Joe L. Monzingo v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 10-922
JOE L. MONZINGO, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued October 10, 2012 Decided November 21, 2012)
Diane B. Kadlec, of Valley Stream, New York, was on the brief for the appellant.
Jonathan G. Scruggs, with whom Will A. Gunn, General Counsel; R. Randall Campbell,
Assistant General Counsel; and Joan Moriarty, Deputy Assistant General Counsel, all of
Washington, D.C., were on the brief for the appellee.
Before KASOLD, Chief Judge, and HAGEL and LANCE, Judges.
This opinion was filed per curiam. KASOLD, Chief Judge, filed a concurring opinion.
PER CURIAM: Veteran Joe L. Monzingo appeals through counsel a February 25, 2010,
decision of the Board of Veterans' Appeals (Board) that denied benefits for bilateral hearing loss.
Mr. Monzingo argues that the Board (1) provided inadequate reasons or bases for denying service
connection, (2) relied on an inadequate medical report, and (3) clearly erred in specifically finding
that Mr. Monzingo's hearing acuity improved during service. Underlying Mr. Monzingo's first
argument is a contention that two reports published with partial VA involvement should be deemed
constructively part of the record before the Board, a question that prompted the convening of a panel
to decide this appeal. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990) (holding that a panel
decision is necessary to clarify an existing rule of law). For the reasons stated below, the Board
decision will be affirmed.
I. FACTS
Mr. Monzingo served on active duty in the U.S. Army from October 1966 to October 1968.
An August 1966 pre-induction examination report reflects normal hearing acuity in his left ear and
some hearing loss in his right ear, specifically, 45 decibels at the 4,000 Hertz frequency. An August
1968 separation examination report reflects normal hearing acuity in his left ear and some hearing
loss in his right ear, specifically, 35 decibels at the 4,000 Hertz frequency.
In 1984, Mr. Monzingo requested disability compensation for bilateral hearing loss and
tinnitus. In a July 1984 decision, the VA regional office (RO) granted service connection for tinnitus
but denied benefits for bilateral hearing loss. The RO's decision was not appealed and became final.
Following a June 2007 request to reopen his hearing loss claim, Mr. Monzingo was afforded a VA
audiological examination in February 2008. The VA examiner diagnosed Mr. Monzingo with
bilateral hearing loss and opined that his "left ear hearing loss is not caused by or a result of acoustic
trauma in service," and that his "right ear hearing loss was not aggravated by acoustic trauma in
service." Record (R.) at 75. The RO subsequently reopened but denied Mr. Monzingo's claim.
The Board decision on appeal found that benefits for hearing loss remained unwarranted.
More specifically, the Board noted that (1) Mr. Monzingo entered and exited service with normal
hearing in his left ear, (2) his left ear hearing loss was not diagnosed until decades after his discharge
from service, (3) he entered service with preexisting hearing loss in his right ear (45 decibels at the
4,000 Hertz frequency), and (4) he left service with slightly improved hearing in his right ear (35
decibels at the 4,000 Hertz frequency). The Board also concluded that a September 2000 VA
hearing aid evaluation report did not contain an opinion on the etiology of Mr. Monzingo's hearing
loss and therefore was not highly probative on that question. Finally, the Board determined that the
February 2008 VA examination report was highly probative in finding that Mr. Monzingo's bilateral
hearing loss was not caused or aggravated by service.
II. PARTIES' ARGUMENTS
Mr. Monzingo contends that the Board's statement of reasons or bases is inadequate because
the Board did not (1) address the possibility that his service-connected tinnitus constitutes evidence
of continuous symptomatology of hearing loss, or (2) explain its reliance on his separation
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examination report in light of the fact that the report reflected improved hearing acuity during service
and his assertion that hearing tests at that time generally were inaccurate. In support of these
contentions, he relies on a 2006 report, entitled Noise and Military Service: Implications for Hearing
Loss and Tinnitus (Noise and Military Service), prepared by the Committee on Noise-Induced
Hearing Loss and Tinnitus Associated with Military Service from World War II to the Present (the
Committee), and a 1982 report, entitled Tinnitus: Facts, Theories, and Treatments (Tinnitus),
prepared by Working Group 89 of the Committee on Hearing, Bioacoustics, and Biomechanics of
the Commission on Behavioral and Social Sciences and Education of the National Research Council
(Working Group 89). Mr. Monzingo asserts that these reports constitute evidence favorable to his
claim that was constructively in the possession of the Board and should have been, but was not,
addressed by the Board. See Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (holding that the
Board must address all material evidence potentially favorable to the claimant); Bell v. Derwinski,
