Veteranclaims’s Blog

November 12, 2021

Single Judge Application; Hensley prohibits the Board from denying service connection for hearing loss solely because the audiometric test results did not constitute a disability under § 3.385 during service. 5 Vet.App. 155, 160 (1993); Hensley does not prohibit examiners from discussing in-service audiometric test results or relying on audiometric results that reveal normal hearing to form their opinion if they also consider other factors. Id.;

Filed under: Uncategorized — veteranclaims @ 10:50 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-4605
HARVEY J. CORMIER, JR., APPELLANT,
V.
DENIS MCDONOUGH,
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, Harvey J. Cormier, Jr., appeals through counsel a
March 12, 2020, Board of Veterans’ Appeals (Board) decision in which the Board denied service
connection for bilateral hearing loss and denied an initial compensable disability rating for right
little finger degenerative joint disease (DJD). Record (R.) at 5-13.1
This appeal is timely and single-judge disposition is appropriate when, as here, the issues
are of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the Board’s decision
denying an initial compensable disability rating for right little finger DJD and remand the matter
for further proceedings. The Court will affirm the Board’s decision denying service connection for
bilateral hearing loss.
I. BACKGROUND
Mr. Cormier served in the U.S. Army from September 1974 to August 1981. R. at 957,

  1. He served in a signal battalion as a multi-channel equipment operator. R. at 1275. His July
    1 The Board also remanded the matters of service connection for a left knee disorder, a right foot disorder,
    and bronchitis. The remanded matters are not before the Court. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004);
    see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000).
    2
    1974 entrance examination audiometric tests at 500, 1000, 2000, and 4000 Hertz (Hz) reflected
    right ear puretone thresholds of 30, 20, 15, and 15 decibels, respectively, and left ear puretone
    thresholds of 35, 25, 25, and 10 decibels, respectively. R. at 1254. His July 1981 separation
    examination audiometric tests at 500, 1000, 2000, 3000, and 4000 Hz reflected right ear puretone
    thresholds of 20, 15, 20, 10, and 15 decibels, respectively, and left ear puretone thresholds of 15,
    15, 15, 20, and 10 decibels, respectively. R. at 1272. Mr. Cormier fractured his right little finger
    in service and subsequently could not fully extend it. R. at 1270-71.
    In August 2016, Mr. Cormier filed for service-connected compensation for bilateral
    hearing loss and right little finger injury residuals. R. at 1840-43. In a January 2017 examination,
    Mr. Cormier was diagnosed with DJD of the right fifth finger distal interphalangeal (DIP) joint.
    R. at 1035. Right little finger range of motion was limited to 40 degrees of extension at the DIP
    joint. R. at 1037. There was no gap between the pad of the thumb and fingers or between the finger
    and proximal transverse crease of the hand on maximal finger flexion. Id. Range of motion was
    normal for the remaining fingers on the right hand and the left hand. R. at 1036-38. The examiner
    noted that Mr. Cormier was right handed, and that he reported discomfort with repetitive activity.
    R. at 1035-36. Mr. Cormier displayed normal hand grip strength and the examiner did not find
    ankylosis of the finger joints. R. at 1040. The examiner opined that Mr. Cormier’s functioning was
    not so diminished that amputation with prosthesis would equally serve the veteran. R. at 1041. Mr.
    Cormier did not demonstrate pain on examination on passive range-of-motion testing, or in weight
    bearing or non-weight-bearing positions, nor was there evidence of tenderness or pain on
    palpation. R. at 1037, 1042. The examiner opined that right little finger DJD did not affect Mr.
    Cormier’s ability to perform occupational tasks. R. at 1042.
    In a January 2017 examination, audiometric tests at 500, 1000, 2000, and 4000 Hz reflected
    right ear puretone thresholds of 30, 30, 25, 30, and 25, respectively, and left ear puretone thresholds
    of 25, 30, 25, 30, and 40, respectively. R. at 976. Mr. Cormier’s speech recognition was 100% in
    the right ear and 96% in the left ear. Id. The examiner diagnosed bilateral sensorineural hearing
    loss. R. at 978. However, the examiner opined that because Mr. Cormier’s hearing sensitivity was
    essentially within normal limits at induction, was within normal limits at separation, and did not
    demonstrate a significant in-service threshold shift as defined by the Occupational Safety and
    Health Administration (OSHA), it was not at least as likely as not that the current hearing loss and
    tinnitus was related to military service. R. at 978-79.
