Veteranclaims’s Blog

February 9, 2011

Single Judge Application Buchanan v. Nicholson, 451 F.3d; McLendon v. Nicholson, 20 Vet.App.; Examiner Can’t Reject Lay Evidence Out of Hand

Excerpts from Decision below:

Thus, even though the Board accepted the appellant’s lay assertions regarding noise exposure as “credible and accurate,” it is not clear to the Court the extent to which the examiner accepted the appellant’s lay testimony regarding noise exposure. This confusion renders the examination inadequate because “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.” Nieves-Rodriguez v. Peake, 22 Vet.App.295,304 (2008); see also Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (a medical examination is adequate “where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s ‘”evaluation will be a fully informed one”‘” (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)))).”
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“The Court also finds that the 2008 VA audiology examination is inadequate
with regard to the appellant’s claim for entitlement to service connection for tinnitus. The examiner’s opinion is inadequate because the sole rationale provided to support his conclusion that the appellant’s tinnitus is unrelated to service is the absence of complaints of tinnitus in the appellant’s SMRs and discharge examination. R. at 47. The Court notes that this is the same rationale that was provided by the 2005 VA medical examiner, which was found inadequate by the Board in its September 2008 remand.
The Board may not rely on a medical opinion that impermissibly rejects the
veteran’s lay history solely because it is not corroborated by medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n.1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim of service connection could be proven without contemporaneous medical evidence”); see also McLendon v. Nicholson, 20 Vet.App.79,85(2006)(concluding that the lack of actual evidence does not constitute substantive negative evidence). Here, the examiner failed to discuss the etiology of the appellant’s tinnitus in relation to his reported history of noise exposure during service and therefore the Board’s reliance on the examiner’s report was error. See Buchanan and Stefl, both supra.
Accordingly, because VA did not comply with the terms of the Board’s
September 2008 remand order, and the Board based its decision on an inadequate medical opinion, the Court will remand the matter to the Board so that it may ensure compliance with the September 2008 remand order. See Stefl, 21 Vet.App. at 124 (holding that a remand is appropriate when the Board relied upon an inadequate medical examination to deny the appellant’s claim); Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (citing 38 C.F.R. § 19.9(a) (2000) when holding that the Board has a duty to remand a case “[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision”); see also Stegall, 11 Vet.App. at 271 (holding that remand by this Court or the Board confers on the veteran the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms); Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (concluding that an inadequate medical evaluation frustrates judicial review); Green, supra; 38 C.F.R. § 4.2 (2010) (“If a diagnosis is not

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supported bythe findings on the examination report or if the report does
not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.”).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0961
DAVID P. SEWELL, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

SCHOELEN, Judge: The appellant, David P. Sewell, appeals through counsel a
February
19, 2009, Board of Veterans’ Appeals (Board) decision that denied his
claims for entitlement to service connection for bilateral hearing loss and tinnitus. Record of Proceedings (R.) at 3-12. This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the Board failed to ensure compliance with its
September 2008 remand order and based its decision on an inadequate medical opinion, the Court will vacate the Board’s February 19, 2009, decision and remand the matter for further adjudication.

I. BACKGROUND
The appellant served on active duty in the U.S. Army from June 1972 to
June 1975. R. at
506. The appellant’s service medical records (SMRs) are negative for any
complaints related to
hearing loss and Previous HittinnitusNext Hit. R. at 358-440. In addition, audiometric testing
conducted as part of his
enlistment and separation examinations reveal that his hearing fell within
normal limits. R. at 413-
14, 419-20.

