Joe L. Monzingo v. Eric K. Shinseki

26 Vet. App. 97, 2012 U.S. Vet. App. LEXIS 2324, 2012 WL 5869404
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 21, 2012
Docket10-0922
StatusPublished
Cited by90 cases

This text of 26 Vet. App. 97 (Joe L. Monzingo v. Eric K. Shinseki) 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
Joe L. Monzingo v. Eric K. Shinseki, 26 Vet. App. 97, 2012 U.S. Vet. App. LEXIS 2324, 2012 WL 5869404 (Cal. 2012).

Opinions

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. Monzin-go 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.

[100]*100The 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 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.

[101]*101In 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 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

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Bluebook (online)
26 Vet. App. 97, 2012 U.S. Vet. App. LEXIS 2324, 2012 WL 5869404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joe-l-monzingo-v-eric-k-shinseki-cavc-2012.