    3
    In a January 2017 rating decision, a VA regional office (RO) granted service connection
    for right little finger DJD with a 0% disability rating effective from August 18, 2016, and the RO
    denied service connection for bilateral hearing loss. R. at 957-63. In March 2017, Mr. Cormier
    disagreed with the denial of service connection for hearing loss and the rating assigned for right
    little finger DJD. R. at 927-28. He asserted that he experienced hearing trauma in service and that
    since he left service his hearing had steadily worsened. Id. In a March 2018 Statement of the Case,
    the RO continued the 0% rating for right little finger DJD and continued to deny service connection
    for bilateral hearing loss. R. at 564-92. In May 2018, Mr. Cormier appealed to the Board. R. at
  2. In December 2018, Mr. Cormier noted that his right little finger was “getting worse and
    affecting mobility and the function [of] my right hand.” R. at 279. He again asserted that he had
    been experiencing hearing loss since military service. Id.
    In the March 12, 2020, decision on appeal, the Board denied service connection for bilateral
    hearing loss, finding that Mr. Cormier had some decreased hearing acuity at entrance to service
    but had no hearing loss complaints or diagnoses during service or at separation. R. at 7. The Board
    relied on the January 2017 examiner’s opinion that Mr. Cormier’s bilateral hearing loss was not
    caused by in-service noise exposure because a comparison of the entrance and separation
    examination results did not indicate a significant threshold shift as defined by OSHA, and therefore
    the hearing loss was not related to service or aggravated by service. R. at 7. The Board considered
    Mr. Cormier’s reports that he had experienced continual hearing loss since service, but the Board
    did not find him credible because he had not complained of hearing problems at separation from
    service, or at any time after that until the January 2017 VA examination. Id. The Board concluded
    that the preponderance of the evidence weighed against the claim, finding that Mr. Cormier’s
    hearing loss did not manifest to a compensable degree during the presumptive period, that
    continuity of symptomatology had not been established, and that there was no other relationship
    between his hearing loss and service. Id.
    The Board also denied a compensable rating for right little finger DJD, finding that the
    disability was appropriately rated under Diagnostic Code (DC) 5230, because DC 5230 was
    specific to little finger limitation of motion. R. at 9. The Board explained that under DC 5230, the
    maximum evaluation for any limitation of motion was 0%, and therefore a compensable rating was
    not warranted. Id. The Board also considered a rating under DC 5227 for ankylosis of the right
    little finger, but the Board noted that DC 5227 did not provide for a compensable rating. Id. The
    4
    Board also noted that even considering functional loss due to pain and other factors, Mr. Cormier’s
    limited motion of the right little finger was not comparable to ankylosis, and therefore,
    consideration of an evaluation for amputation was unwarranted. Id.
    On appeal, Mr. Cormier argues that the Board erred in denying service connection for
    bilateral hearing loss by relying on a January 2017 VA examination report that stated he had
    normal hearing at separation and did not consider the possibility of delayed-onset hearing loss.
    Appellant’s Brief (Br.) at 5-6. He argues that the Board erred in denying an initial compensable
    rating for right little finger DJD by failing to consider his statement that his disability was
    worsening and affecting his right hand mobility and function, and by failing to address whether a
    new VA medical examination was warranted. Id. at 6-8. The Secretary responds that the Board did
    not err in relying on the January 2017 VA examination, because the examiner did not base the
    negative nexus opinion on a lack of in-service hearing loss. Secretary’s Br. at 7-9. The Secretary
    also responds that Mr. Cormier fails to show prejudicial error in the Board’s failure to discuss his
    statement that his right little finger DJD was worsening. Id. at 9-11.
    II. ANALYSIS
    A. Service Connection for Bilateral Hearing Loss
    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 Hz is 40 decibels or greater;
    (2) the auditory thresholds for at least 3 of the same frequencies 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
    (2021). Hearing loss does not constitute a disability for VA benefits purposes if it does not meet
    the threshold requirements set forth in § 3.385. Palczewski v. Nicholson, 21 Vet.App. 174, 179-80
    (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)), 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). Whether a medical opinion is adequate is a finding of fact that the Court
    5
    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); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
    The Board must support its factual determinations with a statement of reasons or bases
    adequate to enable an appellant to understand the precise basis for the Board’s decision as well as
    to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527
    (1995); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the Board must analyze
    the credibility and probative value of the evidence, account for the evidence it finds persuasive or
    unpersuasive, and provide its reasons for rejecting 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).
