Veteranclaims’s Blog

June 6, 2020

Single Judge Application; Miller v. Wilkie, 32 Vet.App. 249, 260 (2020), that when, as here, an “examiner fails to address the veteran’s lay evidence, and the Board fails to find the veteran not credible or not competent to offer that lay evidence, the proper remedy is for VA to obtain a new examination.”;

Filed under: Uncategorized — Tags: — veteranclaims @ 12:25 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-1369
VICTOR B. PECKINPAUG, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENE, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
GREENE, Senior Judge: The appellant, Victor B. Peckinpaug, through counsel, appeals a
December 31, 2018, Board of Veterans’ Appeals (Board) decision that denied his claim for service
connection for bilateral hearing loss. Record (R.) at 5-12. This appeal is timely, and the Court has
jurisdiction to review the Board’s decision pursuant to 38 U.S.C. § 7252(a). Single-judge
disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the
following reasons, the Court will vacate the Board’s decision and remand the matter for
readjudication.
I. BACKGROUND
Mr. Peckinpaug served honorably on active duty in the U.S. Navy from April 1961 to
September 1963. R. at 1220. His military occupational specialty was airman apprentice and he also
served as an airplane mechanic. Id.
After a July 2009 VA examination revealed mild to moderately severe bilateral
sensorineural hearing loss, R. at 1913-14, 2073, Mr. Peckinpaug sought service connection for
1 Judge Greene is a Senior Judge acting in recall status. In re: Recall of Retired Judge, U.S. VET. APP. MISC.
ORDER 01-20 (Jan. 2, 2020).
2
hearing loss and tinnitus, R. at 2094-97. He underwent a VA compensation and pension (C&P)
examination in August 2012. R. at 1882-90. The examiner found that it was at least as likely as
not that Mr. Peckinpaug’s tinnitus was caused by noise exposure in service, R. at 1889, but that his
hearing loss was not caused by service, R. at 1887. Based on this finding, the regional office (RO)
granted service connection for tinnitus but denied service connection for bilateral hearing loss.
R. at 1805-17.
Mr. Peckinpaug disagreed with the RO’s denial of service connection for hearing loss. R. at