2 Vet.App. 611, 612 (1992) (per curiam order) (setting forth the doctrine of constructive possession).
In the alternative, he asserts that the Court should either take judicial notice of the findings of these
reports and consider them in its review or remand the matter for the Board to address them in the
first instance. See Smith v. Derwinski, 1 Vet.App. 235, 238 (1991) (holding that the Court "may take
judicial notice of facts not subject to reasonable dispute").
The Secretary disputes Mr. Monzingo's contention that the reports were constructively before
the Board. He notes that, although Noise and Military Service was commissioned in part by VA at
the direction of Congress, the findings were neither accepted nor rejected by the Secretary for VA
purposes; rather, they were passed on to Congress for its use. He also argues that, although a VA
employee was a member of Working Group 89 and participated in the preparation of Tinnitus, that
report was neither contracted by nor prepared for VA use. Citing Brannon v. Derwinski, 1 Vet.App.
314, 316 (1991), the Secretary also contends that the findings in the reports are not facts "of
universal notoriety," such that the Court may not take judicial notice of them.
In support of his second argument, Mr. Monzingo asserts that the February 2008 VA
audiology report is inadequate because it lacks detail and rationale, and because the examiner failed
to comment on the findings of various studies on hearing loss. Conversely, citing Stefl v. Nicholson,
21 Vet.App. 120, 123 (2007), the Secretary contends that the report is adequate because the examiner
3
reviewed Mr. Monzingo's medical history, performed an audiometric examination, rendered a
conclusion, and provided sufficient rationale.
In support of his third argument, Mr. Monzingo asserts that the Board clearly erred in
specifically finding that his hearing acuity improved during service because Noise and Military
Service states that hearing loss due to acoustic trauma is irreversible. The Secretary responds that
the medical findings in Noise and Military Service are not for consideration because, again, that
report was not actually or constructively before the Board and its findings are not facts of which the
Court may take judicial notice.
III. ANALYSIS
Mr. Monzingo's primary argument relies on select findings from Noise and Military Service
and Tinnitus. Because both parties agree that these reports were not actually in the record before the
Board, we first address whether they were constructively in the Board's possession, and whether (and
to what extent) the Court may take judicial notice of the reports or the findings contained therein.
A. Constructive Possession
1. Law
Section 7252(b) of title 38, U.S. Code, provides that "[r]eview in the Court shall be on the
record of proceedings before the Secretary and the Board." Early in its jurisprudence, the Court
recognized that certain documents not actually in the record before the Board would be deemed
constructively before the Board, because the Court could not "'accept the Board being "unaware" of
certain evidence, especially when such evidence is in possession of the VA, and the Board is on
notice as to its possible existence and relevance.'" Bell, 2 Vet.App. at 612 (quoting Murincsak v.
Derwinski, 2 Vet.App. 363, 372-73 (1993)). Bell involved four documents not contained in the
record before the Board, but proffered by the appellant on appeal: (1) A VA report of contact form,
(2) a letter from a VA doctor, (3) a letter from VA to the appellant, and (4) a written statement by
the appellant submitted to VA during the pendency of her appeal. Id. "[B]ecause three of the four
items were clearly generated by the VA," and "the fourth item was submitted to the VA by appellant
as part of her claim," the Court found that the Secretary had constructive possession of those
documents. Id. at 613. The Court then held generally that, "where the documents proffered by the
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appellant are within the Secretary's control and could reasonably be expected to be a part of the
record before the Secretary and the Board, such documents are, in contemplation of the law, before
the Secretary and the Board." Id. (internal quotation marks omitted).
