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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-3694
GARY D. CORSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant,GaryD.Corson, appeals through counsel an
August 28, 2012, Board of Veterans’ Appeals (Board) decision that denied entitlement
to service-connected
benefits for bilateral hearing loss. Record (R.) at 3-20.
The Board also remanded a claim of
entitlement to a separate disability rating for muscle damage to the right
leg and the Court therefore
lacks jurisdiction over that claim. See Kirkpatrick v. Nicholson, 417 F.3d
1361, 1364-65 (Fed. Cir.
2005); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (holding that the
Court does not have
jurisdiction over remanded claims); Hampton v. Gober, 10 Vet.App. 481, 483 (
1997) (holding that
where “a final decision has not been issued by the [Board] with respect to
the claims that were
remanded, those claims cannot be reviewed by the Court on this appeal”).
The appellant and the Secretary both filed briefs, and the appellant filed
a reply brief. This
appeal is timely, and the Court has jurisdiction to review the Board
decision pursuant to 38 U.S.C.
§ 7252(a). A single judge mayconduct this review. See Frankel v.
Derwinski, 1 Vet.App. 23, 25-26
(1990). For the following reasons, the Court will affirm the Board’s
August 2012 decision.
I. BACKGROUND
Mr. Corson served on active duty in the U.S. Army from June 1968 to June
1970, including
a period of service in Vietnam. R. at 433. He served as a combat engineer.
Id. Later medical
records show that in 1969 Mr. Corson suffered a blast injurywhile in
service, with a reportedly”very
loud noise” resulting in his inability to hear for several days and a
sustained ringing in his ears.1
R.
at 545-56. Mr. Corson’s entrance and separation examinations show that his
hearing during service
was within normal limits. R. at 839-40, 817-18.
Beginning in 1991, Mr. Corson was examined periodically for possible
hearing loss related
to his postservice employment. In conjunction with these examinations, Mr.
Corson reported that
he had worked at a “noisy company” for seven years and that while he
worked there he did not wear
ear protection. R. at 631. He also reported that he had previouslyserved
in combat and was exposed
to gun noise while in service. Id. Mr. Corson’s 1991 baseline audiometric
examination revealed
bilateral high frequency hearing loss. R. at 637-38. Yearly examinations
from 1991 through 1996
showed no change in his hearing. R. at 632-36. In April 1997, an
audiologist informed Mr. Corson
of a possible change in his hearing since his previous audiometric
examination. R. at 629-30. He
recommended that Mr. Corson seek examination by a physician. R. at 629.
However, hearing
evaluation recordsfromtheyears 2000 through2004indicatethatMr.Corson
hadmoderatelysevere
hearing loss that had not significantly changed since his baseline test in
1991. R. at 624-28.
InNovember2004,aVAaudiologistconfirmedadiagnosis ofmoderatelysevereto
moderate
hearing loss. R. at 617-19. In May 2005, a VA audiologist opined that Mr.
Corson’s hearing loss
was less likelythan not related to his militarynoise exposure because “
hearingsensitivitywas within
the normal range of hearing from time of enlistment to time of separation
as documented by his
SMRS” and “noise-induced hearing loss typically does not have a delayed
onset.” R. at 597-98.
Later that month, the VA regional office (RO) denied entitlement to
service connection for bilateral
hearing loss. R. at 590-96.
In August 2007, Mr. Corson underwent another examination, the focus of
which was on Mr.
Corson’s reported tinnitus symptomatology. The VA examiner diagnosed
bilateral tinnitus and
opined that “[i]t is at least as likely as not that the veteran’s current
diagnosis of tinnitus, both ears,
is related to the blast explosion sustained by the veteran in 02/1969
while in Vietnam.” R. at 546.
1
Mr. Corson also sustained fragment and shrapnel injuries to both legs as a
result of the explosion. R. at 545-46.
