Veteranclaims’s Blog

August 30, 2021

Single Judge Application; Wise v. Shinseki, 26 Vet.App. 517, 531 (2014); apply the correct standard of proof for determining that issue; The examiner rejected the scientific evidence because it did not definitely establish a causal link as a generally accepted principle. However, “Congress has not mandated that a medical principle have reached the level of scientific consensus to support a claim for VA benefits.” Wise v. Shinseki, 26 Vet.App. 517, 531 (2014). Although the examiner rejected the scientific research evidence, “this did not relieve the Board of its obligation to consider and discuss the potentially favorable medical literature of record” that supported Mr. Lardinois’s theory of service connection and “to apply the correct standard of proof for determining that issue.” Id. at 531-32; see R. at 353-37 (scientific literature submitted by Mr. Lardinois). However, the Board did not discuss the scientific research evidence submitted by Mr. Lardinois; instead, it adopted the examiner’s opinion and his rejection of the scientific evidence without addressing or reconciling that opinion with the proper adjudicative standard of proof;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 20-0344
RICHARD LARDINOIS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Richard Lardinois appeals through counsel an
October 1, 2019, Board of Veterans’ Appeals (Board) decision that denied service connection for
cervical and thoracic spine conditions, bilateral hearing loss, and hypertension. Record (R.) at 5-15. For the reasons that follow, the Court will set aside the October 2019 Board decision and
remand the matters for further development and readjudication consistent with this decision.
I. FACTS
Mr. Lardinois served honorably in the U.S. Army from March 1968 to March 1970,
including service in the Republic of Vietnam. R. at 821.
Prior to service, Mr. Lardinois was injured during a January 1967 car accident resulting in
a whiplash injury. See R. at 847. As of September 1967, Mr. Lardinois was still experiencing
residual cervical pain. See id.
During the January 1968 pre-induction examination, a service physician noted that a neck
examination was negative as Mr. Lardinois demonstrated full range of motion, no spasm or
tenderness, and no crepitation. R. at 843. The physician also noted that Mr. Lardinois demonstrated
2
“defective hearing” and assigned a “2” for hearing on the PULHES scale.1 R. at 844 (reflecting a
hearing acuity threshold of 55 decibels (dB) in the left ear at 4000 Hertz (Hz)).
Service medical records reflect that Mr. Lardinois received treatment for cervical and upper
thoracic pain resulting from the whiplash injury. R. at 841, 850-55. The February 1970 service
separation examination report reflected a normal spine examination, R. at 670, and that the service
physician recorded a “1” in all the PULHES categories, R. at 673 (reflecting a hearing acuity
threshold of 10 dB in left ear at 4000 Hz).
In February 2016, Mr. Lardinois filed, among other things, claims for service connection
for a neck disability, “lower back” disability, bilateral hearing loss, and hypertension. R. at 864-
67; see R. at 883-88, 892-93 (attached evidence). Following a series of VA examinations, R. at
572-79 (neck), 580-86 (back), 771-75 (hearing loss), a VA regional office (RO) denied the claims
in August 2016, R. at 466-71. As relevant, the RO construed the “lower back” claim as one seeking
service connection for a thoracic spine strain. R. at 470.
In August 2017, Mr. Lardinois filed a Notice of Disagreement (NOD). R. at 353-66. As
relevant, he asserted that his neck and back conditions were related to physical rigors of service
and that his hypertension was due to exposure to Agent Orange. R. at 364-65. Following another
series of VA examinations, R. at 138-46 (thoracolumbar), 146-54 (neck), 183-86 (hypertension),
192-96 (hearing loss), the RO continued to deny the claims in a May 2019 Statement of the Case
(SOC), R. at 60-84. At that time, the RO characterized the back claim as service connection for a
thoracolumbar disability. R. at 81-83. In July 2019, Mr. Lardinois perfected an appeal to the Board.
R. at 25-29.
In the October 2019 decision on appeal, the Board denied service connection for cervical
and thoracic spine conditions, finding that Mr. Lardinois had pre-existing spinal conditions due to
the pre-service whiplash injury, which did not undergo an increase during service. R. at 9-10. The
Board rejected direct theories of service incurrence of those disabilities. Id. The Board also denied
1 PULHES is a rating system widely used by military physicians to evaluate a servicemember’s physical and
mental health upon entrance into and separation from service. See McIntosh v. Brown, 4 Vet.App. 553, 555 (1993).
“PULHES” is an acronym that represents the six categories of the physical profile serial: “P” stands for “physical
capacity or stamina”; “U” stands for “upper extremities”; “L” stands for “lower extremities”; “H” stands for “hearing
and ears”; “E” stands for “eyes”; and “S” stands for “psychiatric.” Id. A profile serial was assigned on a scale of 1 to
4 for each of the six categories, with “1” indicating the highest level of fitness and “4” representing defects below the
minimum standards for enlistment or induction.
