Mattson v. Derwinski

2 Vet. App. 643, 1992 U.S. Vet. App. LEXIS 210, 1992 WL 177006
CourtUnited States Court of Appeals for Veterans Claims
DecidedJuly 28, 1992
DocketNo. 91-797
StatusPublished

This text of 2 Vet. App. 643 (Mattson v. Derwinski) 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
Mattson v. Derwinski, 2 Vet. App. 643, 1992 U.S. Vet. App. LEXIS 210, 1992 WL 177006 (Cal. 1992).

Opinion

MEMORANDUM DECISION

STEINBERG, Associate Judge:

The pro se appellant, veteran Larry D. Mattson, appeals from a February 14,1991, decision of the Board of Veterans’ Appeals (BVA or Board) denying service-connected disability compensation for hearing loss and tinnitus. Because the Board failed to provide an adequate statement of the reasons and bases for its findings and conclusions, including its evaluation of evidence favorable to the veteran and of the applicability of the benefit-of-the-doubt rule, the matter will be remanded to the Board for readjudication.

In a pleading before the Court in opposition to a motion of the Secretary of Veterans Affairs (Secretary) for summary affirmance, the appellant submitted two documents which he seeks to have the Court consider. The first is a letter dated December 17, 1991 — after the BVA decision here on appeal — from a Department of Veterans Affairs (VA) physician. The second is a reproduction of a page in the record on appeal, submitted because part of the writing on the original document was apparently inadvertently cut off from the copy currently in the record. Review in this Court is limited by statute to review “on the record of proceedings before the Secretary and the Board.” 38 U.S.C. § 7252(b) (formerly § 4052); see Rogozinski v. Derwinski, 1 Vet.App. 19, 20 (1990). The Court may not consider new evidence which was not in the record before the Board and VA. Rogozinski, supra. The December 17, 1991, letter could not have been part of the record before the Secretary and Board, and thus the Court may not consider it in connection with this appeal. The appellant will be free to submit that document to the BVA on the remand pursuant to this decision. The second document submitted by the appellant was a part of the record before the Secretary and the Board. The copy submitted by the appellant does contain some writing which does not appear on the copy currently in the record. The Court deems the appellant’s submission of this document to be a motion to file, out of time, a supplemental [645]*645record on appeal, and grants the motion. That document will be considered by the Court in reaching its decision on this appeal.

The veteran served in the United States Army Reserves from May 1957 to April 1965. He had periods of active duty from July 15 to December 16, 1958, and from July 12 to July 26, 1959. R. at 21. His service medical records were apparently destroyed or “severely damaged” by a fire at the National Personnel Records Center in 1973. Ibid. He asserts that he suffered hearing loss and tinnitus as the results of exposure to severe noise from weapons fire during the periods of active duty noted above. In support of his claim for service-connected disability compensation, he submitted audiogram reports and physicians’ notes and letters dating from December 1959 to February 1961, all verifying that the veteran had hearing loss and ringing in the ears at that time, and containing diagnoses of “nerve loss of hearing” and “sensory-neural loss”. R. at 5-13. A July 22, 1960, medical report stating an opinion that the veteran suffers “sensory-neural loss” also contains the notation “etiology obscure”. R. at 10. In the absence of an entrance examination, the appellant may be entitled to the presumption of sound condition at entry onto active duty. 38 U.S.C. § 1111 (formerly § 311).

At a March 16, 1990, personal hearing before a VA Regional Office, the appellant testified under oath that he had first suffered hearing loss and ringing in the ears during his period of active duty in 1958, after exposure to extremely loud noise from ammunition fire in weapons training, and that those conditions became constant during his period of active duty in July 1959 and have continued ever since. R. at 40-53. At that hearing, the appellant also submitted a March 15, 1990, statement from a VA audiologist who stated that he had reviewed the appellant’s old audio-grams and that the hearing loss shown on those reports was “consistent with the [reported] noise exposure this veteran had during his six month active duty” (R. at 54); and a statement from an individual who asserted that he had served in basic training with the appellant and that the appellant often had complained of ringing in his ears after being on the firing range (R. at 55).

In its February 14, 1990, decision denying service connection for hearing loss and tinnitus, the BVA concluded that “the fact remains that the chronological circumstances in this case are such that the origins of the appellant’s hearing loss and tinnitus remain a matter of considerable speculation, as there are simply too many other factors of a possibly precipitating and/or contributory nature which have not been ruled out, despite testimony and contentions furnished by the appellant to the contrary.” Larry D. Mattson, BVA 91-12694, at 5 (Feb. 14,1991). The Board also concluded: “In coming to the above decision the Board has considered the doctrine of affording the appellant the benefit of any existing doubt. However, the eviden-tiary record is not so evenly balanced as to warrant the resolution of this matter on that basis.” Ibid.

The Board is required to give reasons or bases for its findings and conclusions, including an analysis of “the credibility or probative value of the evidence submitted by or on behalf of the veteran in support of his claim”. Gilbert v. Derwinski, 1 Vet.App. 49, 59 (1990); see 38 U.S.C. § 7104(d)(1) (formerly § 4004); Cousino v. Derwinski, 1 Vet.App. 536, 540 (1991). The “reasons or bases” requirement also obligates the Board to provide the reasons or bases for its analysis of the applicability of the benefit-of-the-doubt rule in 38 U.S.C. § 5107(b) (formerly § 3007) and 38 C.F.R. § 3.102 (1991). See Tobin v. Derwinski, 2 Vet.App. 34, 39 (1991). Moreover, where a veteran’s service records are missing, “the BVA’s obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened.” O’Hare v. Derwinski, 1 Vet.App. 365, 367 (1991). The BVA failed to comply with these requirements.

The BVA decision does not contain any statement of findings as to the credibility and probative value of the veteran’s sworn [646]*646testimony and the lay and medical evidence supporting his claim, as it was required to do. See Cartright v. Derwinski, 2 Vet.App. 24, 25-26 (1991); Hatlestad v. Derwinski, 1 Vet.App. 164, 169-70 (1991); Gilbert, 1 Vet.App. at 56-57. The only reason given by the Board for its conclusion was that “there are too many other factors of a possibly precipitating and/or contributory nature which have not been ruled out”. Mattson, BVA 91-12694, at 5. However, the Board did not identify any such “other factors” in its decision, nor is there any evidence in the record attributing the veteran’s hearing loss and tinnitus to any such “other factors”. Under these circumstances, the Board’s discussion is “neither helpful to the veteran, nor clear enough to permit effective judicial review, nor in compliance with statutory requirements.” Gilbert,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rogozinski v. Derwinski
1 Vet. App. 19 (Veterans Claims, 1990)
Frankel v. Derwinski
1 Vet. App. 23 (Veterans Claims, 1990)
Gilbert v. Derwinski
1 Vet. App. 49 (Veterans Claims, 1990)
Hatlestad v. Derwinski
1 Vet. App. 164 (Veterans Claims, 1991)
O'Hare v. Derwinski
1 Vet. App. 365 (Veterans Claims, 1991)
Fletcher v. Derwinski
1 Vet. App. 394 (Veterans Claims, 1991)
Cousino v. Derwinski
1 Vet. App. 536 (Veterans Claims, 1991)
Cartright v. Derwinski
2 Vet. App. 24 (Veterans Claims, 1991)
Tobin v. Derwinski
2 Vet. App. 34 (Veterans Claims, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
2 Vet. App. 643, 1992 U.S. Vet. App. LEXIS 210, 1992 WL 177006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mattson-v-derwinski-cavc-1992.