Robert Fountain v. Robert A. McDonald ( 2015 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 13-0540
ROBERT FOUNTAIN , APPELLANT ,
V.
ROBERT A. MCDONALD ,
SECRETARY OF VETERANS AFFAIRS, APPELLEE .
On Appeal from the Board of Veterans' Appeals
(Decided February 9, 2015)
Jessica M. Alfano, of Boston, Massachusetts, was on the brief for the appellant.
Will A. Gunn, General Counsel; Mary Ann Flynn, Assistant General Counsel; Mark D.
Vichich, Acting Deputy Assistant General Counsel; and Christopher O. Adeloye, all of Washington,
D.C., were on the brief for the appellee.
Before HAGEL, MOORMAN, and BARTLEY, Judges.
MOORMAN, Judge: The appellant, Robert Fountain, through counsel, seeks review of a
January 28, 2013, decision of the Board of Veterans' Appeals (Board) denying service connection
for tinnitus. On appeal, the appellant contends that the Board failed to provide an adequate statement
of reasons or bases for rejecting his testimony concerning the continuity of his symptoms after
service. The Secretary argues that any such error is harmless under Walker v. Shinseki, 708 F.3d
1331, 1339-40 (Fed. Cir. 2013), because tinnitus is not listed under 38 C.F.R. § 3.309(a), as a
chronic condition. This panel directed supplemental briefing from the parties regarding whether
tinnitus is encompassed within the list of chronic conditions under § 3.309(a) as "[o]ther organic
diseases of the nervous system." The Court holds that the Secretary's proposed interpretation of the
regulation, which mirrors the relevant statute, 38 U.S.C. § 1101, to broadly exclude tinnitus is not
persuasive. See Skidmore v. Swift & Co., 323 U.S. 134 (1944). The Court adopts the interpretation
urged by the veteran, that § 3.309(a) includes tinnitus, at a minimum where there is evidence of
acoustic trauma, as an "organic disease[] of the nervous system."1 Accordingly, based on the
alternative interpretation that encompasses tinnitus under that listing, the Court concludes that the
Board's error in evaluating the evidence on continuity of symptomatology was prejudicial to the
appellant, and the Court will vacate the January 2013 Board decision and remand the matter for
further adjudication consistent with this opinion.
I. FACTS
Mr. Fountain served on active duty in the U.S. Army from February 1977 to July 1980.
Record (R.) at 408. During service, he was a motor transport operator, driving large engine diesel
trucks. R. at 163, 408. Upon separation, he was diagnosed with bilateral hearing loss and, at that
time, he filed an application for VA benefits for a problem with his "hearing." R. at 311-12, 307.
In December 1980, a VA regional office (RO) issued a decision granting entitlement to benefits for
bilateral hearing loss, specifically sensory neural high frequency loss, at a noncompensable level.
R. at 293.
In January 2009, Mr. Fountain filed a claim for VA benefits for tinnitus and a claim for an
increase in VA benefits for his bilateral hearing loss. R. at 163. He stated that his hearing loss and
tinnitus were "due to noise exposure while [he was] assigned to transportation units in the Army"
and noted that "while assigned to [Fort] Benning[,] GA, a practice round exploded directly in front
of my face, blowing off my helmet, causing temporary deafness and considerable tinnitus." Id.
A May 20, 2009, VA audiological examination assessed Mr. Fountain's complaints of
tinnitus. R. at 133-35, 447. The audiologist opined that the tinnitus "is less likely as not (less than
50/50 probability) caused by or a result of in-service acoustic trauma." R. at 135. The opinion was
1
The Court notes that tinnitus can have a variety of causative factors. For example, VA's internal guidelines
recognize that although sensorineural hearing loss is the most common cause of tinnitus, other known causes include
M eniere's disease, kidney disease, and dental disorders. Secretary's (Sec'y) Sept. 8, 2014, Supplemental (Suppl.)
Memorandum (M em.), Appendix [hereinafter Appendix] at 5 (VA Training Letter 10-02 (Mar. 18, 2010) (Training
Letter or Training Letter 10-02)). In this case, however, the Court deals with the issue of tinnitus in a case where there
is evidence of acoustic trauma–indeed, where VA concedes that this veteran was exposed to acoustic trauma during
service (R. at 126)–and VA's internal guidelines acknowledge that acoustic trauma causes damage to the inner ear
(Appendix at 16). See also id. at 3 (explaining that sensorineural hearing loss "is due to a problem in the inner ear or
in the auditory (Cranial Nerve VIII) nerve between the inner ear and the brain" and is most commonly caused by either
presbycusis or noise-induced hearing loss). Because we necessarily are limited by the facts of this case, where there is
evidence of acoustic trauma, we do not address circumstances where such evidence is lacking.
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based on service treatment records and the VA examinations "conducted shortly after military
separation that were all silent for complaint/diagnosis of tinnitus, plus the conceded history of
military noise exposure." Id. The report noted a review of service records that were silent for
complaint or diagnosis of tinnitus but that showed hearing loss and a VA 1980 audiological
examination report that stated that Mr. Fountain "did not report tinnitus." R. at 447. The audiologist
recorded Mr. Fountain's current complaints of bilateral ringing in the ears and hearing loss and noted
that his tinnitus was recurrent but not constant and that it "occurs an average of at least once or twice
daily for an average duration of 30 seconds per episode." R. at 133. The audiologist undertook
diagnostic testing and examination. Regarding history of noise exposure, the audiologist recorded
Mr. Fountain's report that he was exposed to noise in service while performing duties, without
hearing protection, as a motor transport operator for trucks and heavy equipment, as well as his
report of "a positive history of civilian occupational noise exposure to machinery and heavy
equipment [when he did] 'road work' for 26 years; [and] hearing protection was not usually worn
during this employment." Id. According to the report's notations, Mr. Fountain stated that tinnitus
began "with sudden onset during military service when a[n] explosive simulator went off in close
proximity." R. at 133. The diagnosis included "normal sloping to mild sensorineural hearing loss
bilaterally" and recurrent bilateral tinnitus. R. at 134.
In May 2009, the RO denied Mr. Fountain's claims. R. at 124. The RO conceded exposure
to acoustic trauma based on Mr. Fountain's military occupation but denied service connection for
tinnitus, finding no nexus between his current tinnitus and service. R. at 126. The RO also denied
a higher (compensable) rating for hearing loss. Mr. Fountain did not appeal this decision, and it
became final.