2
In rationalizing his opinion, the examiner explained that a “loud
explosion from a boobytrap or from
a grenade at such a close distance creates severe air pressure damage to
the ear. This damage can be
manifested by hearing loss and/or tinnitus on a long-term basis. Audiology
testing done in 11/2004
confirms high frequency hearing loss.” R. at 546.
In an August 2007 rating decision, the RO granted entitlement to service
connection for
tinnitus but denied entitlement to service connection for bilateral
hearing loss, among other
disabilities, on grounds that Mr. Corson had not presented new and
material evidence sufficient to
reopen that claim. R. at 529-40. It appears from the record that Mr.
Corson then submitted a Notice
of Disagreement (NOD), received in July 2008. R. at 491-92. However, the
RO determined in a
December 2008 Statement of the Case (SOC) that Mr. Corson had not timely
appealed the August
2007 rating decision and that, therefore, it became final.2
R. at 297-316. The RO further determined
that Mr. Corson had not submitted new and material evidence sufficient to
reopen his claim. Id.
In August 2010, Mr. Corson testified at a video conference before the
Board. R. at 255-69.
In a December 2010 decision, the Board, inter alia, determined that the
claim for entitlement to
service connection for bilateral hearing loss would be reopened and
remanded for further
development, including a VA examination. R. at 230-51.
In January 2011, Mr. Corson underwent a VA examination for his bilateral
hearing loss. R.
at 94-98. The examiner noted Mr. Corson’s reports of noise exposure during
military service and in
his pre- and postmilitary employment. R. at 94-95. The examiner further
stated that she reviewed
Mr. Corson’s claims file. R. at 96. The examiner performed the examination
and diagnosed right
ear moderately severe sensorineural hearing loss at 3000 to 4000 hertz and
left ear severe to
moderately severe sensorineural hearing loss at 3000 to 4000 hertz. R. at
95-96. Finally, the
examiner opined that Mr. Corson’s current bilateral hearing loss was less
likely than not the result
of his in-service combat noise exposure, to include the explosion in 1969.
R. at 98. To support her
opinion, the examiner explained that Mr. Corson’s service entrance and
separation examinations
2
From what the Court can discern from the record before us, it appears that
the RO may have erroneously failed
to process Mr. Corson’s NOD. See 38 U.S.C. § 7105 (stating that a veteran
must file an NOD within one year from the
date the RO decision was mailed). Neither party has clarified this portion
of the claim’s procedural history. However,
the Court need not investigate this matter further because this issue is
not presently before the Court. See Rogozinski
v. Derwinski, 1 Vet.App. 19, 20 (1990) (holding that review in this Court
shall be on the record of proceedings before
the Secretary and the Board).
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revealed hearing within normal limits with no significant decrease noted
in service. R. at 97. The
examiner further discounted the August 2007 medical opinion, stating that
it “centers on tinnitus”
and the data does not support that examiner’s statement that later onset
of hearing loss can result
from in-service noise exposure. Id. Specifically, the examiner stated that
the August 2007
examination’s statement “is inconsistent with data which supports that
hearing loss related to noise
exposure is not known to be progressive after the fact (Noise and Military
Service-Implications for
Hearing Loss and Tinnitus, Institute of Medicine, National Academy of
Science, 2006).” Id.
InFebruary2012,theRO issuedaSupplementalSOC (SSOC) denyingentitlementto
service
connection for bilateral hearing loss. R. at 49-55.
In August 2012, the Board issued the decision here on appeal denying
entitlement to service
connection for bilateral hearing loss. R. at 3-20. The Board determined
that the appellant has a
current bilateral hearing loss disability. R. at 10. The Board also
determined that, based on the
appellant’s accounts of combat experience, he is presumed to have suffered
an acoustic trauma
during service. Id.; 38 U.S.C. § 1154(b) (stating that in the case of a
veteran who engaged in combat
with the enemy during a period of war, the Secretary shall accept as
sufficient proof of service
connection lay or other evidence of service incurrence of such injury if
consistent with the
circumstances, conditions, or hardships of such service, notwithstanding
the fact that there is no
official record of such incurrence).
