Veteranclaims’s Blog

August 26, 2020

Single Judge Application; hearing loss; “an examination is inadequate if the medical professional fails to consider the veteran’s own lay reports of symptoms.” Miller v. Wilkie, 32 Vet.App. 249, 257 (2020); failure to discuss prior medical history and examinations renders the examination inadequate. Stefl, 21 Vet.App. at 123;

Filed under: Uncategorized — Tags: — veteranclaims @ 9:43 pm

Designated for electronic publication only
No. 19-3997
Before MOORMAN, Senior Judge.1
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
MOORMAN, Senior Judge: The appellant, Patrick St. John, appeals, through counsel, a February 26, 2019, Board of Veterans’ Appeals (Board) decision that denied service connection for bilateral hearing loss. Record (R.) at 5-13. 2 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). The appellant submitted a brief and reply brief, and the Secretary submitted a brief. For the following reasons, the Court will vacate the Board’s February 2019 decision and remand the matter for further proceedings consistent with this decision.
1 Judge Moorman is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 02-20 (Jan. 2, 2020).
2 In the same decision, the Board reopened the claim for hearing loss. R. at 8. The Board’s finding that new and material evidence had been submitted to reopen the claim for hearing loss is a favorable finding that the Court may not disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007), aff’d in part and dismissed in part sub nom. Medrano v. Shinseki, 332 F. App’x 625 (Fed. Cir. 2009).
Mr. St. John served on active duty in the U.S. Navy from June 1969 to May 1973. R. at 863, 869. His primary military duties included working with jets and launching aircraft. R. at 9, 817. His entrance examination showed normal tympanic membranes and noted hearing loss. R. at 856. Audiometric testing at entrance and separation was within normal limits. R. at 848, 856.
In May 1978, Mr. St. John filed a claim for service connection for bilateral hearing loss, explaining that he had completely lost his hearing for two or three days in service in January 1972, and relating that his hearing “was once again deteriorating.” R. at 863-66. In a June 1978 rating decision, the VA Regional Office (RO) denied the claim, noting that his service records did not reveal complaints of hearing loss, and hearing was within normal limits at separation from military service. R. at 833.
The following month, in July 1978, Mr. St. John was examined by a private physician, who noted that Mr. St. John had “progressive bilateral loss of hearing for at least 6 years” and diagnosed him with “[m]ixed deafness, bilateral, representing an underlying sensorineural component probably secondary to noise trauma and a superimposed conductive air bone gap in both ears.” R. at 775-77. Mr. St. John had several ear surgeries between 1978 and 1987, including stapedectomies in the left ear in October 1978 (R. at 782-83) and in the right ear in May 1979 (R. at 779-80). The stapes prostheses in both ears were replaced in a July 1985 surgery. R. at 771-74.
In an October 2013 rating decision, the RO declined to reopen the claim. R. at 766-68. In February 2014, Mr. St. John again attempted to reopen his claim. R. at 737-38. He submitted a November 2013 private medical opinion wherein the physician described progressive decline in his hearing over many years and opined “given his history of noise exposure working on an aircraft carrier, a portion of his hearing loss may have been caused by his time in the military.” R. at 735. The RO requested a compensation and pension (C&P) medical opinion and in April 2014, the examiner stated that Mr. St. John’s hearing loss was less likely than not incurred in service. R. at 721. The examiner’s rationale for his opinion was that “separation audiograms were normal without any indication of any significant auditory threshold shifts occurring during military service.” Id. The RO denied the claim in a May 2014 rating decision. R. at 716-18. Mr. St. John filed a Notice of Disagreement (NOD) later in May 2014. R. at 700-01. A June 2015 Statement of the Case (SOC) continued the denial. R. at 671-95. In July 2015, Mr. St. John filed a Substantive Appeal providing medical treatise evidence regarding otosclerosis and averring that he continued to have difficulty
understanding speech after separation from military service and that his hearing had progressively worsened. R. at 660-61.