In November 2010, Mr. Fountain filed a claim to reopen the disallowance of his tinnitus
claim. R. at 120. He specifically referenced the 2009 RO decision having noted that, on his
separation examination report dated October 29, 1980, he did not report having tinnitus. In response,
he stated: "I do not recall ever being asked if I had tinnitus while in the service. I was not aware that
tinnitus was actually a disability until recently. Tinnitus should have been granted because I was
suffering from the disability while in the service." Id. The RO denied his claim to reopen, finding
that no new and material evidence on the issue of nexus had been submitted. R. at 82-87. In April
3
2011, Mr. Fountain filed a Notice of Disagreement (NOD) in which he stated that his November
2010 statement should be considered new and material evidence. R. at 79. He appealed to the Board
in July 2012, reiterating that his tinnitus had its onset in the military and explaining that his "hearing
problems" began with the explosion near his head, which caused temporary deafness in his ear, and
"the constant exposure to noise on a continuous and daily basis while [he was] driving and servicing
diesel engines." R. at 37.
On January 28, 2013, the Board issued the decision on appeal, finding that Mr. Fountain's
November 2010 and April 2011 statements were new and material evidence, but denying the claim.
R. at 3-18. The Board stated that the statements were new and material evidence because "they
suggest chronicity of symptoms in service and continuity of tinnitus after service, including
providing a reason for the failure to mention tinnitus after service or to claim service connection for
tinnitus for years after service" and they "offer an explanation for why he did not report or complain
of tinnitus symptoms prior to his January 2009 claim." R. at 10. In considering the merits, the Board
found that Mr. Fountain had a current disability of tinnitus and was exposed to acoustic trauma in
service because his statements of such exposure were credible "as they were supported by the
evidence of record and are consistent with the duties and circumstances of his service." R. at 13.
The Board, however, determined that the weight of the "competent" evidence was against a
nexus between his current tinnitus and the loud noise exposure during service. R. at 18. As part of
its analysis, the Board stated that, although Mr. Fountain "is competent to report symptoms as they
come to him through his senses, tinnitus is not the type of disorder [for which] a lay person can
provide competent evidence on questions of etiology." Id. Although the Board acknowledged
Mr. Fountain's statements that his tinnitus began in service, it found his statements were not credible
in light of the absence of complaints of tinnitus symptoms during service and for many years after
service, as well as the failure to file a claim for VA benefits for tinnitus before 2009. R. at 13-16.
The Board determined that the May 2009 VA audiological opinion was entitled to "great probative
value." R. at 17. This appeal followed.
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II. ANALYSIS
A. Parties' Arguments
On appeal, Mr. Fountain argues that the Board failed to provide adequate reasons or bases
for rejecting his testimony concerning the continuity of his symptoms since service. Additionally,
he argues that the Board erred by categorically excluding his lay statements as incompetent on the
question of tinnitus etiology. Noting that tinnitus is a subjective condition, the appellant maintains
that his tinnitus can be substantiated by his testimony. Reply Brief (Br.) at 3-4. The appellant does
not specifically discuss Walker, 708 F.3d at 1340, which clarified that continuity of symptomatology
may be used to establish linkage to service only for the list of chronic conditions in 38 C.F.R.
§ 3.309(a), but maintains that, although tinnitus is not expressly included in the regulation's list, a
"common sense reading" of § 3.309(a) requires that tinnitus be included under "[o]ther organic
diseases of the nervous system." Appellant's (App.) Sept. 29, 2014, Response (Resp.) to Court Order
at 5. In support, the appellant argues that the Secretary has read this specific § 3.309(a) provision
as including sensorineural hearing loss in VA Training Letter 10-02, and that this Training Letter
recognizes a potential association between hearing loss and tinnitus. He contends that tinnitus is
similar to sensorineural hearing loss in that tinnitus is regarded as a condition of the central nervous
system, and he notes that, although Training Letter 10-02 labels tinnitus as a mere symptom, tinnitus
is compensable as a disability in the veterans benefits scheme. Id. Finally, he argues that the
Secretary's rulemaking and General Counsel Opinion support the view that tinnitus is a central
nervous system condition because the Final Rule specifically describes tinnitus as being "generated
within the central auditory pathways" and a "central nervous condition." Id. at 9 (quoting
68 Fed. Reg. 25,822 (May 14, 2003)).
Relying on VA Training Letter 10-02, the appellant contends that the Board erred in relying
on the May 2009 VA audiological report because the report failed to address the relationship
between his current tinnitus and his service-connected sensorineural hearing loss, and the Board
should have addressed this theory of secondary service connection.
The Secretary contends that any failure by the Board in discounting Mr. Fountain's lay
statements is harmless because, under 38 C.F.R. § 3.303(b) and § 3.309(a), as a matter of law
"tinnitus is not a disease for which a claimant can establish entitlement to benefits by demonstrating
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chronicity and continuity of symptomatology." Sec'y Br. at 7, 11-13, 19, 23 (citing Walker, 708 F.3d
at 1338). Regarding an interpretation of § 3.309(a), the Secretary acknowledges that the specific
provision is ambiguous because "it does not explicitly include or exclude tinnitus from the '[o]ther
organic diseases of the nervous system' category." Sec'y Sept. 8, 2014, Suppl. Mem. at 4. Relying
on VA Training Letter 10-02, the Secretary argues that it is the established policy of VA that tinnitus
is not encompassed within the list of chronic diseases under § 3.309(a) as "[o]ther organic diseases
of the nervous system." Appendix at 10. He notes that the Training Letter distinguishes tinnitus
from sensorineural hearing loss, which VA has determined to be "an organic disease of the nervous
system," because tinnitus is a symptom and not a disease. Sec'y Sept. 8, 2014, Suppl. Mem. at 2-3.
He argues that the Board decisions that are inconsistent with the "established policy" are unfortunate
but are "not indicative of any policy position on the matter," and his interpretation is nonetheless due
deference. Id. at 5. The Secretary further argues that, even assuming the Court rejects his
interpretation and determines that tinnitus is a central nervous condition, tinnitus cannot reasonably
be considered an organic disease of the nervous system, in light of a fact sheet from the National
Institute on Deafness and Other Communication Disorders (NIDCD) that defines tinnitus as a
symptom. Id. at 9.
Regarding the competence of the lay evidence, the Secretary acknowledges that the Board
determined that a layperson is not competent to diagnose the etiology of tinnitus but argues that the
Board did not make a "sweeping generalization that all laypersons lack the competenc[e] to provide
etiology opinions for all medical conditions; rather, [the Board made] a determination that addresses
lay nexus evidence for tinnitus, specifically, due to the nature of the condition." Sec'y Br. at 17. The
Secretary further contends that a theory of secondary service connection for tinnitus was not
reasonably raised by the record because VA Training Letter 10-02 is too general in its discussion of
tinnitus to make a link between hearing loss and tinnitus more than speculative; there is some
indication in the record that tinnitus may have been caused by postservice noise exposure to
machinery and heavy equipment; and, the grant of service connection for hearing loss alone is
insufficient to suggest a link between the two conditions. Id. at 20-21. Additionally, the Secretary
argues that, even if the Board erred in its treatment of the appellant's lay evidence, remand is not
warranted because, when rendering the May 2009 opinion that the appellant's condition is less likely
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than not related to service, the VA audiologist considered the appellant's lay statements regarding
the onset and continuity of his tinnitus symptoms. Id. at 23.
