Veteranclaims’s Blog

October 27, 2011

Single Judge Application, Claim Development Must be in Neutral Manner, Austin v. Brown, 6 Vet.App. 547, 552 (1994); Mariano v. Principi, 17 Vet.App. 305, 312 (2003); Hart v. Mansfield, 21 Vet.App. 505, 508 (2007); Tyrues, 23 Vet.App. at 183

Filed under: Uncategorized — veteranclaims @ 3:08 pm

Excerpt from decision below:
“Sapcoe contends that the Board’s statement of reasons or bases for its decision was inadequate because the Board relied on “inherently inconsistent” propositions regarding his history of noise exposure in assessing the probative value to be assigned to the various medical opinions of record.Id. at 12. The Court agrees that the Board’s statement of reasons or bases was inadequate, albeit for different reasons.”
===========================================
“”However, it is equally well established that VA must develop claims and gather evidence in a neutral manner.” Tyrues, 23 Vet.App. at 183; see Austin v. Brown, 6 Vet.App. 547, 552 (1994)
(“[B]asic fair play requires that evidence be procured by the agency in an impartial, unbiased, and neutral manner.”). Specifically, “VA may not pursue . . . development if the purpose is to obtain evidence against the claim.” Hart v. Mansfield, 21 Vet.App. 505, 508 (2007). As the Court explained in Mariano v. Principi:
Because it would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant’s case, VA must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose.17 Vet.App. 305, 312 (2003) (citing 38 U.S.C. § 7104(d)(1)).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1606
CHARLES SAPCOE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Charles Sapcoe appeals through counsel a January 15, 2010,
Board of
Veterans’ Appeals (Board) decision denying entitlement to VA benefits for
bilateral hearing loss.1
Record (R.) at 3-15. Mr. Sapcoe’s Notice of Appeal was timely, and the
Court has jurisdiction to
review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither party
requested oral argument
or identified issues that theybelieve require a precedential decision of
the Court. Because the Board
provided an inadequate statement of reasons or bases for its decision, the
Court will vacate the
January 15, 2010, Board decision and remand the matter for readjudication
consistent with this
decision.
I. FACTS
Mr. Sapcoe served on active duty in the U.S. Air Force from February 1957
to February
1961. Prior to entering the military, Mr. Sapcoe worked as a hydraulic
press operator for 15 months.
In service, he worked as an aircraft control and warning radar repairman
and was exposed to noise
The Board also awarded Mr. Sapcoe VA benefits for tinnitus and otitis
media, and those claims, therefore, are
not the subject of this appeal. See 38 U.S.C. § 7266(a) (stating that the
Court only reviews final Board decisions adverse
to the claimant).
1

from heavy ground radar equipment and generators without hearing
protection. In October 1960,
Mr. Sapcoe perforated his right ear drum with a Q-tip and was subsequently
diagnosed with an ear
infection, for which medication was prescribed. Mr. Sapcoe’s January1961
separation examination
indicates that he punctured his right tympanic membrane during service,
but that he had no
complications or sequellae from that injury at that time. Mr. Sapcoe’s
ears were otherwise assessed
as normal and the results of an audiological examination revealed that his
hearingwas within normal
limits.
In June 1986, 25 years after separation from service, Mr. Sapcoe began
receiving treatment
from private physicians for various ear problems. In December 1993, Mr.
Sapcoe sought treatment
for increased ear congestion that he attributed to taking two recent
flights while he had a cold. He
was subsequently diagnosed with “high frequency neurosensory hearing loss
and eustachian tube
dysfunction.” R. at 328. Mr. Sapcoe’s private physicians later attributed
his hearing loss to noise
exposure in the military.
In September 2005, Mr. Sapcoe filed a claim for VA benefits for bilateral
hearing loss,
among other ear conditions. In October 2005, Mr. Sapcoe attended a VA
audiological examination.
The examination report stated that,followingservice, Mr. Sapcoe worked in
a machine shop for nine
years and periodically visited radar sites for 23 years without wearing
hearing protection. The
examiner diagnosed Mr. Sapcoe with bilateral hearing loss and opined that
it was less likely than not
related to service because his hearing was within normal limits at
separation, his hearing declined
recently, and “the greatest amount of his noise exposure appears to have
been after separation from
the service.” R. at 499. Accordingly, in February 2006, a VA regional
office denied his claim for
benefits for bilateral hearing loss. Mr. Sapcoe filed a timely Notice of
Disagreement with that
decision and subsequently perfected his appeal.
In March 2006, Mr. Sapcoe submitted a letter to VA explaining that he only
worked in a
machine shop for four months, not nine years as the VA examiner stated,
and that, during the rest
of his career, he was only exposed to noise on an occasional basis. He
reiterated those assertions to
a VA examiner in April 2006 and at a regional office hearing in February
2007. In March 2007, Mr.
Sapcoe submitted another letter to VA asserting that “all of [his]
exposure to noise came from []
working with and around heavy ground radar equipment while in the [Air
Force] and hardly any
2

