Veteranclaims’s Blog

January 2, 2022

Single Judge Application; hearing loss; IOM report; the Board’s use of the IOM report is problematic. The Board’s characterization of the IOM report’s findings regarding delayed onset hearing loss as being “not overturned, nor even disturbed, by subsequent studies or assertions,” R. at 12, fails to appreciate the limiting language within the report regarding the lack of adequate studies on the issue. See McCray v. Wilkie, 31 Vet.App. 243, 255 (2019) (cautioning that “to be useful in compensation claims, a medical text must do more than provide speculative generic statements about a disability or the relationship between a disability and purported causal factors”). The Board appears to say that it’s not possible that a shift in hearing can be delayed because the IOM report’s conclusion that a lack of threshold shifts means an association between hearing loss and exposure would be conjecture. It’s unclear how the Board could simultaneously consider a conclusion to be “conjecture” but also to be evidence against the same purported conclusion.;

Filed under: Uncategorized — veteranclaims @ 1:20 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-1318
LAWRENCE G. WEYER, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before JAQUITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
JAQUITH, Judge: In its December 3, 2019, decision, the Board of Veterans’ Appeals (Board) denied veteran Lawrence G. Weyer service connection for right ear hearing loss. The Board found that “objective medical evidence showed his hearing loss wasn’t caused by an event, injury, or illness during active service, nor did it manifest to a compensable degree within one year of separation from active service.” Record (R.) at 5. However, the medical evidence here wasn’t so objective—there were conflicting medical examinations that the Board failed to reconcile, and the Board baselessly injected its own medical judgment into one of the examinations. Further, both the Board and the medical examinations on which it relied failed to consider the veteran’s lay statements as to hearing loss symptoms. These errors frustrate the Court’s review; thus, we must remand for the Board to cure them.
I. BACKGROUND
The veteran underwent a compensation and pension (C&P) examination for bilateral hearing loss and tinnitus in December 2016. R. at 200-05. After completing audiograms, the examiner opined that the veteran’s right ear hearing loss was as likely as not related to service because “[n]oise exposure has been conceded as highly probable. Current configuration of hearing
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loss is consistent with noise injury. No enlistment or separation examinations are in [service treatment records].” R. at 204. The same reasoning was given for the left ear. VA ordered an addendum opinion from the same examiner, this time providing the veteran’s service records for her review. R. at 196.
The examiner changed her opinion about the right ear in the March 2017 addendum—she opined that the veteran’s right ear hearing loss was likely not related to service because there was “no evidence of hearing loss or significant changes in hearing thresholds greater than normal measurement variability during military service.” R. at 192. The examiner added an excerpt from a 2006 Institute of Medicine (IOM) report that stated: “there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure.” R. at 192. Further, “[t]he IOM panel concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was ‘unlikely.'” R. at 193. She found the left ear hearing loss to still be related to service because there was a significant threshold shift at 6000 Hz from military entrance to separation. R. at 194.
The veteran returned for another C&P examination in June 2018. The examiner found that right ear hearing loss wasn’t related to service because there wasn’t a positive significant threshold shift in his right ear documented in the audiograms taken at enlistment and separation. R. at 109. Had such a shift occurred, explained the examiner, then it would have been likely that his hearing loss was a result of hazardous noise exposure in service. R. at 109.
In December 2018, a private audiologist weighed in. She first noted that the veteran associated his gradual decrease in hearing loss with his military experience in the Army Reserve. R. at 58. She relayed his reports of working in combat engineering “in close proximity to machine guns, bulldozers, trenchers, and other heavy construction equipment.” R. at 58. She reviewed the enlistment and release audiograms and conducted one herself. R. at 58-63. The private audiologist opined that the veteran’s hearing loss was likely related to service because of his position in the military, and because his hearing at 4000 Hertz (Hz) dropped from his entry examination to his release-to-Reserve examination in 1963. R. at 59. Compare R. at 290, with R. at 317. She also noted that 250 and 8000 Hz weren’t tested on the release-to-Reserve diagram. R. at 59; see R. at 317.
In the December 3, 2019, decision on appeal, the Board discussed the contents of each opinion, though it only disclosed the probative value of one examination—the December 2018
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private opinion. The Board determined that the private examination had very limited probative value because the audiologist’s rationale was medically incorrect. R. at 10-11. The Board explained that it understood the audiologist’s characterization of a drop at 4000 Hz to refer to the increase in right ear hearing loss from 5 decibels (dB) at entrance to 10 dB at separation. R. at 10-11. But the Board went on to explain that this change wasn’t considered significant by the VA examiners, and 0 to 20 dB is still normal hearing loss—only thresholds above 20 dB indicate hearing loss. R. at 10 (citing Hensley v. Brown, 5 Vet.App. 155, 157 (1993)). The Board further explained that the private audiologist’s attribution of hearing loss to the veteran’s military occupational specialty was unsupported by service treatment records (STRs) that showed normal findings related to hearing loss and didn’t show “reports, complaints, treatment, or diagnoses regarding hearing-related disorders[.]” R. at 11.
