Veteranclaims’s Blog

June 13, 2018

Single Judge Application; hearing loss; Hensley v. Brown, 5 Vet.App. 155, 164 (1993); normal audiometric results upon separation from service; VA Training Letter 10–02;

Excerpt from decision below:

“In Hensley v. Brown, this Court determined that “a claimant may establish direct service connection for a hearing disability initially manifest several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service.” 5 Vet.App. 155, 164 (1993). Hensley indicated that the Board may not deny service connection based solely on normal audiometric results upon separation from service. Id. at 160. In 2010, after publication of the IOM report cited by the March 2016 examiner, VA acknowledged this precedent caselaw, issuing VA Training Letter 10–02, which recounted the Hensley holding and concluded that when audiometric testing at separation does not meet the requirements for establishing hearing loss, a veteran may nevertheless establish service connection
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for post-service hearing loss if there is evidence of a causal relation to service. VA Training Letter 10–02 at 15 (March 18, 2010).
Accordingly, in relying on that portion of the 2005 IOM report that concludes, based on
what it concedes is insufficient longitudinal evidence, that delayed onset of hearing loss after noise exposure is unlikely, the March 2016 examiner essentially provides no support for the opinion that the veteran’s hearing loss was not related to service other than the basis proscribed in Hensley. The Board then relied on that opinion to deny service connection for bilateral hearing loss. R. at 10-11. That opinion rejected Mr. Spies’s delayed onset hearing loss claim as viable for the sole reason that hearing was grossly normal at separation and he did not develop hearing loss until after service. R. at 759-60. Because the March 2016 opinion runs counter to Hensley and lacks adequate
supporting rationale, see Acevedo, 25 Vet.App. at 293; Nieves-Rodriguez, 22 Vet.App. at 301, the Court finds that the Board clearly erred when it determined that that opinion was adequate and relied on it to deny service connection for bilateral hearing loss, see D’Aries, 22 Vet.App. at 104.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 17-1597
NEAL P. SPIES, APPELLANT,
V.
PETER O’ROURKE,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

