# Godfrey v. Brown > United States Court of Appeals for Veterans Claims · August 9, 1995 · 8 Vet. App. 113 URL: https://www.frixlaw.com/law-library/cases/6612652 ## Case - **Full name:** Robert G. GODFREY v. Jesse BROWN, Secretary of Veterans Affairs - **Court:** United States Court of Appeals for Veterans Claims - **Decided:** August 9, 1995 - **Citations:** 8 Vet. App. 113; 1995 U.S. Vet. App. LEXIS 608; 1995 WL 478229 - **Precedential status:** Published - **Opinion:** Dissent by Steinberg - **Judges:** Ivers, Mankin, Steinberg - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6612652 ## How later opinions describe it (automated extraction) - holding that Board had a plausible basis for rejecting the probative value of doctor’s statements ## Opinion text STEINBERG, Judge, dissenting. I am unable to join in the opinion of the majority affirming the Board of Veterans’ Appeals (BVA or Board) decision. My basic disagreement is with the portion of the Board decision rejecting the appellant’s Theory # 2 for service connection of his hearing loss. The appellant’s Theory # 2 is that his hearing was damaged during service in such a way that only a sophisticated test would have detected the damage at that time; that hearing loss was not noticeable to him at separation from service; and that it took the passage of many years before his service-incurred hearing damage manifested as noticeable hearing loss. 1 The majority opinion is based on an unwarranted and unstated extension of the Court’s holdings in Owens v. Brown, 1 Vet.App. 429 (1995), and Elkins v. Brown, 5 Vet.App. 474 (1993), and other Court jurisprudence. I also have reservations about the majority’s affirmance of the BVA decision in regard to the appellant’s Theory # 1 (that in some cases, progressive hearing loss may occur after cessation of exposure to noise), given the BVA’s mischaracterization of the treatise evidence it cited. 2 I would thus remand that question as well since I believe remand is required as to Theory # 2. However, if, as I believe should be done (see part II.A. infra), the Court were to reverse the Board on Theory # 2 and direct the award of service connection, then the Court would not be called upon to address Theory # 1. I. Majority Opinion A. Medical history. The majority states that in the instant case the Board determined that the two experts who had reviewed the veteran’s records, Drs. Hoover and Ator, “relied on a medical history as related by the appellant”, and then states: “The Board is not required to accept doctors’ opinions that are based upon the appellant’s recitation of medical history.” Ante at 121. Our cases have never before explicitly held that the Board may reject physicians’ opinions merely because they “are based upon the appellant’s recitation of medical history”. The majority cites several cases, including Owens and Elkins , both supra, as support for such a proposition, but none of those cases actually held that the BVA is free to disregard a physician’s statement that is based on an appellant’s history. Owens does state: The BVA was not bound to accept the appellant’s uncorroborated testimony that teeth numbered 3, 4, 15, and 18 were removed in service, nor was it bound to accept the opinions of Drs. Ward and Cherry that were based on the appellant’s recitation of his dental history. See Wood v. Derwinski, 1 Vet.App. 190, 192 (1991); *125 Wilson v. Derwinski, 2 Vet.App. [614], 618 (1992). Owens, 7 Vet.App. at 433. However, the Owens opinion notes in the very next sentence that “the appellant’s S[erviee] M[edical] R[ecord]s [SMRs] do not show that teeth numbered 3, 4, 15, and 18 were removed in service”, and then concludes: “Because the appellant’s testimony conflicts with his SMRs, the Board’s rejection of the doctors’ opinions, which were based on dental history related by the appellant, is justified.” Ibid. (emphasis added). Thus, read fairly, Owens does not stand for the proposition that in a case such as this one where the veteran’s testimony was not contradicted by SMRs (indeed, where the veteran’s SMRs were lost in a fire) the Board may reject physicians’ retrospective opinions on the sole ground that they are based on the appellant’s recitation of medical history. 3 Neither do the two cases cited in the majority’s quotation from Owens (Wood and Wilson, both supra), nor an additional case cited by the majority (Swann v. Brown, 5 Vet.App. 229 (1993), ante at 121), stand for that proposition. In Wood, Wilson, and Swann , the appellants were seeking service connection for post-traumatic stress disorder (PTSD). Entitlement to compensation for disability relating to PTSD is a special matter because the veteran must prove the occurrence of a stressor — a legal, not medical, requirement. When a physician relies on a veteran’s account of a legally insufficient stressor in making a diagnosis of PTSD, that diagnosis can be rejected by the BVA on that ground rather than on the ground that the patient supplied the history. In Wood, Wilson, and Swann , the Court cited evidence indicating that the required PTSD stressor had not occurred. Moreover, the majority has decided, without discussion or analysis, that the phrase “based on” in Owens, supra, means “based in part on”. This appears to be the first time the Court has taken it upon itself to decide that a physician’s consideration of patient history invalidates a diagnosis, notwithstanding the fact that there is evidence of several factors other than patient history considered by the veteran’s physician. 