Michael H. Jones v. Eric K. Shinseki

23 Vet. App. 382, 2010 U.S. Vet. App. LEXIS 458, 2010 WL 1131917
CourtUnited States Court of Appeals for Veterans Claims
DecidedMarch 25, 2010
Docket07-3060
StatusPublished
Cited by93 cases

This text of 23 Vet. App. 382 (Michael H. Jones 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
Michael H. Jones v. Eric K. Shinseki, 23 Vet. App. 382, 2010 U.S. Vet. App. LEXIS 458, 2010 WL 1131917 (Cal. 2010).

Opinions

DAVIS, Judge:

U.S. Marine Corps veteran Michael H. Jones appeals through counsel from that portion of a September 28, 2007, Board of Veterans’ Appeals (Board) decision that denied an initial compensable rating for right ear hearing loss, and entitlement to service connection for left ear hearing loss and for erectile dysfunction claimed as secondary to the appellant’s serviceconnected Type II diabetes mellitus. See Disabled Am. Veterans v. Gober, 234 F.3d 682, 688 n. 3 (Fed.Cir.2000) (Court would only address challenges that were briefed). The principal issue before the Court is whether VA fulfilled its duty to assist by obtaining two VA medical examinations in which the examiners concluded that they were unable to render an opinion whether there was a causal link between service and the appellant’s current disabilities without resort “to mere speculation.” Record (R.) at 229, 417. This Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the following reasons, the Court will set aside the Board’s September 2007 decision insofar as it pertains to the claims for bilateral hearing loss and erectile dysfunction and remand those matters for further proceedings consistent with this decision.

I. BACKGROUND

The appellant served on active duty from February 1964 to January 1967, including service in Vietnam. His entrance [385]*385examination noted that both his ears and his genitourinary system were normal. His separation examination stated that his ears appeared normal and noted that he achieved a score of 15/15 for both ears in the whispered voice and spoken voice tests. There is no indication that he claimed any hearing difficulties on separation.

In October 2002 the appellant filed an application for service connection for multiple medical problems, including bilateral hearing loss and “busted ear drums.” R. at 45. He has consistently asserted that his hearing problems derive from exposure to small arms, mortar, and artillery fire during service. A resultant rating decision granted service connection for diabetes, but denied service connection for all other claims, including the hearing claims. A series of disagreements, appeals, and subsequent actions by the Secretary and the Board eventuated in grants of service connection for disabilities of the right ear: Hearing loss, cholesteatoma, and perforated tympanic membrane, all rated at a non-compensable level.

On August 30, 2006, the appellant called VA to “request service connection for erectile dysfunction due to medication he is taking for his service[-]conneeted diabetes.” R. at 264. An October 2006 rating decision denied that claim and the appellant initiated an appeal, which he later perfected after issuance of a Statement of the Case (SOC).

In the course of his appeals, the appellant underwent two VA examinations, both of which resulted in reports that were inconclusive as to the etiology of the claimed conditions. In an audiology examination on May 11, 2006, the VA examiner recorded test results for both ears that the Board acknowledged would constitute a disability under applicable regulations if the disabilities were service connected. See R. at 5, 10, 230; 38 C.F.R. § 3.385 (2009). The examiner opined that the appellant’s right ear hearing loss was directly related to his service-connected cholesteatoma and perforated tympanic membrane. As to the etiology of the left ear hearing loss, however, the examiner stated that “[there] is insufficient information to resolve the etiology and onset of the left ear hearing loss without resorting to mere speculation.” R. at 232.

In response to questions from the VA regional office (RO), the examiner further considered reported symptoms of tinnitus. The examiner stated that “[o]nset is currently reported as 1965,” but further remarked that “[djuring interview in 2001 for [Compensation and Pension (C & P) ], veteran reported that he had had the tinnitus for as long as he could remember. In 2001, veteran did not relate onset of tinnitus as secondary to acoustic trauma, ear injury or ear disease.” R. at 229. The examiner concluded that “[w]ith two different accounts of onset, it is not possible to resolve[ ] the issue of etiology [of tinnitus] without resort to speculation.” Id. The examiner nevertheless stated that “[t]he [left ear] hearing loss and tinnitus are more likely than not related to one or more common factors.” Id.

Another VA medical examiner conducted a genitourinary examination in January 2007. The examiner diagnosed erectile dysfunction but similarly stated: “I cannot resolve [the etiology] issue without resort to mere speculation.” R. at 417.

In the decision here on appeal,- the Board found that the left ear hearing loss was not etiologically related to service and that the erectile dysfunction was not due to or the result of the appellant’s service-connected diabetes. The Board noted that the earliest evidence of the left ear hearing disability is dated decades after the appellant’s separation from service and “there is [386]*386no contemporaneous documentation of symptomatology between the time of service and these initial findings.” R. at 6. The Board further stated that “there is no medical evidence establishing that [the erectile dysfunction] is proximately due to or the result of service-connected diabetes.” R. at 7. In both instances, the Board noted the inability of the VA medical examiners to opine on the etiology issue without resort to speculation. This appeal followed.

II. CONTENTIONS OF THE PARTIES

A. The Appellant

The appellant asserts that VA has not fulfilled its duty to assist in providing a medical examination when the examination report fails to proffer an opinion on the etiology of a disability. He notes that the applicable statute requires VA to obtain a medical opinion when, among other things, “the evidence of record before the Secretary ... does not contain sufficient medical evidence for the Secretary to make a decision on the claim.” 38 U.S.C. § 5103A(d)(2).

The appellant argues that an inconclusive medical opinion does not improve the state of the medical evidence. He reasons that the statute continues to require a medical opinion to enable the Secretary to make a decision on the claim. In his brief, he asserts that an inconclusive medical opinion constitutes “nonevidence.” See Perman v. Brown, 5 Vet.App. 237, 241 (1993). At oral argument he modified his position in accord with the recent opinion of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Fagan v. Shinseki, 573 F.3d 1282 (Fed.Cir.2009). In Fagan, the Federal Circuit, while expressing some reservations about the term “nonevidence,” explained that “[t]he examiner’s statement, which recites the inability to come to an opinion, provides neither positive nor negative support for sendee connection.

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

Related

210323-147651
Board of Veterans' Appeals, 2021
210413-152378
Board of Veterans' Appeals, 2021
210317-144674
Board of Veterans' Appeals, 2021
200115-54858
Board of Veterans' Appeals, 2020
181005-845
Board of Veterans' Appeals, 2020
190904-27230
Board of Veterans' Appeals, 2020
190710-11803
Board of Veterans' Appeals, 2020
190815-59741
Board of Veterans' Appeals, 2020
190603-11020
Board of Veterans' Appeals, 2019
190109-48428
Board of Veterans' Appeals, 2019
190820-24637
Board of Veterans' Appeals, 2019
190315-4433
Board of Veterans' Appeals, 2019
18-49 964
Board of Veterans' Appeals, 2019
181217-1792
Board of Veterans' Appeals, 2019
190211-3649
Board of Veterans' Appeals, 2019
180809-1664
Board of Veterans' Appeals, 2019
181105-1542
Board of Veterans' Appeals, 2019
180830-718
Board of Veterans' Appeals, 2019
180803-162
Board of Veterans' Appeals, 2019

Cite This Page — Counsel Stack

Bluebook (online)
23 Vet. App. 382, 2010 U.S. Vet. App. LEXIS 458, 2010 WL 1131917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-h-jones-v-eric-k-shinseki-cavc-2010.