Flash v. Brown

8 Vet. App. 332, 1995 U.S. Vet. App. LEXIS 750, 1995 WL 592995
CourtUnited States Court of Appeals for Veterans Claims
DecidedOctober 10, 1995
DocketNo. 94-0206
StatusPublished
Cited by34 cases

This text of 8 Vet. App. 332 (Flash v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flash v. Brown, 8 Vet. App. 332, 1995 U.S. Vet. App. LEXIS 750, 1995 WL 592995 (Cal. 1995).

Opinions

[335]*335STEINBERG, Judge, filed the opinion of the Court. NEBEKER, Chief Judge, filed a concurring opinion.

STEINBERG, Judge:

The appellant, veteran Sumner E. Flash, appeals a December 23, 1993, decision of the Board of Veterans’ Appeals (BVA or Board) denying (1) service connection for bilateral hearing loss and (2) an earlier effective date for an increased rating for a right-eye disability. Record (R.) at 10. For the reasons that follow, the Court will dismiss the appeal as to the claim for an earlier effective date, and will vacate the Board decision as to the claim for service connection for hearing loss and remand the matter.

I. Background

The veteran served in the U.S. Army from July 1955 to May 1957. • R. at 200. A July 1955 induction medical examination report revealed no pertinent abnormalities, and indicated that his whispered-voice hearing test results were 15/15. R. at 28-29. Service medical records (SMRs) show that in October 1956 he was seriously injured when a shell exploded near him during a training exercise in Germany. R. at 42. He sustained a partial traumatic amputation of the right hand (four fingers apparently, see R. at 217) and a penetrating wound to the right eye with a retained foreign body. R. at 36. The injury resulted in blindness of the right eye except for light perception. R. at 147, 157. In November 1956, the right eye was described as “white”. R. at 117. A November 1956 SMR noted “no loss [of] hearing — tinnitus on occasion in recent weeks” (R. at 104), and an audiogram was normal (R. at 112). An SMR progress note stated: “Patient complains of strange feeling in right ear. Exam by Dr. Foster reveals no abnormality. Hearing is apparently not affected.” R. at 112. An April 1957 separation medical examination SMR reported his whispered-voice hearing test results as 15/15. R. at 186. He was separated from service in May 1957 due to disability. R. at 194.

In June 1957, the veteran filed with a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) an application for compensation or pension. R. at 202. A VARO decision later that month awarded service connection for right-hand wound residuals, rated 50% disabling, and aphakia of the right eye, rated 30% disabling, with a combined rating of 70% effective from May 1957. R. at 207. (“Apha-kia” is the absence of the lens of the eye. Dorland’s Illustrated Medical Dictionary 110 (27th ed. 1988).) He was also awarded special monthly compensation for loss of use of the right eye and right hand. R. at 207, 210. This decision was not appealed to the Board and became final. See R. at 411. An August 1958 VA examination report indicated a “traumatic cataract” in the right eye and noted that the “lens substance [was] opaque.” R. at 215, 217.

In August 1983, the veteran wrote to the RO that he had been “recently experiencing ... a noticeable ... hearing impairment”. R. at 225. He submitted a notarized statement from a person who had supervised him at work from 1963 to 1966, averring that' he knew the veteran had suffered from a hearing problem because he had “had to repeat commands or conversations to him.” R. at 230. The veteran also submitted a June 1984 letter from Dr. David Bailen, stating that he had been the veteran’s physician for “a number of years” and that “[p]ast history reveals that after an explosion which occurred in 1956, [the veteran] has had a constant ringing and hearing loss of the right ear.” R. at 233. A June 1984 VA hearing examination report recorded mild sensorineural hearing loss in the left ear and “moderate-severe mixed loss” in the right ear, with “discrimination excellent” in both ears. R. at 237-38.

A December 1984 RO decision continued the veteran’s 70% combined rating and denied service connection for hearing loss, tinnitus, and unemployability. R. at 241-42. R. at 241. The veteran appealed to the BVA. R. at 244, 252. He submitted a May 1985 letter from Dr. Clubb, stating that he had first seen the veteran in May 1985 for complaints of tinnitus and hearing loss and reporting the following pure-tone audiometric results:

Hz. 500 1000 2000 4000
Right ear 15 40 60 30
Left ear 25 35 55 35

[336]*336R. at 254. Dr. Clubb noted that “a traumatic acoustic notch” was present in both ears; that speech discrimination was 88% in both ears; and that the Lombard malingering test indicated that the veteran’s responses were reliable. R. at 255-56. He stated:

In my medical opinion, there is a direct causal relationship between your bilateral deafness (mixed on right, sen[s]orineural on left) with associated tinnitusf] (right ear, and head) and between [sic] the maiming blast from the exploding 40 mm shell while on active military service, 10-13-56. The reasons for my medical opinion are:
1) there is a documented blast injury, resulting in acute acoustic trauma and fragmented[-]shell injuries to the face and head.
2) the above[-]noted symptoms are generally associated with blast type of injuries.
3) 65% of all acoustic trauma results in sensorineural deafness, and tinnitus.
4) [an] additional 35% of all patients with tinnitus, have this symptom resulting from an explosive type [o]f injury.
5) audiometry demonstrates the typical high tone acoustic notch which is patho-neumonic [sic] of acoustic trauma. (This is present in your case.)
6) the frequency of tinnitus is measured at 750 CPS and requires a noise loud[ne]ss of 70 Db to demonstrate residual inhibition, of this ringing noise in your right ear.
7) it is my suspicion that the mixed deafness of your right ear, relates to disarti-culation of the ossicular chain, resulting from positive and negative pressures from the blast injury on 10-13-56. This can be easily verified by taking Tomo-grams of the right middle ear, exploring the possibilities of the disarticulation of the ossicular chain. If this turns out to be true, then it is recommended that you undergo a right exploratory tympa-notomy and investigate the right middle[-]ear space, and whatever problems that may exist there, thereby improving and restoring lost hearing.
My final diagnosis is:
1) mixed deafness, moderate to severe in the right ear, with tinnitus, resulting from the blast injury.
2) sensorineural deafness of a moderate to severe degree, secondary to blast injury.
3) tinnitus secondary to a[co]ustic trauma from the blast injury.
4) ? of ossicular chain disarticulation in right ear, secondary to blast injury.

R. at 256-57.

In July 1985, the RO again denied service connection for hearing loss and tinnitus. R. at 275. The BVA, in January 1986, denied service connection for a hearing loss on the grounds that no hearing problem was diagnosed in service and that the first complaint of tinnitus and the first diagnosis of defective hearing was in 1984, 27 years after separation from service. R. at 285-86. A June 1987 letter from Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
8 Vet. App. 332, 1995 U.S. Vet. App. LEXIS 750, 1995 WL 592995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flash-v-brown-cavc-1995.