Tinnitus and Statutory Intepretation

Fountain v. McDonald, Opinion Number 13-0540, was decided February 9, 2015 and concerns a veteran seeking service connection for tinnitus.

The veteran argued that he had had tinnitus since an acoustical trauma while in the service and the Board did not provide adequate reasons or bases for rejecting his testimony regarding his continuity of symptoms.

38 CFR Section 3.309 lists chronic condition for which continuity of symptoms might be used to prove service connection.  It lists several specific diseases as well as a catch all—“other organic diseases of the nervous system.”  The veteran argued tinnitus was an organic disease of the nervous system whereas the Secretary admitted the term is ambiguous but argued the established policy of the VA in a Training Letter showed that tinnitus is not among the diseases listed as chronic under 3.309 as an organic disease of the nervous system.

First, the court noted the VA’s regulation for the most part simply repeated the statutory language.  This is significant because it meant the deference owed to the VA was lower.  The Court then stated that lacking the formalities of notice and comment rule making, the Training Letter is entitled to deference only such that it has the power to persuade.  The Court found the Training Letter unpersuasive.  The Court also took the step of examining prior Board decisions which found tinnitus was an organic disease.  The Court noted the Board decisions were non-precedential, but noted the pertinent question is the whether the Secretary’s interpretation has the “power to persuade” and “the Board decisions indicate the lack of persuasiveness of an established VA policy on the issue and the lack of persuasiveness of the Agency’s current position.”  Id. at *17.  The Court also invoked the Gardner  Presumption to find in the face of ambiguity, interpretative doubt is to be resolved in favor of the veteran.  Id. at *18. 

The Court then went on to find the Board erred by rejecting the veteran’s statements of a chronic symptoms because they were based exclusively on the lack of documentation of complaints of tinnitus.  The Court explained what is required to make such a determination on negative evidence and noted in this case the Board did not lay a p[roper foundation for its determination.

This case is a good primer on regulatory and statutory interpretation and especially demonstrates how to use prior Board decisions to show a present interpretation is unpersuasive.  It seems to conflict powerfully with the Hudgens v. McDonald, which is now the subject of an appeal.  The case is also important for demonstrating how the Board must lay a proper foundation before drawing an adverse inference from negative evidence.

Decision by J. Moorman, joined by J. Hagel and J. Bartley.