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August 4, 2011

Single Judge Application, Prejudicial Error, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)

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Excerpt from decision below:
A September 2006 VA medical treatment
record states that the appellant’s knee and back hurt and that they were injured in Vietnam when he “jumped from the top of a water tank.” R. at 576. The record also reveals that the appellant did not receive treatment at that time. R. at 576, 578, 580. The Board’s failure to discuss this evidence is prejudicial because it is potentially relevant to proving the appellant’s claim under either a theory of direct service connection or a theory of continuity of symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Savage v. Gober, 10 Vet.App. 488, 496-97 (1997); 38 C.F.R. § 3.303(b) (2011).
Therefore, the appellant’s low back claim must be remanded so the Board
can address evidence material to the appellant’s claim. See Caluza, supra.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3729
GORDON R. WEMHOFF, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE, Judge: The appellant, Gordon R. Wemhoff, through counsel, appeals a
September
21, 2009, Board of Veterans’ Appeals (Board) decision that denied his
claims for entitlement to
service connection for left ear hearing loss, a lower back condition, a
right ankle condition, a right
knee condition, and a right lower leg condition. Record (R.) at 3-6. The
Court notes that it lacks
jurisdiction over several claims that were remanded and they will not be
addressed further. See 38
U.S.C. §§ 7252(a), 7266(a); Howard v. Gober, 220 F.3d 1341, 1344 (Fed.
Cir. 2000). The appellant
does not present any argument concerning the denial of claims concerning
his posterior right calf
scar, gastroesophageal reflux disease, peripheral neuropathy, acquired
psychiatric disorder, and
sexual dysfunction. Accordingly, those claims are deemed abandoned. See
Ford v. Gober,
10 Vet.App. 531, 535 (1997). Single-judge disposition is appropriate. See
Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has
jurisdiction over the case.
38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court
will vacate the September
21, 2009, decision as to the claim for a lower back disorder and remand
that matter for further
proceedings consistent with this decision. The decision will otherwise be
affirmed.

I. FACTS
The appellant served on active duty in the U.S. Air Force from June 1967
until June 1971.
R. at 838. Service medical records (SMRs) demonstrate that he had multiple
hearing tests during
his service and that his left ear hearing was normal upon discharge. R. at
744-45, 754-55, 758.
In September 2006, the appellant filed claims for entitlement to service
connection for,
among other things, bilateral hearing loss and a lower back disability. R.
at 690-705. In November
2006, VA afforded the appellant an audiology examination and opinion. R.
at 622-26. The
examiner noted that there was “some high frequency hearing loss” in the
appellant’s right ear on both
his service entrance and exit exams, but that there was “no significant
change in either ear between
the two tests.” R. at 624. The examiner opined that it is at least as
likely as not that the appellant’s
current tinnitus is related to his active service, but that it is not
likely that the appellant’s hearing loss
is related to his active service. R. at 626.
In a December 2006 rating decision, VA determined, among other things,
that the appellant
was entitled to service connection for tinnitus. R. at 612-21. VA
requested a clarification from the
examiner and, in a December 2006 addendum, the examiner opined that the
appellant’s hearing loss
is not related to his in-service noise exposure. R. at 606. The examiner
also issued a supplemental
opinion in which he listed the puretone threshold results from the
appellant’s service entrance and
exit examinations; he then reiterated that there was no significant change
between the two tests and
that “[b]ased on the UNCHANGED audiogram at exit from the service (
relative to entrance) the
veteran’s current hearing loss in either ear is not likely to be related
to noise exposure in the service.”
R. at 606 (capitalization in original).
In February 2007, the appellant received a VA orthopedic examination. R.
at 591-94. The
examiner noted that the appellant sprained his back in 1968. R. at 592.
The examiner opined that
the appellant’s current back disability is not likely the result of a
documented in-service calf injury.
R. at 593. An additional orthopedic opinion was obtained in April 2007. R.
at 583-84. That
examiner noted that he reviewed the appellant’s claims file, which
included previous examination
reports and opinions. R. at 583. The examiner further noted that the
appellant’s SMRs indicated that
he was diagnosed with a back sprain in April 1968, although his separation
examination did not note
a back condition. R. at 583. The examiner found that the appellant’s
current back disability, which
is spinal stenosis, is not likely due to his in-service back sprain. R. at
583. The examiner based his
2

