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March 8, 2020

Training Letter 10-02 has since been rescinded due to its incorporation into the Veterans Benefit Administration (VBA) Adjudication Procedures Manual (M21-1), pt. III, subpt. iv, ch. 4, § D.1-3

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“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 and the Noise Manual cited by the 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 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).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 16-1514
WILLIAM V. GEIGER, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
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 William V. Geiger appeals through counsel a February 11, 2016, Board of Veterans’ Appeals (Board) decision denying entitlement to service connection for bilateral hearing loss and tinnitus. Record (R.) at 2-25.1 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 portions of the February 11, 2016, Board decision denying service connection for bilateral hearing loss and tinnitus and remand those matters for further development and readjudication consistent with this decision.
1 At an October 2015 Board hearing, the veteran withdrew his appeal with regard to the issues of service connection for bilateral flat feet and cervical spine spondylosis. Additionally, the Board remanded the issue of entitlement to service connection for a right knee disorder. Because a remand is not a final decision of the Board subject to judicial review, the Court does not have jurisdiction to consider those matters 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) (2016).
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I. FACTS
Mr. Geiger served in the U.S. Army Reserve as a military policeman (MP) from 1993 to 2012, with active duty for training from February 1994 to June 1994. R. at 139-140, 326, 474. He also served on active duty in the U.S. Army from January 2002 to January 2003 and from January 2004 to December 2004. Id. While deployed to Camp Bucca, Iraq, during his 2004 period of active duty, Mr. Geiger reported participating in riot containment operations in which he and other personnel fired hundreds of non-lethal rounds at detainees with 12-gauge shotguns without hearing protection. R. at 44-45. He also reported being frequently exposed, without hearing protection, to loud noise from rifles, pistols, explosions, and generators. R. at 117.
In April 2012, Mr. Geiger filed a claim for service connection for bilateral hearing loss and tinnitus. R. at 1054-77. In January 2013, Mr. Geiger underwent a VA audiological examination. R. at 943-945. The VA examiner diagnosed Mr. Geiger with hearing loss and tinnitus, but indicated that he could not “determine whether there was any onset or aggravation of [hearing loss] during military service” and that he felt he could not “determine the relationship between his tinnitus and military noise exposure without resort to mere speculation.” R. at 944.
In November 2013, a VA regional office (RO) denied service connection for bilateral hearing loss and tinnitus. R. at 2230-40. In response, Mr. Geiger timely filed a Notice of Disagreement (NOD) in May 2014. R. at 863-64. In March 2015, Mr. Geiger testified before a decision review officer (DRO). R. at 138-54.
In May 2015, Mr. Geiger underwent a second VA audiological examination. R. at 113-119. The VA examiner2 indicated that Mr. Geiger’s level of hearing loss did not qualify as a disability for VA purposes, but that it “impact[ed] ordinary conditions of daily life, including ability to work.” R. at 115-16. The examiner stated as his “clinical opinion that a nexus cannot be made and that it is less likely as not that he has any hearing loss or tinnitus that began in service or that is caused by or a result of active duty in-service noise exposure.” R. at 116-18. He indicated that the veteran had denied “ringing of the ears” or tinnitus in a post-deployment health assessment in November 2004. Id. The examiner also noted that the veteran’s hearing in both ears was “within
2 The same VA examiner administered both the January 2013 and May 2015 VA examinations.
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normal limits” (WNL) on his October 1993 enlistment exam and his April 2009 audiogram, with the first medical evidence of bilateral hearing loss appearing on an April 2011 audiogram. Id. Later the same month, the RO issued a Statement of the Case (SOC) continuing to deny service connection. R. at 80-112.
In June 2015, Mr. Geiger perfected his appeal to the Board. R. at 69-70. In October 2015, Mr. Geiger testified at a hearing before a Board member. R. at 36-54.
On February 11, 2016, the Board issued the decision on appeal denying service connection for bilateral hearing loss and tinnitus. R. at 2-25. The Board found that neither condition was incurred in or aggravated by service, determining that Mr. Geiger was not competent to establish a diagnosis or etiology as to either condition and relying instead on the negative medical opinion offered by the May 2015 VA examiner. R. at 11-14. This appeal followed.
II. ANALYSIS
On appeal, Mr. Geiger argues that the January 2013 and May 2015 VA examinations were inadequate and that the Board therefore erred in relying on them. Appellant’s Brief (Br.) at 6-7. The Secretary responds that the veteran fails to carry his burden of demonstrating error in that regard. Secretary’s Br. at 5.
The Secretary’s duty to assist a claimant includes, among other things, “providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.” 38 U.S.C. § 5103A(d)(1); see 38 C.F.R. § 3.159(c) (2016). 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
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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 (2016) (“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). “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)).
