Veteranclaims’s Blog

November 8, 2021

Single Judge Application; in Hensley v. Brown 5 Vet.App. 155, 157 (1993), the Court determined that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels reflect some degree of hearing loss. Review of the May 1974 separation examination reflects that the appellant’s right ear hearing threshold at 4000 Hertz is 25 decibels, R. at 1237, and pursuant to Hensley v. Brown, this does reveal some level of hearing loss – especially when compared to the May 1972 enlistment examination which reflects his right ear hearing threshold at 4000 Hertz to be 5 decibels, R. at 1241.;

Filed under: Uncategorized — Tags: — veteranclaims @ 6:22 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-1717
BERTIS CUPIT, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: The appellant, Bertis Cupit, through counsel, appeals a November 19,
2018, Board of Veterans’ Appeals (Board) decision in which the Board denied service connection
for tinnitus. Record of Proceedings (R.) at 4-8. Additionally, the Board remanded the claims for
(1) service connection for psychiatric disorder, including post-traumatic stress disorder (PTSD),
antisocial personality disorder, and adjustment disorder with anxiety; and (2) an initial
compensable rating for osteoarthritis carpal metacarpal joint left thumb, status-post fracture. R. at
12-18. The remanded claims are not before the Court. See Hampton v. Gober, 10 Vet.App. 481,
483 (1997) (claims remanded by the Board cannot be reviewed by the Court).
This appeal is timely, and the Court has jurisdiction to review the Board’s 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). For the reasons that follow, the Court will vacate the
Board’s decision denying entitlement to service connection for tinnitus and remand the matter for
further proceedings consistent with this decision. The Court will also remand for initial
development and adjudication the reasonably raised claim for service connection for hearing loss.
2
I. BACKGROUND
Appellant had active service in the U.S. Navy from June 1972 to June 1974. R. at 1227-28.
His DD Form 214 reflects that his military occupational specialty (MOS) was that of
Quartermaster. Review of the service treatment records reflects that at his May 1972 enlistment
examination, the appellant’s right ear puretone thresholds in decibels at 500, 1000, 2000 and 4000
Hertz were shown to be 15, 5, 10, and 5 respectively. R. at 1241. His left ear puretone thresholds
in decibels at 500, 1000, 2000, and 4000 Hertz were shown to be 20, 10, 15, and 10 respectively.
Id. At the May 1974 discharge examination, the appellant’s right ear puretone thresholds in
decibels were shown to be 20 at 500 Hertz, 15 at 1000 Hertz, 10 at 2000 Hertz, 10 at 3000 Hertz,
and 25 at 4000 Hertz. R. at 1237. In addition, his left ear puretone thresholds in decibels were
shown to be 10 at 500 Hertz, 10 at 1000 Hertz, 10 at 2000 Hertz, 15 at 3000 Hertz, and 15 at 4000
Hertz. Id.
In April 2012, the appellant filed a claim for several disorders, to include service
connection for tinnitus, which reportedly began in 1974. R. at 1875-84. In a statement the regional
office (RO) received in May 2012, the appellant related his current tinnitus to his exposure to inservice
acoustic trauma. R. at 1833. The appellant explained that he had served aboard the U.S.S.
Saratoga and was assigned to the “lower deck quarters[] that were adjacent to the steam catapults
for aircraft launches.” Id. According to the appellant, he was exposed to loud noises while working
in the enclosed “vents/voids” division, where they “chipped paint with air powered paint chippers
and seldom had proper hearing protection.” Id.
During a February 2010 treatment visit, the appellant reported that for 20 to 25 years he
had felt an ongoing ringing sensation in his ears that was louder in the left ear than the right. R. at

  1. A progress report that was noted to have been scanned in May 2010 reflects that the appellant
    had been diagnosed with bilateral tinnitus for 10 to 12 years in duration. R. at 1820. The treatment
    provider assessed the appellant with an impression of essential tinnitus, and noted that the
    appellant’s hearing was “‘still pretty good'” and he had a “[history] of industrial noise exposure.”
    Id.
    The appellant was afforded several VA examinations in October 2013 to determine the
    etiology of his claimed disorders. R. at 1441-43. In the general remarks section of one of the
    examination reports, VA provided that the appellant had sought service connection for both
    tinnitus and hearing loss and requested VA examinations and medical opinions for both disorders.
