Roper v. Nicholson

Benny Roper (plaintiff) was a Korean War veteran who had suffered bilateral hearing loss with recurrent tinnitus during his service. Roper was granted a service-connected disability for this condition prior to his discharge in 1970. He eventually needed hearing aids in both ears. Even with those aids, his hearing loss was communicatively significant, and his disability was rated at 50 percent. In 1992, Roper submitted secondary service-connection claims to the Department of Veterans Affairs (VA) (defendant) for two disabilities that he alleged were caused in accidents resulting from his hearing disability. The first accident occurred in 1976 and caused injuries to his right knee. Roper claimed that he had been injured during a fall at work when his coworkers had been attempting unsuccessfully to warn him of an approaching truck and he had been unable to hear the truck or them. The second accident occurred in 1991 and caused injuries to Roper’s left leg. In that incident, Roper and a friend had failed to properly secure a winch on a boat trailer. When the winch gave way, Roper was unable to hear the winch gears spinning or his friend’s shouted warnings, and the winch struck Roper’s leg. For both conditions, Roper was only able to provide lay eyewitness testimony and his private doctor’s opinion that his hearing loss had contributed to both accidents. The VA denied his claims. Roper appealed to the Board of Veterans’ Appeals (the board), which upheld the VA’s denial. On appeal to the United States Court of Appeals for Veterans Claims, the matter was remanded for additional evidentiary development. After extensive delays, the board again denied Roper’s claims, and Roper’s second appeal again came before the United States Court of Appeals for Veterans Claims, more than 14 years after he first filed his claims.