B. Statutory Interpretation
Establishing service connection generally requires medical or, in certain circumstances, lay
evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury;
and (3) a link 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); 38 C.F.R. § 3.303(a) (2014) ("Each disabling condition shown by a veteran's service records,
or for which he or she seeks a service connection[,] must be considered on the basis of . . . all
pertinent medical and lay evidence." (emphasis added)).
For chronic diseases included in the provisions of 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a),
service connection may also be established by showing continuity of symptoms, which requires a
claimant to demonstrate (1) a condition "noted" during service; (2) evidence of postservice continuity
of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between
the present disability and the postservice symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at
1340 (holding that only those chronic diseases included in 38 C.F.R. § 3.309 are subject to service
connection by continuity of symptoms described in 38 C.F.R. § 3.303(b)); 38 C.F.R. § 3.309(a)
(2014) (including "[o]ther organic disease of the nervous system" as a chronic condition for which
service connection may be established by continuity of symptoms); see also Davidson, 581 F.3d at
1313; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that whether lay
evidence is competent and sufficient in a particular case is a factual issue to be addressed by the
Board). Continuing symptoms, not treatment, must be the focus of the evidentiary analysis. Wilson
v. Derwinski, 2 Vet. App. 16, 19 (1991).
"Chronic disease" is statutorily defined in 38 U.S.C. § 1101, which identifies several chronic
diseases by name, including "[o]rganic diseases of the nervous system," and "such other chronic
diseases as the Secretary may add to this list." 38 U.S.C. § 1101(3). The Secretary's list is found
in regulation at 38 C.F.R. § 3.309(a) and is substantially similar to the statutory list. See Sacks v.
7
West, 11 Vet. App. 314, 317 (1998) ("[T]he enumerated list [in § 3.309(a)] is identical to the list of
chronic diseases enumerated in 38 U.S.C. § 1101(3)–that is, the Secretary has opted not to add any
diseases to those listed in the statute." (emphasis in original)). The regulation adds parenthetical
explanations for certain entries, including an explanation for "[c]ardiovascular-renal disease,
including hypertension," which the regulation explains is "an early symptom long preceding the
development of" arteriosclerosis, nephritis, and organic heart disease, and, thus, "disabling
hypertension within the 1-year period will be given the same benefit of service connection as any of
the chronic diseases listed." 38 C.F.R. § 3.309(a). The regulation also changes the entry for
"[o]rganic diseases of the nervous system" to "[o]ther organic diseases of the nervous system." Id.
By internal agency materials, the Secretary has made clear that sensorineural hearing loss is
considered subject to § 3.309(a) as an "[o]rganic disease[] of the nervous system." Appendix at 10
(VA Training Letter 10-02). Tinnitus is not specifically identified on the list in either section 1101
or § 3.309. The appellant argues that tinnitus qualifies as a "chronic disease" under Walker because
it is an "[o]rganic disease[] of the nervous system."
In Walker, the veteran argued that bilateral hearing loss, although not enumerated in
section 1101 or § 3.309, was medically "chronic" and therefore qualified as a "chronic disease."
708 F.3d at 1336. The Secretary countered that only diseases expressly listed in § 3.309(a) are
eligible for presumptions under § 3.303(b). Id. at 1337. After reviewing the statutory scheme at
length, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) concluded that the
Secretary's interpretation was not invalid. Id. at 1338. In addressing bilateral hearing loss, the
Federal Circuit held:
Even though § 3.303(b) does not contain a specific cross reference to § 3.309(a), we
think a harmonious reading of §§ 3.303(b), 3.307(a) and 3.309(a) supports an implicit
cross reference to § 3.309(a) in § 3.303(b). For the reasons explained above, we
conclude that properly interpreted, and consistent with the Secretary's interpretation,
§ 3.303(b) is constrained by § 3.309(a), regardless of the point in time when a
veteran's chronic disease is either shown or noted, in that the regulation is only
available to establish service connection for the specific chronic diseases listed in
§ 3.309(a).
Id. The Federal Circuit, however, did not address the issue presented here–whether a
condition–tinnitus–although not listed specifically in the statute or the regulation, is encompassed
8
by the listed category of "[o]rganic diseases of the nervous system." Notably, the statute gives the
Secretary the authority to add "other chronic diseases" to the statutory list.
It is undisputed by the parties, and the Court agrees, that the phrase "[o]rganic diseases of the
nervous system," contained in both section 1101(3) and § 3.309(a), is ambiguous. See Myore v.
Nicholson, 489 F.3d 1207, 1211 (Fed. Cir. 2007) ("If the statutory language is clear and
unambiguous, the inquiry ends with the plain meaning."). The regulation mirrors the statute, see
Sacks, 11 Vet. App. at 317, and neither defines the phrase. The Secretary argues that the Court
should look to the Agency's interpretation of this language, provided in VA Training Letter 10-02.
"It is well established that courts should defer to an agency's interpretation of its own ambiguous
regulation so long as that interpretation is not inconsistent with the language of the regulation or
otherwise plainly erroneous and represents the agency's considered view on the matter." Mulder v.
Gibson, 27 Vet. App. 10, 16 (2014) (citing Smith v. Nicholson, 451 F.3d 1344, 1349 (Fed. Cir. 2006)
(citing Auer v. Robbins, 519 U.S. 452, 461-62 (1997))). "The Supreme Court has held that an
agency's interpretation of its own regulations is entitled to substantial deference by the courts."
Smith, 451 F.3d at 1349. "Substantial deference to an agency's interpretation of an ambiguous
regulation is not due, however, if the regulation in question merely parrots the statute." Mulder,
27 Vet. App. at 16. In circumstances where the regulatory language mirrors the statute, "'the question
presented is one of statutory interpretation.'" Id. (quoting Sharp v. Shinseki, 23 Vet. App. 267, 275
(2009)).
The language at issue found in § 3.309(a) mirrors the language used by Congress in
section 1101(3). Neither the statute nor the regulation defines or clarifies the phrase. Accordingly,
although VA Training Letter 10-02 may be said to be interpreting regulatory language, the portion
of the regulation at issue parrots the statute. See Gonzales v. Oregon, 546 U.S. 243, 257 (2006)
(regulation merely parrots statute where it "just repeats two statutory phrases and attempts to
summarize the others" and "gives little or no instruction on a central issue"). The question at hand
is therefore one of statutory interpretation. See id.; Mulder, 27 Vet. App. at 16; Sharp, 23 Vet. App.
at 275.