    3
    R. at 1437. Based on audiological evaluation and her discussion with, the appellant, the VA
    examiner diagnosed the appellant with bilateral sensorineural hearing loss in the frequency range
    of 400 to 5000 Hertz, and in the frequency range of 6000 Hertz or higher frequencies. R. at 1442.
    Although the appellant reported recurrent tinnitus that began in service, the examiner stated that
    because the claims file had not been provided, she could not opine on the etiology of his tinnitus
    or bilateral sensorineural hearing loss without resorting to speculation. R. at 1442-43.
    Following these examination reports, VA noted the appellant’s assertions regarding his
    service aboard the U.S.S. Saratoga and conceded the appellant’s in-service noise exposure. R. at
    1387, 1389. VA found that because the claims file had not been provided, the VA examiner thus
    could not opine on the etiology of the appellant’s hearing loss and tinnitus, and further clarification
    was needed. Id. The claims file was apparently subsequently provided to the VA audiologist for
    an addendum opinion addressing the etiology of the appellant’s hearing loss and tinnitus, and
    whether these disorders “are related to the noise exposure from service aboard an aircraft carrier
    in service.” Id.
    In the November 2013 VA medical opinion, the VA staff physician reviewed the claims
    file and noted that the audiograms at entrance and exit from service revealed no abnormality, and
    “[t]herefore, it is less likely as not that the [appellant’s] current complaints of hearing loss and
    tinnitus are related to in[ ]service noise exposure.” R. at 1383. The VA physician referenced the
    September 2005 Institute of Medicine (IOM) study on military noise exposure, and explained that
    the study holds that “‘there is no scientific basis for delayed or late onset noise-induced hearing
    loss, i.e.[,] hearing normal at discharge and causally attributable to military noise exposure 20-30
    years later.'” Id. The VA physician further explained that the study holds that with respect to cases
    where the entrance and separation audiograms reveal no abnormality, “‘there was no scientific
    basis for concluding that hearing loss that develops 20 or 30 years later is causally related to
    military service,” and “[t]herefore, audiologists have no scientific basis for concluding that delayed
    onset hearing losses exist.'” Id. According to the VA physician, “[b]ecause there was no hearing
    loss at separation, this study concludes that there is no evidence to suggest [that the appellant’s]
    hearing status would be impacted later in life because of the noise events in service.” Id. The VA
    physician stated that although “[t]here are many possible causes for tinnitus . . . tinnitus is often
    idiopathic,” and without evidence of noise induced hearing loss “and/or documentation of tinnitus
    in the [appellant’s] service medical records, the etiology of any reported tinnitus does not appear
    4
    to be related to acoustic trauma during military service, hearing loss or changes in hearing.” Id.
    According to the VA physician, “[t]he cause of the [appellant’s] tinnitus appears to lie elsewhere.”
    Id.
    In the January 2014 rating decision, the RO denied service connection for tinnitus on the
    basis that the condition neither occurred in nor was caused by service, and that no link between
    this medical condition and military service was found. R. at 1332 (1324-34).
    The appellant filed a Notice of Disagreement (NOD) with this decision in September 2014.
    R. at 1271. In his NOD, the appellant asserts that his hearing test administrator told him he had
    moderate to severe hearing loss in both ears. Id. In the August 2016 Statement of the Case (SOC),
    the RO continued to deny service connection for tinnitus, because the appellant’s service treatment
    records “did not document complaints, evaluation, diagnosis, and treatment for this condition
    while active duty, nor is it noted at the time of discharge.” R. at 932, 895-933. In the August 2016
    VA Form 9, the appellant perfected his appeal of his claim for service connection for tinnitus. R.
    at 885. In the November 2018 decision, the Board determined that “[the appellant’s] tinnitus was
    not incurred in service, did not manifest within one year of separation from active service, and is
    not shown to be otherwise the result of military service, to include any noise exposure therein.” R.
    at 4..