opinion upon the appellant’s separation examination, the lack of evidence
of a disability after
discharge, and the lack of continuity of symptoms or treatment. R. at 583.
In May 2007, VA issued a rating decision denying, among other things,
service connection
for left ear hearing loss and a lower back condition. R. at 560-70. In
addition, it granted service
connection for right ear hearing loss. R. at 566. The appellant filed a
Notice of Disagreement
(NOD) in August 2007. R. at 517-22. The appellant perfected his appeal in
January 2008. R. at
211-12. In the decision on appeal, the Board denied the disputed claims. R.
at 3-40.
II. ANALYSIS
A. Secretary’s Motion to Strike
As a preliminary matter, the Court notes that after the appellant filed
his reply brief, on October
21, 2010, the Secretary filed a motion to strike the portion of his reply
brief that cites to non-
precedential authority, pursuant to Rule 30 of this Court’s Rule of
Practice and Procedure. U.S.
VET.APP. R. 30(a). The appellant has not responded to the Secretary’s
motion. In his reply brief, the
appellant cites to Flodman v. Shinseki, No. 07-3291, 2009 WL 2730884 (
August 31, 2009), and argues
that the facts of that case are “analogous” to the facts of the case here
on appeal. Appellant’s Reply
Brief (Br.) at 3. He further suggests that the Court should adopt the
logic of that case in deciding his
appeal. Appellant’s Reply Br. at 3-4. Because the appellant asserts that
the logic and analysis of
Flodman apply in this case, his use of the case violates Rule 30(a).
Therefore, the Court will grant the
Secretary’s motion to strike the portion of the appellant’s reply brief
that relies on Flodman.
B. Low Back Disability
The parties agree that the appellant’s claim for service connection for a
low back disorder must
be remanded because the Board failed to adequately address the appellant’s
lay testimony. See
Appellant’s Br. at 15-18, Secretary’s Br. at 15-16. After a review of the
pleadings and cited records
in this case, the Court agrees that remand is necessary.
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;
that statement must be
adequate to enable a claimant to understand the precise basis for the
Board’s decision, as well as to
facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown,
7 Vet.App. 517, 527 (1995);
Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Gilbert v. Derwinski, 1
Vet.App. 49, 57 (1990). To
3

comply with this requirement, the Board must analyze the credibility and
probative value of the
evidence, account for the evidence that it finds to be persuasive or
unpersuasive, and provide the
reasons for its rejection of any material evidence favorable to the
claimant. Caluza v. Brown, 7
Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (
table); Gabrielson v. Brown,
7 Vet.App. 36, 39-40 (1994).
In this case, the Board failed to discuss any of the appellant’s lay
testimony or to apply the
relevant law to that testimony. A September 2006 VA medical treatment
record states that the appellant’s knee and back hurt and that they were injured in Vietnam when he “jumped from the top of a water tank.” R. at 576. The record also reveals that the appellant did not receive treatment at that time. R. at 576, 578, 580. The Board’s failure to discuss this evidence is prejudicial because it is potentially relevant to proving the appellant’s claim under either a theory of direct service connection or a theory of continuity of symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Savage v. Gober, 10 Vet.App. 488, 496-97 (1997); 38 C.F.R. § 3.303(b) (2011).
Therefore, the appellant’s low back claim must be remanded so the Board
can address evidence material to the appellant’s claim. See Caluza, supra.

The appellant also argues that the February 2007 VA orthopedic examiner
did not adequately
describe his history because the examiner only considered an April 1968
automobile accident that
inured the appellant’s back and did not address the appellant’s lay
testimony that he injured his back
when he jumped off a water tank in Vietnam. Appellant’s Br. at 11-12. The
Court agrees with the
appellant that this factual issue would be critical to an adequate medical
opinion (see Ardison v.
Brown, 6 Vet.App. 405, 407 (1994)); however, the need for a new medical
examination is an issue best
decided by the Board in the first instance. See Maggitt v. West, 202 F.3d
1370, 1377-79 (Fed. Cir.
2000) (Court has discretion to remand issues to the Board); see also
McCormick v. Gober,
14 Vet.App. 39, 45 (2000) (holding that remand is appropriate where it
would “likely benefit the
Court by producing ‘a better record . . . for appellate review of the [
Board’s] decision'”) (quoting
Maggit, 202 F.3d at 1377). Specifically, whether the February 2007 exam is
inadequate depends
on whether the Board finds the appellant’s statement that he injured his
back after jumping off a
water tank to be credible. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (
medical opinion based
on inaccurate factual premise has no probative value). This is a
determination that the Court cannot
make; therefore, the issue of whether a new medical opinion is necessary
is better left to the Board.
4

