Veteranclaims’s Blog

September 12, 2012

Single Judge Application, Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012); Adequate Medical Report

Excerpt from decision below:

“Fourth, Mr. Krizek asserts that the February 2009 examiner failed to
discuss the effects of Mr. Krizek’s hearing loss on his employment and dailylife, as required by
38 C.F.R. § 3.344 (2012).
On the contrary, the record reflects that the February2009 examiner found
that “[w]ith amplification and reasonable accommodations as specified in the Americans with Disabilities Act,
this hearing loss alone should not significantly affect vocational potential or limit
participation in most work activities.” R. at 330.
In sum, Mr. Krizek fails to demonstrate that the February 2009 examination
report was inadequate or that the Board clearly erred in its assignment of probative
weight. See Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (“[A]n adequate medical report must
rest on correct facts and reasoned medical judgment so as to inform the Board on a medical question
. . . .” (citing D’ Aries v. Peake, 22 Vet.App. 97, 104 (2008))); Washington v. Nicholson, 19 Vet.
App. 362, 367-68 (2005) (noting Board’s duty to determine the probative weight of the evidence,
and holding that such determinations are reviewed under the “clearly erroneous” standard);
Hilkert, supra.

==================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 11-3077
MURLIN L. KRIZEK, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge: Veteran Murlin L. Krizek appeals through counsel that
part of an
August 3, 2011, decision of the Board of Veterans’ Appeals (Board) that
affirmed the propriety of
a November 2009 disability rating reduction. Mr. Krizek argues that the
Board erred by (1) failing
to recognize the Secretary’s violation of the duty to assist, (2) relying
on an inadequate VA medical
report, and (3) relying on its own unsupported medical conclusions.1
The Secretary disputes these
arguments. Single-judge disposition is appropriate. Frankel v. Derwinski,
1 Vet.App. 23, 25-26
(1990). For the reasons stated below, that part of the Board decision on
appeal will be affirmed.
In support of his first argument, Mr. Krizek asserts that the Board should
have remanded the
matter to obtain Social Security Administration (SSA) records. However,
there is no per se
requirement that SSA records be obtained, see Golz v. Shinseki, 590 F.3d
1317, 1322 (Fed. Cir.
2010), and the Board found that the SSA records lacked potential relevance
because it appeared that
Mr. Krizek was receiving retirement benefits as opposed to disability
benefits. Mr. Krizek does not
dispute the Board’s understanding that he was in receipt of retirement
benefits and not disability
To the extent Mr. Krizek presents additional arguments regarding his
request for a total disability rating
based on individual unemployability, that issue was remanded by the Board
and is not before the Court.
1

benefits. Also in support of his first argument, Mr. Krizek contends that
the record before the Board
did not contain a February2008 audiologynote or the audiometric findings
of a December 26, 2007,
examination. However, the record of proceedings contains a February2008
audiologynote (Record
(R.) at 368), and reflects that no audiometric examination was
administered on December 26, 2007.
Succinctlystated, Mr. Krizek fails to demonstrate the possible relevance
of SSA retirement-benefits
records and otherwise fails to demonstrate that the Board relied on an
inadequate record. See Hilkert
v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden of
demonstrating error on
appeal).
In support of his second argument, Mr. Krizek contends that a February
2009 VA medical
report relied on by the Board was inadequate for four reasons. First,
although he acknowledges that
the February 2009 examiner stated that “the reason for [his slight
improvement in hearing acuity
since February 2008] could be that the ear wax noted (which was removed
AFTER the [February
2008] test) had a slight effect on his hearing,” he contends that a
December 2007 report did not note
ear wax or its removal. R. at 330. However, he fails to demonstrate the
relevance of the December
2007 report to the adequacy of the February 2009 report. See Hilkert,
supra. Moreover, the record
reflects that the referenced February 2008 report mentions cerumen2
and removal, as stated in the
February 2009 report. Second, Mr. Krizek notes that the February 2009
report states that hearing
improvement since the December 2007 test results could be due to
nonorganic overlay or possible
exaggeration of hearing loss, but he contends that the December 2007
examiner did not render any
finding of nonorganic overlay or exaggeration. Regardless, the February
2009 report reflects the
examiner’s view of the possible reasons for the recorded hearing
improvement, not a
misrepresentation of the December 2007 report.
Third, Mr. Krizek asserts that the February2009 examiner provided
insufficient rationale for
her opinion. See R. at 331 (“RATIONALE . . . Clinical experience and
expertise as a licensed
audiologist.”). To the extent he believes that the examiner provided
insufficient rationale for her
opinion that his hearing had improved since the last test, that opinion
clearlywas based on the results
of the audiological examination, pure-tone air and bone conduction
measures, word recognition
“Cerumen” is “the waxlike secretion found within the external meatus of
the ear.” DORLAND’S
ILLUSTRATED MEDICAL DICTIONARY 333 (32d ed. 2012).
2
2

testing, and recorded immitancemeasures. SeeLendenmannv.Principi,3Vet.App.
345,349(1992)
(disability ratings for hearing loss are derived from a mechanical
application of the rating schedule
to the numeric designations resulting from audiometric testing). To the
extent Mr. Krizek believes
that the examiner provided insufficient rationale for her opinion that ear
wax, nonorganic overlay,
or exaggeration may have affected Mr. Krizek’s previous hearing tests, the
examiner reviewed the
medical historyand is presumed competent to understand potential causes
ofchangesin hearing, and
Mr. Krizek identifies no record evidence reflectingincompetence or a
contrarymedicalopinion. See
Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (VA medical
examiners are presumed
competent in the absence of clear evidence to the contrary); Hilkert,
supra.
Fourth, Mr. Krizek asserts that the February 2009 examiner failed to
discuss the effects of
Mr. Krizek’s hearing loss on his employment and dailylife, as required by
38 C.F.R. § 3.344 (2012).
On the contrary, the record reflects that the February2009 examiner found
that “[w]ith amplification and reasonable accommodations as specified in the Americans with Disabilities Act,
this hearing loss alone should not significantly affect vocational potential or limit
participation in most work activities.” R. at 330.
In sum, Mr. Krizek fails to demonstrate that the February 2009 examination
report was inadequate or that the Board clearly erred in its assignment of probative
weight. See Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (“[A]n adequate medical report must
rest on correct facts and reasoned medical judgment so as to inform the Board on a medical question
. . . .” (citing D’ Aries v. Peake, 22 Vet.App. 97, 104 (2008))); Washington v. Nicholson, 19 Vet.
App. 362, 367-68 (2005) (noting Board’s duty to determine the probative weight of the evidence,
and holding that such determinations are reviewed under the “clearly erroneous” standard);
Hilkert, supra.
Mr. Krizek provides no specific arguments in support of his contention
that the Board relied on its own unsupported medical conclusions. As such, he fails to
demonstrate error. Hilkert, supra.
Accordingly, that part of the August 3, 2011, Board decision affirming the
propriety of a
November 2009 disability rating reduction is AFFIRMED.
DATED: August 31, 2012
3

Copies to:
Calvin Hansen, Esq.
VA General Counsel (027)
4

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