Lacking the formalities of notice-and-comment rulemaking, the Secretary's Training Letter
10-02 is entitled to deference "only in so far as it has 'the power to persuade.'" Wanless v. Shinseki,
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618 F.3d 1333, 1338 (Fed. Cir. 2010) (applying Skidmore, 323 U.S. at 140, to the Secretary's use of
a VA General Counsel Opinion to interpret statutory provision in 38 U.S.C. § 5313); see Sursely v.
Peake, 551 F.3d 1351 (Fed. Cir. 2009) (where regulation essentially parroted statute, the opinion
letter of the Director of VA's Compensation and Pension Service was viewed not as an interpretation
of the VA's own regulation–which would be accorded substantial deference under 38 U.S.C.
§ 7292(d)(1) and Auer, 519 U.S. at 461-63–but rather as an interpretation of the statute itself, and
the Court held that the Director's opinion did not have the "power to persuade" as required by
Skidmore). The U.S. Supreme Court in Skidmore stated:
We consider that the rulings, interpretations and opinions of the Administrator under
this Act, while not controlling upon the courts by reason of their authority, do
constitute a body of experience and informed judgment to which courts and litigants
may properly resort for guidance. The weight of such a judgment in a particular case
will depend upon the thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade, if lacking power to control.
323 U.S. at 140 (emphasis added). Therefore, the degree to which the Secretary's interpretations of
ambiguous statutes are given deference "will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, . . . and all those factors which give it power to persuade."
Id.
The Secretary maintains that the basis for his policy to exclude tinnitus as encompassed
within "[o]ther organic disease of nervous system" is that tinnitus is a symptom rather than an illness
or disease, and the classification as a symptom rather than a disease "is consistent with" the
definition of "tinnitus" provided by NIDCD, i.e., the definition in a fact sheet from the National
Institutes of Health. Sec'y Sept. 8, 2014, Suppl. Mem. at 3 (quoting Appendix at 4).
The appellant contends that the Secretary's position is inharmonious with other provisions
of the veterans benefits scheme and a constrictive interpretation unfavorable to veterans. The
appellant argues that the Secretary's interpretation against the inclusion of tinnitus within § 3.309(a)
based on the Training Letter's description of tinnitus as a symptom (1) ignores the nature of tinnitus,
which is described in the Training Letter itself as a condition that "originates in the central nervous
system"; (2) is inconsistent with VA's benefits scheme that identifies tinnitus as a compensable
disability, without requiring that it occur in conjunction with any other condition or disease,
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38 C.F.R. § 4.87; and (3) is inconsistent with the fact that the Secretary has recognized hypertension
as a symptom of another disease, including organic heart disease, yet has included it in § 3.309(a)
and given it the presumption afforded chronic conditions. App. Sept. 29, 2014, Resp. at 4, 7-8.
Regarding this last point, the appellant asserts that, even if the Court agrees that tinnitus is a
symptom and not a disease, the Court should reject the Secretary's interpretation that § 3.309(a) does
not extend to symptoms because § 3.309 extends to hypertension as a symptom, without requiring
that any related disease manifest during or after the presumptive period. Id. at 8.
The Training Letter states, in part:
1. Sensorineural hearing loss may be service-connected as a presumptive condition
under 38 [C.F.R. §] 3.309(a) because it is an organic disease of the nervous system.
2. Unlike hearing loss, tinnitus may not be service-connected as a presumptive
condition under 38 [C.F.R. §] 3.309(a) because it is a subjective symptom rather than
an organic disease of the nervous system.
Appendix at 10. The Training Letter also describes both sensorineural hearing loss and tinnitus:
Sensorineural hearing loss (SNHL) (also called neurosensory hearing loss, and
sometimes informally called nerve deafness) is due to a problem in the inner ear or
in the auditory (Cranial Nerve VIII) nerve between the inner ear and the brain. It
most often occurs when the tiny hair cells in the cochlea are injured, and there may
also be nerve fiber damage. The two most common causes of SNHL are presbycusis
(age-related hearing loss) and noise-induced hearing loss (caused by chronic
exposure to excessive noise). . . .
....
E. Tinnitus
1. What is it? Subjective tinnitus is a phantom auditory sensation that is perceieved
as a sound when there is no outside source of the sound. It is a symptom rather than
an illness or disease. Tinnitus may be perceived in one or both ears or anywhere in
the head, and although it is commonly perceived in the ears, it originates in the
central nervous system.
....
3. What are its causes? Tinnitus is a symptom that is associated with many
conditions, including acute noise exposure and noise-induced hearing loss.
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Sensorineural hearing loss, such as from presbycusis or acoustic trauma, is the most
common cause of tinnitus. However, the etiology of tinnitus often cannot be
identified, because there are so many potential causes that it is impossible to select
one. In addition to sensorineural hearing loss, other known causes are Meniere's
disease, head injury (including traumatic brain injury), otosclerosis, cerebrovascular
disease, neoplasms, numerous types of ototoxic medications, hypertension, kidney
disease, dental disorders, and many other medical conditions.
Id. at 4-5.
In addition to the above statement acknowledging both that tinnitus "originates in the central
nervous system" and that "[s]ensorineural hearing loss, such as from presbycusis or acoustic trauma,
is the most common cause of tinnitus," the Training Letter, in its discussion of VA examinations,
recognizes that tinnitus may be associated with hearing loss. For example, the Training Letter
requires that a VA audiologist "indicate whether tinnitus is as likely as not a symptom associated
with hearing loss" if there "is a claim and/or current complaint of tinnitus" and "if hearing loss is
present. Id. at 15. The Training Letter also states that "acoustic trauma means sudden hearing loss
(and possibly tinnitus) resulting from a single short-term exposure to an extremely loud noise, such
as an explosion or gunshot" and notes that "VA defines acoustic trauma in the stricter sense of a
short-term severe episode of loud noise exposure that causes damage to the inner ear." Id. at 15-16.
The Secretary's position excluding tinnitus from an "organic disease of the nervous system,"
as expressed in VA Training Letter 10-02, is not persuasive, and the Court does not adopt it, for
several reasons. First, to the extent the Secretary bases his position on tinnitus being a mere
symptom, this is inconsistent with a key component of VA's benefit scheme, the VA rating schedule,
specifically 38 C.F.R. § 4.87, which identifies tinnitus as a disability subject to compensation
payments based on the level of severity of tinnitus without requiring that the tinnitus occur in
conjunction with any other condition or disease. Second, the Training Letter is internally
inconsistent, and while the Secretary focuses on language from the Training Letter that superficially
appears adverse to the veteran's position, other language supports the veteran's proposed
interpretation. Third, the thoroughness of the Secretary's consideration is not evident, given that the
Training Letter does not discuss the medical evidence upon which it relies and appears to overlook
material points within that medical evidence. Fourth, descriptions of tinnitus in VA rulemaking and
a VA General Counsel Precedent Opinion provide support for defining tinnitus as an organic disease
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of the nervous system. Finally, a review of post-Walker Board decisions on whether tinnitus is an
"organic disease[] of the nervous system" under § 3.309 further undermines the persuasiveness of
the Secretary's argument. We address each of these points in turn.