The Bell doctrine was applied in Bowey v. West, 11 Vet.App. 106, 107-08 (1998) (per curiam
order), to two documents not contained in the record before the Board, but proffered on appeal: (1) A
report prepared by the National Institute for Occupational Safety and Health (NIOSH) for the
Defense Nuclear Agency (DNA) regarding radiation that was cited in a DNA letter relied upon by
the Board, and (2) a medical treatise regarding radiation that was cited in a VA letter relied upon by
the Board. The Court in Bowey interpreted Bell as having pronounced two rules for determining
whether a document was constructively before the Board: (1) A "specific" rule that a document had
to be clearly generated by VA or submitted to VA by the appellant, and (2) a "broader" rule that a
document had to be within the Secretary's control and reasonably expected to be part of the record.
Bowey, 11 Vet.App. at 108. The Court found that neither the NIOSH report nor the medical treatise
satisfied either of the rules in Bell, and, therefore, neither could be deemed constructively before the
Board. In particular, the Court determined that "[i]t is not reasonable to expect the Secretary to have
investigated, gathered, and considered [such documents] where those documents were merely
referenced in expert opinion letters." Id. at 109. Significantly, the Court also noted that the Board's
familiarity with these documents from other cases was inapposite because "the connection [of these
documents] to the appellant's case is too tenuous." Id.
The constructive possession doctrine was further refined in Goodwin v. West, 11 Vet.App.
494, 495 (1998) (per curiam order), where three documents1 not contained in the record before the
Board were proffered on appeal: (1) A letter purportedly sent to VA by the appellant's representative,
(2) VA documents relating to the claim of another veteran, and (3) a statement purportedly sent to
VA by the appellant's representative. The Court found that the first and third documents were not
generated by VA and that there was no evidence that the documents were actually received by VA.
With respect to the second documents, the Court conceded that they were generated by VA, but
found that the documents "could not reasonably be expected to be a part of the record before the
1
A fourth document proffered on appeal was found to actually have been in the record before the Board. Id.
at 496.
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Secretary and the Board" because they were "not submitted to VA with regard to the appellant's
claim" and they "relate[d] to claims for VA benefits for an individual other than the appellant." Id.
at 496 (internal quotation marks omitted) (citing Bowey, 11 Vet.App. at 109, for the proposition that
a document cannot reasonably be expected to be a part of the record where "the connection to the
appellant's case is too tenuous"). In sum, Goodwin clarified that, even when a document is generated
by VA, it will not be considered constructively before the Board in a particular claimant's case unless
the document has a direct relationship to the claimant's appeal. Indeed, to hold otherwise would
essentially lead to any reports on diseases or injuries contained in VA libraries2 being deemed
constructively before the Board in every case involving a claim arising from the disease or injury
addressed in such reports; such an application of the constructive possession doctrine places an
impossible burden on the Board – especially given its obligation to address the relevant evidence of
record when providing reasons and bases.
2. Application of Law
There is no dispute that Noise and Military Service was supported by a contract between the
National Academy of Sciences and VA and submitted to VA by the Committee pursuant to Public
Law No. 107-330, § 104(c) (Dec. 6, 2002) ("The Secretary of Veterans Affairs shall seek to enter
into an agreement with the National Academy of Sciences [to issue a report on hearing loss and
military service] . . . . [T]he National Academy of Sciences shall submit to the Secretary [its] report
. . . ."). However, beyond noting that VA sponsored and received a copy of the report, Mr. Monzingo
offers no other support for his argument that the report was constructively before the Board. As
noted by the Secretary at oral argument, the report's findings were "those of the author(s) and do not
necessarily reflect the view of the organizations or agencies that provided support for this project."
Noise a nd Mi li t ary Ser vi ce at ii, avai l abl e at: ht t p: / / www.nap. ed u /
openbook.php?record_id=11443&page=R2. Moreover, the report is not specific to Mr. Monzingo;
2
According to the U.S. Office of Personnel Management, VA has a total of 318,144 employees, as of March
2012. Of this number, 283,258 are employed with the Veterans Heath Administration (VHA) and 20,254 are employed
with the Veterans Benefits Administration (VBA). Additionally, there are 515 employees at the Board and 729
employees at VA's Office of General Counsel (although many of these attorneys do not work directly with benefits
adjudication issues). Given the size and complexity of VA, it is unreasonable to assume that adjudicators of the VBA
and Board, as opposed to perhaps employees of VHA or the Office of the Secretary, were aware of the existence or
importance of the report in this case.