    Mr. Cormier argues that the January 2017 VA opinion is inadequate because it relied on a
    lack of hearing loss in service and failed to consider that delayed onset hearing loss may be related
    to military service. Appellant’s Br. at 5-6. Contrary to Mr. Cormier’s assertions, the January 2017
    VA examiner addressed whether Mr. Cormier’s current hearing loss was related to military service
    and adequately explained her conclusion that it was not. The examiner compared Mr. Cormier’s
    hearing sensitivity at entrance and at separation, not to rely on a lack of in-service disability, but
    rather to explain a lack of significant change in hearing sensitivity and a lack of threshold shift
    greater than normal measurement variability. R. at 978-79. Therefore, the examiner concluded that
    Mr. Cormier’s hearing loss was less likely a result of service. Id. The examination report noted that
    had there been a significant change in hearing threshold, it might have indicated noise exposure or
    acoustic trauma despite normal hearing results at separation. R. at 978. The examiner also
    explained that though Mr. Cormier’s entrance examination report documented mild hearing loss at
    500 Hz bilaterally, his hearing at that threshold was normal at separation and not aggravated
    beyond natural progression as a result of service. R. at 979-80.
    Mr. Cormier cites Hensley v. Brown, 5 Vet.App. 155 (1993) for his argument that the
    examiner relied on normal hearing in service in forming her negative nexus opinion, but Hensley prohibits the Board from denying service connection for hearing loss solely because the audiometric test results did not constitute a disability under § 3.385 during service. 5 Vet.App. 155, 160 (1993). Hensley does not prohibit examiners from discussing in-service audiometric test
    6
    results or relying on audiometric results that reveal normal hearing to form their opinion if they also consider other factors. Id.;
    see also Monzingo v. Shinseki, 26 Vet.App. 97, 106 (2012) (per
    curiam) (holding that when the Board reviews a medical examination report, it must read the report
    as a whole). If Mr. Cormier argues that requiring a significant threshold shift in service is
    equivalent to requiring hearing loss in service, this Court replies that it has distinguished between
    the two, noting that a threshold shift could, but does not necessarily, show hearing loss. Hensley,
    5 Vet.App. at 159-60. The Court thus finds this argument underdeveloped and will not discuss it
    further. See Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not
    entertain undeveloped arguments). Because the examiner based her negative nexus opinion on
    more than just audiometric test results revealing normal hearing at separation, the Court does not
    discern clear error in the Board’s reliance on that opinion. See D’Aries, 22 Vet.App. at 104.
    Similarly, the Board did not deny service connection for bilateral hearing loss based solely
    on a lack of hearing loss in service; instead, the Board relied on the examiner’s opinion that based
    on the lack of significant threshold shift in service, it was less likely that Mr. Cormier’s hearing
    loss was related to in-service noise exposure. R. at 7. It is the Board’s duty “to analyze the
    credibility and probative value of the evidence.” Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir.
    1997); see also Owens v. Brown, 7 Vet.App. 429, 433 (1995). The Court cannot overturn the
    Board’s factual findings when they are, as here, supported by a plausible basis in the record.
    Gilbert, 1 Vet.App. at 53. And the Board supported its conclusions with a statement of reasons or
    bases sufficient for judicial review. See Allday, 7 Vet.App. at 527. Mr. Cormier does not challenge
    the Board’s determination that his reports of experiencing hearing loss since military service were
    not credible. R. at 8. The Court thus holds that Mr. Cormier has not met his burden of showing
    error in the Board’s denial of service connection for bilateral hearing loss. See Hilkert v. West,
    12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant bears the burden of proving
    error on appeal), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table).
    B. Initial Compensable Rating for Right Little Finger DJD
    At the time of an initial rating, separate ratings can be assigned for separate periods of time
    based on the facts found, and this practice produces ratings referred to as “staged ratings.”
    Fenderson v. West, 12 Vet.App. 119, 126 (1999). This practice for rating a service-connected
    disability accounts “for the possible dynamic nature of a disability while the claim works its way
    7
    through the adjudication process.” O’Connell v. Nicholson, 21 Vet.App. 89, 93 (2007). The Court
    reviews the Board’s factual findings regarding the assignment of a disability rating under the
    “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4). See Smallwood v.
    Brown, 10 Vet.App. 93, 97 (1997); Johnston v. Brown, 10 Vet.App. 80, 84 (1997).
    Here, the Board determined that the two diagnostic codes (DCs) applicable to Mr.
    Cormier’s right little finger disability were DC 5230, for limitation of motion, and 5227, for
    ankylosis of the finger. R. at 9; see 38 C.F.R. § 4.71a, DCs 5227, 5230 (2021). As the Board noted,
    both DCs provide for a noncompensable rating. Id. However, DC 5227 also includes a note
    directing the adjudicator to “consider whether evaluation as amputation is warranted for resulting
    limitation of motion of other digits or interference with the overall function of the hand.” DC 5227,
    Note. Though the Board found that an evaluation for amputation was unwarranted because Mr.