The RO requested a new C&P medical examination and in November 2016, the examiner stated that Mr. St. John’s hearing loss was less likely than not a result of military service. R. at 508. The examiner diagnosed mixed hearing loss, noted that Mr. St. John’s entrance and separation audiological examinations were within normal limits, and opined that his hearing loss was “largely due to known complications from middle ear surgery for placement of a prosthesis for an inherited form of hearing loss.” R. at 505-14. In August 2017, Mr. St. John received a left ear cochlear implant. R. at 109.
The RO continued to deny the claim in a May 2018 Supplemental Statement of the Case (SSOC). R. at 250-51. In July 2018, Mr. St. John and his spouse testified in a videoconference hearing before the Board, where he agreed to have his spouse answer several questions because of his hearing loss and trouble understanding speech. R. at 18-27. His spouse testified that he had worn hearing aids since their marriage in 1978. R. at 22. In the February 2019 decision on appeal, the Board reopened and denied the claim for service connection for hearing loss. R. at 5-13. This appeal followed.
Mr. St. John argues that the Board failed in its duty to assist and erred in relying on examinations which were inadequate in several respects, including failing to state a rationale that would allow for an informed decision, relying on inaccurate factual premises, and failing to discuss his lay statements regarding continuity of symptomatology. Appellant’s Brief (Br.) at 8-13. The Secretary argues that the examinations were adequate and that Mr. St. John has failed to show prejudicial error. Secretary’s Br. at 5, 7-12.
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) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC test are less than 94%. 38 C.F.R. § 3.385 (2020). Hearing loss does not constitute a disability if it does not meet the threshold requirements set forth in § 3.385. Palczewski v. Nicholson, 21 Vet.App. 174, 179-80 (2007). This Court, however, has made clear 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.” Hensley v. Brown, 5 Vet.App. 155, 160 (1993).
Although VA need not provide a medical examination in all cases, “once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, 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. (internal quotation marks omitted) (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) (per curiam). Additionally, the opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.” 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.”).
“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). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, “is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
In the decision on appeal, the Board assigned significant probative weight to two VA medical opinions in finding that the preponderance of the evidence was against service connection. R. at 10-12. The Board relied on an April 2014 C&P medical opinion, noting “the examiner referred to the [v]eteran’s military enlistment audiogram which showed mild hearing loss, and his separation audiogram which was normal, without any indication of any significant auditory threshold shifts.” R. at 11. The Board also afforded a November 2016 C&P medical opinion significant probative weight, noting that the examiner’s opinion was supported by the statement: “Entrance and separation exams within his STR[s] were within normal limits, and further, that his
hearing loss was largely due to known complications from middle ear surgery for placement of a prosthesis for an inherited form of hearing loss”. R. at 11-12.
The Court holds that the Board committed clear error when it relied upon inadequate audiological examinations. See D’Aries, 22 Vet.App. at 104. The examiner failed to account for relevant details of Mr. St. John’s audiological history, including his lay testimony that he experienced a temporary total hearing loss in service, R. at 863-66, and a July 1978 diagnosis of mixed hearing loss beginning in service and opinion that Mr. St. John’s sensorineural hearing loss was probably a result of noise exposure, R. at 775-77. This failure to discuss Mr. St. John’s prior medical history and examinations renders the April 2014 examination inadequate. Stefl, 21 Vet.App. at 123.
Similarly, the November 2016 VA examiner relied on Mr. St. John’s military separation examination that showed results within normal limits to support her conclusion that his hearing loss was less likely than not the result of an event in military service. R. at 508. While the November 2016 examiner further explained that Mr. St. John’s hearing loss was due to surgeries to correct a middle ear defect (R. at 508), the examiner did not discuss Mr. St. John’s statements regarding a temporary total loss of hearing in service (R. at 863-66) and difficulty understanding speech and progressive hearing loss since service (R. at 660-61). These relevant lay statements appear to conflict with the examiner’s conclusion. See McKinney v. McDonald, 28 Vet.App. 15, 30 (2016) (“[T]he VA examiner’s failure to consider [the veteran’s] testimony when formulating her opinion renders that opinion inadequate.”). The examiner also did not discuss the July 1978 examiner’s opinion that diagnosed mixed hearing loss and opined that Mr. St. John’s sensorineural hearing loss was “probably” a result of noise exposure. As Mr. St. John explains, the July 1978 examination occurred prior to the ear surgeries to which the November 2016 examiner attributed his hearing loss. Appellant’s Br. at 10. Therefore, the November 2016 opinion did not adequately consider Mr. St. John’s medical history. Stefl, 21 Vet.App. at 123.