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indeed, the only connection between the report and Mr. Monzingo's claim is that the report generally
discusses hearing loss as it relates to military service and Mr. Monzingo's claim is for benefits for
hearing loss that he asserts was incurred in military service. This connection is too tenuous to
reasonably support any expectation that Noise and Military Service would be part of the record
before the Board in every hearing loss or tinnitus claim, or otherwise support a finding that it is
deemed constructively part of the record before the Board in his claim. See Goodwin, 11 Vet.App.
at 496; Bowey, 11 Vet.App. at 109.
Similarly, with respect to Tinnitus, other than noting that a VA employee was a member of
Working Group 89 and speculating that the Board would or should be familiar with this report, Mr.
Monzingo offers no other support for his argument that the report was constructively before the
Board. It was not prepared for or commissioned by VA, and it bears no relationship to Mr.
Monzingo's claim other than its general discussion of the relationship between tinnitus and hearing
loss. See Tinnitus at ii, available at: http://www.nap.edu/openbook.php?record_id=81&page=R2.
Pursuant to Goodwin, Bowey, and Bell, this is too tenuous a connection and does not warrant a
reasonable expectation that it would be part of the record before the Board, absent Mr. Monzingo's
submission of the document to VA or his request that it be obtained.
Accordingly, Mr. Monzingo fails to demonstrate that the Board was constructively in
possession of Noise and Military Service or Tinnitus in this case. See Hilkert v. West, 12 Vet.App.
145, 151 (1999) (en banc) (holding that the appellant bears the burden of demonstrating error on
appeal); see also Goodwin, Bowey, and Bell, all supra.
B. Judicial Notice and Request for Remand
Alternatively, Mr. Monzingo argues that the Court should take judicial notice of the findings
within Noise and Military Service and Tinnitus and either consider them in its review or remand his
claim for the Board to address them in the first instance.
The Court may take judicial notice of facts of universal notoriety that are not subject to
reasonable dispute. See Brannon and Smith, supra; see, e.g., Crain v. Principi, 17 Vet.App. 182, 189
(2003) (taking judicial notice of Zip Code numbers for different cities, as available on the U.S. Postal
Service's Web site). Accordingly, the Court will take judicial notice of the facts that (1) VA was
ordered by Congress to contract for Noise and Military Service, (2) both Noise and Military Service
7
and Tinnitus have been published, and (3) VA received a copy of Noise and Military Service from
the Committee. However, the findings and conclusions within these reports are neither facts of
universal notoriety nor facts not subject to reasonable dispute, despite Mr. Monzingo's assertions to
the contrary. See SAMUEL ARBESMAN, THE HALF-LIFE OF FACTS: WHY EVERYTHING WE KNOW
HAS AN EXPIRATION DATE, 208 (2012) ("[M]any medical schools inform their students that within
several years half of what they've been taught will be wrong, and the teachers just don't know which
half.") Accordingly, the Court is not permitted to take judicial notice of those findings and
conclusions and will therefore not evaluate the Board's decision through the lens of those findings
and conclusions. See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) ("[A]ppellate tribunals
are not appropriate fora for initial factfinding.").
Moreover, because these reports and the findings therein were not raised by Mr. Monzingo
below or reasonably raised by the record, the Board did not err in not addressing them. See Robinson
v. Peake, 21 Vet.App. 545, 552 (2008) (holding that the Board must address issues raised by the
appellant or reasonably raised by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355(Fed. Cir. 2009). Inasmuch as the findings in these reports have not been shown to be of universal
notoriety and because Mr. Monzingo was provided a medical examination that, as discussed below,
he fails to demonstrate is inadequate to support the Board's decision, we will not exercise our
discretion to remand this matter so that the Board might consider these reports. See Maggitt v. West,
202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (holding that the Court has discretion to remand issues
raised for the first time on appeal for further development and adjudication by VA in the first
instance); see also Sacks v. West, 11 Vet.App. 314, 317 (1998) (holding that treatise materials
generally are not specific enough to show nexus); Herlehy v. Brown, 4 Vet.App. 122, 123 (1993)
(explaining that, in general, medical opinions directed at specific patients are more probative than
medical treatises).
