Veteranclaims’s Blog

August 16, 2012

Single Judge Application, Delisio v. Shinseki, 25 Vet.App. 45, 53; Secretary’s Duty Investigate Apparent and Potential Causes

Excerpt from decision below:
“However, the appellant’s failure to explicitly raise the theory is not fatal so long as it was reasonably raised by the record. See
Robinson, 21 Vet.App. at 553 (noting that “[i]t is entirely possible
that the record might ‘indicate’ a theory of entitlement, but that a lay appellant might not be sophisticated enough to recognize the
theory”); see Delisio v. Shinseki, 25 Vet.App. 45, 53 (“upon the filing of a claim for benefits, the Secretary must investigate the reasonably apparent and potential causes of the veteran’s condition
and theories of service connection that are reasonably raised by the record or raised bya sympathetic reading of the claimant’s filing”).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-2534
EDWARD R. BERNIGHT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: The appellant appeals pro se from the May5, 2011, decision
of the Board
of Veterans’ Appeals (Board) that denied entitlement to service connection
for tinnitus. This appeal
is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a)
and 7266(a). Single-judge
disposition is appropriate when the issue is of “relative simplicity” and ”
the outcome is not
reasonablydebatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
For the reasons set forth
below, the Board’s May 2011 decision will be affirmed.
The Board remanded the issue of entitlement to service connection for
hypertension. This
claim is not before the Court because it was not the subject of a final
Board decision. See Breeden
v. Principi, 17 Vet.App. 478 (2004).
I. FACTS
The appellant served on active duty in the U.S. Navyfrom January1966 to
March 1980. See
Record (R.) at 3, 471, 491, 530. The record indicates that he is service
connected for diabetes
mellitus, type II, with bilateral lower extremity peripheral neuropathy,
and has been assigned a 20%
disability rating from November 9, 2007. In connection with the
appellant’s claim for hypertension,

the regional office (RO) attempted to obtain the appellant’s service
medical records. R. at 460, 491-
92. A May 2008 memorandum to the file indicates that the National
Personnel Records Center
notifiedtheRO thatnoservicemedicalrecordswere availablefor the
appellantand that the appellant
indicated that he had no such records. R. at 460. The memorandum concluded
that further attempts
to obtain the appellant’s records would be futile. Id.
In May 2009, the appellant filed a claim for entitlement to service
connection for tinnitus,
asserting that he was exposed to acoustical trauma in service from fans,
including cooling fans. R. at
104-07. In a letter received by the RO in June 2009, the appellant stated
that he believed that his
tinnitus was caused by the noisy environment created by “electronics and
teletype in use while I was
in the Navy.” R. at 91-92.
The appellant was provided a VA audiology examination in July 2009. R. at
48-51. He
reported continuous ringing sounds in his ears occurring 90% of the time,
with the onset of
symptoms 4 years prior to the examination (or about 25 years after service
). R. at 49, 51. The
appellant further reported in-service exposure to noise from fans, with no
hearing protection, and
post-service occupational noise exposure from work in electronic repair,
with hearing protection.
R. at 49. The audiologist diagnosed bilateral tinnitus, but concluded that
it would be speculative to
render an opinion regarding the relationship between tinnitus and service
because the appellant’s
claims file was not available for review. R. at 51.
In August 2009, the RO denied entitlement to service connection for
bilateral tinnitus. R. at
69-72. The appellant filed a Notice of Disagreement. R. at 61-64.
In April 2010, a VA audiologist provided a supplemental opinion based on
review of the
appellant’s claims file and the July 2009 audiology examination. R. at 51.
She opined that it is less
likelythan not that the appellant’s tinnitus is related to service, noting
that there were no documented
complaints of tinnitus in service and that the appellant’s complaints of
tinnitus began many years
subsequent to service. Id.
After VA continued its denial of the claim in a July 2010 Statement of the
Case (R. at 31-47),
the appellant perfected his appeal. R. at 29-30. The Board issued the
decision on appeal on May 5,
2011. R. at 3-14. This appeal followed.
2

II. ANALYSIS
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) an 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 (Fed. Cir. 2009); Hickson v. West, 12
Vet.App. 247, 253
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table); see also Heuer v. Brown, 7 Vet.App. 379, 384 (1995). A finding of
service connection, or
no service connection, is a finding of fact reviewed under the ”
clearlyerroneous” standard of review.
See Swann v. Brown, 5 Vet.App. 229, 232 (1993); 38 U.S.C. § 7261(a)(4). A
finding of fact is
clearly erroneous when the Court, after reviewing the entire evidence, “is
left with the definite and
firm conviction that a mistake has been committed.” United States v. U.S.
Gypsum Co., 333 U.S.
364, 395 (1948); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). The Court
cannot overturn factual
determinations of the Board if they have a plausible basis in the record
viewed in its entirety. Id.
The Board found that the appellant was exposed to low levels of noise in
service based on
his militaryoccupational specialityof cryptologic technician. R. at8.
Nevertheless,theBoard found
that the preponderance of the evidence weighed against a finding that the
appellant’s tinnitus is
directly related to his service. R. at 4, 9. The Board primarily relied on
the April 2010 VA
audiologist’s opinion that it is less likely than not that the appellant’s
tinnitus is related to service.
R. at 8-9. The Board found this opinion to be adequate, noting that it was
detailed and that the
examiner provided sufficient reasoning in support of her conclusion. R. at
6, 9. The appellant does
not challenge this finding.
The Board also considered the appellant’s lay statements asserting that
his tinnitus is related
to service; however, the Board found that such statements do not
constitute competent evidence
because the etiology of the appellant’s disability is a complex matter. R.
at 9. The Court finds no
error in this determination or the Board’s alternate determination that,
even if the appellant’s opinion
were to be accorded some probative value, it is outweighed by the VA
medical opinion. See
Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (the Board
may determine that a
specific medical issue is the type of issue for which layevidence is not
competent); Owens v. Brown,
7 Vet.App. 429, 433 (1995) (holding that it is the Board, not the Court,
that is responsible for
3