    Cormier’s limited motion of the right little finger was not comparable to ankylosis, the Board did
    not explain whether the right little finger’s limitation of motion had to be comparable to ankylosis
    to warrant an evaluation based on interference with the overall function of the hand. R. at 9. And
    the Board did not mention Mr. Cormier’s December 2018 report of worsening symptoms, including
    problems with mobility and function of his right hand. The mere passage of time does not mandate
    a new examination, Palczewski, 21 Vet.App. at 180, but the Court agrees with Mr. Cormier that
    the Board failed to explain its reasons for rejecting his favorable report of worsening symptoms
    including interference with the overall function of his dominant hand. Caluza, 7 Vet.App. at 506.
    The Court must consider whether the Board’s error in failing to address the evidence
    prejudiced Mr. Cormier. 38 U.S.C. § 7261(b)(2); see also Shinseki v. Sanders, 556 U.S. 396, 407-
    10 (2009). Mr. Cormier asserts that the Board’s failure to consider this report prejudiced him
    because had the Board discussed it, the Board may have found that a contemporaneous
    examination was necessary to determine whether a higher initial or staged rating was warranted.
    Appellant’s Br. at 7-8; Reply Br. at 4-5. The Secretary asserts that because the appellant did not
    argue that his right little finger was ankylosed or that the Board’s selection of DC 5230 was
    erroneous, he cannot show any prejudicial error in the Board’s denial of an initial compensable
    rating for right little finger DJD. See Secretary’s Br. at 10-11. But the appellant argues that it was
    an open question whether his right little finger DJD merited a higher rating from at least December
    2018, and if the Board had considered his complaint of interference with mobility and function of
    8
    his right hand, it may have ordered an examination to determine the current severity of his
    disability. Appellant’s Br. at 7-8; Reply Br. at 4-5.
    The duty to assist requires a new medical examination when evidence indicates “there has
    been a material change in a disability or that the current rating may be incorrect.” Caffrey v. Brown,
    6 Vet.App. 377, 381 (1994); see also Hart v. Mansfield, 21 Vet.App. 505, 508 (2007); 38 C.F.R.
    § 3.327(b)(1) (2021). Though in his December 2018 statement Mr. Cormier did not allege that his
    right little finger was unable to move, Secretary’s Br. at 10-11, he did argue that its condition had
    become worse and interfered with the function of his right hand. Further, Mr. Cormier alleged that
    considering his report of worsening symptoms, the examination results the Board relied on in
    considering ratings under both DC 5227 and 5230 were stale. Appellant’s Br. at 6-7 (referencing
    R. at 9). But Mr. Cormier did not need to show he is entitled to a higher rating: the duty to assist
    requires VA to provide an examination when the evidence shows that the current rating may be
    incorrect. Caffrey, 6 Vet.App. at 381. The Court thus finds it an open issue whether Mr. Cormier’s
    disability worsened to the point that the Board could have considered it “comparable” to ankylosis
    or found that a new examination was required to determine whether it was comparable to ankylosis,
    at least as to the period after December 2018. The Court cannot find in the first instance that the
    Board’s failure to discuss Mr. Cormier’s report of worsening symptoms, including functional
    limitation of the dominant hand, did not prejudice Mr. Cormier as to the availability of a staged
    rating. See Tadlock v. McDonough, 5 F.4th 1327, 1336 (Fed. Cir. 2021) (holding that the Court’s
    statutory duty to consider prejudicial error “does not give it the right to make de novo findings of
    fact or otherwise resolve matters that are open to debate”).
    Accordingly, the Court will remand the matter for the Board to consider Mr. Cormier’s
    report that his right little finger DJD has worsened and affects his right hand’s mobility and
    function, and to provide an adequate statement of reasons or bases as to whether a
    contemporaneous examination is necessary to determine the severity of Mr. Cormier’s disability.
    See Tucker 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”). On remand, the appellant is free to
    submit additional evidence and argument on the remanded matter, including the arguments raised
    in his briefs, and the Board is required to consider any such relevant evidence and argument. See
    Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372 (1999)
    9
    (per curiam order). The Court has held 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). On remand,
    the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring the
    Secretary to provide for “expeditious treatment” of claims remanded by the Court).
    III. CONCLUSION
    After considering the foregoing analysis and the parties’ briefs, and after reviewing the
    record, the Court VACATES the part of the Board’s March 12, 2020, decision that denied an initial
    compensable rating for right little finger DJD, and the Court REMANDS the matter for further
    proceedings consistent with this decision. The Court AFFIRMS the part of the Board’s March 12,
    2020, decision that denied service connection for bilateral hearing loss.
    DATED: October 13, 2021
    Copies to:
    Ashley C. Gautreau, Esq.
    VA General Counsel (027)

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.