C. Reasons or Bases
Mr. Monzingo argues that the Board provided inadequate reasons or bases for its decision
because it did not (1) address the possibility that his service-connected tinnitus constitutes evidence
of continuous symptomatology of hearing loss, or (2) explain its reliance on his separation
examination report when that report reflected improved hearing acuity since separation and hearing
8
tests at that time generally did not adequately identify acoustic trauma. However, Mr. Monzingo
cites no record evidence, only Tinnitus, in support of his suggestion that his tinnitus might reflect
continuity of hearing loss. Similarly, he cites only Noise and Military Service in support of his
theory that the hearing tests provided at the time of his separation from service were inadequate and
that hearing acuity cannot improve after acoustic trauma. Because (1) these arguments are based on
evidence that the Court has determined was outside the actual or constructive record before the
Board, (2) Mr. Monzingo fails to demonstrate that he raised the underlying issues below, and (3) Mr.
Monzingo has not demonstrated that those issues were reasonably raised by the record, the Court
concludes that the Board did not err in not addressing these issues. See Robinson, Hilkert, and Bell,
all supra.
To the extent that Mr. Monzingo's argument regarding the relationship between tinnitus and
hearing loss encompasses a contention that this issue reasonably was raised by the record, we note
that tinnitus and hearing loss are recognized by the Secretary as separate and distinct disabilities, and
Mr. Monzingo fails to identify any competent record evidence supporting his assertion that his
tinnitus is evidence of his hearing loss. See Hilkert, supra; compare 38 C.F.R. § 4.85 (2012)
("Evaluation of hearing impairment"), with 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260 (2012)
("Tinnitus"); see 38 C.F.R. § 4.14 (2012) (stating the Secretary's practice to avoid "the evaluation
of the same manifestation under different diagnoses"); VA Adjudication Procedures Manual (M21-
1MR), pt. 3, subpt. 4, ch. 4, § B(12)(f) (providing guidance to VA adjudicators that, even where an
examiner states that tinnitus is a symptom of hearing loss, tinnitus is to be evaluated separately under
DC 6260).
Overall, Mr. Monzingo fails to demonstrate that the Board's statement of reasons or bases
frustrates judicial review. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the Board's
statement "must be adequate to enable claimant to understand the precise basis for the Board's
decision, as well as to facilitate review in this Court"); see also Hilkert, supra.
D. Adequacy of VA Medical Opinion
Mr. Monzingo essentially posits that the February 2008 VA examination report is inadequate
because it lacks detail and rationale, and because the examiner failed to comment on the findings of
various medical studies regarding hearing loss. The February 2008 VA examination report notes,
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inter alia, that (1) the examiner reviewed the claims file and medical records, (2) Mr. Monzingo
served in the military from 1966 to 1968, (3) Mr. Monzingo reported a positive history of noise
exposure in service, (4) service medical records indicated no significant change in hearing between
enlistment and separation, and (5) Mr. Monzingo complained of tinnitus, but not hearing loss, in
service. The examiner also performed an audiometric examination, recorded Mr. Monzingo's speech
recognition test results, and diagnosed bilateral sensorineural hearing loss. Finally, "based on
clinical experience and evidence found in military medical records," the examiner concluded that
Mr. Monzingo's left ear hearing loss was "not caused by or a result of acoustic trauma in service" and
that his right ear hearing loss was "not aggravated by acoustic trauma in service." R. at 75.
To the extent that Mr. Monzingo argues that the examiner did not provide a detailed review
of the medical history or the severity of his current hearing loss, he confuses the duties of a medical
examiner with those of a VA adjudicator. See Moore v. Nicholson, 21 Vet.App. 211, 218 (2007)
("The medical examiner provides a disability evaluation and the rating specialist interprets medical
reports in order to match the rating with the disability."), rev'd on other grounds sub nom. Moore v.
Shinseki, 555 F.3d 1369 (Fed. Cir. 2009); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304
(2008) ("Both VA medical examiners and private physicians offering medical opinions in veterans
benefits cases are nothing more or less than expert witnesses."); Gabrielson v. Brown, 7 Vet.App.
