Veteranclaims’s Blog

August 13, 2020

Single Judge Application; hearing loss; tinnitus; Institute of Medicine (IOM) report; “[t]here is not sufficient evidence . . . to determine whether permanent noise-induced hearing loss can develop later in one’s lifetime, long after the cessation of that noise exposure,” and explained that “definitive studies to address this issue have not been performed.”; McCray, 31 Vet.App. at 257 (finding remand necessary when the Board did not address the IOM report’s contradictory findings regarding delayed-onset hearing loss);

Filed under: Uncategorized — veteranclaims @ 11:54 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-6721
DONALD W. VIPPERMAN, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

DAVIS, Senior Judge: U.S. Navy veteran Donald W. Vipperman appeals through counsel
a June 3, 2019, Board of Veterans’ Appeals (Board) decision that denied entitlement to service connection for bilateral hearing loss and tinnitus.2 Because the Board failed to provide adequate reasons or bases for denying service connection for bilateral hearing loss and the issues of hearing loss and tinnitus are inextricably intertwined, the Court will set aside the June 2019 decision and remand the matters for further proceedings consistent with this opinion.
I. ANALYSIS
The Court reviews the Board’s determination that Mr. Vipperman was not entitled to
service connection under the “clearly erroneous” standard of review.3 A finding of fact is “clearly erroneous” when the Court, after reviewing the entire evidence, “is left with the definite and firm
1 Judge Davis is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC.
ORDER 03-20 (Jan. 2, 2020).
2 Record (R.) at 5-12.
3 Hayes v. Brown, 9 Vet.App. 67, 72 (1996).
2
conviction that a mistake has been committed.”4 As with any finding on a material issue of fact or
law, the Board must support its determination with an adequate statement of reasons or bases that
enables a claimant to understand the precise basis for its decision and facilitates review in this
Court. 5 The statement of reasons or bases must explain the Board’s reasons for discounting
favorable evidence,6 discuss all issues raised by the claimant or the evidence of record,7 and
discuss all provisions of law and regulation where they are made “potentially applicable through
the assertions and issues raised in the record.”8
In its June 2019 decision, the Board relied on a November 2016 VA examination to deny
service connection for bilateral hearing loss and tinnitus, noting that the examiner discussed
medical text evidence. 9 The Board found the VA examiner’s opinion probative because the
examiner provided an adequate opinion after a thorough review of Mr. Vipperman’s medical
history.10 The Board also acknowledged that Mr. Vipperman submitted medical text evidence indicating that the lack of delayed threshold shifts after noise exposure cannot be taken as evidence that delayed effects do not occur.11 The Board determined that the medical texts Mr. Vipperman submitted were not sufficient to support a causal nexus because they did not pertain to his individual circumstances and clinical history.12
4 United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Gilbert v. Derwinski, 1 Vet.App. 49, 52
(1990).
5 38 U.S.C. ยง 7104(d)(1); Gilbert, 1 Vet.App. at 57.
6 Thompson v. Gober, 14 Vet.App. 187, 188 (2000).
7 Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed.
Cir. 2009).
8 Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991).
9 R. at 8-9.
10 R. at 9.
11 R. at 6. Mr. Vipperman’s representative argued before the Board that this scientific research shows “the
exact opposite of what the VA examiner stated,” asserting that the VA examiner therefore based her opinion on an
inaccurate factual premise. R. at 45.
12 R. at 10.
3
Mr. Vipperman argues that the Board failed to adequately address the medical texts that
directly refute the VA examiner’s opinion.13 The Secretary counters that the Board provided
adequate reasoning when it discounted the probative value of the medical texts.14
The Court finds that the Board’s statement of reasons or bases was inadequate because the
Board failed to address the qualifying or contradictory analysis in the medical text evidence cited
in the November 2016 examination.15 The VA examiner relied on an Institute of Medicine (IOM) report that concluded delayed effects of noise exposure are unlikely. 16 The IOM report also detailed that “[t]here is not sufficient evidence . . . to determine whether permanent noise-induced hearing loss can develop later in one’s lifetime, long after the cessation of that noise exposure,” and explained that “definitive studies to address this issue have not been performed.”17 The Board
must address contradictory or qualifying aspects of a medical text when the issue is expressly
raised by the veteran or reasonably raised from review of the evidence of record.18 Here, the record
contained qualifying or contradictory excerpts from the IOM report within the relied upon
examination, and Mr. Vipperman submitted medical texts that further highlighted the contradictory
aspects of the IOM report.19 The Board did not address how the apparent contradictions within the
quoted report or the challenges raised by other medical texts impact the adequacy and probative
value of the VA examiner’s opinion. As the Board failed to provide an adequate statement of
reasons or bases, a remand is required.20
Because the Board provided an inadequate statement of reasons or bases for denying
service connection for bilateral hearing loss, the Court will set aside the Board’s decision and
13 Appellant’s Brief (Br.) at 8.
14 Secretary’s Br. at 7-9.
15 See McCray v. Wilkie, 31 Vet.App. 243, 257 (2019); D’Aries v. Peake, 22 Vet.App. 97,108 (2008).
16 R. at 91.
17 Id. See also McCray, 31 Vet.App. at 257 (finding remand necessary when the Board did not address the
IOM report’s contradictory findings regarding delayed-onset hearing loss).

18 McCray, 31 Vet.App. at 257.
19 R. at 91, 45.
20 Andrews v. Shinseki, 26 Vet.App. 193, 199 (2013) (“The Court determines that the Board’s reasons or bases
are inadequate, which frustrates judicial review and warrants remand.”); see also Tucker v. West, 11 Vet.App. 369,
374 (1998) (finding remand appropriate where the Board “failed to provide an adequate statement of reasons or bases
for its determinations”).
4
remand the matter for additional proceedings. As to Mr. Vipperman’s claim for service connection
for tinnitus, the VA examiner noted that “[t]he evidence is sufficient to conclude that noise doses
associated with hearing loss are likely to be associated with tinnitus.”21 Accordingly, the Court
will set aside the Board’s denial of service connection for tinnitus, as the two claims are
inextricably intertwined and must be remanded together.22
Because remand is warranted, the Court will not address Mr. Vipperman’s remaining
argument.23 Mr. Vipperman is free to submit this argument on remand, along with any additional
evidence or argument,24 and the Board must consider any evidence or argument submitted when
readjudicating the service connection matter.25
II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the Board’s June 3, 2019,
decision as to Mr. Vipperman’s service connection claims and REMANDS these matters for
readjudication.
DATED: August 11, 2020
Copies to:
James G. Fausone, Esq.
VA General Counsel (027)
21 R. at 92.
22 See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (explaining that, “in the interests of judicial
economy and avoidance of piecemeal litigation,” claims that are “intimately connected” should be adjudicated
together); Henderson v. West, 12 Vet.App. 11, 20 (1998) (“[W]here a decision on one issue would have a ‘significant
impact’ upon another, and that impact in turn ‘could render any review by this Court of the decision [on the other
claim] meaningless and a waste of judicial resources,’ the two claims are inextricably intertwined.” (quoting Harris v.
Derwinski, 1 Vet.App. 180, 183 (1991) (alteration in original))).
23 See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (“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.”).
24 See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
25 See Kay v. Principi, 16 Vet.App. 529, 534 (2002).

« Newer PostsOlder Posts »

Powered by WordPress.com.