BARTLEY, Judge: Veteran Neal P. Spies appeals through counsel an April 6, 2017, Board
of Veterans’ Appeals (Board) decision denying service connection for bilateral hearing loss. Record (R.) at 2-15.1 Single-judge disposition is appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will set aside the portion of the April 2017 Board decision denying service connection for bilateral hearing loss and remand the matter for further development and readjudication consistent with this decision.
1 The Board remanded a claim for service connection for diabetes mellitus, type II, to include as due to
exposure to herbicide agents. R. at 2, 11-45. Because a remand is not a final decision of the Board subject to judicial
review, the Court does not have jurisdiction to consider this matter at this time. See Howard v. Gober, 220 F.3d 1341,
1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order); 38 C.F.R. § 20.1100(b)
(2017). The Board also granted service connection for tinnitus, R. at 11, and because a grant of entitlement to service
connection is not an adverse decision, this Court does not have jurisdiction to review that portion of the Board decision,
see 38 U.S.C. § 7261(a)(4).
2
I. FACTS
Mr. Spies served on active duty in the U.S. Air Force from November 1963 to November
1967 as a jet engine mechanic and an aircraft maintenance technician. R. at 605. A November
1963 entrance examination noted normal ears and the following audiometer results: right ear 0
decibels (dB) at 500 Hertz (Hz), -5 dB at 1000 Hz, -5 dB at 2000 Hz, -5 dB at 3000 Hz, 0 dB at
4000 Hz, and 0 dB at 6000 Hz; and left ear 5 dB at 500 Hz, 5 dB at 1000 Hz, 0 dB at 2000 Hz, 0
dB at 3000 Hz, -5 dB at 4000 Hz, and 0 dB at 6000 Hz. R. at 618-19. A February 1964 service
treatment record (STR) noted that the veteran was unable to hear in the left ear and that the
physician diagnosed otitis media2 and prescribed medication. R. at 642.
An October 1967 separation examination noted normal ears and the following audiometer
results: right ear 0 dB at 500 Hz, 0 dB at 1000 Hz, -10 dB at 2000 Hz, -5 dB at 3000 Hz, 0 dB at
4000 Hz, and 0 dB at 6000 Hz; and left ear 0 dB at 500 Hz, -5 dB at 1000 Hz, -10 dB at 2000 Hz,
0 dB at 3000 Hz, 10 dB at 4000 Hz, and 10 dB at 6000 Hz. R. at 620-21. The physician indicated
that Mr. Spies had right ear otitis media and otalgia3 with no complication or sequelae. R. at 621.
The veteran noted ear, nose, and throat trouble on the October 1967 report of medical history. R.
at 626.
In March 2009, Mr. Spies filed a claim for service connection for hearing loss and tinnitus.
R. at 716. During a May 2009 VA examination, the veteran reported that he worked in aircraft
maintenance during service and was exposed to noise from jet engines. R. at 670. He stated that
after service he worked as a carpenter, bridge builder, and “in aircraft” at Boeing for 21 years and
experienced recreational noise exposure while hunting. Id. The examiner, Dr. Vossen-Goodman,
diagnosed bilateral sensorineural hearing loss and tinnitus; noted that in-service acoustic trauma
was conceded; stated that tinnitus was as likely as not a symptom associated with hearing loss; and
indicated that she could not provide a linkage opinion without resort to mere speculation given
that STRs and private medical records were not in the claims file and that the veteran had an
extensive history of military, occupational, and recreational noise exposure. R. at 671-74.
Later that month, Mr. Spies submitted a statement regarding in-service noise exposure,
noting that although ear muffs were never mandatory, he checked a pair out while stationed in
2 Otitis media is inflammation of the middle ear. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1351
(32d ed. 2012) [hereinafter DORLAND’S].
3 Otalgia is an earache. See DORLAND’S at 1350.
3
Montana but that he had no ear protection while flying missions from Guam to Vietnam. R. at
600. In July 2009, Dr. Vossen-Goodman reviewed the veteran’s claims file, noting normal hearing
at entrance and separation examinations and that the veteran had a history of earwax and external
otitis and right ear otitis and otalgia with no complications or sequalae. R. at 590-91. The VA
examiner opined that the veteran’s hearing loss and tinnitus were not caused by or the result of inservice
noise exposure because entrance and separation examinations document normal hearing
and there was no evidence of tinnitus in the claims file. R. at 592.
Later that month, a VA regional office (RO) denied service connection for bilateral hearing
loss and tinnitus. R. at 577. In August 2009, Mr. Spies filed a Notice of Disagreement (NOD) as
to that decision. R. at 574. In November 2009, the RO issued a Statement of the Case (SOC), R.
at 560, but the veteran did not perfect his appeal, see R. at 784.
In December 2011, Mr. Spies filed to reopen his bilateral hearing loss and tinnitus claims,
stating that the Boeing records he submitted showed hearing loss when he began working for the
company. R. at 516; see R. at 342, 490-500 (1980s to 1990s Boeing records indicating moderate
left ear hearing loss and mild right ear hearing loss). In February 2012, the RO denied the claims
because the evidence submitted was not new and material. R. at 465. In March 2012, the veteran
filed an NOD as to that decision. R. at 461. In April 2013, the RO issued an SOC continuing to
find that new and material evidence sufficient to reopen the bilateral hearing loss and tinnitus
claims had not been received. R. at 449. In May 2103, the veteran perfected his appeal. R. at
420.
During a March 2014 Board hearing, Mr. Spies testified that while in service he was
exposed to “screaming engines” on numerous occasions and either had no ear protection or poor
quality ear protection. R. at 777-81. In March 2015, the Board issued a decision finding that the
Boeing records were new and material evidence sufficient to reopen the bilateral hearing loss and
tinnitus claims and remanded those matters for further development. R. at 342-44.
In March 2016, a VA examiner diagnosed bilateral sensorineural hearing loss and opined
that hearing loss was less likely than not related to service because the veteran had grossly normal
4
hearing at separation and a medical treatise entitled Noise and Military Service: Implications for
Hearing Loss and Tinnitus4 stated that
The evidence from laboratory studies in humans and animals is sufficient to
conclude that the most pronounced effects of a given noise exposure on pure-tone
thresholds are measurable immediately following the exposure, with the length of
recovery, whether partial or complete, related to the level, duration, and type of
noise exposure. Most recovery to hearing thresholds occurs within 30 days. There
is not sufficient evidence from longitudinal studies in laboratory animals or humans
to determine whether permanent noise-induced hearing loss can develop much later
in one’s lifetime, long after the cessation of that noise exposure. Although the
definitive studies to address the issue have not been performed, based on the
anatomical and physiological data available on the recovery process following
