Veteranclaims’s Blog

October 21, 2014

Single Judge Application; Acoustic Trauma; Content and Basis of Lay Evidence; Buchanan, 451 F.3d at 1337

Excerpt from decision below:

The Board may not ignore these statements just because it doesn’t like what they have to say.
The Board next found that the statement given by the appellant’s acquaintance is not credible because he did not provide a “context or basis to indicate how or why[he] noted that the [appellant’s] hearing was failing.” R. at 20. The appellant’s acquaintance wrote that he has “known George Naulty [since] before he entered the service 1953 and after he was discharged in 1957. Sometime in the early sixt[ie]s I noticed his hearing was failing.” R. at 354. It is entirely unclear what more the Board wants. The acquaintance stated that he had known the appellant since 1953 (context) and about a decade later he noticed that the appellant wasn’t hearing so well anymore (basis).
The Court is not entirely sure what “context and basis” means from a legal standpoint and how it applies to a credibility determination.4
A Board finding that the author of a statement is not credible indicates that it believes that the statement is implausible or cannot be trusted. Caluza, 7
Vet.App. at 511 (“Credible testimony is that which is plausible or capable
of being believed.”).
Certainly, the Board can assign a statement reduced probative value if it
feels that it is conclusory and not fully explained, but before it takes the significant step of  labeling it implausible or mendacious, it needs to demonstrate why its author isn’t trustworthy. Id.; see Buchanan, 451 F.3d
at 1337. The Board did not explain how the absence of “context and basis” rendered this statement or its author untrustworthy. Moreover, the Court notes that the Board accepted the appellant’s assertion that his hearing loss began in the 1970s or 1980s without thoroughly discussing whether he provided adequate “context and basis” for his statement. R. at 20.

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“The Board has once again decided to ignore a statement that might
undermine the conclusion it has decided to reach. Only this time it is ignoring a statement made by a medical expert and conveying medical information. The Board has no medical expertise and it did not cite to any independent medical authority that indicates that Dr. Carey’s statement is inaccurate. It was therefore inappropriate for the Board to summarily reject the medical information that Dr. Carey provided to it.5 See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011) (holding that when a Board inference “results in a medical determination, the basis for that inference must be  independent and it must be cited“); Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991) (holding that
when the Board reaches a medical conclusion, it must support its findings with “independent medical  evidence”).

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

“Moreover, the Board criticized the appellant for opining that his back
disorder renders him unable to work, explaining that “he is not competent to offer such an opinion because such matters require medical expertise.” R. at 28. If the Board means to say that this case cannot be resolved without the aid of independent medical authority, then it should realize that it is equally incompetent to resolve it. See Kahana, 24 Vet.App. at 435; Colvin v. Derwinski, 1 Vet. App. at 172.”

======================
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-3737
GEORGE J. NAULTY, APPELLANT,
V.
SLOAN D. GIBSON,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: The appellant, George J. Naulty, appeals through counsel a
September
21, 2012, Board of Veterans’ Appeals (Board) decision in which the Board
denied him entitlement
to disability benefits for bilateral hearing loss and entitlement to a
total disability rating based on
individual unemployability (TDIU). Record (R.) at 3-29. This appeal is
timely and the Court has
jurisdiction over the claim and TDIU request on appeal pursuant to 38 U.S.
C. §§ 7252(a) and 7266.
Single-judge disposition is appropriate when the issue is of “relative
simplicity” and “the outcome
is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). For the reasons
that follow, the Court will vacate the Board’s decision and remand the
matters on appeal for further
proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active dutyin the U.S. Air Force from November
1953 until October
1957. R. at 4, 445. He worked with aircraft during his service, and he was
often exposed to loud
noises. R. at 367-68, 370, 423, 527.
In October 2005, the appellant filed a claim for entitlement to disability
benefits for a back
disorder and hearing loss resulting from in-service loud noise exposure. R.
at 580-93. He also