On August 9, 2004, the appellant filed a claim for entitlement to service
connection for
bilateral hearing loss and Previous HittinnitusNext Hit. R. at 312-22. The appellant claimed
that his disabilities arose
from exposure to noise during service. R. at 318. In particular, the
appellant claimed that he worked
as a crew member on a Mohawk twin turbine engine plane and worked on
flight lines as an airborne
sensor specialist. Id. He also indicated that he worked in office
situations since service and denied
postservice noise exposure. Id.
At a September 2004 VA medical examination, the appellant again reported
that his hearing
loss and Previous HittinnitusNext Hit were caused by noise exposure during service. R. at 294-
96. The examiner
diagnosed mild to moderately severe sensorineural hearing loss, but
refused to provide an etiology
opinion because the appellant’s SMRs were not available for review. R. at
296. The examiner
subsequentlyreceived the appellant’s SMRs and opined that the appellant’s
hearing loss and Previous HittinnitusNext Hit
are not as likely as not related to his military service. R. at 111. In
support of this conclusion, the
examinerstatedthattheappellant’s audiogramsatenlistment
andseparationrevealed normalhearing
and there is no mention of Previous HittinnitusNext Hit complaints in the SMRs. Id.
In June 2005, a VA regional office (RO) denied the appellant’s claims. R.
at 105-10. The
appellant filed a timely Notice of Disagreement, and later perfected his
appeal to the Board. R. at
81, 104. In a September 11, 2008, order, the Board remanded the
appellant’s claims to the RO to
obtain “a well reasoned medical opinion that takes into account the
veteran’s noise exposure in
service.” R. at 6-7. Accordingly, the Board’s remand order directed the
following:
Afford the appellant a VA audiology examination to ascertain the etiology
of his bilateral hearing loss and tinnitus. The claims file must be made
available for review of pertinent documents therein in connection with the examination. The examiner should be asked to review and comment on the evidence of record, to include the veteran’s service records and service treatment records, and determine whether:
a) the appellant had acoustic trauma in service; specifically addressing
whether appellant’s service duties, to include as an airborne sensor specialist,
exposed him to acoustic trauma; and
b) whether it is at least as likely as not . . . that the veteran’s
present bilateral hearing loss and tinnitus are related to his military service.
R. at 68.

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Following the Board’s remand, the appellant was examined on November 3,
2008. R. at 46-47. The examiner reported that he reviewed the appellant’s claims file, conducted a hearing examination, and diagnosed the appellant as having “moderately-severe, high frequency, sensorineural hearing loss . . . in both ears.” R. at 46. The examiner concluded as follows:
It has been requested that the etiology of the veteran’s hearing loss be
defined.
Unless a detailed record of noise exposure and frequent audiological data
from the time of discharge is provided[,] no such opinion regarding the etiology of
the veteran’s hearing loss can be provided. [W]hat can be provided is what the
etiology is NOT and that is military service. Review of the C-file revealed hearing
tests showing that he entered the military with hearing within normal limits and
separated with hearing within normal limits. This clearly indicates his hearing loss
did not occur while in the military and that it is less likely than not his
hearing loss is service connected. Current research does not support the concept of delayed onset of hearing loss. Therefore any increased loss of hearing after discharge is more than likely to be due to other factors which cannot be defined. The veteran stated that his tinnitus began while in the military. The record revealed several medical consultations including maladies of the head and neck region but tinnitus was not one of them. He did not complain of tinnitus when discharged. Therefore it is less likely than not that his tinnitus is service connected. R. at 46-47.
On February 19, 2009, the Board denied the appellant’s claims for
entitlement to service connection for bilateral hearing loss and tinnitus. This appeal followed.

II. ANALYSIS
The appellant argues that the Board failed to ensure compliance with the
September 2008 Board’s remand instructions in violation of Stegall v. West, 11 Vet.App. 268, 271 (1998), and consequently relied on an inadequate medical opinion. Appellant’s Brief (Br.) at 3-6. In particular, the appellant complains that the VA examiner failed to determine whether he sustained acoustic trauma in service. Id. at 3. He asserts that it is not at all clear that the examiner’s opinion would have remained the same had he confirmed the appellant’s acoustic trauma in service. Id. at 5-6. The Secretary argues in response that although the examiner did not specifically opine as to this matter, the Board conceded that the appellant was exposed to significant noise in service and therefore a remand would serve no useful purpose. Secretary’s Br. at 6-7. The Court disagrees.