    II. ANALYSIS
    The appellant contends that the Board failed to discuss or adjudicate the appellant’s
    “reasonably raised claim of entitlement to service connection for hearing loss.” Appellant’s (Brief)
    Br. at 8. According to the appellant, pursuant to our decision in Beverly v. Nicholson, “‘[w]here such review of all documents and oral testimony reasonably reveals that the claimant is seeking a particular benefit, the Board is required to adjudicate the issue of the claimant’s entitlement to such a benefit or, if appropriate, to remand the issue to the [RO] for development and adjudication of the issue; however, the Board may not simply ignore an issue so raised.”19 Vet.App. 394, 404-05 (2005) (quoting Brannon v. West, 12 Vet.App. 32, 34 (1998) (quoting Suttmann v. Brown, 5 Vet.App. 127, 132 (1993)
    In arguing that the record reasonably raised the claim for service connection for hearing
    loss, the appellant referenced, among other things, service treatment records; the October 2013
    5
    VA examination report; internal VA documents conceding the appellant’s exposure to acoustic
    trauma during service aboard an aircraft carrier and reflecting that the appellant has claims pending
    for both tinnitus and hearing loss; the November 2013 VA medical opinion; and the January 2014
    rating decision, to name a few. Appellant’s Br. at 9-10. According to the appellant, the evidence
    of record reflects that at various points throughout the appeal, he related his tinnitus to hearing loss
    experienced during service, “and that the VA investigated the issue insofar as it sought an opinion
    that addressed the relationship between [the appellant’s] service and his hearing loss.” Id. at 10. In
    light of the evidence of record, the appellant argues, VA should have adjudicated his hearing loss
    claim and remand is required for the Board to adjudicate this claim. Id. at 10-11. The appellant
    also referenced the VA Adjudication Procedures Manual (M21-1), pt. iii, subpt. iv, ch. 4, § D.3.a,
    which provides that when “‘only tinnitus is claimed but the evidence shows the presence of hearing
    loss that may be related to an in-service event or injury, the adjudicator should solicit a claim for
    SC [service connection] for hearing loss.'” Id. at 11.
    In response, the Secretary counters that neither the appellant, nor the evidence of record,
    raises a claim for service connection for hearing loss. Secretary’s Br. at 14. Specifically, the
    Secretary contends that the record is absent any formal claim of entitlement to service connection
    for hearing loss, and the “[a]ppellant fails to allege otherwise.” Id. The Secretary also maintains
    that the record does not reasonably raise an informal claim of entitlement to service connection for
    hearing loss. Id. According to the Secretary, no authority “supports the proposition that a service
    treatment record can serve as an informal claim of entitlement to service connection,” and no
    authority supports the assertion “that a treatment record or VA report of examination can serve as
    an informal claim of entitlement to service connection.” Id. at 14-15. Although the Secretary
    accepts that M21-1 supports the appellant’s argument, he asserts that M21-1 “is not binding on the
    Board and it simply does not support [a]ppellant’s position, in light of the evidence of record
    showing that [a]ppellant’s hearing loss was not related to an in-service event.” Id. at 16. The
    Secretary further maintains that “[t]here was no basis for the Board to adjudicate a claim of
    entitlement to service connection for hearing loss that was not filed, and that [a]ppellant
    assiduously avoids asserting that he filed.” Id. at 17.
    The Board has a duty to address all issues reasonably raised either by the appellant or by
    the contents of the record, see Robinson v. Peake, 21 Vet.App. 545, 552-56 (2008), aff’d sub nom.
    Robinson v. Shinseki, 557 F.3d 1355 (Fed .Cir. 2009), and the Court has jurisdiction to determine
    6
    whether the Board erred in failing to address an issue reasonably raised. See Barringer v. Peake,
    22 Vet.App. 242, 244 (2008). However, “the Board is not required to anticipate a claim for a
    particular benefit where no intention to raise it was expressed.” Brannon, 12 Vet.App. at 34; see
    MacPhee, 459 F.3d at 1326-27 (recognizing that, unless service connection and benefits for a
    disability disclosed in medical records are first claimed, the medical records themselves do not
    constitute an informal claim for benefits). “[W]here there can be found no intent to apply for VA
    benefits, a claim for entitlement to such benefits has not been reasonably raised.” Criswell v.
    Nicholson, 20 Vet.App. 501, 504 (2006).
    The Court notes that, prior to March 2015, regulations provided for informal claims, but
    the definition of “claim” was amended in March 2015, eliminating informal claims in favor of a
    system that requires claimants to submit certain preliminary information on a standardized form.
    79 Fed. Reg. 57,660-01 (Sept. 25, 2014). In this regard, the appellant filed his claim for tinnitus in
    April 2012, and he underwent the VA examination that he asserts reasonably raised the hearing
    loss claim in October 2013, more than a year before the regulatory amendment became effective.
