Veteranclaims’s Blog

June 11, 2011

Single Judge Application, Medical Treatise, Sacks v. West, 11 Vet.App.; Timberlake v. Gober, 14 Vet.App.

Excerpt from decision below:
This Court has recognized that, in general, information contained within a
treatise is too abstract to prove the nexus element of a service-connection claim. Sacks v. West, 11 Vet.App. 314, 316 (1998). However, there are exceptions to this general rule; in Sacks, for instance, the Court stated that treatises “can provide important support when combined with an opinion of a medical professional.” Id. at 317. Furthermore, Sacks observed that a medical article or treatise, standing
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alone, may provide sufficient evidence of a causal connection when it “discusses generic relationships with a degree of certainty” so that the causal connection is “based upon objective facts rather than on an unsubstantiated lay medical opinion.” Id. As such, it is clear that, in some instances, information contained within a treatise can be probative evidence in evaluating a claim for VA disability benefits, and in those instances its probative value must be weighed against the probative value of other evidence of record.
The Court agrees with the appellant’s argument that the Board erroneously
dismissed the information contained within the treatise without any discussion as to its probative value. Here, the evidence demonstrates that the appellant had high frequency hearing loss in his left ear relatively contemporaneous to discharge (R. at 1174, 1191), and that he has developed more serious hearing problems as he has aged. Aside from bolstering the favorable medical opinions of record, the treatise casts doubt over the unfavorable medical reports to the extent that they treat postservice high frequency hearing loss as insignificant. At a minimum, the Board should have evaluated how the information contained within the treatise affected the probative value of the medical opinions of record. Perhaps the Board should have taken the additional step of obtaining a clarifying medical opinion. An assessment of the information provided in the treatise is particularly crucial in this case, where there are competing medical opinions as to the onset of the appellant’s current hearing disability. The Court will therefore vacate the Board’s decision and remand the matter for the Board to make this assessment. See Timberlake v. Gober, 14 Vet.App. 122, 131 (2000) (remanding for the
Board to assess treatise evidence in the first instance).

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HibbittsBW_09-3780.pdf
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3780
BRUCE W. HIBBITTS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Bruce W. Hibbitts, through counsel,
appeals a
June 17, 2009, Board of Veterans’ Appeals (Board) decision in which the
Board denied his claim for
entitlement to service connection for a hearing loss disability. Record of
Proceedings (R.) at 20.
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). Both parties filed briefs, and the
appellant filed a reply brief.
Single-judgedisposition is appropriate. See Frankel v. Derwinski, 1 Vet.
App. 23, 25-26 (1990). For
the following reasons, the Court will vacate the decision and remand the
matter for further
proceedings consistent with this decision.
I. BACKGROUND
The appellant had active service in the U.S. Armyfrom June 1969 to March
1971. R. at 334.
He reported no history of hearing loss at induction. R. at 1194. A June
1969 audiogram revealed
an elevated hearing threshold in the left ear at 6000 hertz (Hz). R. at
1191. The appellant’s discharge
examination did not include audiologic testing. R. at 1196-97. One month
after discharge, the
appellant filed a claim for entitlement to service connection for hearing
loss, which he attributed to

an August 1971 turbine engine accident. R. at 1187. In a May 1971 rating
decision, the regional
office denied the appellant’s claim. R. at 1186.
In March 1972, a private examiner found that the appellant had decreased
hearing in the left
ear. R. at 1180. In July 1972, a VA examiner found that the appellant had
a hearing threshold of
45 decibels (dB) at 8000 Hz in the left ear. R. at 1174. However, hearing
was normal bilaterally
through 4000 Hz. Id. The examiner remarked that the appellant had “[e]
ssentially normal hearing
acuity, bilaterally.” Id.
InOctober2000,theappellantsought to reopen his serviceconnection claim for
hearingloss,
asserting that his hearing had “severely decreased in the recent years.” R.
at 1153. A hearing test
that same month revealed “right ear thresholds [] in the 50-85d[B] range
from 250-8000 Hz” and
“left ear thresholds [] in the 10-65d[B] for the same test range.” R. at
1146.
There are competing Previous DocumentmedicalNext Hit opinions on the issue of whetherthe
appellant’s current hearing
loss is related to service. An October 2002 VA examiner concluded that,
because the appellant
“demonstrated normal bilateral hearing through 4000 Hz [at the July 1972
examination] . . . it is
unlikely that his current hearing loss” was related to service. R. at 1035.
Likewise, in October 2004,
a VA examiner opined that, because “the hearing [evaluation] done 1 year
post service indicat[ed]
normal hearing at all test frequencies with the exception of 8000 Hz in
the [left] ear,” it was unlikely
that his current hearing loss was related to service. R. at 848. In
contrast, an April 2004 VA
examiner, noting the appellant’s long reported history of hearing problems,
related his hearing loss
to service. R. at 945. Additionally, in August 2004, Dr. Speach, a private
examiner, related the
appellant’s hearing loss to service. R. at 851-52. In a February 2006
addendum, Dr. Speach
observed that postservice Previous HitmedicalNext Hit records showed no significant hearing
loss “through 2000 cycles”
and remarked that “[t]his seems curious as he described to me what sounded
like a threshold shift
after exposure to loud turbine engines.” R. at 366. Nevertheless, he
reaffirmed his earlier opinion,
stating that “certainly by his history I can see where the type of
threshold shift described would
indicate that there was significant noise trauma which, in my opinion, has
to be a factor in the
hearing loss evident on his most recent audiogram.” Id.
In May 2009, the appellant submitted Previous HittreatiseNext Hit information in support of
his claim. R. at 156-
61. The information contained in the Previous HittreatiseNext Hit seems to demonstrate a
relationship between high
2