noise exposure, it is unlikely that such delayed effects occur.
R. at 755, 758-60. The examiner then noted that hearing loss was shown 16 years after service.
R. at 759-60. The examiner further opined that tinnitus was less likely than not related to service
because hearing was grossly normal at separation and there was no link between the veteran’s
current tinnitus and military noise exposure. Id.
In the April 2017 decision on appeal, the Board noted that Mr. Spies currently had bilateral
hearing loss and tinnitus, conceded in-service noise exposure, and stated that the relevant question
was thus whether there was a link between those disabilities and service. R. at 7. The Board
denied service connection for bilateral hearing loss and granted service connection for tinnitus. R.
at 11. This appeal followed.
II. ANALYSIS
Mr. Spies argues that the Board erred by relying on the March 2016 VA examination
opinion, which he asserts is inadequate, and provided inadequate reasons or bases for denying
service connection for bilateral hearing loss. Appellant’s Brief (Br.) at 8-17. The Secretary
disputes the veteran’s arguments and urges the Court to affirm the April 2017 Board decision.
Secretary’s Br. at 7-20.
When the Secretary undertakes to provide a veteran with a VA medical examination or
opinion, he must ensure that the examination or opinion provided is adequate. Barr v. Nicholson,
4 Noise and Military Service: Implications for Hearing Loss and Tinnitus (September 22, 2005) (IOM report)
(accessed via https://www.publichealth.va.gov/exposures/noise/ (last visited May 29, 2018)).
5
21 Vet.App. 303, 311 (2007). A VA medical examination or opinion is adequate “where it is based
upon consideration of the veteran’s prior medical history and examinations,” Stefl v. Nicholson,
21 Vet.App. 120, 123 (2007), “describes the disability . . . in sufficient detail so that the Board’s
‘evaluation of the claimed disability will be a fully informed one,'” id. (quoting Ardison v. Brown,
6 Vet.App. 405, 407 (1994)), and “sufficiently inform[s] the Board of a medical expert’s judgment
on a medical question and the essential rationale for that opinion,” Monzingo v. Shinseki,
26 Vet.App. 97, 105 (2012). See also Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (“[A]n
adequate medical report must rest on correct facts and reasoned medical judgment so as [to] inform
the Board on a medical question and facilitate the Board’s consideration and weighing of the report
against any contrary reports.”); Nieves–Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (“[A]
medical examination report must contain not only clear conclusions with supporting data, but also
a reasoned medical explanation connecting the two.”); 38 C.F.R. § 4.2 (2017) (“If a diagnosis is
not 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.”). The adequacy of a medical examination is a finding of fact that the Court reviews
under the “clearly erroneous” standard. D’Aries v. Peake, 22 Vet.App. 97, 104 (2008).
The Court concludes that the March 2016 VA opinion lacks sufficient rationale and the
Board therefore clearly erred in relying on it. See Acevedo, 25 Vet.App. at 293; Nieves-Rodriguez,
22 Vet.App. at 301. The March 2016 examiner stated that Mr. Spies’s bilateral hearing loss, first
shown 16 years after service, was less likely than not related to service because hearing was grossly normal at separation and the IOM report indicated that delayed onset hearing loss is generally unlikely. R. at 759-60. In Hensley v. Brown, this Court determined that “a claimant may establish direct service connection for a hearing disability initially manifest several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service.” 5 Vet.App. 155, 164 (1993). Hensley indicated that the Board may not deny service connection based solely on normal audiometric results upon separation from service. Id. at 160. In 2010, after publication of the IOM report cited by the March 2016 examiner, VA acknowledged this precedent caselaw, issuing VA Training Letter 10–02, which recounted the Hensley holding and concluded that when audiometric testing at separation does not meet the requirements for establishing hearing loss, a veteran may nevertheless establish service connection
6
for post-service hearing loss if there is evidence of a causal relation to service. VA Training Letter 10–02 at 15 (March 18, 2010).
Accordingly, in relying on that portion of the 2005 IOM report that concludes, based on what it concedes is insufficient longitudinal evidence, that delayed onset of hearing loss after noise exposure is unlikely, the March 2016 examiner essentially provides no support for the opinion that the veteran’s hearing loss was not related to service other than the basis proscribed in Hensley. The Board then relied on that opinion to deny service connection for bilateral hearing loss. R. at 10-11. That opinion rejected Mr. Spies’s delayed onset hearing loss claim as viable for the sole reason that hearing was grossly normal at separation and he did not develop hearing loss until after service. R. at 759-60. Because the March 2016 opinion runs counter to Hensley and lacks adequate supporting rationale, see Acevedo, 25 Vet.App. at 293; Nieves-Rodriguez, 22 Vet.App. at 301, the Court finds that the Board clearly erred when it determined that that opinion was adequate and relied on it to deny service connection for bilateral hearing loss, see D’Aries, 22 Vet.App. at 104.
Given this disposition, the Court need not address Mr. Spies’s additional arguments, which could not result in a remedy greater than remand. See Best v. Principi, 15 Vet.App. 18, 19 (2001).
The veteran remains free to present those arguments, as well as any additional arguments and evidence, to the Board on remand 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). The Court reminds the Board that “[a] remand is meant to entail a critical examination of the justification for the [Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
On remand, per Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009), the Board should address
the May 2009 VA examiner’s statement that tinnitus was as likely as not a symptom associated
with hearing loss. R. at 672. The Court notes that this statement may be material evidence
favorable to Mr. Spies’s hearing loss claim given that the Board granted service connection for
tinnitus in the April 2017 decision. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (holding
that the Board must analyze the credibility and probative value of evidence, account for evidence
that it finds persuasive or unpersuasive, and provide reasons for its rejection of material evidence
favorable to the claimant), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
7
III. CONCLUSION
Upon consideration of the foregoing, the portion of the April 6, 2017, Board decision
denying service connection for bilateral hearing loss is SET ASIDE and the matter is
REMANDED for further development and readjudication consistent with this decision.
DATED: June 12, 2018
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

 

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