However, the Board found that competent and credible evidence of record
failed to establish
a nexus between the appellant’s service and his current hearing loss. R.
at 13-15. In support of this
conclusion, the Board explained that it found the January 2011 and May
2005 negative nexus
opinions to be the most probative evidence of record. R. at 13-14. The
Board also noted that the
August 2007examinerfocusedsolelyontinnitus symptoms anddid not
specificallyindicatewhether
the appellant’s hearing loss resulted from in-service acoustic trauma. R.
at 13.
With regard to the evidence submitted by the appellant, the Board found
that he has not
submitted evidence to refute the probative medical opinions of record and
that he is not competent
to relate his current hearing loss to his in-service noise exposure. R. at
14. The Board further found
that the appellant is not credible because his statements regarding
whether he wore ear protection
in postservice employment are contradictory.
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Id.
Accordingly, the Board found that a
preponderance of the evidence weighed against the service-connection
claim. R. at 14-15.
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). A finding of service connection, or no serviceconnection, is a
finding of fact reviewed under
the “clearly erroneous” standard in 38 U.S.C. § 7261(a)(4). See Swann v.
Brown, 5 Vet.App. 229,
232 (1993). “A factual finding ‘is clearly erroneous when although there
is evidence to support it,
the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake
has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (
quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948)). The Court may not
substitute its judgment
for the factual determinations of the Board on issues of material fact
merelybecause the Court would
have decided those issues differently in the first instance. Id.
In his brief, the appellant first argues that the Board’s decision is
clearly erroneous because
the Board failed to consider evidence and legal theories favorable to the
veteran. Appellant’s (App.)
Brief (Br.) at 9. Specifically, the appellant argues that the Board failed
to consider or discuss the
RO’s August 2007 rating decision granting service connection for tinnitus,
in which the RO found
that the appellant sustained a severe injury in both ears as a result of
an explosion. App. Br. at 10
(citing R. at 536-37). The appellant further appears to argue that the
record is incomplete because
none of the medical records discuss the relationship between the service-
connected tinnitus and
bilateral hearing loss. App. Br. at 10. On this point he argues that,
because there is no medical
opinion of record attributing the hearing loss and tinnitus to different
etiologies, they are presumed
to be of the same etiology. App. Br. at 10-11. Accordingly, the appellant
appears to assert that he
is entitled to service-connected benefits for bilateral hearing loss by
virtue of his entitlement to
service-connected benefits for tinnitus. Id.
On review of the Board’s decision as a whole, the Court concludes that the
Board discussed
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the evidence relevant to this claim. See Prickett v. Nicholson, 20 Vet.
App. 370, 375 (2006) (stating
that a Board decision generally should be read as a whole); Dela Cruz v.
Principi, 15 Vet.App. 143,
149 (2001) (stating that the Board is only required to discuss relevant
evidence). The Court is
unpersuaded by the appellant’s arguments for the reasons that follow. See
Hilkert v. West, 12
Vet.App. 145, 151 (1999) (en banc), aff’d per curiam, 232 F.3d 908 (Fed.
Cir. 2000) (table); Berger
v. Brown, 10 Vet.App. 166, 169 (1997).
Taking the appellant’s assertions out of order, the Court will first
address the appellant’s
contention that hearing loss and tinnitus arepresumed to have the same
etiologywhere, as here, there
is no medical evidence specificallyrelating the disabilities to distinct
etiologies. First and foremost,
theappellanthascitednoevidenceorauthority–medical,legal,
orotherwise–supportinghis apparent
belief that, in the absence of medical evidence specifically addressing
the matter, hearing loss and
tinnitus must be presumed to have the same etiology. See Hilkert and
Berger, both supra. In most
cases, it is the appellant, and not the Government, who bears the burden
of demonstrating that each
current disability results from an in-service injury. See Davidson, supra.