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In the decision on appeal, the Board acknowledged that the “examiner did
not provide an answer to the Board’s September 2008 remand question as to whether the [v]eteran’s duties as a[n] airborne sensor specialist exposed him to acoustic trauma.” R. at 6. Nonetheless, the Board concluded that the examiner “substantially complied” with the Board’s remand instructions and proceeded to rely on the examiner’s opinion to deny the appellant’s claim.Id.; see D’Aries v. Peake,
22 Vet.App. 97, 105 (2008) (substantial compliance, not strict compliance,
is required under Stegall). In doing so, the Board noted that the examiner reviewed the claims file, which contained the appellant’s assertions regarding noise exposure during service, and provided an opinion that the appellant’s hearing loss was unrelated to service. R. at 6-7. While this appears to be technically correct, the examiner’s opinion is confusing because he begins by stating: “Unless a detailed record of noise exposure and frequent audiological data from the time of
discharge is provided[,] no such opinion regarding the etiology of the veteran’s hearing loss can be provided.” R. at 46-47. Thus, even though the Board accepted the appellant’s lay assertions regarding noise exposure as “credible and accurate,” it is not clear to the Court the extent to which the examiner accepted the appellant’s lay testimony regarding noise exposure. This confusion renders the examination inadequate because “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.” Nieves-Rodriguez v. Peake, 22 Vet.App.295,304 (2008); see also Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (a medical examination is adequate “where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s ‘”evaluation will be a fully informed one”‘” (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)))). Given that the Board remanded the appellant’s claims in 2008 for VA to obtain “a well reasoned medical opinion that takes into account the veteran’s noise exposure in service,” the Court cannot agree that the examiner substantially complied with the Board’s remand order. Instead, much like the examiner in the 2005 examination, the examiner in the 2008 examination appears to rely heavily on the fact that the veteran’s hearing was normal upon separation from service to conclude that his hearing loss is unrelated to military service without explaining the significance, if any, of such noise exposure.

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The Court also finds that the 2008 VA audiology examination is inadequate
with regard to the appellant’s claim for entitlement to service connection for tinnitus. The examiner’s opinion is inadequate because the sole rationale provided to support his conclusion that the appellant’s tinnitus is unrelated to service is the absence of complaints of tinnitus in the appellant’s SMRs and discharge examination. R. at 47. The Court notes that this is the same rationale that was provided by the 2005 VA medical examiner, which was found inadequate by the Board in its September 2008 remand.
The Board may not rely on a medical opinion that impermissibly rejects the
veteran’s lay history solely because it is not corroborated by medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n.1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim of service connection could be proven without contemporaneous medical evidence”); see also McLendon v. Nicholson, 20 Vet.App.79,85(2006)(concluding that the lack of actual evidence does not constitute substantive negative evidence). Here, the examiner failed to discuss the etiology of the appellant’s tinnitus in relation to his reported history of noise exposure during service and therefore the Board’s reliance on the examiner’s report was error. See Buchanan and Stefl, both supra.
Accordingly, because VA did not comply with the terms of the Board’s
September 2008 remand order, and the Board based its decision on an inadequate medical opinion, the Court will remand the matter to the Board so that it may ensure compliance with the September 2008 remand order. See Stefl, 21 Vet.App. at 124 (holding that a remand is appropriate when the Board relied upon an inadequate medical examination to deny the appellant’s claim); Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (citing 38 C.F.R. § 19.9(a) (2000) when holding that the Board has a duty to remand a case “[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision”); see also Stegall, 11 Vet.App. at 271 (holding that
remand by this Court or the Board confers on the veteran the right to VA
compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms); Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (concluding that an inadequate medical evaluation frustrates judicial review); Green, supra; 38 C.F.R. § 4.2 (2010) (“If a diagnosis is not

5

supported by the findings on the examination report or if the report does
not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.”).
Given this disposition, the Court will not at this time address the remaining arguments and issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001). “A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him.” Id. On remand, the appellant is free to submit additional evidence and argument on the remanded
matter, and the Board is required to consider any such relevant evidence
and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that “[a] remand is meant
to entail a critical examination of the justification for the decision.”
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. §7112(requiring Secretary to provide for “expeditious treatment” of claims remanded by the Court).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the record, the Board’s February19, 2009, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision.

DATED: January 20, 2011
Copies to:
Jeffrey J. Bunten, Esq.
VA General Counsel (027)
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