:
Mr. Albert Rosen has been a patient of mine since December 2005. He has a
history
of military service and is a veteran of the Korean War. He was exposed to
prolonged
noise without hearing protection and thus has experienced sensorineural
hearing loss
and tinnitus.
It is my opinion that his hearing problem and worsening tinnitus are more
likely than
not[ ] due to his active military service.
R. at 151.
In the May 2010 Board decision currently on appeal, the Board found that
Mr. Rosen’s
bilateral hearing loss and tinnitus were not related to his active service.
R. at 3-31.
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II. ANALYSIS
A. Secondary Service Connection
On appeal, Mr. Rosen argues that the Board clearly erred by not addressing
whether his hearing loss is secondary to his service-connected ruptured right ear drum. Appellant’s Brief (Br.) at 5-7. In response, the Secretary asserts that the Board did address the theory of secondary service connection in its decision.
A disability may be service connected on a secondary basis by
demonstrating that the disability is either (1) “proximately due to or the result of [an already] service-connected disease or injury,” 38 C.F.R. § 3.310(a) (2011), or (2) aggravated by an already service-connected disease or injury, “whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition.” Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc). In addition, “VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations,” regardless of the specific label attached to the claim. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).
As with any finding or conclusion on a
material issue of fact or law,
the Board is required to provide a written statement of reasons or bases
for it determination of a
claimant’s entitlement to secondary service connection. See 38 U.S.C. §
7104(d)(1).
Here, the Court concludes that although the Board did not explicitly
discuss the laws and
regulations that pertain to secondary service connection, it nonetheless
provided an adequate
statement of reasons or bases addressing this theory of entitlement. First,
the Board acknowledged
that Mr. Rosen was service connected for the residuals of a ruptured right
ear dream, and therefore
analyzed his right and left ear hearing loss separately. The Board stated
that “[Mr. Rosen] contends
that he developed right ear hearing loss as the result of acoustic trauma,
or due to a rupture of the
tympanic membrane during service,” therefore identifying Mr. Rosen’s
contention that there was a
nexus between his current hearing loss and his service-connected condition.
R. at 9. The Board
next noted Mr. Rosen’s in-service ruptured right ear drum, stating “[i]
nsofar as this incident is raised
as a cause of [his] right ear hearing loss, the Board concludes that [Mr.
Rosen] did experience a
ruptured right ear drum during service.” R. at 10. The Board then
discussed the fact that Mr. Rosen
had some hearing loss after the in-service incident, but that later in-
service and post service medical
records showed normal hearing. The Board stated: “[W]ith evidence of the
rupture of the tympanic
3

membrane [ ] during service, the determinative issue in regards to
service connection for right ear
hearing loss is whether there is a connection between the incident in
service and [Mr. Rosen]’s
current hearing loss.” R. at 12. After discussing the probative value of
the various medical opinions
of record and concluding that Mr. Rosen did not have the required medical
expertise to opine that
his current hearing loss was related to his ruptured right ear drum, the
Board concluded that Mr.
Rosen’s right ear hearing loss was not related to his active service,
including to his ruptured right ear
drum during service. R. at 16.
Therefore, with regard to Mr. Rosen’s argument that the Board erred when
it failed to
explicitly address secondary service connection, the Court holds that the
Board’s statement was
adequate to facilitate judicial review. See Gilbert v. Derwinski, 1 Vet.
App. 49, 57 (1990) (stating
that the Board’s statement of reasons or bases must be adequate to enable
a claimant to understand
the precise basis of the Board’s decision, as well as to facilitate
judicial review). Even assuming that
the Board should have cited to 38 C.F.R. § 3.310, and specifically to its
requirements, such an error
was nonprejudicial because the Board nevertheless made factual findings
relevant to a secondary-
service-connection analysis. See 38 U.S.C. § 7261(b)(2); Shinseki v.
Sanders, 129 S. Ct. 1696, 1708
(2009) (holding that this Court must take due account of the rule of
prejudicial error).
B. Benefit of the Doubt
Mr. Rosen’s next argument on appeal is that the Board clearly erred in not
affording him the
benefit of the doubt in his appeal. Appellant’s Br. at 8-10. In response,
the Secretaryasserts that the
Board properly weighed the evidence of record and determined that the
preponderance of the evidence was against Mr. Rosen’s claims and, therefore, that the benefit of the doubt was not applicable.
“[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.” 38 U.S.C. § 5107(b). The benefit of the doubt standard is only applicable when the requirement of an “approximate balance of positive and negative evidence” is met. Ferguson v.
Principi, 273 F.3d 1072, 1076 (Fed. Cir. 2001). In the present case, the Court concludes that the Board underwent a
detailed balancing of all
of the evidence of record. It fully and adequately explained why the
negative evidence of record
4

outweighed the evidence that was favorable to Mr. Rosen’s claims,
including the various medical
opinions and lay statements of record. It then concluded that “the
preponderance of the evidence is
against service connection for right ear hearing loss, [left ear hearing
loss, and tinnitus], with no
reasonable doubt to resolve in the Veteran’s favor.” R. at 17, 24, 28.
As noted above, the benefit of the doubt rule is not triggered unless
there is an “approximate
balance of positive and negative evidence.” Ferguson, 273 F.3d at 1076. As
the Board found that
the preponderance of the evidence was against Mr. Rosen’s claims and fully
explained its
conclusions, the benefit of the doubt doctrine had no applicability. The
Court therefore concludes
that the Board adequately explained its reasoning on this issue. See id.
C. Inextricably Intertwined Claims
Finally, Mr. Rosen argues that his claim for service connection for
tinnitus is inextricably
intertwined with his claim for service connection for bilateral hearing
loss and, therefore, should his
hearing loss claim be remanded, his tinnitus claim should also be remanded.
Appellant’s Br. at 11-
12.
This Court has held that “where a decision on one issue would have a
‘significant impact’
upon another, and that impact in turn ‘could render any review by this
Court of the decision [on the
claim] meaningless and a waste of judicial resources,’ the two claims are
inextricably intertwined.”
Henderson v. West, 12 Vet.App. 11, 20 (1998) (quoting Harris v. Derwinski,
1 Vet.App. 180, 183
(1991), overruled on other grounds by Tyrues v. Shinseki, 23 Vet.App. 166 (
2009)).
Here, for the reasons outlined above, the Court concludes that remand is
not necessary for
Mr. Rosen’s bilateral hearing loss claim and, as a result, his argument
that his tinnitus claim is
inextricably intertwined with that claim is rendered moot.
III. CONCLUSION
Upon consideration of the foregoing, the May 18, 2010, Board decision is
AFFIRMED.
DATED: November 22, 2011
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Copies to:
Allan T. Fenley, Esq.
VA General Counsel (027)
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