frequency hearing loss at a young age and more severe hearing loss later
in life. R. at 158.
Specifically, the Previous HittreatiseNext Hit provides that
young adults with a slight noise-induced high frequency hearing loss (e.g.
15-30 dB
HL [(hearing level)] at 6000 Hz), one not likely to cause much difficulty
with
communicationifpresent atthetime ayoungadult might be discharged from
military
service, will likely exhibit greater hearing loss as they age than young
adults with
normal hearing (0 dB HL) at discharge. As demonstrated previously . . . a
slight
noise-induced hearing loss of 20-30 dB HL incurred as a young adult, when
combined with a similar amount of hearing loss associated with aging alone,
can
become a moderate hearing loss of 40-50 dB HL at an age of 50 or 60 years.
Id.
In the decision on appeal, the Board, relying primarily on the October
2004 VA Previous HitmedicalNext Hit
opinion, denied the appellant’s claim for entitlement to service
connection for hearing loss because
the condition was not etiologically related to service. R. at 20. In
reaching this conclusion, the
Board discounted the probative value of the favorable Previous HitmedicalNext Hit opinions
because those opinions did
not account for a lack of significant hearing impairment at 4000 Hz in
July 1972. R. at 13-14. The
Board recognized the Previous HittreatiseNext Hit that the appellant submitted but dismissed
it because it was “not
accompanied by any Previous HitmedicalNext Hit opinion of a Previous HitmedicalNext Hit professional supporting”
the claim. R. at 19.
II. ANALYSIS
On appeal, the appellant essentially contends that the Previous HittreatiseNext Hit evidence
that he submitted
undercuts the probative value of the favorable Previous HitmedicalNext Hit evidence of record.
Appellant’s Brief (Br.)
at 15-25. The Secretary refutes the appellant’s argument. The Secretary
contends that the “Board
squarely addressed [the a]ppellant’s Previous HitmedicalNext Hit Previous HittreatiseNext Hit evidence, as it was
required to do, and found
it to be comprised of the type of evidence this Court has made clear is
insufficient to establish a
causal connection between a service incurrence and present disability.”
Secretary’s Br. at 19.
This Court has recognized that, in general, information contained within a
treatise is too abstract to prove the nexus element of a service-connection claim. Sacks v. West, 11 Vet.App. 314, 316 (1998). However, there are exceptions to this general rule; in Sacks, for instance, the Court stated that treatises “can provide important support when combined with an opinion of a medical professional.” Id. at 317. Furthermore, Sacks observed that a medical article or treatise, standing
3

alone, may provide sufficient evidence of a causal connection when it “discusses generic relationships with a degree of certainty” so that the causal connection is “based upon objective facts rather than on an unsubstantiated lay medical opinion.” Id. As such, it is clear that, in some instances, information contained within a treatise can be probative evidence in evaluating a claim for VA disability benefits, and in those instances its probative value must be weighed against the probative value of other evidence of record.
The Court agrees with the appellant’s argument that the Board erroneously
dismissed the information contained within the treatise without any discussion as to its probative value. Here, the evidence demonstrates that the appellant had high frequency hearing loss in his left ear relatively contemporaneous to discharge (R. at 1174, 1191), and that he has developed more serious hearing problems as he has aged. Aside from bolstering the favorable medical opinions of record, the treatise casts doubt over the unfavorable medical reports to the extent that they treat postservice high frequency hearing loss as insignificant. At a minimum, the Board should have evaluated how the information contained within the treatise affected the probative value of the medical opinions of record. Perhaps the Board should have taken the additional step of obtaining a clarifying medical opinion. An assessment of the information provided in the treatise is particularly crucial in this case, where there are competing medical opinions as to the onset of the appellant’s current hearing disability. The Court will therefore vacate the Board’s decision and remand the matter for the Board to make this assessment. See Timberlake v. Gober, 14 Vet.App. 122, 131 (2000) (remanding for the
Board to assess treatise evidence in the first instance).

On remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider any such relevant evidence
and argument. See Kay v.Principi,16Vet.App.529,534(2002)(stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (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). The Board must proceed expeditiously, in
accordance with 38 U.S.C. §7112(requiring Secretary to provide for “expeditious treatment” of claims remanded by the Court).
4

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, the Board’s June 17, 2009, decision is VACATED and the matter is
REMANDED to the
Board for further proceedings consistent with this decision.
DATED: May 13, 2011
Copies to:
Peter J. Sebekos, Esq.
VA General Counsel (027)
5

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