  1. Following a Board remand, R. at 1393-1401, he was given another VA C&P examination in
    December 2014, R. at 1384-85. Two months later, the RO again denied service connection for
    hearing loss, R. at 1370-80, and in April 2015, the Board also denied service connection for that
    claim, R. at 1352-62. He appealed to the Court.
    In September 2016, this Court held that the December 2014 VA C&P examination was
    inadequate and therefore vacated the Board’s decision and remanded the matter for readjudication.
    R. at 1147-53. On remand, the Board directed VA to obtain an addendum decision from a VA
    audiologist to determine the nature and etiology of Mr. Peckinpaug’s bilateral hearing loss. R. at
    1046-62. After a June 2017 examination, the VA examiner concluded that, given the results of
    hearing examinations at Mr. Peckinpaug’s entrance and separation examinations showing no
    hearing loss during service, “it is less likely as not that the veteran’s hearing loss was caused by or
    a result of his military noise exposure.” R. at 88. The Board found the examiner’s rationale
    inadequate because the June 2017 examiner, like the previous VA examiners, “relied on nothing
    more than the [v]eteran’s lack of hearing loss at separation and they did not discuss or provide a
    reasoned medical explanation on whether the [v]eteran’s conceded noise exposure in service could
    have caused his current hearing loss.” R. at 61. Therefore, the Board remanded Mr. Peckinpaug’s
    claim for another addendum opinion to determine the nature and etiology of his bilateral hearing
    loss. R. at 57-63. The Board stated that Mr. Peckinpaug was “competent to attest to factual matters
    of which he had first-hand knowledge, including observable symptomatology and conceded in
    service noise exposure.” R. at 61-62. Additionally, the Board directed the VA examiner to provide
    a fully reasoned explanation “[i]f there is a medical basis to support or doubt the history provided
    by the [v]eteran.” Id.
    The June 2017 VA examiner provided an addendum opinion in December 2017. R. at
    46-48. After restating her original opinion, the examiner explained that Mr. Peckinpaug’s hearing
    3
    loss is sensorineural in nature and that “[t]his type of hearing loss is consistent with several
    different etiologies, including the aging process or noise exposure.” R. at 47. She noted that Mr.
    Peckinpaug had reported a history of post-service noise exposure and that he had “reported . . . that
    he has had trouble hearing for a long time but finally decided to do something about it 10 years
    ago.” Id. She noted that Mr. Peckinpaug also had a history of hazardous military noise exposure
    and that hazardous noise exposure does have the potential to cause hearing loss, but “it does not
    always cause hearing loss in every individual.” Id. She observed that Mr. Peckinpaug’s hearing
    tests done during service did “not show a significant decrease in hearing to indicate damage as a
    result of acoustic trauma” and that “[n]o evidence was found of a hearing loss within a year of
    discharge.” Id.
    The examiner then discussed a finding of the Institute of Medicine (IOM) regarding
    delayed onset of hearing loss due to noise exposure that concluded 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.'” Id. The examiner also noted that the IOM found
    [t]here 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 this 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 47-48. The examiner concluded that
    [g]iven the lack of any significant decrease in hearing during service and the fact
    that it is unlikely that a delayed onset of noise-induced hearing loss occurs, this
    examiner must concur with the . . . opinions given in August 2012, December 2014,
    and June 2017. It is less likely as not that the veteran’s hearing loss was caused by
    or a result of his military noise exposure.
    R. at 48.
    After reviewing the results of the December 2017 VA medical opinions, the Board found
    that the preponderance of the evidence established that Mr. Peckinpaug’s current bilateral hearing
    loss was not incurred in or aggravated by his military service. This appeal followed.
    4
    II. ANALYSIS
    “[O]nce the Secretary undertakes the effort to provide an examination [or opinion,] . . . he
    must provide an adequate one.” Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A 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, if any, 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)) (internal
    quotation marks omitted), 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) (per curiam). The law does not impose any reasons-or-bases requirements on
    medical examiners and the adequacy of medical reports must be based upon a reading of the report
    as a whole. Id. at 105-06. “Whether a medical [examination or] opinion is adequate is a finding of
    fact, which the Court reviews under the ‘clearly erroneous’ standard.” D’Aries v. Peake,
    22 Vet.App. 97, 104 (2008) (per curiam).
    In every decision, the Board must provide a statement of the reasons or bases for its
    determination “adequate to enable a claimant to understand the precise basis for the Board’s
    decision, as well as to facilitate review in this Court.” Allday v. Brown, 7 Vet.App. 517, 527
    (1995); see 38 U.S.C. § 7104(d)(1); Gilbert v Derwinski, 1 Vet.App. 49, 56-57 (1990). To 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); Gilbert, 1 Vet.App. at 57.
    Mr. Peckinpaug argues that the December 2017 VA medical opinion is inadequate because,
    among other things, it did not account for his lay statements that he began experiencing hearing
    loss in service. Appellant’s Brief at 19. The Secretary acknowledges Mr. Peckinpaug’s statements
    that, as he progressed in service, his hearing worsened as recorded in his last physical in service.
    Secretary’s Brief at 15. The Secretary contends, however, that the examiner accounted for these
    statements when she noted that Mr. Peckinpaug had reported that “‘he has had trouble hearing for
    a long time but finally decided to do something about it ten years ago.'” Id. (quoting R. at 47). The
    Secretary further asserts that the examiner “addressed the substance of [the a]ppellant’s lay
    statement . . . when she discussed the two whispered voice tests and three audiograms and
    5
    determined that there were no significant changes in hearing, and that his hearing was within
    normal limits at discharge.” Id.
    In its November 2017 remand, the Board specifically stated that Mr. Peckinpaug was
    “competent to attest to factual matters of which he had first-hand knowledge, including observable
    symptomatology and conceded in service noise exposure” and the Board directed the VA examiner
    to provide a fully reasoned explanation “[i]f there is a medical basis to support or doubt the history
    provided by the [v]eteran.” R. at 61-62. Despite this specific instruction, the examiner did not
    discuss Mr. Peckinpaug’s statement that he began experiencing hearing loss while in service.
    Although the Secretary maintains that the examiner “addressed the substance” of the appellant’s
    statements, the Secretary’s explanation is merely a post hoc rationalization for the examiner’s
    failure to address the appellant’s statement. See In re Lee, 277 F.3d 1338, 1345 (Fed. Cir. 2002)
    (“[C]ourts may not accept appellate counsel’s post hoc rationalization for agency action.” (quoting
    Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))).
    This Court recently held in Miller v. Wilkie, 32 Vet.App. 249, 260 (2020), that when, as here, an “examiner fails to address the veteran’s lay evidence, and the Board fails to find the veteran not credible or not competent to offer that lay evidence, the proper remedy is for VA to obtain a new examination.” Accordingly, a remand is required for VA to provide Mr. Peckinpaug with an
    adequate VA examination as required by Miller.
    Given this disposition, the Court will not now address Mr. Peckinpaug’s other arguments
    and issues. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[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”). On remand, he may provide additional evidence and argument on the remanded
    matters, 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 the benefit sought); Kutscherousky
    v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). “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. § 7112.
    6
    III. CONCLUSION
    Based on the foregoing analysis, the appellant’s and the Secretary’s briefs, and a review of
    the record on appeal, the Board’s December 31, 2018, decision denying service connection for
    bilateral hearing loss is VACATED and the matter is REMANDED for readjudication consistent
    with this decision.
    DATED: June 4, 2020
    Copies to:
    Glenn R. Bergmann, Esq.
    VA General Counsel (027)

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