36, 40 (1994) (noting that a medical opinion is "only that, an opinion" providing medical evidence).
There is no requirement that a medical examiner comment on every favorable piece of evidence in
a claims file. See Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (noting that the law imposes
no reasons-or-bases requirement on examiners). Rather, examination reports are adequate when they
sufficiently inform the Board of a medical expert's judgment on a medical question and the essential
rationale for that opinion. See D'Aries v. Peake, 22 Vet.App. 97, 104 (2008) ("An opinion is
adequate where it is based upon consideration of the veteran's prior medical history and examinations
and also describes the disability in sufficient detail so that the Board's 'evaluation will be a fully
informed one.'" (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)); see also Nieves-Rodriguez,
22 Vet.App. at 301 ("[An adequate] medical examination report must contain not only clear
conclusions with supporting data, but also a reasoned medical explanation connecting the two."
(citing Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007)). Moreover, the severity of Mr. Monzingo's
10
current hearing loss and his exposure to noise in service are not at issue in this appeal; both facts
were conceded by the Board. See R. at 12-13.3
Furthermore, although Mr. Monzingo correctly notes that the rationale provided by the
examiner did not explicitly lay out the examiner's journey from the facts to a conclusion, his
argument that this renders the examination inadequate is unpersuasive. Although the examiner's
statement only noted that she applied her medical judgment to the evidence in military records, the
medical report must be read as a whole, see Acevedo, 25 Vet.App. at 294, and–on review of the
report as a whole–it is clear that the examiner based her opinion on the lack of any significant in-
service change in hearing; the length of time between service and the onset of hearing loss, and her
medical experience that the onset of hearing loss under such circumstances was not due to noise
exposure while in service. See R. at 72 ("Military medical records indicate the veteran had no
significant change in hearing sensitivity from enlistment to separation. Records indicate veteran
complained of tinnitus in service but not hearing loss."), 73 ("Veteran denies . . . head/ear trauma."),
75 ("Veteran's . . . hearing loss is not caused by or a result of [or] . . . aggravated by acoustic trauma
in service . . . . Opinion given based on clinical experience and evidence found in military medical
records."). Mr. Monzingo may not agree with the examiner, but he fails to demonstrate that he has
the competence to rebut her opinion, see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir.
2007) (noting general competence of laypersons to testify as to symptoms but not medical
diagnoses), and he cites no record evidence indicating that the examiner was incompetent, had
erroneous facts, or misinformed the Board. See Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir.
2009); D'Aries, supra.
Although the examiner did not comment on the findings of various medical studies regarding
3
To the extent that Mr. Monzingo contends that the Board did not consider the favorable evidence that he
believes was overlooked by the examiner, the Court does not agree. See Gabrielson, 7 Vet.App. at 40 (holding that the
Board cannot "evade [its] statutory responsibility [to state the reasons or bases for its conclusions] merely by adopting
[a medical opinion] as its own" where the medical opinion "fails to discuss all the evidence which appears to support
[the] appellant's position"). The Board expressly set forth the results of Mr. Monzingo's most recent hearing evaluation
and acknowledged that his hearing loss was sufficiently severe to qualify as a disability for VA purposes. R. at 12. The
Board also addressed Mr. Monzingo's hearing loss history, noting that he (1) entered service with some level of hearing
loss in his right ear, (2) was exposed to noise in service, and (3) received disability benefits for tinnitus as a result. R.
at 13. All told, it is clear that, even if the February 2008 VA examiner did not address some of the relevant favorable
evidence in his claims file, as Mr. Monzingo contends, the Board satisfied its duty to do so. See Moore, 21 Vet.App.
at 218; Gabrielson, 7 Vet.App. at 40.