    R. at 1441-43, 1883. As discussed, in an internal document, VA requested that the appellant be
    afforded VA examinations in connection with his claims, and it was noted that he sought service
    connection for both tinnitus and hearing loss. R. at 1437. In addition to evaluating the appellant
    in connection with his claimed tinnitus, the October 2013 VA examiner also conducted an
    audiological examination to determine the degree of the appellant’s hearing loss, diagnosing the
    appellant with both tinnitus and bilateral sensorineural hearing loss. R. at 1441-43. Furthermore,
    the VA examiner also offered etiological opinions for both the appellant’s hearing loss and tinnitus.
    R. at 1442-43. Following this evaluation, the internal VA document noted that further clarification
    was needed, and the appellant’s claim was referred to another VA physician for an addendum
    opinion addressing the etiology of his hearing loss and tinnitus, and whether either disorder is
    related to his conceded noise exposure. R. at 1389. In the November 2013 VA opinion, the VA
    physician provided etiological opinions for both the appellant’s tinnitus and hearing loss. R. at
  2. Moreover, in his September 2014 NOD, the appellant asserted that the hearing test
    administrator verbally informed him that he had moderate to severe hearing loss in both ears, and
    in his August 2016 VA Form 9, the appellant explicitly requested that the Board grant him service
    connection for hearing loss along with tinnitus. R. at 885, 1271. Given these considerations, the
    Court concludes that the record reasonably raised a claim for service connection for hearing loss.
    7
    The appellant also argues that VA erred by failing to provide an adequate medical opinion
    to address the nature and cause of his hearing loss and tinnitus. Appellant’s Br. at 12. According
    to the appellant, the conclusions reached by the November 2013 VA examiner were erroneous
    “because the examiner based these conclusions on a misreading of [the appellant’s] in-service
    audiograms” and not on the “‘landmark’ Institute of Medicine study.” Id. The Secretary responds
    that the November 2013 VA medical opinion was adequate “because the opinion was based on
    consideration of [a]ppellant’s prior medical history and described the disability in sufficient detail”
    and thus the Board’s assessment of the claimed disability was an informed one. Secretary’s Br. at
  3. The Secretary notes that the November 2013 VA examiner characterized the appellant’s entrance
    and separation audiograms as revealing normal hearing. Id. at 7. According to the Secretary,
    although the appellant attempts to argue otherwise, “he and his attorney have not demonstrated
    competence to refute the November 2013 examiner’s assessment of the in-service audiograms.” Id.
    at 7. The Secretary also argues that “[a]ppellant and his attorney have not demonstrated
    competence to interpret the medical findings presented in a September 2005 IOM study on military
    noise exposure that was discussed by the November 2013 examiner.” Id. at 7-8.
    In the November 19, 2018, decision, the Board reviewed and recited the evidence of record,
    to include the service treatment records, the postservice treatment records, the October 2013 VA
    audiological evaluation report, and the November 2013 addendum opinion. R. at 5-8. Although
    the appellant reported that his tinnitus began during military service at the October 2013 VA
    examination, the Board found these statements “internally inconsistent with the [appellant’s]
    previous reports during his private treatment in February 2010, when he was initially seeking
    treatment for that condition,” and the service treatment records that were absent any complaints or
    reports of tinnitus or ringing sensation in his ears. R. at 7. The Board determined that the November
    2013 VA opinion is the most probative evidence of record, and that this evidence “specifically
    outweighs any probative value with regard[] to the [appellant’s] lay statements regarding onset and
    continuity of symptomatology in this case.” R. at 8.
    When the Secretary undertakes to provide a veteran with a VA medical examination or
    opinion, he must ensure that that examination or opinion is adequate. Barr v. Nicholson,
    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
    8
    ‘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); 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.”).
    The Court reviews the Board’s determination regarding the adequacy of a medical
    examination or opinion under the “clearly erroneous” standard of review set forth in 38 U.S.C.
    § 7261(a)(4). See 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)).
    The Court agrees with the appellant that the November 2013 VA physician “did not provide
    a rationale for her finding that [the appellant] displayed normal hearing at separation from service.”
    Appellant’s Br. at 13. Indeed, in Hensley v. Brown 5 Vet.App. 155, 157 (1993), the Court determined that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels reflect some degree of hearing loss. Review of the May 1974 separation examination reflects that the appellant’s right ear hearing threshold at 4000 Hertz is 25 decibels, R. at 1237, and
    pursuant to Hensley v. Brown, this does reveal some level of hearing loss – especially when compared to the May 1972 enlistment examination which reflects his right ear hearing threshold at 4000 Hertz to be 5 decibels, R. at 1241.