4 It is trenching on the area of the expertise of a physician for the Court to state that a physician cannot use history recounted by the patient in reaching a conclusion about the nature or etiology of an illness. A patient’s “case history” is generally an integral part of a diagnosis, and physicians are trained to evaluate the credibility of a patient’s medical history. 5 The majority also mischaracterizes the holding of Elkins, supra, by taking a quotation out of context. Although Elkins does hold that a physician’s statement was “not material”, it did not do so, as the majority suggests, merely because the physician relied on a history related by the veteran. Rather, as Elkins expressly stated, it was because the physician’s statement was based on the *126 “appellant’s own account of his medical history and service background, recitations which have already been rejected by the RO and BVA.” Elkins, 5 Vet.App. at 478 (citing Reonal v. Brown, 5 Vet.App. 458, 460 (1993) (emphasis added)). 6 B. Treatise evidence. One other mistake made by the majority in rejecting Theory # 2 is its reliance on the Board’s quotation of a passage from Dr. Alberti’s article in Diseases of the Nose, ThRoat, EaR, Head, and Neck 1059 (J.J. Ballenger, 14th ed., 1991) [hereinafter “Ballenger”], which states that “hearing loss that progresses after removal from noise exposure is from some other cause”. Although this passage might apply to the appellant’s Theory #1, it is irrelevant to Theory #2. Under Theory # 2, the appellant admits that the postservice proyression in his hearing loss is due to age-related changes in his hearing, not noise exposure. However, he contends that that progression has made the occult noise-induced damage to his hearing that he asserts he suffered during service become overtly symptomatic. Thus, the excerpt from the Ballenger treatise cited by the majority as rebutting Theory # 2 does not, in fact, contradict that theory in any way. II. Board Errors I believe that this case should be (1) reversed, with the Board directed to award service connection, or (2) at the least, remanded, because the BVA’s statement of the reasons or bases for its decision was inadequate. 7 A. Reversal. In support of his Theory # 2, the veteran presented reports from two physicians, specialists in otolaryngology, indicating that his audiograms showed a pattern typical of noise-induced hearing loss (NIHL) and that his hearing loss resulted from noise trauma while serving as a weapons instructor in the Army. R. at 106, 283. One of these specialists opined that the “whisper test” he received in his separation medical examination could not have detected his type of hearing loss. R. at 109. 8 Furthermore, the appellant presented a letter from Dr. Alberti, also an otolaryngologist and the very expert whose article in the Ballenger treatise was quoted extensively and relied upon by the BVA. Dr. Alberti’s letter stated that, although damage from noise trauma is not “progressive” after exposure to noise ceases, the damage may not become manifest as noticeable hearing impairment until a person has lost additional “hair cells” during the aging process. R. at 271-72. In other words, Dr. Alberti’s letter clearly supports the appellant’s assertion that his hearing was damaged but that he was not aware of it at the time, and that he suffers from age-related hearing loss earlier and more severely than if he had not been exposed to noise trauma. Dr. Alberti characterizes early, severe onset of age-related hearing loss following noise trauma as a “frequent” occurrence. R. at 271. The only evidence apparently cited by the Board in *127 opposition to the appellant’s Theory # 2 was the article by Dr. Alberti in the Ballenger treatise. 