Veteranclaims’s Blog

May 6, 2014

Single Judge Application, VA Training Letter 10-028; Delayed Onset Tinnitus

Excerpt from decision below:

“The Court agrees with the appellant that the Board erred relying on an inadequate November
2008 VA examination, frustrating judicial review. See Hicks, supra. The examination is inadequate because the examiner failed to consider a theory of delayed onset tinnitus and instead found that a lack of evidence of tinnitus in or proximate to service weighed against finding that the appellant’s tinnitus was caused by service. Id. The Board’s reliance on this medical opinion is especially troubling in light of VA’s recognition that tinnitus can be triggered years after an underlying cause.
See VA Training Letter 10-028 at 5 (stating that “[t]innitus can be triggered months or years after an underlying cause (such as hearing loss) occurs,” and that “delayed-onset tinnitus must be considered”). Remand is required for VA to provide a medical opinion that adequately considers the appellant’s tinnitus, including a theory of delayed onset tinnitus.”

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 13-0798
TERRY A. PETROVICH, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENBERG, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
GREENBERG, Judge: The appellant, Terry A. Petrovich, appeals through counsel a
February 27, 2013, Board of Veterans’ Appeals (Board) decision that denied entitlement to benefits
based on service connection for tinnitus. Record (R.) at 3-12. The appellant argues that the Board
(1) relied on an inadequate medical examination and (2) failed to provide an adequate statement of
reasons or bases for its decision. Appellant’s Brief at 5-13. Review by a single judge is authorized
by 38 U.S.C. § 7254(b), see also Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990), and the Court’s
scope of review in this appeal is “similar to that of an Article III court reviewing agency action under
the Administrative Procedure Act, 5 U.S.C. § 706.” Henderson v. Shinseki, 131 S. Ct. 1197, 1201
n.2 (2011) (Alito, J.); see also 38 U.S.C. § 7261. For the following reasons, the Court will vacate
the February 2013 decision and remand the tinnitus matter for further development and reajudication.
The appellant served on active duty in the U.S. Air Force from June 1973 to October 1974
as an air traffic control radar repairman and helicopter mechanic. R. at 158. A September 1973
service medical record noted that he worked on the flight line and did not wear hearing protection.
R. at 270. In December 1973, the appellant’s hearing drastically worsened in his right ear. R. at 267.
In January 1974, the appellant was hospitalized for Vincent angina.1 See R. at 254. A June 1974
service medical record included a diagnosis of “sudden hearing loss, right ear – etiology? (virus,
medication).” R. at 200. In July 1974, a military doctor stated that the appellant suffered a severe
infection for which he was hospitalized and noticed hearing loss two months later, and diagnosed
the appellant with almost complete neuro-sensory hearing loss in his right ear, “etiology unknown.”
R. at 203.
A December 1974 medical record indicated that the appellant’s right ear hearing loss was due
to an explosion that occurred on his right side during service. R. at 291. A February 1975 VA
medical report stated that the appellant’s loss of hearing was possibly caused by working around
aircraft, or from “sickness which occurred while in service.” R. at 171. In March 1975, the appellant
was awarded benefits based on service connection for right ear hearing loss. R. at 169.
In July 2008, the appellant filed for benefits based on service connection for tinnitus. R. at
100-03. In November 2008, the regional office instructed a VA medical examiner to provide an
examination that considered whether the appellant suffered from tinnitus. R. at 85. An audiologist
provided the examination in November 2008, noting that the appellant’s tinnitus had its onset 20
years prior and had gradually gotten worse. R. at 77. The VA examiner stated that the appellant’s
left ear hearing was “within normal limits” albeit “with a mild to moderate hearing loss
(4KHz-8KHz).” R. at 78. The VA examiner opined that tinnitus was “not caused by or a result of
military service.” R. at 80. The only rationale provided for this determination was that the
“Veteran’s service medical records do not note tinnitus at any time. His compensation and pension
(C&P) examinations do not note tinnitus until 8/23/2008.” R. at 80.
In February 2013, the Board relied on the November 2008 VA examination to deny the
appellant’s tinnitus claim. R. at 3-12. This appeal ensued.
Although it is the province of the Board to weigh and assess the evidence of record, Owens
v. Brown, 7 Vet.App. 429, 433 (1995), the Board’s reliance on an inadequate medical examination
frustrates judicial review and requires remand. Hicks v. Brown, 8 Vet.App. 417, 421 (1995). An
1″Vincent angina” is “[a] type of membranous pharyngitis consisting of painful ulceration with edema and
hyperemic patches; it represents spread of necrotizing ulcerative gingivitis to the oropharynx.” DORLAND’S ILLUSTRATED
MEDICAL DICTIONARY 83 (32d ed. 2012).
2
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 v. Nicholson, 21 Vet.App.
120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407-08 (1994)); see 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”).
The Court agrees with the appellant that the Board erred relying on an inadequate November
2008 VA examination, frustrating judicial review. See Hicks, supra. The examination is inadequate because the examiner failed to consider a theory of delayed onset tinnitus and instead found that a lack of evidence of tinnitus in or proximate to service weighed against finding that the appellant’s tinnitus was caused by service. Id. The Board’s reliance on this medical opinion is especially troubling in light of VA’s recognition that tinnitus can be triggered years after an underlying cause.
See VA Training Letter 10-028 at 5 (stating that “[t]innitus can be triggered months or years after an underlying cause (such as hearing loss) occurs,” and that “delayed-onset tinnitus must be considered”). Remand is required for VA to provide a medical opinion that adequately considers the appellant’s tinnitus, including a theory of delayed onset tinnitus.
Additionally, the Board is reminded that the November 2008 examiner was provided the
following instruction:
If there is a current complaint of tinnitus, indicate whether or not tinnitus is as likely
as not a symptom associated with the hearing loss, if hearing loss is present. If
tinnitus is associated with conditions other than hearing loss indicate that the
complaint of tinnitus requires referral to another provider (appropriate provider to be
determined by VAMC C&P Director or other responsible person as with contractors)
for determination of etiology.
R. at 85. The examiner providing an opinion on remand must comply with this instruction.
On remand, the appellant may present, and the Board must consider, any additional evidence
and arguments. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided
expeditious treatment on remand. See 38 U.S.C. § 7112; see also Hayburn’s Case, 2 U.S. (2 Dall.)
at 410 n., 1 L. Ed. 436 (1792) (“[M]any unfortunate and meritorious [veterans], whom [C]ongress
have justly thought proper objects of immediate relief, may suffer great distress, even by a short
3
delay, and may be utterly ruined, by a long one . . . .” (internal quotation marks omitted)).
For the foregoing reasons, and on review of the record, the Board’s February 27, 2013,
decision is VACATED and the matter of tinnitus is REMANDED for further development and
readjudication.
DATED: April 30, 2014
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
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