First, as the appellant argues, the Training Letter's reasoning is inconsistent with the
treatment of tinnitus in the veterans benefits scheme. See Arneson v. Shinseki, 24 Vet. App. 379, 383
(2011) (stating that statutory terms are interpreted "'in their context and with a view to their place
in the overall statutory scheme'" (quoting Tyler v. Cain, 533 U.S. 656, 662 (2001))). The central
conceit of the Training Letter, with regard to tinnitus, is that tinnitus cannot be considered an organic
disease of the nervous system for VA compensation purposes because it is "a symptom rather than
an illness or disease." Appendix at 4. However, VA treats tinnitus as an independent, stand-alone
illness or disease rather than simply a symptom for VA compensation purposes. See 38 C.F.R.
§ 4.87, Diagnostic Code (DC) 6260 (2014) (defining "tinnitus" as one of several independent, listed
disabilities subject to VA compensation payments based on level of disability). If VA viewed
tinnitus as merely a symptom of another condition and not a legitimate, independent illness, disease,
or disability itself, tinnitus would not be subject to compensation in its own right as a service-
connectable disability. See 38 U.S.C. § 1110 (compensation will be paid "[f]or disability resulting
from personal injury suffered or disease contracted in line of duty"); Sanchez-Benitez v. West,
13 Vet. App. 282, 285 (1999) ("[P]ain alone, without a diagnosed or identifiable underlying malady
or condition, does not in and of itself constitute a disability for which service connection may be
granted."), appeal dismissed in part and vacated in part on other grounds sub nom. Sanchez-Benitez
v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); 38 C.F.R. § 3.303(a) (providing that service connection
requires facts establishing "a particular injury or disease resulting in disability [that] was incurred
coincident with service").
Second, various language in the Training Letter supports the appellant's proposed
interpretation. Although the Training Letter bases the exclusion of tinnitus from "organic diseases
of the nervous system" on the conclusion that tinnitus is a mere symptom (a dubious assertion, as
explained above), the Training Letter acknowledges that tinnitus "originates in the central nervous
system." Appendix at 4. Tinnitus thus appears, by the Secretary's admission, to meet the statutory
requirement that the condition be "of the nervous system." 38 U.S.C. § 1101(3). Additionally, the
13
Training Letter acknowledges that the "most common cause of tinnitus" is sensorineural hearing loss
(Appendix at 5), which the Training Letter defines as an "organic disease of the nervous system" (id.
at 10). Sensorineural hearing loss, in turn, is described as being "due to a problem in the inner ear
or in the auditory . . . nerve . . . [and] most often occurs when the tiny hair cells in the cochlea are
injured, and there also may be nerve fiber damage." Id. at 3. According to the Training Letter,
therefore, tinnitus will most often be due to sensorineural hearing loss, which itself is most often the
result of damage to cochlear hairs and potentially the result of nerve damage, a description that VA
finds consistent with an organic disease of the nervous system. See DORLAND 'S ILLUSTRATED
MEDICAL DICTIONARY 540 (32d ed. 2012) [hereinafter DORLAND 'S] (defining "organic disease" as
"a disease associated with demonstrable change in a bodily organ or tissue"); id. at 1334 (defining
"organic" as "pertaining to or arising from an organ or the organs"). Given this information, the
Training Letter does not provide persuasive reasons for its differential treatment of the two
conditions, calling its reasoning into question. See Skidmore, 323 U.S. at 140 (identifying factors
affecting persuasiveness of Agency's position as including "the validity of its reasoning").
Third, the thoroughness of the Secretary's consideration is not evident from the Training
Letter. See id. (identifying factors affecting persuasiveness of Agency's position as including "the
thoroughness evident in [the Agency's] consideration"). Although the Training Letter contains a list
of references, which include medical fact sheets, the Letter does not discuss the medical evidence
upon which it relies for its various medical conclusions. Appendix at 17. For instance, in stating
categorically that tinnitus is not a disease, the Letter does not define "disease." But VA has
previously defined "disease" as "any deviation from or interruption of the normal structure or
function of any part, organ, or system of the body as manifested by a characteristic set of symptoms
and signs and whose etiology, pathology, and prognosis may be known or unknown." VA
Gen. Coun. Prec. 82-90 (first released as 1-85 on Mar. 5, 1985) (citing DORLAND 'S at 385 (26th ed.
1974)). Further, this Court observed in Quirin v. Shinseki, 22 Vet. App. 390 (2009), that VA had
identified that a key factor in determining whether a condition is a disease is whether the condition
is "'capable of improving or deteriorating.'" 22 Vet. App. at 394 (quoting VA Gen. Coun. Prec.
82-90). Although the NIDCD fact sheet, highlighted by the Secretary in his supplemental
memorandum, states that tinnitus is not a disease, it also states that tinnitus sometimes "gets worse,"
14
that patients can work with their doctors to "reduce the severity of the noise and its impact," and that
it may be caused when a shock wave of an explosion "damages brain tissue in areas that help process
sound" or when "the brain's neural circuits [are] trying to adapt to the loss of sensory hair cells" in
the inner ear that "help transmit sound to the brain." Appendix at 18, 19. Based on the above, it is
unclear why tinnitus would not be considered a disease for purposes of section 1101(3) and
§ 3.309(a), particularly because the Training Letter does not discuss this conclusion or provide its
source.2
Fourth, earlier agency pronouncements support treating tinnitus as an "[o]rganic disease[]
of the nervous system" under section 1101(3). See Skidmore, 323 U.S. at 140 (identifying factors
affecting persuasiveness of Agency's position as including "consistency with earlier
pronouncements"). Although neither the 2003 Final Rule nor the VA General Counsel Opinion
addressed the specific issue whether tinnitus constitutes an organic disease of the nervous system,
both nonetheless discussed the Agency's consideration of the nature of tinnitus and the Agency's
description of tinnitus as arising in the brain and as a central nervous condition. As conceded by the
Secretary, the VA rulemaking clarified that claimants cannot obtain separate disability ratings for
tinnitus in both the left and right ears under DC 6260 and codified VA practice by stating that
recurrent tinnitus will be assigned only a single 10% rating "whether it is perceived in one ear, both
ears, or somewhere in the head." Sec'y Sept. 8, 2014, Suppl. Mem. at 6-7 (quoting Appendix at 30
(Final Rule)). The Final Rule states that because tinnitus is a single disability arising in the brain,
evaluating it as two separate disabilities would violate the principles against pyramiding, 38 C.F.R.