9 See R. at 14-15. The Alberti article does not, however, support the Board’s position as to Theory # 2. The Board highlights a sentence in the Alberti article which states that it is error to assume that noise exposure and hearing loss are “necessarily causally related”. R. at 13. Both by its plain meaning and in context, that sentence, which follows a discussion of diagnostic criteria for NIHL, is clearly a merely cautionary statement that hearing loss does not invariably result when a person has been exposed to noise. The sentence preceding the Board’s highlighted quoted sentence states that when noise exposure has been adequate and other causes of hearing loss have been excluded, it is “customary” to attribute the hearing loss to noise exposure. The Board inexplicably transmutes Dr. Al-berti’s purely cautionary statement into support for the Board’s own conclusion that “the evidence of record does not support the veteran’s assertion that hearing loss, like cancer, can first appear many years after exposure to the offending agent has ceased.” R. at 15. In fact, that is exactly what the veteran’s two medical specialists’ reports state, and exactly what Dr. Alberti stated in his explanatory letter. Indeed, the Board admits that Dr. Alber-ti’s letter points out that “an individual could sustain some degree of hearing loss in service, which would result in later developing hearing loss being noticed earlier” but, incredibly, states that this is an “additive” rather than a “causative” effect, and thus not a ground for service connection. R. at 15-16. If a veteran suffers from a disability earlier than he otherwise would have, due to a service-incurred injury, how can the service-incurred injury be other than “causative”? The Court has held that it will not reverse the Board on a question of fact unless there is no plausible basis for the Board’s finding. See Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). In this case, the BVA did not cite a plausible basis for rejecting the evidence in support of Theory #2, and there is none. B. Remand. Alternatively, I would vacate the decision of the Board and remand the matter for readjudication and a new decision accompanied by an adequate statement of reasons or bases, because the Board did not state a valid reason under our caselaw for rejecting the statements of Drs. Hoover and Ator, and because the Board did not explain why the Alberti article in the Ballen-ger treatise remained persuasive as to the veteran’s Theory #2 in light of the more detailed explanatory letter by the treatise’s author on the point at issue. Before the BVA discounts a physician’s opinion (let alone the opinions of specialists in the relevant field) on the grounds that the physician is just parroting what the patient said, it should be required to attempt to clarify with the physician the basis of the physician’s opinion. Dr. Ator stated: “The lack of any subsequent occupational noise exposure precludes damage being done subsequent to his military career.” R. at 283. However, the BVA opined that the physician-appellant might have had occupational noise exposure because “[mjedieal equipment ... can produce intense sounds”. R. at 16. Given that this is the BVA’s supposition, it violates Colvin v. Derwinski, 1 Vet.App. 171,175 (1991) (Board may not rely on its own unsubstantiated medical conclusions to reject expert medical evidence in the record). The Board did not explain why Dr. Ator, as a physician himself, is not presumed to be aware of the occupational noise levels to which physicians are generally exposed. III. Conclusion The logical result of the BVA’s decision and the majority’s holding in this case as to Theory #2 would be to give the Board license to find a physician’s opinion not credible whenever that physician did not examine the patient during service or a presumption period, or did not examine SMRs. This would mean that conditions incurred during service, but not diagnosed until after service, *128 could never be service connected when SMRs were missing. Another way of looking at this is that, notwithstanding applicable law and regulation allowing a veteran to use current medical evidence to show a “nexus” between a current condition and service, 10 the Board has extended the Court’s holdings in such a way as to make it impossible for medical evidence to show such a nexus credibly unless the physician’s finding of a nexus is based on the physician’s direct observation of the condition during service or review of SMRs (which, in this case, were destroyed). That is not the law at present, and it should not become the law. For the above reasons, I respectfully dissent. . The majority attempts to draw a distinction between hearing damage noticeable during service but not at separation and hearing damage not noticeable either during service or at separation. Ante at 123. This is a distinction without a difference, because the veteran’s Theory # 2 could encompass cither scenario. The important point about Theory # 2 is the contention that hearing damage existed at separation but was not detectable at that time either by the veteran or by the crude audiometric test used in the veteran’s separation examination. . The BVA cites Environmental and Occupational Medicine (W.N.Rom, 2d ed., 1992) [hereinafter "Rom”] for the proposition that "most of the damage" to hearing tends to occur "within the first 10 years”. R. at 14. However, the BVA takes that statement out of context. The Rom quote refers to the first ten years of exposure to noise, not the first ten years after noise exposure ceases. See R. at 308. The BVA also quotes the Rom treatise to the effect that age-related hearing loss begins in the mid — 40s or thereafter, and notes that