Veteranclaims’s Blog

August 29, 2013

Single Judge Application, Godfrey v. Derwinski, 2 Vet.App. 352, 356-57 (1992); Credibility of Service Medical Document

This placing of “10’s” in all hearing frequencies on a separation hearing exam should raise alarm bells.

Excerpt from decision below:
The Board failed to address Mr. Collins “argument that he never received a hearing test on separation from the Army in October 1966. See Record (R.) at 26 (stating on his VA Form 9, Appeal to the Board of Veterans’ Appeals, dated May 2011: “I was never given a hearing test at the time of my separation from the army.”), 145 (raising the issue of no hearing test on separation in a January 2009 letter to VA). The Board “is not free to ignore the issues a veteran raises in his appeal” and the Court will remand the matter where the Board does so. Godfrey v. Derwinski, 2 Vet.App. 352, 356-57 (1992) (regarding the issue raised by the veteran of the credibility of a service medical document contained in the his claims file); see also Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (holding that the Board must address issues raised by claimant or reasonably raised by record), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table)(requiring the Board to analyze the credibility and probative value of evidence, accounting for the evidence it finds persuasive and unpersuasive and stating its reasons for rejecting favorable material evidence).”

==============================
“Here, the Board noted that the VA separation audiogram conducted in October 1966, revealed no hearing loss, but the Board never addressed Mr. Collins’s assertion that this test was never administered. R. at 8. Mr. Collins points out the October 1966 examination recorded the same numerical figure – 10 – for both the left and right ear at all the frequencies measured 500 hertz, 1000 hertz, 2000 hertz, and 4000 hertz and he suggests that a hearing examination may not have actually been administered.

============================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-1402
THOMAS P. COLLINS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

DAVIS, Judge: U.S. Army veteran Thomas P. Collins appeals through counsel from an April 11, 2012, Board of Veterans’ Appeals (Board) decision that denied disability benefits for bilateral hearing loss and tinnitus. For the following reasons, the Court will set aside the Board’s April 2012
decision and remand the matter for further adjudication.

I. ANALYSIS
Mr. Collins argues that the Board failed to address his argument that he never received a hearing test on separation from the Army in October 1966. See Record (R.) at 26 (stating on his VA Form 9, Appeal to the Board of Veterans’ Appeals, dated May 2011: “I was never given a hearing test at the time of my separation from the army.”), 145 (raising the issue of no hearing test on separation in a January 2009 letter to VA). The Board “is not free to ignore the issues a veteran raises in his appeal” and the Court will remand the matter where the Board does so. Godfrey v. Derwinski, 2 Vet.App. 352, 356-57 (1992) (regarding the issue raised by the veteran of the credibility of a service medical document contained in the his claims file); see also Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (holding that the Board must address issues raised by claimant or reasonably raised by record), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table)(requiring the Board to analyze the credibility and probative value of evidence, accounting for the evidence it finds persuasive and unpersuasive and stating its reasons for rejecting favorable material evidence).

Here, the Board noted that the VA separation audiogram conducted in October 1966, revealed no hearing loss, but the Board never addressed Mr. Collins’s assertion that this test was never administered. R. at 8. Mr. Collins points out the October 1966 examination recorded the same numerical figure – 10 – for both the left and right ear at all the frequencies measured 500 hertz, 1000 hertz, 2000 hertz, and 4000 hertz and he suggests that a hearing examination may not have actually been administered. Compare R. at 238 (January 1965 induction audiometer results showing right ear -5 at 500, 5 at 1000, -5 at 2000, and -5 at 4000, and left ear at -10 at 500, 10 at 1000, 5 at 2000, and 0 at 4000), with R. at 232 (October 1966 final examination audiometer results showing right ear 10 at 500, 10 at 1000, 10 at 2000, and 10 at 4000 and the left ear showing 10 at 500, 10 at 1000, 10 at 2000, and 10 at 4000). Because both the March 2010 VA examiner and the Board relied on the results of the October 1966 audiogram in denying Mr. Collins benefits for hearing loss, the Court finds that the Board’s failure to address this argument is prejudicial error. See 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the rule of prejudicial error”); Vogan v. Shinseki, 24 Vet.App. 159, 162–64 (2010) (holding that the Court may make factual findings when determining whether a Board error is prejudicial).
Because this case is being remanded for readjudication, the Court will not at this time address Mr. Collins’s additional arguments. See Mahl v. Principi, 15 Vet.App. 37 (2001) (finding that when remand is proper, the Court need not analyze all claimed errors that would result in a
remedy no broader than remand). However, in pursuing his claim on remand, Mr. Collins will be free to submit additional evidence and argument in support of his claim, and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).

II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the April 11, 2012, Board decision and REMANDS the matter for further adjudication consistent with this decision.
DATED: August 28, 2013
2
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
3

Older Posts »

Create a free website or blog at WordPress.com.