Veteranclaims’s Blog

February 12, 2018

Single Judge Application; not “note” but explain how hearing loss affected his ordinary life; 38 C.F.R. § 4.10 (2017); Martinak v. Nicholson, 21 Vet.App. 447, 455 (2007);

Excerpt from decision below:

Additionally, under VA regulations, audiological examiners are required to provide a “full description of the effects of [a] disability upon [a veteran’s] ordinary activity.” 38 C.F.R. § 4.10 (2017); see also Martinak v. Nicholson, 21 Vet.App. 447, 455 (2007).

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“Neither examiner explained how appellant’s hearing loss affected his ordinary life or ability to work, despite stating that it did so. The Board found that both “examinations were adequate because . . . the opinions noted the effect of the hearing loss disability on the Veteran’s daily functioning.” R. at 6. But examiners are required to do more than merely “note” a condition without explaining further. See Nieves-Rodriguez, 22 Vet.App. at 295.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-0076
CLARENCE WILLIAMS, JR., APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
ALLEN, Judge: Appellant Clarence Williams, Jr., appeals through counsel a November 30, 2016, Board of Veterans’ Appeals (Board) decision denying him a compensable rating for bilateral hearing loss. This appeal was timely filed and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will set aside the Board’s November 30, 2016, decision and remand the matter for further proceedings consistent with this decision.
I. ANALYSIS
Appellant, a veteran of the U.S. Marine Corps, underwent two VA audiological
examinations in 2013 and 2015. He argues these examinations were inadequate and the Board clearly erred by relying on them in making its decision. The Court agrees.
When VA decides to give a veteran a medical examination to assist in developing a claim, the duty to assist requires it to ensure the examination is adequate for adjudication purposes. See 38 C.F.R. § 4.2 (2017) (“[I]t is incumbent upon the rating board to return [a] report as inadequate for evaluation purposes [if it doesn’t contain sufficient detail.”); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008); Barr v. Nicholson, 21 Vet.App. 303, 311-12 (2007); Bowling
2
v. Principi, 15 Vet.App. 1, 12 (2001). Additionally, under VA regulations, audiological examiners are required to provide a “full description of the effects of [a] disability upon [a veteran’s] ordinary activity.” 38 C.F.R. § 4.10 (2017); see also Martinak v. Nicholson, 21 Vet.App. 447, 455 (2007).
Whether a medical examination is adequate is a question of fact, which the Court reviews under the “clearly erroneous” standard. 38 U.S.C. § 7261(a)(4); D’Aries v. Peake, 22 Vet.App. 97, 103 (2008). “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)).
Here, neither of the audiological examiners provided sufficient rationale for the Board to make a fully informed decision regarding appellant’s referral for extraschedular rating consideration for his bilateral hearing loss.1 The Board’s contrary conclusion is clearly erroneous.
The 2013 examiner indicated that appellant’s hearing loss affected his daily life, including the ability to work, and that appellant “reported difficulty hearing and understanding speech without his VA-issued hearing aids.” Record (R.) at 134. Under the section titled “Remarks, if any, pertaining to hearing loss,” the examiner stated that appellant had denied a history of hearing loss and noted noise exposure in service. Id. No further explanation for how appellant’s hearing loss affected his daily life, including the ability to work, was provided.
The 2015 examiner also noted that appellant’s hearing loss affected his daily life, including the ability to work, and that appellant “reported difficulty hearing others without his hearing aids.” R. at 23. Under the “Remarks” section, the examiner stated that an otoscopy revealed “partially occluding” earwax and noted appellant’s report of some past bleeding. Id. Just like the 2013 examiner, the 2015 examiner provided no further information.
Neither examiner explained how appellant’s hearing loss affected his ordinary life or ability to work, despite stating that it did so. The Board found that both “examinations were adequate because . . . the opinions noted the effect of the hearing loss disability on the Veteran’s daily functioning.” R. at 6. But examiners are required to do more than merely “note” a condition without explaining further. See Nieves-Rodriguez, 22 Vet.App. at 295. Accordingly, remand is warranted.
See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is warranted when “the
1 Appellant does not make any argument concerning his schedular rating. Thus, any appeal as to that issue
is deemed abandoned. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc).
3
Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases
for its determinations, or where the record is otherwise inadequate”).
Given this disposition, the Court need not address the remaining arguments and issues
raised by appellant at this time.2 See Best v. Principi, 15 Vet.App. 18, 20 (2001). On remand,
appellant is free to submit additional evidence and argument, including the arguments raised in the
briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999)
(per curiam), and the Board must consider any such evidence or argument submitted, Kay v.
Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board 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), and the Board must proceed expeditiously, in accordance with
38 U.S.C. §§ 5109B and 7112.
II. CONCLUSION
After consideration of the parties’ briefs and the record, the Board’s November 30, 2016,
decision is SET ASIDE and REMANDED for further proceedings consistent with this decision.
DATED: February 8, 2018
Copies to:
Emma L. Peterson, Esq.
VA General Counsel (027)
2 Appellant also argues the Board clearly erred in finding that his symptoms were contemplated by the hearing
loss rating criteria such that extraschedular referral was not required because it failed to account for his earwax buildup
and bleeding. Appellant’s Brief (Br.) at 9-12; R. at 10-11. The Secretary argues in his brief that there is no medical
evidence linking his earwax and bleeding to his hearing loss and therefore the Board did not err by not considering
them. Secretary’s Br. at 18-19. Although the Court need not and will not address the merits of this argument because
it is remanding the Board’s decision on other grounds, it notes for the Board that there is, in fact, medical evidence
linking appellant’s earwax and bleeding to his hearing loss. See R. at 23. Such evidence would clearly need to be
addressed by the Board in its extraschedular analysis on remand. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff’d per curiam 78 F.3d 904 (Fed. Cir. 1996) (table).

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