3
service connection for hearing loss and hypertension, relying on VA examiners’ opinions
disclaiming a link to service. R. at 10-15. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Mr. Lardinois’s appeal is timely and the Court has jurisdiction to review the October 2019
Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
Establishing service connection generally requires medical or, in certain circumstances, lay
evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury;
and (3) a link between the claimed in-service disease or injury and the present disability.
Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013).
The Board’s determinations regarding service connection, whether the duty to assist has
been satisfied, and the adequacy of a medical examination or opinion are findings of fact subject
to the “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); see D’Aries v. Peake,
22 Vet.App. 97, 104 (2008); Nolen v. Gober, 14 Vet.App. 183, 184 (2000); Davis v. West,
13 Vet.App. 178, 184 (1999). “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)).
The Board must support its material determinations of fact and law with adequate reasons
or bases. 38 U.S.C. § 7104(d)(1); Pederson v. McDonald, 27 Vet.App. 276, 286 (2015) (en banc);
Allday v. Brown, 7 Vet.App. 517, 527 (1995); 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
evidence, account for evidence 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).
4
III. ANALYSIS
A. Outstanding Records
The Secretary has a duty to assist claimants in developing their claims. 38 U.S.C. § 5103A;
38 C.F.R. § 3.159(c) (2021). That duty includes making reasonable efforts to obtain relevant
records held by any Federal department or agency. 38 U.S.C. § 5103A(c)(C); 38 C.F.R.
§ 3.159(c)(2). Mr. Lardinois argues that the Board erred by failing to ensure that VA fulfilled its
duty to assist by obtaining records from the Social Security Administration (SSA). Appellant’s
Brief (Br.) at 14. He argues that evidence of record reflects that he has received Social Security
disability income (SSDI) since undergoing a cervical fusion in 2007, see R. at 573, 588; yet, the
record contains no indication that VA requested SSA records. Appellant’s Br. at 14. The Secretary
agrees and concedes that the Board erred with respect to outstanding SSA records. Secretary’s Br.
at 13-14.
The parties disagree, however, about which claims should be remanded because of the
Board’s duty-to-assist error. Mr. Lardinois argues that all four claims must be remanded because,
although the evidence of record links his receipt of SSDI to the neck disability, “there is a
reasonable possibility that the records could assist in substantiating the claims . . . by providing
information on the duration and etiology of the disabilities at issue.” Appellant’s Br. at 14
(emphases added); see Reply Br. at 1-2. Conversely, the Secretary states that the SSA records may
be relevant to the neck claim and concedes remand of that claim. Secretary’s Br. at 14. Although
he does not concede remand of the other claims, he provides no explicit argument in that regard.
See id. at 13-14.
The Court concludes that the Board’s duty-to-assist error requires remand of all four claims.
Although the notations found in the record before the Court link Mr. Lardinois’s receipt of SSDI
to a 2007 cervical fusion, these notations are found in the series of VA orthopedic examinations
and do not clearly indicate that SSA records would not be relevant to the remaining claims. See,
e.g., R. at 573. Mr. Lardinois asserts that the outstanding records may be relevant to all claims.
That those records could support the remaining claims cannot be foreclosed without reviewing
those records. See Moore v. Shinseki, 555 F.3d 1369, 1375 (Fed. Cir. 2009); McGee v. Peake,
511 F.3d 1352, 1358 (Fed. Cir. 2008); Quartuccio v. Principi, 16 Vet.App. 183, 188 (2002). In
addition, the Secretary did not make an explicit argument against relevance; thus, the Court
5
concludes that the Board’s duty-to-assist error requires remand of all four claims. Cf. Golz v.
Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010).
B. Presumption of Soundness
The parties agree that the Board failed to provide adequate reasons or bases indicating
whether the presumption of soundness attached to the cervical and thoracic spine disabilities.
Appellant’s Br. at 15-17; Secretary’s Br. at 10-13. The Court agrees.
A veteran is presumed to be in sound condition except for defects, infirmities, or disorders
noted when the veteran is examined, accepted, and enrolled for service. 38 U.S.C. § 1111;
38 C.F.R. § 3.304(b) (2021). “Therefore, when no preexisting medical condition is noted upon
entry into service, a veteran is presumed to have been sound in every respect.” Horn v. Shinseki,
25 Vet.App. 231, 234 (2012); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If,
however, a preexisting medical condition was noted on entry into service, “the veteran cannot
bring a claim for service connection for that disorder, but the veteran may bring a claim for serviceconnected
aggravation of that disorder.” Wagner, 370 F.3d at 1096.