Neither medical examiner considered Mr. St. John’s medical history, and neither medical examiner discussed Mr. St. John’s lay testimony regarding in-service hearing loss. While there is no reasons or bases requirement imposed on examiners, “an examination is inadequate if the medical professional fails to consider the veteran’s own lay reports of symptoms.” Miller v. Wilkie, 32 Vet.App. 249, 257 (2020). Miller further explains that if the Board errs by relying on a medical opinion that did not consider the veteran’s lay testimony, and if the Board does not impugn the
veteran’s credibility, the appropriate remedy is to remand for a new examination. Id. at 258. Here, the Board did not question Mr. St. John’s credibility, R. at 5-13; therefore, the appropriate remedy is to remand the claim for a new examination that adequately considers his lay testimony. Accordingly, the Court concludes that, because the Board erred in relying on two inadequate examinations which did not consider Mr. St. John’s pertinent medical history and lay testimony, remand is warranted. See Ardison, 6 Vet.App. at 407 (holding that the Board errs when it relies on an inadequate medical examination report or opinion); see also Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where the 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”). The Court will vacate the Board’s decision and remand the matter for further development, including a new VA audiological examination in compliance with VA’s duty to assist.
Although Mr. St. John argues that reversal is the appropriate remedy because, he contends, the Board clearly erred in not granting service connection based on the July 1978 medical opinion and competent lay evidence, Appellant’s Br. at 8, the Court does not agree. The Board described the July 1978 examiner’s conclusion that Mr. St. John has mixed hearing loss of two types: sensorineural hearing loss “probably” secondary to noise trauma, and conductive hearing loss caused by otosclerosis. R. at 11. The Board assigned the July 1978 medical opinion lower probative weight because it found the opinion speculative and not based on a review of the separation examination. Id. The Board’s speculative characterization of the examiner’s conclusion is weak at best, as “probably” is related to “probable,” defined as “likely to exist, be true, or happen.” BLACK’S LAW DICTIONARY 1454 (11th ed. 2019). But regardless of the Board’s assessment regarding the certainty of the examiner’s opinion, the Court cannot say that the only permissible view of the evidence warrants reversal. See Coburn v. Nicholson, 19 Vet.App. 427, 430 (2006) (finding reversal appropriate when “the only permissible view of the evidence is contrary to the Board’s decision”); Gilbert v. Derwinski, 1 Vet.App. at 49, 52 (1990). Because the Board characterized the July 1978 examiner’s opinion as speculative, it did not find sufficient facts on which to conclude that the 1978 examination provides a sufficient basis for awarding service connection. R. at 11. The Board also did not explicitly weigh the probative value of Mr. St. John’s statements that he experienced hearing loss since service, stating only that he was not competent to provide a nexus opinion. R. at 12. Because the Board failed to make the necessary findings below, the proper
remedy is remand. See Byron v. Shinseki, 670 F.3d 1202, 1205 (Fed. Cir. 2012) (holding that where there are facts that remain to be found in the first instance that do not relate solely to the issue of harmless error, a remand is the proper course).
Because the Court is remanding this matter for readjudication and VA will necessarily undertake further development, the appellant’s other arguments, including the potential applicability of 38 C.F.R. § 3.303(b) (2020), are best addressed on remand. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam) (“A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at readjudication, and, of course, before this Court in an appeal, should the Board rule against him.”). In pursuing the matter on remand, Mr. St. John is free to submit, and the Board must consider, additional evidence and argument on the remanded matter. 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 benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). 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. § 7112.
Based on the foregoing analysis, the appellant’s and the Secretary’s briefs, and a review of the record on appeal, the Board’s February 26, 2019, decision that denied service connection for bilateral hearing loss is VACATED and the matter is REMANDED for readjudication consistent with this decision.
DATED: August 25, 2020
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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