See Maggitt, supra; Mayfield v.Nicholson, 444 F.3d 1328, 1333 (Fed. Cir.
2006). Accordingly, on
remand, the Board must address whether the appellant’s statements are
credible and, if so, whether
the February 2007 VA orthopaedic opinion was inadequate.
On remand, the appellant is free to submit additional evidence and
argument, including the
arguments raised in his briefs to this Court, in accordance with
Kutscherousky v. West, 12 Vet.App.
369, 372–73 (1999) (per curiam order), and the Board must consider any
such evidence or argument
submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). Furthermore,
the Board shall proceed
expeditiously, in accordance with 38 U.S.C. § § 5109B, 7112 (requiring
Secretary to provide for
“expeditious treatment” of claims remanded by Board or Court); see also
Harvey v. Shinseki,
24 Vet.App. 284, 288 (2011) (the Secretary’s duty to expedite is an
inherent component of the
Court’s remand power that merits suitable urgency and attention from the
Secretary).

C. Left Ear Hearing Loss
Hearing loss is considered a disability for compensation purposes when: (1)
the auditory
threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (
Hz) is 40 decibels or greater;
(2) when the auditory thresholds for at least three of the frequencies 500,
1000, 2000, 3000, or 4000
Hz are 26 decibels or greater; or (3) when speech recognition scores using
the Maryland CNC Test are
less than 94%. 38 C.F.R. § 3.385 (2011). Disability ratings for hearing
loss are almost exclusively
dependent on the mechanical application of average pure tone decibel loss
and percent of speech
discrimination to the corresponding VA rating table. See Acevedo-Escobar v.
West, 12 Vet.App. 9,
10 (1998); Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992); 38 C.F.R. §
4.85 (2011). Hearing
loss does not constitute a disability if it does not meet the threshold
requirements set forth in 38 C.F.R.
§ 3.385. Palczewski v. Nicholson, 21 Vet.App. 174, 179-80 (2007).
1. Adequacy of November and December 2006 Opinions
A medical opinion is considered adequate for evaluation purposes if it (1)
is based upon
consideration of the veteran’s prior medical history, (2) describes the
disability in sufficient detail so
that the Board’s “‘evaluation of the claimed disability will be a fully
informed one,”‘ Ardison v. Brown,
6 Vet.App. at 407 (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)),
and (3) “supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions.” Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007). Whether a medical opinion is adequate is a finding of fact, which the Court reviews under the “clearly erroneous” standard. See 38 U.S.C. § 7261(a)(4); D’Aries
5

v. Peake, 22 Vet.App. 97, 103 (2008); Gilbert, 1 Vet.App. at 52. “A
factual finding ‘is “clearly
erroneous” when although there is evidence to support it, the reviewing
court on the entire evidence
is left with the definite and firm conviction that a mistake has been
committed.'” Hersey v. Derwinski,
2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.
S. 364, 395 (1948)).
The appellant argues that the November 2006 VA audiological examination
and the December
2006 clarification relied upon by the Board to deny service connection for
his left ear hearing loss are
inadequate because the examiner did not take into account that his 1966
entrance physical and his 1971
discharge physical reveal a worsening of his hearing at 4,000 Hz.
Appellant’s Br. at 7-8. After a
review of the records in question, the Court finds this argument
unpersuasive, because the 2006 VA
examiner took those results into account in formulating his opinion. See
Hilkert v. West, 12 Vet.App.
145, 151 (1999) (en banc) (stating that on appeal to the Court, the ”
appellant always bears the burden
of persuasion”), aff’d, 232 F.3d 908 (Fed. Cir. 2000) (table).
In both of the 2006 VA opinions, the examiner noted that audiometric
testing was performed
in 1966 and 1971, and that there was “no significant change in either ear
between the two tests.” R.
at 624 (emphasis added). The examination report further states: “Based on
the separation audiogram
being unchanged relative to the entrance audiogram, it is not likely that
the veteran’s current hearing
loss is a direct result of [m]ilitary noise exposure.” R. at 626, see also
R. at 605 (December
clarification stating there was no significant change in either ear). In
December 2006, the examiner
concluded “[b]ased on the UNCHANGED audiogram at exit from the service (
relative to entrance) the
veteran’s current hearing loss in either ear is not likely to be related
to noise exposure in the service.”
R. at 606 (capitalization in original). Furthermore, the examination is
otherwise adequate because it
contains a history, diagnostic testing, a description of the disability,
and a rationale for its conclusion.
R. at 606, 622-26. Therefore, because the Board had a basis for finding
that the VA examiner
specifically addressed the results of the appellant’s audiological
examinations from 1966 and 1971, the
appellant’s argument is unpersuasive. See Hilkert, supra.
As for the appellant’s contention that the Board did not provide an
adequate statement of
reasons or bases for relying on the November and December 2006 VA opinions,
the Court is equally
unconvinced. See Hilkert, supra. In the decision on appeal, the Board
provided an adequate statement
of reasons or bases for determining that the VA examinations were adequate.
It stated:
6