from [his] civilian career,” and clarifying that, during the 23-year
period following service where he
periodically worked on radar sites, he “was always in a noise[-]free
environment building.” R. at
344. In April 2008, Mr. Sapcoe testified at a Board hearing that his
hearing loss began “immediately
in the 1960s” and denied being exposed to noise after service. R. at 234.
In June 2008, the Board remanded Mr. Sapcoe’s claim for additional
development, including
a new VA audiological examination, because (1) the private medical records
did not take into
account his pre-service noise exposure as a hydraulic press operator or
the results of his audiological
examination at separation from service; and (2) the October 2005 VA
medical examination was
based on an inaccurate history of noise exposure.
Accordingly, in February 2009, Mr. Sapcoe attended a VA medical
examination conducted
by an audiologist. The audiologist noted that the claims file contained
conflicting information
regarding the onset of Mr. Sapcoe’s hearing loss and his post-service
noise exposure. After
summarizing Mr. Sapcoe’s pertinent medical history and performing an
audiological examination,
the audiologist diagnosed him with bilateral sensorineural hearing loss
and opined that it was less
likely than not related to service. The audiologist also indicated that a
separate VA examination
performed by a physician was necessary to address the etiology of his
otitis media.
Consequently,inApril 2009,Mr.SapcoeunderwentaVAeardiseaseexamination
conducted
by a physician. The physician reviewed Mr. Sapcoe’s claims file and
diagnosed him with bilateral
sensorineural hearing loss, among other conditions. The physician then
opined:
It is at least as likely as not that the primary etiology for the
bilateral sensorineural
hearing loss . . . is service related military noise exposure. This is due
to the amount
of noise [Mr. Sapcoe] was exposed to in the service and that he reported
the onset of
the hearing loss soon after he left the service. Furthermore, he denied
professional
or recreational noise exposure after leaving the service.
It is least likely that the Q-tip injury to the right tympanic membrane
contributed to
his hearing loss. . . . The tympanic membrane is normal and intact and the
hearing
loss is sensorineural and not conductive in nature.
R. at 155.
3

In light of those conflicting medical opinions, the Board member
requested a medical
advisoryopinion from the Veterans Health Administration to determine the
etiologyof Mr. Sapcoe’s
hearing loss. In October 2009, a VA audiologist provided such an opinion:
In view of the conflicting private and VA medical opinions of record, it
is less likely
as not (less than 50/50 probability) that [Mr. Sapcoe]’s claimed hearing
loss is the
result of his active duty in the service. His separation medical
evaluation . . . is clear.
Ears were examined and considered to be normal. . . . The “Whispered Voice
Test”
was also performed and results were 15/15 bilaterally. It should be noted
that the
“Whispered Voice Test”isnotfrequencyspecificand is insensitive to high
frequency
hearing loss, the type of hearing losses most likely to occur as a result
of noise
exposure[;] however, the full [a]udiological evaluation above indicates
that hearing
was well within normal limits in the high frequency ranges bilaterally.
R. at 45.
In January 2010, the Board issued the decision currently on appeal, which,
in pertinent part,
denied entitlement to benefits for bilateral hearing loss. Specifically,
the Board discounted the
positive nexus opinions provided by Mr. Sapcoe’s private physicians
because they “made no
reference to [his] pre- or post-service noise exposure, focusing [their]
attention solely on the history
of in-service noise exposure as related by[Mr. Sapcoe],” and likewise
discounted the April 2009 VA
medical opinion because the examiner “relied on [Mr. Sapcoe]’s statement
that he had no traumatic
noise exposure following his separation from service.” R. at 14. The Board
noted that those
opinions failed to consider Mr. Sapcoe’s post-service noise exposure while
working next to a
machine shop and at radar sites and therefore concluded that they were not
entitled to any probative
weight. Instead, the Board preferred the October 2005, April 2006, and
February 2009 VA medical
opinions because they took into account Mr. Sapcoe’s pre- and post-service
employment, as well as
“the vague and sometimes inconsistent answers provided by[Mr. Sapcoe] when
questioned as to his
noise exposure.” Id. The Board also favored those opinions because they
were “reinforced by the
October 2009 VA medical opinion . . . that noted the normal separation
audiometric examination.”
Id. Consequently, the Board found that the preponderance of the evidence
was against Mr. Sapcoe’s
claim.
4