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hearing loss, the general presumption of competence includes a presumption that physicians remain
up-to-date on medical knowledge and current medical studies. See AMERICAN MEDICAL
ASSOCIATION CODE OF MEDICAL ETHICS, Principle of Medical Ethics V ("A physician shall continue
to study, apply, and advance scientific knowledge, maintain a commitment to medical
education . . . ."); see also Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011) (noting that, in
the absence of clear evidence to the contrary, VA medical examiners are presumed competent); Rizzo
v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (same). This same principle applies to
audiologists and hearing loss professionals as well. See AMERICAN ACADEMY OF AUDIOLOGY, Code
of Ethics (http://www.audiology.org/resources/documentlibrary/Pages/codeofethics.aspx (last visited
Oct. 22, 2012)), Principle 2 ("Members shall maintain high standards of professional competence
in rendering services."), Rule 2f ("Individuals shall maintain professional competence, including
participation in continuing education."). Contrary to Mr. Monzingo's contention, the fact that the
February 2008 VA examiner did not explicitly cite any studies is not evidence that she was unaware
of such studies, and is not a basis for finding the examination report inadequate. See Sickels, Rizzo,
and D'Aries, all supra.
Furthermore, even if a medical opinion is inadequate to decide a claim, it does not necessarily
follow that the opinion is entitled to absolutely no probative weight. If the opinion is based on an
inaccurate factual premise, then it is correct to discount it entirely. See Reonal v. Brown, 5 Vet.App.
458, 461 (1993). However, if the opinion is merely lacking in detail, then it may be given some
weight based upon the amount of information and analysis it contains. See Nieves-Rodriguez, 22
Vet.App. at 302; Washington v. Nicholson, 19 Vet.App. 362, 368 (2005) (citing United States v.
Welsh, 774 F.2d 670, 672 (4th Cir.1985) ("The probative value of evidence is its tendency . . . to
establish the proposition that it is offered to prove." (internal quotations omitted))). Otherwise, a
favorable medical opinion from a veteran's doctor that was unsupported by analysis would not be
sufficient to trigger the Secretary's duty to assist. See McLendon v. Nicholson, 20 Vet.App. 79, 83
(2006) (holding that 38 U.S.C. § 5103A(d)(2) requires that a medical opinion to be provided where
the evidence indicates that a claim has merit but is insufficient to grant the claim). Thus, VA is not
permitted to completely ignore even an "inadequate" opinion or examination, whether it is in favor
or against a veteran's claim. The Board is obligated to consider all pertinent medical and lay
12
evidence. See Hogan v. Peake, 544 F.3d 1295, 1298 (Fed. Cir. 2008) (citing 38 C.F.R. § 3.303(a)).
VA is required, however, to return VA examination reports for clarification where the report
contains insufficient detail or where the diagnosis is not supported by the report's findings, 38 C.F.R.
§ 4.2 (2012), and to return private examinations under more limited circumstances, Savage v.
Shinseki, 24 Vet.App. 259, 269 (2011). Here, Mr. Monzingo has not demonstrated, as is his burden,
that the February 2008 VA examination report was so lacking in detail as to require VA to return it
for clarification. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009)
(holding that it is the claimant's general evidentiary burden to establish all elements of the claim).
Overall, the Board did not clearly err by finding the February 2008 VA examination report
adequate and probative, and relying on it in support of its decision. See D'Aries, 22 Vet.App. at 104
("Whether a medical examination is adequate is a finding of fact, which this Court reviews under
the 'clearly erroneous' standard.").
E. Improved Hearing Acuity
Mr. Monzingo's final argument is that the Board clearly erred in finding that his hearing
acuity improved during service because Noise and Military Service states that hearing loss due to
acoustic trauma is irreversible. However, as stated above, Noise and Military Service was not
actually or constructively before the Board and the Court may not take judicial notice of the
Committee's findings contained in that report because they have not been shown to be of universal
notoriety or not subject to reasonable dispute. Succinctly stated, Mr. Monzingo fails to identify any
competent record evidence demonstrating that the Board's finding that his hearing acuity improved
during service is clearly erroneous. See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) ("'A finding
is "clearly erroneous" when . . . the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.'" (quoting United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948))); see also Hilkert, supra. Moreover, even if it were medically impossible
for hearing acuity to improve after acoustic trauma, the logical inference is then that the hearing loss
in this case was not caused by acoustic trauma. The pivotal question is whether his hearing acuity
worsened during service, see 38 U.S.C. § 1153 (disability noted upon entry to service is presumed
to be aggravated in service if there is an increase in disability during service), and Mr. Monzingo
fails to demonstrate that the Board clearly erred in relying on the service medical records and 2008
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VA medical report, which reflect no worsening in service, rather than Mr. Monzingo's recent
statements, which contend a worsening in service. See Hilkert and Gilbert, both supra.