the veteran "was over 50 when hearing loss was first diagnosed”. R. at 14. The graphs from the Rom treatise, R. at 369-70, show that age-related hearing loss in men progresses vety slowly from the ages of 20 to approximately age 55-60, and begins to decline at a faster rate only after age 55-60 for all cycles except 4000 Hz, where the decline occurs more evenly. The appellant’s contention that he experienced early onset of age-related hearing loss (that is, earlier than he, as an individual, would have experienced if he had not suffered noise trauma in service) is thus not rebutted by evidence that a small percentage of men suffer from age-related hearing loss before age 55-60. Finally, the Board states that the appellant is an "insulin-dependent" diabetic and cites the Rom treatise for the proposition that diabetics are at greater risk of developing hearing loss. R. at 14. However, the appellant asserts that he has the milder, adult-onset type of diabetes, not insulin-dependent diabetes. Reply Brief at 4. . The majority opinion makes much of the fact that the veteran's separation examination did not mention complaints of hearing loss or noise trauma during service. Ante at 122. However, the Court’s reliance in Owens v. Brown, 7 Vet.App. 429, 433 (1995), upon contradiction of the physician's opinion by evidence in SMRs involved actual contradiction, not mere silence in the SMRs. Even more importantly, in Owens all of the veteran's SMRs were apparently available, not just a lone separation examination as in the instant case. Silence is inescapable when records do not exist. In this case, placing any weight on SMR silence is unwarranted. . The majority's assertion that the physicians' reports were "based upon" the history given by the veteran is not supported by the reports themselves, which do not have a section marked "history”, and do not have any statement such as "based on what the veteran told me about his history”. Dr. Ator opined that the veteran clearly had noise-induced hearing loss (NIHL) and that he had had no occupational exposure subsequent to service to account for the degree of hearing loss. Dr. Hoover's opinion is apparently based in part on the veteran's description of his symptoms over time, including his military service, but Dr. Hoover does not merely accept the veteran's history as true; he clearly states that the history is consistent with the current clinical picture and cites to other factors. As an example of how the veteran's history is related to clinical findings, both Drs. Hoover and Ator cite undisputed evidence in the record that the veteran has the "notch” audiogram pattern more typical of NIHL than age-related hearing loss. R. at 106, 109, 279, 283, 290. ' . See VA Physician’s Guide for Disability Evaluation Examinations § 14.10 (1985), quoted in Elkins v. Brown, 5 Vet.App. 474, 483 (1993) (Steinberg, J., dissenting). . Reonal made the same holding, noting that the veteran’s "recitations ... had already been rejected by the [RO]” in a previous final decision and stating: "An opinion based upon an inaccurate factual premise has no probative value”. . The Board is required to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104 (d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994). .More accurate hearing-test methods have largely replaced the "whisper” test. VA’s own regulations seem to contemplate that scientific advances in examination of hearing disorders require evaluation using the controlled speech discrimination test together with the puretone audiometry test. 38 C.F.R. § 4.85 (a) (1994). VA has also recognized that there may be situations where the only available evidence predates the availability of controlled speech discrimination and puretone audiometry testing. 38 C.F.R. § 4 .86a (1994) (citing 38 C.F.R. §§ 4.85-4.87 (1987)). This difference between testing methods certainly suggests an imprecision in the testing method used on the appellant's separation examination and warrants further discussion and analysis by the Board. . I say “apparently” because the Board did not, in its statement of the reasons or bases for its decision, clearly differentiate between the appellant's theories, and correspondingly did not specify what, exactly, the evidence it cited was supposed to rebut. . When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the veteran’s service, or by evidence that a presumption period applied. See 38 C.F.R. § 3.303 (d) ("Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.”); Com-bee v. Brown, 34 F.3d 1039, 1042 (Fed.Cir.1994) ("[pjroof of direct service connection ... entails proof that exposure during service caused the malady that appears many years later”); Cosman v. Principi, 3 Vet.App. 503, 505 (1992) ("even though a veteran may not have had a particular condition diagnosed in service, or for many years afterwards, service connection can still be established”); see also Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6612652. Public record. Not legal advice.