The Board also addressed the IOM report contained in the May 2017 addendum. R. at 11-12. It stated that the “IOM’s conclusion is that the absence of threshold shifts after noise exposure, immediate or otherwise, is evidence that delayed effects of noise, such as hearing loss, do not occur.” R. at 12. It understood this to mean that “in the absence of an objectively verifiable noise injury, as would be indicated by threshold shifts at the time of the purported exposure, the association between claimed hearing loss and noise exposure cannot be assumed to exist; to do so is conjecture, not evidence.” R. at 12. The Board also found that presumptive service connection on the basis of chronicity and continuity wasn’t possible here because there was no indication of right ear hearing loss manifesting within a year of separation from active service. R. at 12.
II. ANALYSIS
In every decision, the Board is required to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable a claimant 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 v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for 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). The probative value of a medical opinion is
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based on the factually accurate, fully articulated, sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008). When an examiner disregards, or fails to address, lay assertions about continued symptoms, the opinion is inadequate because it ignores the veteran’s prior medical history. See Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). It is the Board’s responsibility to reconcile conflicting medical evidence into a consistent picture. 38 C.F.R. § 4.2 (2021); McKinney v. McDonald, 28 Vet.App. 15, 34 (2016).
The Board’s statement of reasons or bases complicates the Court’s review. First, the Board’s use of the IOM report is problematic. The Board’s characterization of the IOM report’s findings regarding delayed onset hearing loss as being “not overturned, nor even disturbed, by subsequent studies or assertions,” R. at 12, fails to appreciate the limiting language within the report regarding the lack of adequate studies on the issue. See McCray v. Wilkie, 31 Vet.App. 243, 255 (2019) (cautioning that “to be useful in compensation claims, a medical text must do more than provide speculative generic statements about a disability or the relationship between a disability and purported causal factors”). The Board appears to say that it’s not possible that a shift in hearing can be delayed because the IOM report’s conclusion that a lack of threshold shifts means an association between hearing loss and exposure would be conjecture. It’s unclear how the Board could simultaneously consider a conclusion to be “conjecture” but also to be evidence against the same purported conclusion. Without any attention to the IOM report’s limiting language, the Court cannot hold that the Board’s understanding of the report is plausible. See id; see also Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (holding that when evaluating medical text evidence and medical opinion evidence as to an unsettled medical question, the Board must bear in mind the reasonable doubt doctrine).
Moreover, neither the Board nor the two VA examiners discussed the veteran’s lay reports of hearing loss onset. In October 2016, he described noise exposure to gunshots, explosions, and heavy equipment and trucks in the Reserve, and after his initial entry training and weekend drills, he noticed that he had a hard time hearing people talk and had ringing in his ears. R. at 354. And in August 2018, the veteran pointed out to the Board that his audiograms took place in 1963 before his Reserve service, where his hearing continued to be affected. R. at 73. The only examiner that did address these reports of symptoms spurred by Reserve service was the December 2018 private audiologist. Though the VA examiners couldn’t have discussed the veteran’s lay statement from August 2018, they should have addressed his statement from October 2016. See Barr, 21 Vet.App.
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at 311; McKinney, 28 Vet.App. at 30 (finding that a medical examination is inadequate when the examiner failed to consider veteran’s testimony when formulating medical opinion).
Further, the Board’s finding that there was no indication of hearing loss within a year of active duty service that would permit establishing chronicity or continuity makes its failure to discuss the veteran’s lay reports of hearing loss during Reserve service all the more troublesome. R. at 12. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (holding that the Board errs when it fails to consider lay evidence because it is sufficient to establish service connection for a chronic disease). Relatedly, because the veteran entered the Army Reserve directly upon active service separation, it could be possible that documentation exists in his Reserve records, showing that his hearing loss manifested within a year of separation from service. But his Reserve STRs haven’t been located—in March 2019, VA contacted the veteran to inform him that despite attempts to obtain his Reserve STRs from the National Personnel Records Center and the service department, it had not obtained them. R. at 38-41. So, it appears that the Board’s decision and the VA medical opinions were all authored without consideration of the veteran’s Reserve STRs. Putting aside the fact that the Board didn’t discuss whether VA fulfilled its duty to assist the veteran in obtaining his Reserve STRs, the Court’s review of the Board’s decision is frustrated by the absence of discussion on what effect these missing records might have had on its decision and the opinions on which it relied. See Nieves-Rodriguez, 22 Vet.App. at 304; see also Cromer v. Nicholson, 19 Vet.App. 215, 217-18 (2005) (finding that the Board has a heightened duty to explain its findings and conclusions when a claimant’s STRs are determined to be unavailable).
Any of the appellant’s arguments that may remain need not be addressed, as they would offer no greater remedy than a remand. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand.”). And the appellant may submit any additional argument and evidence. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Board must expeditiously consider any such argument or evidence. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
III. CONCLUSION
For the foregoing reasons, the Board’s December 3, 2019, decision is VACATED and REMANDED for consideration in accordance with this decision.
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DATED: November 30, 2021
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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