§ 4.14 (2002), and the principle in 38 C.F.R. § 4.25(b) (2002) that each "single disease entity" is to
receive a separate evaluation. 68 Fed. Reg. 25,822, 25,823 (2003) (Final Rule); Appendix at 31.
In describing tinnitus as arising in the brain, which is part of the central nervous system (see
DORLAND 'S at 245) and an organ (see "Meninges of the Brain," Medline Plus,
www.nlm.nih.gov/medlineplus/ency/imagepages/19080.htm (last visited Jan. 28, 2015)), and
describing tinnitus as a "single disease entity," the Final Rule thus undermines the persuasiveness
of the Secretary's later interpretation that tinnitus is not an organic disease.
2
It is also unclear, based on the Training Letter, why tinnitus may not be considered both a symptom of a
disease and a disease itself or why the two are necessarily mutually exclusive concepts.
15
To the extent the Secretary argues that tinnitus is a not a condition "of the nervous system,"
the prior VA pronouncements undermine that argument as well. In the Final Rule, VA describes
tinnitus as "a central nervous condition." 68 Fed. Reg. 25,822. Referencing a VA booklet on
hearing impairment in the Final Rule, VA explains: "[D]amage in the inner ear may be a precursor
for subjective tinnitus, but [] subjective tinnitus is generated within the central auditory pathways.
Comparing tinnitus, a central nervous condition, to hearing loss, a disability from damage to an
organ of special sense (the ear) is not a valid comparison." Id. In the proposed rulemaking, VA
explains that "[t]rue (subjective) tinnitus does not originate in the inner ear, although damage to the
inner ear may be a precursor of subjective tinnitus" and that it "appears to arise from the brain rather
the ears." 67 Fed. Reg. 59,033 (2002) (proposed rule); Appendix at 28. The General Counsel
Opinion supports this understanding of tinnitus. See VA. Gen. Coun. Prec. 2-03 at paras. 2-3
(May 22, 2003) (discussing rulemaking and collecting medical treatises and manuals describing
tinnitus as a disorder of the nervous system); see also Osman v. Peake, 22 Vet. App. 252, 256 (2008)
(noting that VA General Counsel precedent opinions "constitute a body of experience and informed
judgment" on VA's part).
Finally, examining the Board decisions issued since Walker undermines the persuasiveness
of the Secretary's reasoning. As the Court stated in its order requesting supplemental memoranda
from the parties in this case, a majority of Board decisions considering the issue have determined
that tinnitus is an organic disease of the nervous system under § 3.309(a). See, e.g., (Title Redacted
by Agency), Bd. Vet. App. 1445576, 2014 WL 6875649 (Bd. Vet. App. Oct. 15, 2014) ("As an
organic disease of the nervous system, tinnitus is a chronic disease for which a nexus to service can
be established by the Veteran's reports of continuity of symptomatology."); (Title Redacted by
Agency), Bd. Vet. App. 1445284, 2014 WL 6875356 (Bd. Vet. App. Oct. 10, 2014) ("Service
connection may be presumed for certain chronic diseases, such as organic diseases of the nervous
system, including sensorineural hearing loss or tinnitus, which develop to a compensable degree
within one year after discharge . . . ."). In his supplemental memorandum, the Secretary did not
challenge this fact, deeming it "unfortunate" and explaining that these Board decisions are "not
indicative of any policy position." Sec'y Sept. 8, 2014, Suppl. Mem. at 5.
16
The Court is mindful that Board decisions are nonprecedential, 38 C.F.R. § 20.1303 (2014),
and that the Board is bound by "regulations by the Department, instructions of the Secretary, and the
precedential opinions of the chief legal officer of the Department," 38 U.S.C. § 7104(c), and not by
other decisions of the Board, or necessarily by VA Training Letters. Nonetheless, the Court is
permitted to take judicial notice of facts not subject to reasonable dispute. Smith v. Derwinski,
1 Vet. App. 235, 238 (1991). Accordingly, while we may not consider these Board decisions as
precedent on the issue of which interpretation of the language at issue is correct, within our Skidmore
analysis the fact that these decisions were issued provides information about the application of the
Secretary's position. Specifically, because the pertinent question is the Secretary's interpretation's
"power to persuade," Skidmore, 323 U.S. at 140, and because the Secretary has stated that the
Training Letter represents VA's "established policy" on the issue (Sec'y Sept. 8, 2014, Suppl. Mem.
at 5), the Board decisions indicate the lack of persuasiveness of an established VA policy on the
issue and the lack of persuasiveness of the Agency's current position.
The Court additionally notes the appellant's argument that the inclusion of hypertension on
the list in section 1101(3) and § 3.309(a), despite that it is a "symptom" of other conditions, shows
that interpreting tinnitus as a symptom does not automatically disqualify it as a chronic condition.
See Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000) ("It is
a fundamental canon of statutory construction that the words of a statute must be read in their context
and with a view to their place in the overall statutory scheme." (citation and internal quotation marks
omitted)). The Secretary did not respond to this argument. Because the appellant's argument on this
point accepts, as an alternative, the Secretary's description of tinnitus only as a symptom and not a
stand-alone illness or disease, an interpretation that, for the reasons listed above, we do not find
persuasive, we will not address it further.
Accordingly, the Court concludes that the statutory language is ambiguous, and the
Secretary's interpretation is not persuasive and therefore not entitled to respect. The interpretation
is not presented with sufficient supporting rationale, is provided in a Training Letter that is internally
inconsistent, and fails to reconcile the position in the Training Letter with the VA benefits scheme
that considers tinnitus a compensable disability. See Skidmore, 323 U.S. at 140; Sursely, supra; see
also Sharp, 23 Vet. App. at 275 (rejecting VA interpretation of ambiguous language where the
17
Secretary offered no support for his interpretation); Osman, 22 Vet. App. at 259-60 (rejecting VA
General Counsel interpretation that was inconsistent with a prior interpretation).