The operative question, therefore, is whether there was notation of a preexisting condition
upon entry into service. See id.; Horn, 25 Vet.App. at 234. The Board made no express finding
whether the presumption of soundness applied to the cervical or thoracic spine conditions. Because
it stated that Mr. Lardinois reported occasional cervical pain at the time of the January 1968 preinduction
examination, R. at 8; see R. at 845-46 (pre-induction report of medical history form),
and stated that he had preexisting cervical and thoracic conditions, R. at 7, 9, it appears that the
Board concluded that the presumption did not attach. However, the Board adjudicated theories of
both service connection and service aggravation. R. at 9-10. The lack of clarity in the Board’s
analysis renders its reasons or bases deficient. See Allday, 7 Vet.App. at 527; Caluza, 7 Vet.App.
at 506.
In addition, although the Board noted complaints of occasional neck pain at the time of the
pre-induction examination, see R. at 845-46, it failed to acknowledge that the service physician
indicated that a neck examination was negative as Mr. Lardinois demonstrated full range of
motion, no spasm or tenderness, and no crepitation, see R. at 843. The Board’s failure to discuss
this evidence further renders its reasons or bases inadequate, requiring remand of the neck and
thoracic claims. See Allday, 7 Vet.App. at 527; Caluza, 7 Vet.App. at 506; see also Tucker v. West,
6
11 Vet.App. 369, 374 (1998) (holding that remand is warranted “where the Board has . . . failed to
provide an adequate statement of reasons or bases for its determinations”).
The Court also finds the Board’s discussion of the presumption of soundness vis-à-vis
hearing loss unclear. The Board acknowledged that the pre-induction examination report indicated
that Mr. Lardinois presented with “defective hearing” as the auditory threshold in his left ear at
4000 Hz was 55 dB. R. at 11; see R. at 844 (assigning a “2” for hearing on the PULHES scale).
However, the Board then stated that it was unclear whether Mr. Lardinois experienced hearing loss
during service as his hearing acuity in the left ear improved by service separation. R. at 11; see R.
at 773 (June 2016 VA examiner’s opinion that the enlistment audiogram results “were not very
consistent”). It is, therefore, unclear whether the Board considered a hearing loss disability to be
noted upon entry or if it considered the audiometric results at entrance to be inconsistent with those
documented at separation. Upon readjudication of the hearing loss disability, the Board should
clearly state its finding regarding Mr. Lardinois’s hearing acuity upon entry to service.
C. Characterization of the Back Disability Claim
In Mr. Lardinois’s February 2016 initial claim, he sought service connection for a “lower
back” condition, R. at 865, and submitted a 2007 private physical therapy record reflecting
continued treatment for L5-S1 spondylolisthesis, R. at 893. During the July 2016 VA examination,
the examiner noted the physical therapy record and that Mr. Lardinois reported low back pain,
particularly with transitioning to a standing position, and that his military service involved “heavy
manual work.” R. at 581. When the RO denied the claim in August 2016, it characterized the claim
as one for a “thoracic spine strain (claimed as a lower back condition).” R. at 470.
In his NOD, Mr. Lardinois again indicated that he had been diagnosed with an L5-S1
spondylolisthesis and described the physical rigors of his military service. R. at 365. During the
April 2019 VA examination, the examiner diagnosed lumbar spondylolisthesis, R. at 139, and
copied the assertion made during the July 2016 VA examination regarding Mr. Lardinois’s service
requiring “heavy manual work,” R. at 140. In the May 2019 SOC, the RO recharacterized the claim
as one for service connection for a “thoracolumbar disability (claimed as lower back).” R. at 81.
However, in the decision on appeal, the Board recharacterized the claim back to one for a
thoracic spine condition. R. at 9-10. The Board did not explain the varied characterizations over
time or, more importantly, why its most recent characterization of “thoracic spine condition”
7
accurately represents the claim Mr. Lardinois filed in February 2016, when he sought service
connection for a “lower back” condition and presented evidence of a lumbosacral diagnosis. On
remand, the Board should clarify what it considers the scope of Mr. Lardinois’s February 2016
claim to be and explain its reasoning therefor.
D. Adequacy of VA Orthopedic Examinations
Mr. Lardinois urges the Court to conclude that the VA orthopedic examinations are
inadequate. However, the adequacy of those examinations is intimately connected to the Board’s
findings regarding the extent, if any, of preexisting spine disabilities, which the Court has
determined are inadequately explained. The spine examinations are clearly predicated on a
preexisting whiplash injury involving the cervical and thoracic spine. See R. at 153-54, 578-79,

Moreover, the adequacy of the back examinations is also dependent on the proper
characterization of the “lower back” claim. Accordingly, upon readjudication, the Board, when it
addresses the errors discussed above, should also reassess its duty-to-assist determinations
regarding the adequacy of the VA orthopedic examinations.