II. ANALYSIS
Mr. Sapcoe argues that the Board erred in obtaining the October 2009
medical advisory
opinion from the Veterans Health Administration because the only purpose
for obtaining such an
opinion was to develop evidence against his claim. Specifically, Mr.
Sapcoe asserts that, prior to
the Board’s request for the medical advisory opinion, he was entitled to
an award of benefits for
bilateral hearing loss pursuant to U.S.C. § 5107(b) and 38 C.F.R. § 3.
102 because the Board
implicitly found that the evidence of record was in equipoise, and that
the Board subsequently
requested the medical advisory opinion solely to “break the deadlock”
between the conflicting
February and April 2009 VA medical opinions. Appellant’s Brief (Br.) at 10.
Alternatively, Mr.
Sapcoe contends that the Board’s statement of reasons or bases for its decision was inadequate because the Board relied on “inherently inconsistent” propositions regarding his history of noise exposure in assessing the probative value to be assigned to the various medical opinions of record.Id. at 12. The Court agrees that the Board’s statement of reasons or bases was inadequate, albeit for different reasons.
“[I]t is well established that the Board has the discretion to determine whether further development is needed to make a decision on a claim.” Tyrues v. Shinseki, 23 Vet.App. 166, 182(2009) (en banc), aff’d, 631 F.3d 1380 (Fed. Cir. 2011), judgment vacated, __ S. Ct. __ (No. 10- 1405, Oct. 3, 2011). To that end, “[t]he Board may obtain a medical opinion from an appropriate health care professional in the Veterans Health Administration . . . on medical questions involved in the consideration of an appeal when, in its judgment, such medical expertise is needed for equitable disposition of an appeal.” 38 C.F.R. § 20.901(a). The Court will not overturn the Board’s determination that a medical opinion from the Veterans Health Administration was necessary to decide a claim unless it was “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” See Stringham v. Brown, 8 Vet.App. 445, 448 (1995) (“The standard of review this Court applies to a discretionary determination made by the Secretary is whether such determination is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”); see also Boutwell v. West, 11 Vet.App. 387, 391 (1998) (applying that standard of review to the Secretary’s decision to obtain an independent medical examination).
5

“However, it is equally well established that VA must develop claims and gather evidence in a neutral manner.” Tyrues, 23 Vet.App. at 183; see Austin v. Brown, 6 Vet.App. 547, 552 (1994)
(“[B]asic fair play requires that evidence be procured by the agency in an impartial, unbiased, and neutral manner.”). Specifically, “VA may not pursue . . . development if the purpose is to obtain evidence against the claim.” Hart v. Mansfield, 21 Vet.App. 505, 508 (2007). As the Court explained in Mariano v. Principi:
Because it would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant’s case, VA must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose. 17 Vet.App. 305, 312 (2003) (citing 38 U.S.C. § 7104(d)(1)).
The Board’s
statement of reasons or
bases is adequate if it allows a claimant to understand the precise basis
for the Board’s decision and
facilitates review in this Court. Gilbert v. Derwinski, 1 Vet.App. 49, 57 (
1990). The Board may
commit error requiring remand when it fails to provide such a statement.
Id.
In June 2008, the Board determined that the various private medical
opinions of record were
inadequate because the physicians who rendered them “were apparently not
made aware that[,] prior
to service, [Mr. Sapcoe] was employed for 15 months as a hydraulic press
operator; nor did the
physicians address the findings of [his] separation exam[ination] and his
January 1995 worker’s
compensation claim.” R. at 226. Likewise, the Board determined that the
October 2005 VA medical
examination was also inadequate because it was “apparently based . . . on
an inaccurate recounting
of [Mr. Sapcoe]’s exposure to noise through his work following the
military. It is apparent that the
examiner was also unaware that [Mr. Sapcoe] had pre-service noise exposure
as a hydraulic press
operator for 15 months.” Id. (emphasis omitted). Accordingly, the Board
remanded Mr. Sapcoe’s
claim for benefits for bilateral hearing loss to obtain a medical opinion ”
based on the complete
claims file” that would “address and reconcile the contradictory
etiological opinions of record.” Id.
Accordingly,
theBoardobtainedtheFebruary2009VAaudiologicalexaminationandtheApril2009
VA medical examination, which resulted in conflicting conclusions
regarding the etiology of Mr.
Sapcoe’s hearing loss. In light of these conflicting opinions, the Board
apparently determined that
it was necessaryto obtain a medical advisoryopinion to equitablydecide the
claim. As noted above,
6