The Court will therefore adopt the interpretation urged by the veteran, that § 3.309(a)
includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an "organic disease[]
of the nervous system." See Sharp, 23 Vet. App. at 275 ("In the face of statutory ambiguity and the
lack of a persuasive interpretation from the Secretary, the Court applies the rule that 'interpretative
doubt is to be resolved in the veteran's favor.'" (quoting Brown v. Gardner, 513 U.S. 115, 118
(1994))); see also Sursely, 551 F.3d at 1357 ("[E]ven if the government's asserted interpretation of
[the statute] is plausible, it would be appropriate under Brown [v. Gardner] only if the statutory
language unambiguously [supported the Government's interpretation]."). The veteran's interpretation
is permitted by the statutory language; consistent with the beneficence inherent in the veterans
benefits scheme; consistent with the Secretary's recognition of tinnitus as a disability in VA's
Schedule of Rating Disabilities, 38 C.F.R. § 4.87, DC 6260; consistent with the Secretary's
interpretation in Training Letter 10-02 of "[o]ther organic diseases of the nervous system" as
including sensorineural hearing loss, which is due to a problem in the inner ear or in the auditory
nerve, and recognition that acoustic trauma causes damage to the inner ear; and consistent with VA's
description of the nature of tinnitus in earlier agency pronouncements. See Trafter v. Shinseki,
26 Vet. App. 267, 272 (2013) (Courts may not "substitute their judgment for that of VA, unless . . .
the Secretary's interpretation is unfavorable to veterans, such that it conflicts with the beneficence
underpinning VA's veterans benefits scheme, and a more liberal construction is available that affords
a harmonious interplay between provisions"); Sharp, 23 Vet. App. at 275-76 ("Because [the statute]
permits the reading [proposed by the veteran], it is ambiguous and the rule in Brown v. Gardner
therefore requires the expansive reading of the statute.").
The Court further holds that Walker is not dispositive as precluding establishing service
connection for tinnitus on the basis of continuity of symptomatology, see Walker, 708 F.3d at 1340,
and the appellant is not precluded from seeking VA benefits for his claimed tinnitus by way of the
chronicity or continuity-of-symptomatology provisions of §§ 3.303 and 3.309(a).
18
C. Board Errors
Regarding the appellant's contention that the Board erred in rejecting his testimony
concerning the continuity of his symptoms since service, he specifically asserts that the Board
improperly relied on the absence of direct postservice medical evidence of tinnitus and improper
assumptions about the severity of his tinnitus symptomatology.
The Board found the appellant's statements regarding the continuity of his symptoms not
credible based on the lack of medical evidence of tinnitus until many years after service. The Board
may weigh a claimant's lay statements against the absence of contemporary medical evidence, as it
did here. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the
Board must first establish a proper foundation for drawing inferences against a claimant from an
absence of documentation. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). In Horn, this Court
held that the absence of evidence cannot be substantive negative evidence without "a proper
foundation . . . to demonstrate that such silence has a tendency to prove or disprove a relevant fact."
25 Vet. App. at 239 n.7. The Court cited precedent "referenc[ing] Federal Rule of Evidence 803(7),
to the effect that 'the absence of an entry in a record may be evidence against the existence of a fact
if such a fact would ordinarily be recorded.'" Id. (citing Buczynski v. Shinseki, 24 Vet. App. 221, 224
(2011)); see also AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (citing Horn and Buczynski
with approval and holding that the absence of documentation of a claimed sexual assault in service
cannot be considered evidence that the assault did not occur because the failure to report such
assaults is typical of active duty victims); Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009)
(holding that this Court did not err is disregarding an inconclusive medical report because it was "not
pertinent evidence, one way or the other," regarding service connection).
Here, the Board found that the lack of medical evidence of a diagnosis of or treatment for
tinnitus until many years after service weighed against the appellant's claim and his credibility. For
a number of reasons, the Court finds that the Board's adverse credibility determination lacks
adequate reasons or bases and will vacate the Board's decision and remand that matter to the Board.
See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995). First, the Board failed
to provide the requisite foundation for considering the absence of documentation as evidence against
the appellant. The Board failed to analyze, as the above-cited caselaw requires, why the appellant
19
would reasonably have been expected to report his symptoms to medical providers before 2009. See
AZ, Horn, and Buczynski, all supra. In this regard, the Board acknowledged the appellant's reason
for not mentioning tinnitus during service or not claiming service connection for tinnitus until years
after service–that is, the appellant stated that he did not recall being asked whether he had tinnitus
while in service or at his separation examination and he was unaware, until recently, that tinnitus was
a disability and that he could file for service connection for this condition. The Board then rejected
the appellant's statement that he had tinnitus during service because the appellant was treated during
service for multiple complaints, including hearing loss, but there were no in-service complaints or
treatment relating to tinnitus and the separation examination did not show symptoms or findings of
tinnitus. The Board, however, failed to discuss whether the tinnitus symptoms the appellant was
experiencing during service were of such severity that it would have been reasonable to expect that
he would have sought treatment or complained of tinnitus during service.
In this regard, the Court notes that the VA audiologist in May 2009 noted that the appellant's
tinnitus was recurrent but not constant and that it "occurs an average of at least once or twice daily
for an average duration of 30 seconds per episode." R. at 133. The Court agrees with the appellant's
argument that the Board "made an improper assumption about 'the relative severity, common
symptomatology, and usual treatment' of the Veteran's tinnitus by pointing to the absence of medical
evidence but without citing to any independent medical evidence to corroborate its finding." App.
Br. at 20. The Board erred in failing to support its finding that tinnitus did not exist during service
based on the Board's assertion that the appellant would have sought treatment for it or noted it at the
time of his separation. R. at 14; see Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that,
where the record is devoid of any medical evidence establishing "the relative severity, common
symptomatology, and usual treatment of an ACL [(anterior cruciate ligament)] injury," the Board
violated this Court's holding in Colvin v. Derwinski, 1 Vet. App. 171 (1991), in stating that, "given
the nature of the appellant's injury, some documentation in his SMRs is expected"). Additionally,
the Board did not consider the extent of the appellant's tinnitus symptoms when it made an adverse
credibility determination based on the appellant's "lack of complaints or treatment for tinnitus to
medical professionals for 29 years after discharge from service." R. at 16.
20
Second, the Court finds inadequate the Board's reasons for finding the appellant not credible
because he did not file a claim for VA disability compensation for tinnitus before 2009, although
he had previously filed other claims for compensation. R. at 15-16. The Board may not rely solely
on the fact that the appellant did not file, at a particular point, a claim for VA benefits for tinnitus
at the same time that he filed a claim for another condition: The Board erred in not explaining why
filing the tinnitus claim would have been expected to have occurred earlier in light of the appellant's
statements, including that he was unaware that tinnitus was a disability for which he could receive
service connection and VA benefits. The Court also notes that in July 1980 the appellant filed his
claim for "hearing" problems and the nature of the hearing problem is not further described on the
application. Although it is undisputed that the appellant did not report tinnitus symptoms during an
October 1980 VA audiological examination, the Board again failed to take into account whether
there was evidence as to the severity of tinnitus symptoms that would have made it "reasonable to
expect" that at that time he would have reported tinnitus symptoms to the examiner. Additionally,
there may be reasons unrelated to the merits of the claim or unrelated to whether a claimant is
experiencing symptoms of the condition that explain why a claimant does not seek VA benefits at
the same time that he or she focuses on seeking VA benefits for another condition. The Court
concludes that the Board erred in failing to adequately explain why the appellant's decision not to
file a claim for service connection for tinnitus before 2009 was pertinent evidence that he was not
experiencing symptoms of tinnitus before 2009, and evidence that renders him not credible. See AZ,
Fagan, Horn, and Buczynski, all supra.