    Therefore, the appellant’s hearing as measured by the
    audiogram at separation cannot be characterized as completely “normal,” which is how the
    November 2013 VA physician described his hearing. R. at 1383. Moreover, coupled with the
    September 2005 IOM study that purportedly reveals no evidence to suggest that the appellant’s
    “hearing status would be impacted later in life because of the noise events in service,” the VA
    physician’s conclusion that “there was no hearing loss at separation” is based on a factually
    9
    inaccurate premise. In this regard, comparing the audiogram at enlistment, with the audiogram at
    separation, reflects a 20-decibel decrease in the appellant’s right ear puretone threshold at 4000
    Hertz. R. at 1237, 1241. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (stating that a medical
    examination that is based on an inaccurate factual history lacks probative value).
    In addition, the VA physician did not provide an adequate opinion regarding the etiology
    of the appellant’s tinnitus. The VA physician determined that “[i]n the absence of a noise induced
    hearing loss and/or documentation of tinnitus in the [appellant’s] service medical records,” the
    etiology of his tinnitus “does not appear to be related to acoustic trauma during military service,
    hearing loss or changes in hearing.” R. at 1383. Yet, as discussed above, the service treatment
    records did reflect evidence of hearing loss in the appellant’s right ear at the time of his separation
    from service. Moreover, the VA physician determined that “[t]he cause of the [appellant’s] tinnitus
    appears to lie elsewhere” without attributing his tinnitus to a potential postservice cause, rendering
    the statement somewhat speculative and of little probative value. In light of the fact that the VA
    opinion relied upon by the Board is speculative and based on an inaccurate factual premise, the
    Court finds that the November 2013 VA opinion is inadequate and the claim should be remanded
    for the Board to afford the appellant another VA audiological opinion.
    The appellant also contends that the Board erred by failing to provide adequate reasons or
    bases for its findings and conclusions. Appellant’s Br. at 20. In response, the Secretary argues that
    the Board’s finding the appellant’s lay evidence neither competent nor credible, coupled with the
    lack of argument showing inadequacy in the Board’s decision, reflects that “the Board plausibly
    concluded that the most probative evidence of record failed to support a finding of service
    connection for tinnitus.” Secretary’s Br. at 13.
    The Court concludes that the Board provided an inadequate statement of reasons or bases
    for relying on the November 2013 VA medical opinion and not following VA Training Letter 10-
  4. Based on service treatment records and the September 2005 IOM study, the November 2013
    VA examiner found no evidence that in-service acoustic trauma would affect the appellant’s
    “hearing status . . . later in life.” R. at 1383. Yet VA Training Letter 10-02 directs that “delayedonset
    tinnitus must be considered” and that “[t]innitus can be triggered months or years after an
    underlying cause (such as hearing loss) occurs.” VA Training Letter 10-02, at 5 (Mar. 2010). Thus,
    remand is required for the Board to ensure that the directives of VA Training Letter 10-02 are met,
    and to obtain new medical examinations or, if necessary, clarifications of examinations. See Tucker
    10
    v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate “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”); see also 38 C.F.R. § 4.2 (2020) [?](“[I]f [an
    examination report] does not contain sufficient detail, it is incumbent upon the rating board to
    return the report as inadequate for evaluation purposes.”).
    Given this disposition, the Court need not, at this time, address any other arguments and
    issues raised by the appellant. 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”). Accordingly, the Court will remand the reasonably raised claim for
    service connection for hearing loss along with the remanded claim for service connection for
    tinnitus. Because the Board has not yet adjudicated his hearing loss claim, it would be premature
    for the Court to address the appellant’s additional hearing loss arguments. On remand, the appellant
    is free to submit those arguments, as well as any additional arguments and evidence pertinent to
    the remanded tinnitus and hearing loss claims, to the Board 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. 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 its directives must be performed
    expeditiously in accordance with 38 U.S.C. § 7112.
    III. CONCLUSION
    After consideration of the appellant’s and the Secretary’s pleadings, and a review of the
    record, the Board’s November 19, 2018, decision is VACATED and the matter is REMANDED
    to the Board for further proceedings consistent with this decision.
    DATED: September 22, 2020
    Copies to:
    Byron M. Moore, Esq.
    VA General Counsel (027)

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