the VA examinations obtained in this case are adequate as they are
collectively
predicated on a review of the claims folder and medical records contained
therein;
contain descriptions of the history of the disabilities at issue; document
and consider
the relevant medical facts and principles; recorded the relevant findings
for rating the
Veteran’s service connected disabilities; and provided opinions with
supporting
rationale for those disabilities which the Veteran claims are service-
connected.
R. at 10. This explanation is consistent with the law, supported by the
record, and sufficient to inform
the appellant of the basis for the Board’s determination, while also
allowing for review by this Court.
See Allday, supra. Accordingly, the appellant does not present a basis for
remand. See Hilkert, supra.
2. Effect of Service Connection for Right Ear Hearing Loss
The appellant also contends that he is entitled to service connection for
his left ear hearing loss
because VA is bound by the facts that were relied upon to determine his
entitlement to compensation
for right ear hearing loss. Appellant’s Br. at 5-11, 17. This argument is
unpersuasive and unsupported
by law. See Hilkert, supra. First, the facts relied upon by the appellant
were decided by the regional
office (RO) and, therefore, were not binding upon the Board. See Anderson
v. Shinseki, 22 Vet.App.
423 (2009). Second, the factual situation involved in the appellant’s
claim for service connection for
his right ear hearing loss and tinnitus varies in a meaningful way from
the factual situation surrounding
his left ear hearing loss claim. Specifically, the RO awarded service
connection for the appellant’s
right ear because his 1971 separation audiogram demonstrated a 45 decibel
auditory threshold at 4,000
Hz. R. at 566. However, the appellant’s 1966 auditory test results
demonstrate that he did not have
a right ear hearing disability when he entered active service, and his
1971 separation examination
revealed that he had a right ear hearing disability upon discharge. R. at
744-45, 754-55; see 38 C.F.R.
§ 3.385 (2011). Furthermore, a review of the record reveals that the RO
awarded service connection
despite the negative nexus examination because the in-service medical
records demonstrated that the
appellant had a right ear hearing loss disability prior to discharge. R.
at 566. However, the appellant
did not have a left ear hearing loss disability when he separated from
service and he did not develop
a left ear hearing loss disability until later in life. R. at 744-45.
Additionally, in contrast to his left ear
hearing loss, the medical evidence of record indicates that his tinnitus
is “at least as likely as not” the
result of his in-service noise exposure. R. at 612-21, 626. Therefore,
given the factual differences
between the right and left ear hearing loss, and given that the facts
relating to the right ear hearing loss
have no preclusive effect on the Board, there is no valid basis for remand.
See Hilkert, supra.
7

The appellant also argues that the November and December 2006 VA
audiological opinions violated the holding in Hensley v. Brown; however, the appellant misreads that case. 5 Vet.App. 155(1993). In Hensley, the Court stated that “when audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Id. at 160.
However, Hensley is a legal doctrine applicable to the Board and not a medical guideline. See id. at 164 (explaining that “the Board was required to determine whether the veteran’s current right-ear hearing disability was causally related to
in-service noise exposure”). Indeed, the Court lacks the necessary
expertise to make binding rules on
medical issues and the ever-changing nature of medical knowledge cannot be
subject to res judicata.
Rather, the physician should apply current medical knowledge to the facts
of an individual’s case, and
Board, as finder of fact, interprets the medical reports in light of the
applicable law. See Moore v.
Nicholson, 21 Vet.App. 211, 218 (2007) (“The medical examiner provides a
disability evaluation and
the rating specialist interprets medical reports in order to match the
rating with the disability.”), rev’d
on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009).
In this case, the VA examiner did not base his conclusion solely on normal
hearing test results
at separation but, rather on the fact that the veteran’s audiograms at
separation had not significantly
changed from his enlistment audiograms. R. at 18, 622-26. Nothing in
Hensley precludes a medical
examiner from relying on a comparison between two in-service audiograms.
Hensley, 5 Vet.App. at
159-60. Accordingly, the Board properly determined that the medical
evidence did not demonstrate
that the appellant’s current left ear hearing loss is related to his
active service. R. at 13-16. Therefore,
this argument lacks merit and does not provide an independent basis for
remand.
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs and a
review of the record,
the Board’s September 21, 2009, decision is VACATED as to the appellant’s
claim for a low back
disorder and that matter is REMANDED to the Board for further proceedings
consistent with this
decision. The Board decision is otherwise AFFIRMED.
DATED: August 1, 2011
8

Copies to:
John S. Berry, Esq.
VA General Counsel (027)
9

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