Here, the Board relied on
two VA medical examinations rendering negative nexus opinions on the
question of etiology of
bilateral hearing loss. As will be discussed more fully below, the Board
did not err in relying on
these pieces of medical evidence in denying the claim. The Secretary had
no duty to provide a
medical examination discussing the relationship between the appellant’s
service-connected tinnitus
and his hearing loss. Accordingly, the Court is unpersuaded by the
appellant’s assertion that a lack
of evidence attributing these disabilities to different etiologies weighs
in his favor, such that remand
is appropriate.
See Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (explaining that
the
appellant must provide reasons for his argument); Evans v. West, 12 Vet.
App. 22, 31 (1998) (stating
that the Court will give no consideration to a “vague assertion” or “
unsupported contention”).
Furthermore, contrary to the appellant’s assertion that the Board failed
to explicitly consider
the RO’s August 2007 grant of entitlement to service-connected benefits
for tinnitus, the Court can
discern no error in the Board’s discussion for two reasons. First, it is
presumed that the Board has
considered all evidence of record. Newhouse v. Nicholson, 497 F.3d 1298,
1302 (Fed. Cir. 2007).
To the extent that the appellant argues that the Board failed to consider
that the appellant suffered
an in-service acoustic trauma, the Board’s decision controverts that
argument. See R. at 10 (“[G]iven
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that his service treatment records show that he was injured by an
explosive device and experienced
multiple shrapnel wounds, his account of having experienced acoustic
trauma is presumed credible
and bylaw presumed.”). Second, the Board discussed the relevant evidence
of record supporting the
RO’s tinnitus decision and related to the appellant’s presently appealed
bilateral hearing loss claim.
See Dela Cruz, 15 Vet.App. at 149 (stating that the Board is only required
to discuss relevant
evidence). Specifically, the Board considered the relevant August 2007
medical examination that
stated that the appellant’s in-service exposure to an explosion could have
caused hearing loss on a
long-term basis. R. at 13. However, the Board clearly rejected that
opinion in favor of the two
medical opinions concluding that, in the appellant’s case, hearing loss
was not caused by in-service
noise exposure. R. at 13. Accordingly, the Board properlyconsidered the
relevant evidence and the
Court is unpersuaded by the appellant’s argument. See Hilkert and Berger,
both supra.
Next, the appellant argues that the Board relied on an inadequate January
2011 VA medical
examination to support its decision. App. Br. at 11-12. The Secretary’s
duty to assist includes, in
appropriate cases, the duty to conduct a thorough and contemporaneous
medical examination.
38 U.S.C. § 5103A; see Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007);
see also Green v.
Derwinski, 1 Vet.App. 121, 124 (1991). An examination is adequate “where
it is based upon
consideration of the veteran’s prior medical history and examinations and
also describes the
disability, if any, in sufficient detail so that the Board’s ‘evaluation
of the claimed disability will be
a fully informed one.'” Stefl, 21 Vet.App. at 123 (quoting Ardison v.
Brown, 6 Vet.App. 405, 407-08
(1994)); Green, supra. It is a medical examiner’s responsibility to
provide a well-supported opinion
so that the Board maycarryout its duty to weigh the evidence of record.
Nieves-Rodriguez v. Peake,
22 Vet.App. 295, 304 (2008) (concluding that medical opinion is not
entitled to any weight “if it
contains only data and conclusions”); Stefl, 21 Vet.App. at 124 (stating
that VA medical opinion
“must support its conclusion with an analysis that the Board can consider
and weigh against contrary
opinions”).