Third, in weighing the evidence, the Board stated that "at a post-service VA examination in
1980[,] the Veteran denied tinnitus." R. at 17. In so stating, the Board apparently was attempting
to summarize the May 2009 VA audiological examination report and to note that the "VA examiner
accurately noted the history." Id. The Board's statement that the appellant had "denied tinnitus,"
however, is incorrect. The May 2009 examiner referred to an October 1980 VA audiological
examination report in which the "veteran did not report tinnitus." R. at 447. There is no evidence
of record before the Court reflecting a denial of tinnitus during service or after service.
Fourth, in addition to finding the lay statements not credible, which the Board will be
required to reassess on remand, the Board also determined that "tinnitus is not the type of disorder
21
that a lay person can provide competent evidence on questions of etiology." R. at 18. In making this
determination, the Board failed to provide an adequate statement of reasons or bases in light of the
governing caselaw. Specifically, the Board did not apply the relevant, current law concerning lay
testimony, and the Board's applying the broad rule that lay evidence is incompetent on the issue of
in-service causation for tinnitus, without further explanation, is deficient in light of 38 U.S.C. § 1154
and the decision of the Federal Circuit in Davidson. R. at 18 (citing only Rucker v. Brown,
10 Vet. App. 67 (1997), and Layno v. Brown, 6 Vet. App. 465 (1994)).
Section 1154 requires VA to give "due consideration" to "all pertinent medical and lay
evidence" when it evaluates a claim for disability benefits. In Davidson, the court rejected VA's
position that "competent medical evidence" is required whenever the issue involves "either medical
etiology or a medical diagnosis." 581 F.3d at 1316 (holding that a veteran's wife was competent to
testify that her husband had committed suicide as a result of a mental disorder related to service);
see Buchanan, 451 F.3d at 1336 n.1. On remand, the Board should cite and correctly apply the
relevant, current caselaw concerning lay statements. If, on remand, the Board again determines that
tinnitus is of the type of disability for which lay evidence concerning etiology is not competent, the
Board must fully consider the nature of tinnitus with its observable subjective symptoms and fully
discuss its determination, with an analysis of the most recent caselaw. See Charles v. Principi,
16 Vet. App. 370, 374 (2002) (noting that "ringing in the ears is capable of lay observation"). If the
disability is the type for which lay evidence is competent, the Board must weigh that evidence
against the other evidence of record in making its determination regarding the existence of a service
connection. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (stating that the Board
must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to).
The Court also agrees with the appellant's contention that the Board erred when it failed to
consider a theory of secondary service connection for tinnitus based on the appellant's service-
connected bilateral hearing loss. The Board is required to consider all theories of entitlement to VA
benefits that are either raised by the claimant or reasonably raised by the record. Robinson v. Peake,
21 Vet. App. 545, 553 (2008), aff'd sub. nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).
By the time VA requested the May 2009 VA audiological examination, the appellant had already
been service connected for sensorineural bilateral hearing loss, and the RO conceded the appellant's
22
exposure to acoustic trauma during service based on the appellant's military occupation. The results
of audiological examinations performed when the appellant entered service in 1976, when he
separated in 1980, and when he underwent a VA audiological examination in 2009 revealed the
following puretone hearing thresholds:
500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz
Right 1976 5 5 5 5 0
1980 35 40 30 N/A 30
2009 15 20 25 35 35
Left 1976 5 5 5 10 5
1980 35 35 30 N/A 30
2009 25 30 30 30 35
Rawle at 133 (2009 VA examination report), 312 (1980 separation report), 337 (1976 enlistment report)
(all results in decibels).
In VA Training Letter 10-02, the Director of the Compensation and Pension Service
instructed that for tinnitus opinions, certain standard guidelines be followed. The Director instructed
that certain language be given to examiners:
b. If there is no record in the service treatment records of tinnitus, but there is a
claim or complaint of tinnitus, the audiologist is asked on the examination protocol
to offer an opinion about an association to hearing loss, or an event, injury, or
illness in service, if it is within the scope of his or her practice.
1) If the examiner states that tinnitus is a symptom that is associated with hearing
loss, the tinnitus should be service connected and separately evaluated under [DC]
6260 if the hearing loss is determined to be service connected.
VA Training Letter 10-02 at F.5.b.1 (emphasis added). Additionally, VA Fast Letter 08-10 requires
that in requesting an opinion about the etiology of tinnitus, "[i]f hearing loss is also present, the
audiologist must provide an opinion about the association of tinnitus to hearing loss." VA Fast
Letter 08-10 (Apr. 17, 2008).
Here, the claim for tinnitus and the fact that the appellant was already service connected for
hearing loss based on in-service acoustic trauma, and in light of the Training Letter and Fast Letter,
23
the theory of secondary service connection for tinnitus based on hearing loss was reasonably raised
by the record. There is no evidence that VA provided the audiologist with the language specified
in VA Training Letter 10-02 or VA Fast Letter 08-10. The Board failed to ensure that the May 2009
audiological report complied with these directives and addressed whether there was an association
between the appellant's service-connected hearing loss and his complaints of tinnitus. The Court
concludes that the 2009 medical report upon which the Board relied was, therefore, inadequate. Stefl
v. Nicholson, 21 Vet. App. 120, 123 (2007). On remand, the audiologist should also opine on the
decrease in hearing levels both during and after service in considering any relevant postservice noise
exposure.
In pursuing the matter on remand, the appellant is free to submit additional evidence and
argument on the remanded matters, and the Board is required to consider any such relevant evidence
and argument. See Kay v. Principi, 16 Vet. App. 529, 534 (2002) (stating that, on remand, the Board
must consider additional evidence and argument in assessing entitlement to benefit sought);
Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam order). "A remand is meant to
entail a critical examination of the justification for the decision. The Court expects that the [Board]
will reexamine the evidence of record, seek any other evidence the Board feels is necessary, and
issue a timely, well-supported decision in this case." Fletcher v. Derwinski, 1 Vet. App. 394, 397
(1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring the
Secretary to provide for "expeditious treatment" of claims remanded by the Court).
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court, and
the parties' pleadings, the January 28, 2013, Board decision is VACATED and the claim for service
connection for tinnitus is REMANDED for readjudication consistent with this opinion.
24