assessing the credibility and weight to be given to evidence and that the
Court may overturn the
Board’s assessments only if they are clearly erroneous).
In his brief, the appellant fails to identify any specific error with the
Board’s determination.
He admits that he did not have tinnitus at the time of his discharge from
service but asserts, without
citation to the record, that tinnitus may not develop for years after
exposure and that he was exposed
to loud noise from teletype machines during 10 years of his service.
Appellant’s Br. at 3. These
assertions essentially constitute a disagreement with the way the Board
weighed the evidence and
do not demonstrate clear error. With regard to the issue of nexus to
service, the Board discussed the
evidence of record and, as noted above, appropriately relied on the VA
audiologists’s opinion. R. at
8-9. The Board also discussed and considered the record evidence
indicating that the appellant had
in-service exposure to noise from teletype machines. Id.
The Court notes that the appellant offers evidence on appeal that is not
contained in the
record of proceedings, including his own assessment of the noise level to
which he was exposed in
service, written materials from a local VA office regarding tinnitus, and
citation to an article
regarding hearing loss and tinnitus. However, because there is no
indication that this evidence was
part of the record before VA, the Court will not consider it. See 38 U.S.C.
§ 7252(b) (the Court’s
review is limited to the record of proceedings before the Secretaryand the
Board); see also Wellhead
v. West, 11 Vet.App. 251, 252 (1998).
Accordingly, the appellant has failed to demonstrate that the Board
clearly erred in
determining that the evidence did not sufficiently demonstrate that his
tinnitus is directly related to
service. Based upon a review of the record of proceedings, the Court
concludes that there is a
plausible basis for the Board’s determination in this regard and that the
Board provided an adequate
statement of reasons or bases for its determination. See Gilbert, 1 Vet.
App. at 52; see also Allday
v. Brown, 7 Vet.App. 517, 527 (1995) (the Board’s statement of reasons or
bases for its decision
“must be adequate to enable a claimant to understand the precise basis for
the Board’s decision, as
well as to facilitate informed review in this Court”).
The appellant also argues that his tinnitus should be service connected as
secondary to his
service-connected diabetes. Appellant’s Brief (Br.) at 5; see 38 C.F.R. §
3.310 (2012) (secondary
service connection is awarded when a disability is proximately due to, or
aggravated by, a service-
4

connected disease or injury); Allen v. Brown, 7 Vet.App. 439, 448 (1995) (
en banc). He reproduces
in his brief written material from a local VA office indicating that
diabetes can cause tinnitus.
Appellant’s Br. at 5. The Board did not address this issue.
The Board has a duty to address all issues reasonably raised either by the
appellant or by the
contents of the record. Robinson v. Peake, 21 Vet.App. 545, 552–56 (2008
), aff’d sub nom.
Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Court agrees
with the Secretary that the
appellant did not raise to VA the issue of secondary service connection.
However, the appellant’s failure to explicitly raise the theory is not fatal so long as it was reasonably raised by the record. See
Robinson, 21 Vet.App. at 553 (noting that “[i]t is entirely possible
that the record might ‘indicate’ a theory of entitlement, but that a lay appellant might not be sophisticated enough to recognize the
theory”); see Delisio v. Shinseki, 25 Vet.App. 45, 53 (“upon the filing of a claim for benefits, the Secretary must investigate the reasonably apparent and potential causes of the veteran’s condition
and theories of service connection that are reasonably raised by the record or raised bya sympathetic reading of the claimant’s filing”).

In this case, the appellant has not identified, and the Court cannot find,
any indication that
the issue of secondary service connection was reasonably raised by the
evidence of record. See
Robinson, supra; Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (“
An appellant bears the
burden of persuasion on appeals to this Court.”), aff’d per curiam, 232
F.3d 908 (Fed. Cir. 2000)
(table). The appellant’s filings with VA do not raise this issue and there
is no evidence in the record
of proceedings that the appellant’s diabetes may have caused or aggravated
his tinnitus. Although
the Board has an obligation to analyze claims beyond the arguments
explicitly made, the Board is
not required “to assume the impossible task of inventing and rejecting
every conceivable argument
in order to produce a valid decision.” Robinson, 21 Vet.App. at 553.
Accordingly, “[w]here a fully
developed record is presented to the Board with no evidentiary support for
a particular theory of
recovery, there is no reason for the Board to address or consider such a
theory.” Robinson, 557 F.3d
at 1361. Although the appellant presents in his brief evidence that
diabetes can cause tinnitus, this
evidence does not appear in the record on appeal and the appellant has not
shown that he submitted
this evidence to VA. Rather, the appellant appears to have submitted this
evidence to the Court in
the first instance. Thus, the Court finds that the Board did not err in
failing to consider service
5

connection for the appellant’s tinnitus as secondaryto his service-
connected diabetes. This decision,
however, does not preclude the appellant from raising the issue to VA.

III. CONCLUSION
Uponconsideration oftheforegoinganalysis, therecordonappeal,
andtheparties’pleadings,
the May 5, 2011, Board decision is AFFIRMED.
DATED: August 14, 2012
Copies to:
Edward R. Bernight
VA General Counsel (027)
6

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