Veteranclaims’s Blog

January 29, 2017

Single Judge Application, Board Decision Not Binding Precedent; 38 C.F.R. § 20.1303 (2016); Acoustic Trauma Hearing Loss;

Excerpts from decision below:

“Mr. Osborn’s brief also cites to an August 2012 Board decision that granted left ear hearing loss benefits to another veteran. See Appellant’s Br. at 5-6. Board decisions, however, are not binding on this Court or the Board. Rather, “previously issued Board decisions will be considered binding [on the Board] only with regard to the specific case decided.” 38 C.F.R. § 20.1303 (2016);
2
see also Hillyard v. Derwinski, 1 Vet.App. 349, 351 (1991) (noting that Board decisions are not precedential and are binding only with regard to the specific case addressed in each decision).”

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“the 2009 VA examiner noted that Mr. Osborn worked as a helicopter crew chief and mechanic, and the Board found that Mr. Osborn was exposed to acoustic trauma during service, neither the 2009 VA examiner nor the Board explained why Mr. Osborn’s current hearing loss configuration was not consistent with noise exposure. The Board’s failure to address this matter renders its reasons or bases inadequate and remand is warranted. See Allday, supra; Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand of a matter is appropriate “where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the
record is otherwise inadequate”).”

 

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 15-1307
RANDALL R. OSBORN, APPELLANT,
V.
ROBERT A. MCDONALD,
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 Randall R. Osborn appeals pro se from that part of a
December 5, 2014, Board of Veterans’ Appeals (Board) decision that denied disability benefits for bilateral hearing loss.1 For the reasons stated below, the Court will set aside the Board’s decision addressing hearing loss and remand the matter for further adjudication.

I. ANALYSIS
Mr. Osborn argues generally that the Board erred in denying him benefits for his bilateral
hearing disability. In order to establish service connection for a disability, “the veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When
1 The Board decision also granted service connection for tinnitus and a 10% disability rating for tinea versicolor.
Because the Board’s finding as to tinnitus is a favorable finding and as Mr. Osborn presents no challenge to the disability rating for tinea versicolor, the Court will not address these matters. Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007)
(“The Court is not permitted to reverse findings of fact favorable to a claimant made by the Board pursuant to its statutory authority.”); see also Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc) (declining to review the merits of an issue not argued on appeal). In addition, the Board remanded the matter of a low back claim and the
Court is without jurisdiction to address this nonfinal matter. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004)(holding that a Board remand “does not represent a final decision over which this Court has jurisdiction”).

the Board renders a decision as to service connection, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions of fact and law that adequately enables an appellant to understand the basis for the Board’s decision and facilitates review by this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990).
Here, the Board found that Mr. Osborn was exposed to acoustic trauma in service, and
audiometric findings reflect a bilateral hearing loss disability. See Record (R.) at 12, 14. Relying on a September 2009 VA examination, however, the Board concluded that Mr. Osborn’s hearing loss was not caused by noise exposure in service because his separation examination revealed no hearing loss and “the configuration of the current hearing loss was not consistent with the effects of noise exposure.” R. at 14. Thus, the only issue is whether Mr. Osborn’s current hearing loss is related to service. See Shedden supra.
On appeal, Mr. Osborn relies on materials not presented to the Board or the Secretary to
argue that he is entitled to bilateral hearing disability benefits. Specifically, he cites to a fact sheet entitled “Noise-Induced Hearing Loss” from the National Institute on Deafness and Other Communication Disorders, and to an online article from Johns Hopkins Medicine website that he asserts includes tinnitus as a disease that contributes to hearing loss. See Appellant’s Brief (Br.) at 7-8. As this evidence was not before the Board or the Secretary, the Court may not consider it. See 38 U.S.C. § 7252(b) (limiting the Court’s review to the record of proceedings before the Secretary and the Board); Rogozinski v. Derwinski, 1 Vet.App. 19 (1990) (holding that review in the Court shall be on the record of proceedings before the Secretary and the Board); Obert v. Brown, 5 Vet.App. 30, 32 (1993) (“This Court is a court of review that may consider only evidence that was in the record and before the Board in its adjudication.”); see also Kyhn v. Shinseki, 716 F.3d 572,
577-78 (Fed. Cir. 2013) (holding that section 7252(b) prohibits the Court from relying on extra record evidence to decide disputed factual issues).

Mr. Osborn’s brief also cites to an August 2012 Board decision that granted left ear hearing loss benefits to another veteran. See Appellant’s Br. at 5-6. Board decisions, however, are not binding on this Court or the Board. Rather, “previously issued Board decisions will be considered binding [on the Board] only with regard to the specific case decided.” 38 C.F.R. § 20.1303 (2016);
2
see also Hillyard v. Derwinski, 1 Vet.App. 349, 351 (1991) (noting that Board decisions are not precedential and are binding only with regard to the specific case addressed in each decision).
To the extent that Mr. Osborn argues that the Board decision failed to provide an adequate
statement of reasons or bases for the denial of bilateral hearing loss benefits, however, the Court
agrees. See DePerez v. Derwinski, 2 Vet.App. 85, 86 (1992) (liberally construing arguments made
in a pro se appellant’s brief). The Board relied on the 2009 VA examiner’s opinion that Mr. Osborn’s
current hearing loss was not caused by noise exposure during service because his separation examination revealed no hearing loss, and “the configuration of the current hearing loss was not consistent with the effects of noise exposure.” R. at 14; see also R. at 802. Although the 2009 VA examiner noted that Mr. Osborn worked as a helicopter crew chief and mechanic, and the Board found that Mr. Osborn was exposed to acoustic trauma during service, neither the 2009 VA examiner nor the Board explained why Mr. Osborn’s current hearing loss configuration was not consistent with noise exposure. The Board’s failure to address this matter renders its reasons or bases inadequate and remand is warranted. See Allday, supra; Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand of a matter is appropriate “where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate”). In pursuing his claim on remand, Mr. Osborn will be free to submit additional argument and evidence as to the remanded matter, and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE that part of the Board’s decision
that denied benefits for bilateral hearing loss, and REMANDS the matter for further proceedings
consistent with this decision.
DATED: July 29, 2016
Copies to:
Randall R. Osborn
VA General Counsel (027)
3

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