IV. CONCLUSION
Upon consideration of the foregoing, the February 25, 2010, Board decision is AFFIRMED.
KASOLD, Chief Judge, concurring: I concur with the Court's decision, but write separately
to further address Mr. Monzingo's argument that the February 2008 VA examination report is
inadequate as a matter of law solely because it lacks a stated rationale for the examiner's opinion.
Mr. Monzingo's argument is based on an inaccurate interpretation of our caselaw: namely, plucking
out of context the statements in Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008), that a
medical report is not "entitled to any weight . . . if it contains only data and conclusions"(emphasis
added), and in Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007), that a medical report "must support
its conclusion with an analysis" (emphasis added). Standing alone and taken out of context, one
might conclude that a medical opinion cannot be afforded any weight by the Board if it lacks a
specific explanation.
However, Nieves-Rodriguez and Stefl must be read in context. See Reiter v. Sonotone Corp.,
442 U.S. 330, 341 (1979) ("[T]he language of an opinion is not always to be parsed as though we
were dealing with language of a statute."); U.S. v. Bird, 124 F.3d 667, 677 n.3 (5th Cir. 1997)
("While certain language in [a precedent], read in isolation, might be understood to embrace a
somewhat far-reaching . . . analysis, the opinion must be read in the context of what was before the
panel there . . . ."). Significantly, both of those cases dealt with the weighing of multiple medical
opinions and the Board's evaluation of the probative weight of multiple opinions. See Nieves-
Rodriguez, 22 Vet.App. at 302 (stating that "this Court's review of the Board's evaluation of
competing medical opinions will be enhanced by" the enumerated guidelines in that case, and that
the Court would review those guidelines "where the Board favors one medical opinion over another"
(emphasis added)); Stefl, 21 Vet.App. at 124 ("[A medical opinion] must support its conclusion with
an analysis that the Board can consider and weigh against contrary opinions." (emphasis added)).
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Thus, in context, Nieves-Rodriguez and Stefl hold that, when the conclusions of two or more medical
professionals differ, rationale is an essential ingredient to the Board's weighing of those opinions.
Moreover, our caselaw is quite clear that an expert opinion is adequate if it (1) is based on
a correct factual premise, Reonal v. Brown, 5 Vet.App. 458, 461 (1993), (2) is based on the pertinent
medical history and examinations, D'Aries v. Peake, 22 Vet.App. 97, 104 (2008); Green v.
Derwinski, 1 Vet.App. 121, 124 (1991) (same), (3) is not plagued by ambiguity or inconsistency,
Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), and (4) provides sufficient detail to fully inform the
Board on its medical question, D'Aries and Green, both supra. Indeed, there is no reasons-or-bases
requirement for medical examiners, and medical reports are to be read as whole, taking into
consideration the history, tests, and examinations upon which the report is based. See Acevedo v.
Shinseki, 25 Vet.App. 286, 294 (2012).
Accordingly, even though the sole medical opinion of record in this case lacked an explicit
rationale, it was fully understandable when read as a whole, uncontroverted, based on a review of
pertinent medical history and an examination, and it fully informed the Board on its medical
question. Our caselaw states, and the Court reiterates in its decision today, that such an opinion is
adequate and may be assigned probative value. See D'Aries, 22 Vet.App. at 104; see also Acevedo,
supra.4
4
Although not cited by Mr. Monzingo, I note that Horn v. Shinseki, 25 Vet.App. 231, 240-42 (2012), favorably
cites Nieves-Rodriguez for the proposition that "an unexplained conclusory opinion is entitled to no weight." However,
the Court's conclusion that the medical evaluation board report at issue in Horn did not constitute clear and unmistakable
evidence rested on the fact that the report summarily had found no in-service aggravation without record evidence
indicating the full scope of the medical records that had been reviewed or whether the summary opinion was predicated
on any examination and testing, such that it was wholly unclear why the report found no in-service aggravation.
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