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Univ. of South Carolina School of Law

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Saturday, January 29, 2011

Hearing Loss: U.S. Court Of Appeals For Veterans Claims Uses Rule 803(7) To Prove Patient's Lack Of Service-Related Tinnitus

Federal Rule of Evidence 803(7) provides an exception to the rule against hearsay for 

Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

And, as the recent opinion of the United States Court of Appeals for Veterans Claims in Perkins v. Shinseki, 2011 WL 182653 (Vet.App. 2011), makes clear, the lack of evidence of symptoms in contemporaneous medical records can be admitted under Rule 803(7) to prove the nonoccurrence of such a condition.

In Perkins, Millard Perkins

argue[d] that the Board [of Veterans' Appeals] erred in relying on [a] March 2006 VA examination to deny service connection for tinnitus....In support of this argument, [Perkins] argue[d] that the opinion was inadequate because the opinion concluded that neither [Perkins] hearing loss nor his tinnitus was related to service, but the Board nonetheless granted service connection for his hearing loss....[Perkins] state[d] that "[t]he report failed to discuss the potential relationship between the [appellant]'s hearing loss and as a result, could not possibly provide the Board with a sufficient basis to deny service connection for [his] tinnitus."

In explaining how the Board properly granted Perkins service connection for his hearing loss but denied him service connection for tinnitus, the United States Court of Appeals for Veterans Claims concluded that

The record lack[ed] contemporaneous evidence of tinnitus relative to service, it lack[ed] medical records or complaints relating to tinnitus for the 50 years following service (despite the fact that it contain[ed] complaints of hearing loss), and the appellant did not complain of tinnitus for nearly 50 years after separation from service....However, the Board found the appellant's testimony not credible because contemporaneous records failed to record symptoms of tinnitus even though they discussed his hearing problems. See Fed.R.Evid. 803(7).... 



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