E. Adequacy of VA Hearing Examinations
Mr. Lardinois argues that the June 2016 and March 2019 VA hearing examinations are
inadequate because they are predicated on normal hearing acuity upon separation and are not
supported by sufficient rationale. Appellant’s Br. at 12-14. In the alternative, he argues that the
Board did not provide adequate reasons or bases for finding the examinations adequate. Id. at 21.
The Secretary disputes these contentions and argues that the hearing examinations are adequate.
Secretary’s Br. at 18-23.
In the June 2016 opinion, the VA examiner, as relevant, quoted a portion of a 2005 Institute
of Medicine (IOM) report stating that “[t]here is insufficient evidence from longitudinal studies
. . . to determine whether permanent noise-induced hearing loss can develop much later in one’s
lifetime.” R. at 773. In the March 2019 opinion, the VA examiner, as relevant, quoted a portion of
the IOM report stating that “[i]n cases where there were entrance and separation audiograms and
such tests were normal, there was no scientific basis for concluding that hearing loss that develops
20 or 30 years later is causally related to military service.” R. at 195. In its decision, the Board
found the examiners’ opinions to be the “most probative evidence of record” because the
“examiners’ rationale are logical and well-reasoned.” R. at 13.
8
The Court concludes that the Board failed to provide reasons or bases for finding the
examiners’ opinions adequate and probative. Notably, the Board failed to address the examiners’
references to different portions of the IOM report that contain conflicting statements about
delayed-onset hearing loss. Although the June 2016 examiner quoted a portion of the IOM report
that concluded there was insufficient evidence to determine whether delayed-onset hearing loss
can develop, R. at 773, the March 2019 examiner quoted a portion concluding that there is no
scientific basis for delayed-onset hearing loss, R. at 195. The Board did not reconcile or
acknowledge these conflicting statements from the VA examiners. Such oversight renders its
reasons or bases inadequate. See McCray v. Wilkie, 31 Vet.App. 243, 256-57 (2019) (concluding
that a medical text’s qualifying or contradictory aspects may affect the probative value and
adequacy of a medical opinion that relies on that text, an issue that, if raised, the Board must
address).
F. Hypertension
Finally, Mr. Lardinois argues that the Board failed to provide adequate reasons or bases for
its reliance on the March 2019 VA examiner’s opinion, which he argues is impermissibly based on
the lack of scientific proof of causation between herbicide exposure and hypertension. Appellant’s
Br. at 22-23. The Secretary disputes this assertion and argues that neither the VA examiner nor the
Board required a higher standard of proof. Secretary’s Br. at 24-28.
In the March 2019 opinion, the examiner, in relevant part, reviewed two pieces of scientific
research evidence. First, he stated that the 2018 National Academy of Sciences Veterans and Agent
Orange Update, while finding sufficient evidence of an association between herbicide exposure
and hypertension, did not establish causation because “[a]n association is not evidence of
causation.” R. at 185. Second, he stated that, although a December 2016 VA study reported strong
evidence of ties between herbicide exposure and hypertension, the study’s author stated that the
study did not prove that herbicide exposure causes hypertension. Id. The Board relied on the March
2019 examiner’s opinion—the only evidence it cited—as the “most probative evidence of record.”
R. at 15.
The Court concludes that the Board failed to provide adequate reasons or bases for its
decision. As part of his rationale, the VA examiner noted that, although two research studies
demonstrated an association between herbicide exposure and hypertension, those studies did not
9
prove causation. The examiner rejected the scientific evidence because it did not definitely
establish a causal link as a generally accepted principle. However, “Congress has not mandated that a medical principle have reached the level of scientific consensus to support a claim for VA benefits.” Wise v. Shinseki, 26 Vet.App. 517, 531 (2014). Although the examiner rejected the scientific research evidence, “this did not relieve the Board of its obligation to consider and discuss the potentially favorable medical literature of record” that supported Mr. Lardinois’s theory of service connection and “to apply the correct standard of proof for determining that issue.” Id. at 531-32; see R. at 353-37 (scientific literature submitted by Mr. Lardinois). However, the Board did not discuss the scientific research evidence submitted by Mr. Lardinois; instead, it adopted the examiner’s opinion and his rejection of the scientific evidence without addressing or reconciling that opinion with the proper adjudicative standard of proof.
The Board’s failure in these respects
renders its reasons or bases inadequate and frustrates judicial review, requiring remand. See Allday,
7 Vet.App. at 527; Caluza, 7 Vet.App. at 506; see also Tucker, 11 Vet.App. at 374.
On remand, Mr. Lardinois is free to submit additional arguments and evidence, including
the arguments raised in his briefs to this Court, and the Board must consider any such evidence or
argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); 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 [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.
IV. CONCLUSION
Upon consideration of the foregoing, the appealed portion of the October 1, 2019, Board
decision is SET ASIDE and the matters are REMANDED for further development and
readjudication consistent with this decision.
DATED: July 29, 2021
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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