As provided by VA regulations, “accurate and fully descriptive medical
examinations are required,” 38 C.F.R. § 4.1 (2013), and “[i]f a diagnosis is not supported
by the findings on the examination report or if the report does not contain sufficient detail, it
is incumbent upon the rating board to return the report as inadequate for evaluation purposes,” 38 C.F.R. § 4.2 (2013). Stegall
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v. West, 11 Vet.App. 268, 270-71 (1998) (remanding matter where VA examination was inadequate under § 4.2); Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (concluding that an inadequate medical examination frustrates judicial review). An examination report may be inadequate if it fails to discuss something that is necessary. See 38 C.F.R. § 4.2. The Court must review an examination report “as a whole” to determine whether the Board clearly erred in assessing the adequacy of the report. See Monzingo v. Shinseki, 26 Vet.App. 97, 106 (2012). The Board’s determination as to whether the Secretary fulfilled his duty to assist with regard to providing an adequate medical examination is a finding of fact that the Court reviews under the “clearly
erroneous” standard. See
Nolen v. Gober, 14 Vet.App. 183, 184 (2000).
In this case, the Board determined that the May2005 and January2011 VA
examinations are
the most probative evidence of record. R. at 13. The Board accorded them
probative value because
they are “based on a review of the claims file, audiological evaluations,
and questioning of the
Veteran’s noise exposure history.” Id. The Board further found that they
are supported by adequate
rationale and medical literature. Id. On review of the examinations, the
Court holds that the Board’s
determination was not clearly erroneous.
The appellant makes several arguments that are not entirely clear and that
are wholly
unpersuasive. See Hilkert and Berger, both supra.
They center around the January 2011
examination. He appears to assert that the examiner failed to address the
cumulative effects of multiple acoustic traumas or whether the appellant would have had a
hearing loss disability in 1991 absent his in-service acoustic trauma. App. Br. at 11-12. Contrary to the appellant’s assertion, the medical examiner was not required to specifically address these two narrow issues. See Monzingo, 26 Vet.App. at 106 (explaining that the VA examiner is not required to “explicitly lay out the examiner’s journey from the facts to a conclusion”); Acevedo v. Shinseki, 25 Vet.App. 286 (2012)(stating that the law imposes no reasons-and-bases requirements on examiners).
On review of the January 2011 examination, the examiner noted the appellant’s report of acoustic trauma following an explosion in service. R. at 94. The examiner
also acknowledged the
appellant’s report of experiencing noise exposure throughout his
period of service from 1968 to 1970. R. at 95-96. The examiner noted the appellant’s postservice noise exposure as well. R. at 95, 97.
The examiner’s conclusion states that “it is less likely as not the veteran’s
currently diagnosed hearing
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disability is likely the result of his in-service exposure to combat
noise, to include the 1969
explosion.” Accordingly, the examination and opinion address all instances
of noise exposure. The
examiner further provided the required examination, a medical opinion, and
an explanation
supporting that opinion. Accordingly, the Board’s conclusion that the
Secretary satisfied his duty
to assist in providing an adequate medical examination was not
clearly erroneous. See Nolen, supra.
The Board relied on this adequate medical examination, along with other
evidence, to find
that a preponderance of the evidence weighs against the claim. Accordingly,
contrary to the
appellant’s contention, the Board was not required to apply the benefit of
the doubt doctrine. App.
Br. at 12; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).
Finally, the appellant asserts that the Board provided an inadequate
statement of reasons or
bases for its decision. App. Br. at 13-14; 38 U.S.C. § 7104(d)(1); see
Allday v. Brown, 7 Vet.App.
517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
However, the appellant merely
restates arguments previously made and addressed elsewhere in the Court’s
decision. Accordingly,
the Court will not further address these arguments.
III. CONCLUSION
The Court holds that the Board’s findings and conclusions were not clearly erroneous nor was the Board’s decision otherwise deficient. After consideration of the appellant’s and Secretary’s briefs, and a review of the record on appeal, the August 28, 2012, Board decision is AFFIRMED.
DATED: April 10, 2014
Copies to:
Robert A. Hall, Esq.
VA General Counsel (027)
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