With any finding on a material issue of fact and law presented on the record, the Board must support its determination with an adequate statement of reasons or bases that enables the claimant to understand the precise basis for that determination and facilitates review in this Court. 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). To comply with this requirement, 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. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
Mr. Geiger first argues that the May 2015 VA examination report was inadequate because it was based on an inaccurate factual premise, namely, the VA examiner’s statement that “there were no active duty audiograms in [the veteran’s] e-file.”3 See Appellant’s Br. at 8; R. at 116-18. He notes that the evidence of record includes an audiogram dated October 18, 1993. Appellant’s Br. at 8; R. at 1672. On the contrary, however, the Court notes that the May 2015 VA examiner’s statement that there were no active duty audiograms was not factually inaccurate because Mr. Geiger was not serving on active duty in October 1993 and because active duty audiograms are indeed absent from the record. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (holding that this Court may make factual findings in reviewing for prejudicial error). Indeed, the
3 Mr. Geiger asserts that this error was the same as that committed in the January 2013 VA examination report, Appellant’s Br. at 8, which had stated that there were “no audiograms in [the veteran’s] C-file,” R. at 944.
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October 1993 audiogram was not erroneously excluded in the first instance because the VA examiner addressed it in his report, R. at 116-18 (noting that “[Mr. Geiger’s] hearing was [within normal limits] on his 10/93 enlistment exam”), and the Board addressed it in its February 11, 2016, decision, R. at 10. Even if the October 1993 audiogram had been erroneously excluded, such error would not be prejudicial to Mr. Geiger because of the examiner’s finding that his hearing was within normal limits at that time. Id. The Court is therefore not persuaded that the May 2015 VA examination report was based on a factually inaccurate premise or that the alleged exclusion of the October 1993 audiogram evidence from consideration, if true, would have substantively disturbed the May 2015 VA examiner’s conclusion and rendered that report inadequate.
Mr. Geiger also asserts that the May 2015 VA examination report was inadequate insofar as the VA examiner failed, inter alia, to provide a sufficient rationale for rejecting delayed onset as to hearing loss and tinnitus. Although the examiner briefly addressed delayed onset, his rationale remains lacking as a basis for the Board’s decision, and the Court finds remandable error in the Board’s acceptance of the 2015 examination report as adequate for decision-making.
Here, the evidence of record that may support a causal connection to service includes the veteran’s reported in-service active duty exposure to loud noises from firearm discharges, explosions, and generators, all without hearing protection, R. at 117, and the veteran’s lay assertions that post-service he was not exposed to noises as loud as those in service, R. at 70, 141, 864. Specifically, Mr. Geiger indicated that, aside from active duty service, he was not in close proximity to heavy equipment or other loud noises and that his post-service employment was a desk job. R. at 70, 140-41; see Newhouse, 497 F.3d at 1302.
The May 2015 examiner opined that a link to service could not be established for hearing loss because “there is objective evidence that his bilateral [hearing loss] began years after active duty.” He opined that a link to service was not established for tinnitus because “there was no objective evidence of tinnitus onset during active duty (he denied tinnitus after his last deployment in 2004).” R. at 116-18. The examiner referred to a 2006 Institute of Medicine (IOM) report that found an “insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure.” R. at 116-18. The examiner also cited a publication titled Noise Manual for the proposition that “only seldom does noise cause a
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permanent tinnitus without also causing hearing loss.” R. at 116-18. The Board, in turn, adopted the VA examiner’s rationale as its own. See R. at 12.
As to the issue of service connection for bilateral hearing loss, the Court concludes that the May 2015 VA medical opinion lacks sufficient rationale and is therefore inadequate. See Acevedo, 25 Vet.App. at 293; Nieves-Rodriguez, 22 Vet.App. at 301. 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 and the Noise Manual cited by the 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 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).
Here, the Board denied service connection for hearing loss by adopting the opinion of the May 2015 examiner, an opinion that definitively rejected Mr. Geiger’s delayed onset hearing loss claim as viable for the sole reason that his audiograms were normal at separation and he did not develop hearing loss until after service. R. at 116-18 (May 2015 medical opinion indicating that, because objective evidence shows that the veteran’s bilateral hearing loss began years after active duty, a link to service could not be made); R. at 12 (Board decision finding the May 2015 medical opinion highly probative). The examiner and the Board did not consider other factors, such as Mr. Geiger’s post-service occupation or whether he experienced acoustic trauma after service. Because the May 2015 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 erred in relying on that opinion to deny service connection for hearing loss.
