Heuer v. Brown

7 Vet. App. 379, 1995 U.S. Vet. App. LEXIS 97, 1995 WL 46726
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 7, 1995
DocketNo. 93-992
StatusPublished
Cited by71 cases

This text of 7 Vet. App. 379 (Heuer 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
Heuer v. Brown, 7 Vet. App. 379, 1995 U.S. Vet. App. LEXIS 97, 1995 WL 46726 (Cal. 1995).

Opinion

STEINBERG, Judge:

The appellant, Douglas A. Heuer, appeals, through counsel, a June 16, 1993, Board of Veterans’ Appeals (BVA or Board) decision finding that the veteran had not submitted new and material evidence and thus denying the reopening of his claim for service connection for right-ear hearing loss. Record (R.) at 5-6. A timely appeal to this Court followed. The Secretary has filed a motion for summary affirmance. The appellant has filed a motion in lieu of a brief and a response to the Secretary’s motion. Because this case presents legal issues of first impression, single-judge summary disposition is not appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The Secretary’s motion will be denied, and, for the reasons that follow, the Court will affirm the decision of the Board.

I. Background

The appellant, Douglas A. Heuer, served on active duty in the U.S. Air Force from January 1963 to January 1967. R. at 10. His entrance medical examination did not report a pure-tone hearing test, but did report “normal” ears with “hearing” test results partially illegible but apparently 15/15 bilaterally. See R. at 12-13. The veteran’s service medical records (SMRs) indicate that the following pure tone hearing tests were performed while he was in service (the 6000 hz. readings are not included because they are not considered pertinent under Department of Veterans Affairs (VA) regulation 38 C.F.R. § 3.385):

September 1963 (R. at 19):

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November 1964 (R. at 20):

December 1966 separation examination (R. at 29):

[382]*382A medical evaluation accompanying the December 1966 hearing test stated that the veteran’s ears were “normal”. R. at 28.

In May 1990, the veteran filed with a VA regional office (RO) an application for compensation or pension for “hearing loss — 1964 to 1967”, stating that he had been treated for hearing loss in January 1967 at Shaw Air Force Base in South Carolina. R. at 43^46. (No medical records from 1967 are contained in the record on appeal (ROA).) In August 1990, finding that the veteran’s SMRs from December 1962 to December 1966 and his entrance and separation medical examinations had shown normal hearing for VA purposes, the VARO denied the claim. R. at 49-50. The veteran appealed, and VA issued a Statement of the Case (SOC), stating:

[A] VA examination conducted March 11, 1968, did not include an audiometric examination. The examiner stated ears were externally normal with clear canals and drums. Veteran stated he had not really noted much of a problem with hearing, but the examiner stated that review of [SMRs] showed some high tone losses.

R. at 56. (The March 1968 examination report referred to in the SOC is not contained in the ROA.) In December 1990, the veteran submitted a report of a November-1990 private pure tone audiogram and speech au-diometry test (R. at 60-61) and, in response, the RO issued a December 1990 confirmed rating decision finding that hearing loss was not incurred in service and thus denying service connection for hearing loss. R. at 64.

The veteran appealed to the Board of Veterans’ Appeals (BVA or Board), and in an August 8, 1991, decision the Board awarded service connection for left-ear hearing loss but denied service connection for right-ear hearing loss. R. at 69. The Board stated:

The reported clinical findings [from SMRs] clearly establish that the veteran’s right ear hearing acuity was within normal limits for VA purposes on audiometric examinations in September 1963 and at separation in December 1966. On audiometric testing in November 1964 his right ear hearing was only abnormal in the reported 40 decibel threshold at 3,000 hertz. His hearing at this frequency was within the limits of normal at separation, and therefore the overall pattern of audiome-tric testing establishes that the veteran’s hearing was normal at separation and therefore defective hearing was not incurred in service. Moreover, there is no evidence of record that establishes right ear sensorineural hearing loss within one year following the veteran’s separation from active duty. The private audiological evaluation, dated in November 1990, establishes right ear defective hearing; however, this evidence comes over 20 years after the veteran’s separation from active service. We have noted the argument advanced on appeal that the claim should be allowed because “accepted medical [principles] would allow for gradual loss after the incipient first evidence of loss”. No citation of authority for this theory is advanced. ...
The veteran’s separation examination does reveal left ear defective hearing at the 3,000 hertz frequency. Based on the evidence of consistent diminishing left ear hearing acuity during service with a showing of defective hearing at separation from active duty, service connection is established for defective hearing, left ear.

R. at 68-69 (emphasis added).

In September 1991, the veteran underwent a VA hearing test, during which he complained of hearing loss, tinnitus, and vertigo. R. at 72-73. Speech recognition (without an indication of the test used) was 90% in the right ear and 88% in the left ear. R. at 74. The pure tone audiogram indicated:

Ibid. The “comments” section of the hearing test report indicated:

[M]ild to mod[erate] ... high ireqfueney] [sensorineural] loss at 2000 Hz. and above. Vet can be expected to have communication problems] in many listening situations. He is a candidate for amplification] in either or both ears and [hearing aids] are recommended especially] for [the] left ear.

R. at 75. In December 1991, the RO determined that the veteran’s left-ear hearing loss [383]*383was less than 10% disabling and thus non-compensable. R. at 80-81. On December 80, 1991, the veteran filed a Notice of Disagreement (NOD) and submitted an undated private audiogram. R. at 84-85. The RO responded by issuing a December 31, 1991, confirmed rating decision, stating that the “undated audiometrie report recently submitted does not show any significant change in the level of hearing loss”. R. at 88.

In February 1992, the veteran stated that he wished to reopen his claim for service connection for right-ear hearing loss and submitted to the RO copies of private audio-grams dated 1971 and 1979 (R. at 96-97). He stated:

I believe I had just as much damage to both ears while in the Active Service. I am presenting a new medical and Audiology report I have been able to obtain which showfs] the hearing in 1971 and 1979. The hearing test pattern for the right and left are almost the same and I firmly believe I have had a bilateral problem with this going back to the military and it continues to this date.

R. at 100. In April 1992, the RO, finding that the 1971 and 1979 audiograms, while new, were not material as to the issue of service connection because the earliest one was dated four years after the veteran’s active duty had ended, denied reopening of the claim. R. at 104.

In May 1992, the veteran filed an NOD. R. at 106.

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Bluebook (online)
7 Vet. App. 379, 1995 U.S. Vet. App. LEXIS 97, 1995 WL 46726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heuer-v-brown-cavc-1995.