the Board has the discretion to obtain such an opinion, provided that it
adequately explains its
rationale for doing so.
Here, however, the Board made no attempt to explain why it sought the
medical advisory
opinion from the Veterans Health Administration. Rather, it simply
summarized the opinion and
found that it “reinforced” the October 2005, April 2006, and February 2009
VA medical opinions
already of record. R. at 14. Absent an explanation of why a medical
advisory opinion was
necessary, and in light of the conflicting medical evidence that the Board
could have determined was
in equipoise, the Board’s decision to obtain a medical advisory opinion on
the etiology of Mr.
Sapcoe’s bilateral hearing loss “reasonably could be construed as
obtaining additional evidence”
against his claim. Previous HitMarianoNext Document, 17 Vet.App. at 312. Consequently, the Court
concludes that the Board’s
statement of reasons or bases for its decision to obtain a medical
advisory opinion was inadequate.
Moreover, the Board’s explanation for the weight it accorded to the other
medical opinions
was also deficient for a number of reasons. First, the Board relied on the
October 2005 VA medical
opinion that the Board found to be inadequate in its June 2008 decision.
Specifically, in the Board
decision currently on appeal, the Board found that opinion to be probative
because it “noted [Mr.
Sapcoe’s] pre-service employment as a hydraulic press operator, as well as
post-service noise
exposure while working next to a machine shop and as a federal worker
visiting radar sites.” R. at
14. However, in the June 2008 Board decision, the Board found that another
VA medical opinion
was necessary, in part, because, the October 2005 VA medical opinion was ”
apparently based . . .
on an inaccurate recounting of [Mr. Sapcoe]’s exposure to nosie through
his work following the
military” and because “the examiner was also unaware that [Mr. Sapcoe] had
pre-service noise
exposure as a hydraulic press operator for 15 months.” R. at 226. These
statements are clearly
contradictory and the Board did not explain why the October 2005 VA
medical opinion, which it
previouslydeterminedwasinadequatein 2008,
wasadequateandthereforeworthyofprobativevalue
in 2010.
Second, the Board also relied on the April 2006 VA medical opinion to deny
Mr. Sapcoe’s
claim for benefits for bilateral hearing loss, even though that opinion
only addressed the etiology of
his otitis media, not his hearing loss. Therefore, absent any explanation
as to why the April 2006
7

VA medical opinion was relevant to Mr. Sapcoe’s claim for benefits for
hearing loss, it is entirely
unclear why the Board found that it weighed against that claim.
Finally, the Board did not explain why a failure to discuss Mr. Sapcoe’s
pre-service noise
exposure rendered the private medical opinions and the April 2009 VA
medical opinion less
probative. To the extent that the Board implied that Mr. Sapcoe’s pre-
service noise exposure was
responsible for his hearing loss, the Board pointed to no evidence of
record to support that
conclusion, nor did it discuss the presumptions of soundness and
aggravation. See Wagner v.
Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004). Moreover, to the extent
that the Board implied that
Mr. Sapcoe was not credible because he did not provide a complete history
of noise exposure to
those examiners, the Board made no such express credibility determination
in its decision. In short,
the Board’s failure to explain the significance of Mr. Sapcoe’s pre-
service noise exposure frustrates
judicial review. See Gilbert, 1 Vet.App. at 57.
Based on the foregoing, the Court concludes that the Board’s statement of
reasons or bases
for its decision was inadequate. Although Mr. Sapcoe argues that reversal
is warranted, the Court
concludes that he has not carried his burden of demonstrating that “the
only permissible view of the
evidence is contraryto the Board’s decision.” Gutierrez v. Principi, 19
Vet.App. 1, 10 (2004) (citing
Johnson v. Brown, 9 Vet.App. 7, 10 (1996)). Rather, vacatur and remand is
the appropriate remedy
in this case because the Board failed to provide an adequate statement of
reasons or bases for its
decision. See Tucker v. West, 11 Vet.App. 369, 374 (1998).
On remand, Mr. Sapcoe is free to submit additional evidence and argument
in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). Further, “[a] remand is meant to
entail a critical examination
of the justification for the decision” by the Board. Fletcher v. Derwinski,
1 Vet.App. 394, 397
(1991). In addition, the Board shall proceed expeditiously, in accordance
with 38 U.S.C. § 7112
(expedited treatment of remanded claims).
8

III. CONCLUSION
Upon consideration of the foregoing, the January 15, 2010, Board decision
is VACATED
and the matter is REMANDED for readjudication consistent with this
decision.
DATED: October 24, 2011
Copies to:
Scott J. Popma, Esq.
VA General Counsel (027)
9

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