As to the issue of service connection for tinnitus, the 2015 opinion lacks rationale and appears to ignore pertinent facts. In citing the 2006 IOM report and the Noise Manual, the examiner essentially asserted that Mr. Geiger’s tinnitus was not related to service because the pertinent noise exposure that allegedly caused tinnitus should have also caused hearing loss. The
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examiner, and the Board, failed to acknowledge that the veteran has current hearing loss that he claims is due to noise exposure in service, the same noise exposure events that form the basis of the claim for service connection for tinnitus. In accepting the 2015 opinion as probative and persuasive, the Board erred in failing to ensure that any VA medical examination and opinion upon which it relies contains accurate facts and adequate supporting rational. See Acevedo, 25 Vet.App. at 293; Nieves-Rodriguez, 22 Vet.App. at 301.
Additionally, the Court notes that the portion of the Noise Manual quoted by the examiner does not disavow that noise exposure may cause tinnitus independent of hearing loss. R. at 116-18. And VA itself has recognized that tinnitus may manifest years following an underlying cause. See VA Training Letter 10-02 at 5 (Mar. 18, 2010) (instructing adjudicators that “[t]innitus can be triggered months or years after an underlying cause (such as hearing loss) occurs” and that “delayed-onset tinnitus must be considered”). Although VA Training Letter 10-02 identifies “acute noise exposure” and “noise-induced hearing loss” as conditions with which tinnitus is associated, it states that “the etiology of tinnitus often cannot be identified, because there are so many potential causes that it is impossible to select one.” Id.
As to the examiner and the Board relying on Mr. Geiger’s denial of experiencing “ringing in the ears” after his 2004 deployment, VA Training Letter 10-02 instructs that tinnitus may sound like ringing, blowing, roaring, buzzing, hissing, humming, whistling, or sizzling. Training Letter 10-02 at 6. In other words, ringing in the ears is only one type of auditory sensation experienced during tinnitus, id. at 5, and other auditory sensations, such as blowing, roaring, buzzing, etc., may be perceived instead of ringing. Further, onset of tinnitus “may be gradual or sudden” and “individuals are often unable to identify when tinnitus began.” VA Training Letter 10-02 at 5. Contrary to information provided to VA adjudicators to enable accurate decision-making, the 2015 examiner and the Board assumed that Mr. Geiger’s 2004 denial of ringing in his ears was the equivalent of denying that he experienced tinnitus.
Given these factors, and the Board’s duty to ensure that any VA medical examination upon which it relies contains accurate facts and adequate supporting rationale, see Acevedo, 25 Vet.App. at 293; Nieves-Rodriguez, 22 Vet.App. at 301, the Court finds that the Board erred in relying on the 2015 opinion to deny service connection for hearing loss and tinnitus. See Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994) (holding that the Board “cannot evade [its] statutory responsibility merely
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by adopting [a medical] opinion as its own, where, as here, the . . . opinion fails to discuss all the evidence which appears to support appellant’s position”); see also Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) (“The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases.” (citing Abernathy v. Principi, 3 Vet.App. 461, 465 (1992))). The Board’s reliance on that opinion being error, remand is required. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (finding that remand is appropriate “where the Board has . . . failed to provide an adequate statement of reasons or bases for its determinations”).
In concluding, the Court notes that the Board dismissed the probative value of Mr. Geiger’s lay evidence because it determined that he was not competent to “establish a medical diagnosis or show a medical etiology” through his lay assertions. R. at 13; see Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board bears the responsibility of assessing the credibility, weight, and probative value of the evidence of record). Although true, that finding does not mean that Mr. Geiger was not competent to establish through lay evidence that he was exposed to loud noises in service. See Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (holding that “[l]ay testimony is competent . . . to establish the presence of observable symptomatology and ‘may provide sufficient support for a claim of service connection'”). The Board itself accepted that Mr. Geiger had been “exposed to excessive noise during his military service,” finding his report of noise exposure while serving in Iraq consistent with his military occupational specialty and the “type, place and circumstances of his service.” R. at 10. Given that finding, the Board’s categorical rejection of Mr. Geiger’s competency to present lay evidence as to the existence of in-service causal factors is unsustainable. Cf. Kahana v. Shinseki, 24 Vet.App. 428 (2011).
On remand, the veteran is free to submit additional evidence and argument in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). “A remand is meant to entail a critical examination of the justification for the decision” by the Board. Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims).
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III. CONCLUSION
Upon consideration of the foregoing, the portions of the February 11, 2016, Board decision denying service connection for bilateral hearing loss and tinnitus are SET ASIDE and those matters are REMANDED for further development and readjudication consistent with this decision.
DATED: March 31, 2017
Copies to:
Michael R. Viterna, Esq.
VA General Counsel (027)

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