requested entitlement to TDIU. Id. In May2006, the VA regional office (RO)
denied the appellant’s
back and hearing loss claims and his request for TDIU. R. at 545-48. In
May 2007, the appellant
submitted a Notice of Disagreement with the RO’s decision. R. at 527-29.
In an October 2007
Statement of the Case, the RO confirmed its earlier conclusions. R. at 507-
24. In November 2007,
the appellant appealed to the Board. R. at 501.
According to the report from a April 2010 VA medical examination, the
appellant told the
examiner that “the onset of his hearing loss began in the 1970s or 1980s
and it has gotten worse over
the years.” R. at 423. The examiner diagnosed the appellant with hearing
loss in both of his ears.
Id. She opined, however, that his hearing loss was not likely related to
his military service because
it did not begin until “many years after he left the service.” Id.
On April 20, 2010, the RO granted the appellant entitlement to disability
benefits for a
lumbosacral strain and assigned his disorder a 20% disability rating
effective October 20, 2005. R.
at 418-21. In an April 20, 2010, Statement of the Case, the RO again
denied the appellant
entitlement to disability benefits for hearing loss and entitlement to
TDIU. R. at 410-12.
InaSeptember2010hearingbefore the Board,theappellantstatedthathis
hearingloss began
“probably in the ’70s–’60s, ’70s, ’80s, it’s just progressively gotten
worse.” R. at 368. He later
indicated that his hearing began to deteriorate within a year of the date
that he left active service.
R. at 370. On October 1, 2010, the appellant’s sister wrote that the
appellant was showing signs of
hearing loss when he returned from active service. R. at 351. Also in
October 2010, an acquaintance
of the appellant wrote that he noticed “sometimes in the earlysixties”
that the appellant’s hearing had
begun to deteriorate. R. at 354.
In November 2010, the Board denied the appellant entitlement to disability
benefits for
hearing loss and TDIU. R. at 283-97. The Board determined that the
appellant’s statement that his
hearing loss began in the 1970s or 1980s is highly probative because he ”
has first-hand, personal
knowledge of such fact.” R. at 289. The Board acknowledged that the
appellant’s sister and
acquaintance believe that his disorder began much earlier, but found that
the appellant’s statement
is “more probative . . . since the [appellant] is the sufferer of the
malady and is in a better position
to state the onset of his hearing loss.” Id.
2

The appellant appealed the Board’s decision to the Court. On June 10,
2011, the parties filed
a joint motion to vacate the Board’s decision and remand the matters on
appeal for further
proceedings. R. at 216-22. On June 15, 2011, the Court granted the
parties’ motion. R. at 215.
In August 2011, the appellant was “screened for cognitive impairment . . .
and was found not
to have significant cognitive impairment.” R. at 86. According to another
August 2011 medical
report, the appellant told his care provider that he was frequently
forgetful. R. at 94. A VA medical
examiner later stated that the appellant was an “extremely poor historian”
and “became confused
whentryingto rememberdatesofhis children’s birth, employment and other
major milestone events,
as well as describing his history.” R. at 189.
In January 2012, Dr. Patrick Carey, a private physician, opined that it is
likely that the
appellant’s hearing loss was caused by his in-service noise exposure. R.
at 184. He also opined that
the appellant’s back pain and hearing loss together have “made him
unemployable since at least
1995.” R. at 187.
Dr. Carey noted that three people close to the appellant noticed that his
hearing had begun
to deteriorate several years before the appellant believes that his
hearing loss began. R. at 183. Dr.
Carey wrote that “in cases of hearing loss, it is often family members or
other close contacts who
notice problems with a patient’s hearing well before theymake note of it
themselves.” Id. Dr. Carey
explained that the symptoms of hearing loss develop slowly, and “a person
might not notice or might
ignore signs of hearing loss until more pronounced symptoms of permanent
hearing loss become
evident.” Id. He stated that it is “not uncommon . . . that patients may
present for evaluation only
after considerable time has elapsed and family members may actually have
to coerce them to seek
treatment.” Id.
On April 6, 2012, the Board requested that an otolaryngologist review the
appellant’s case
and opine whether the appellant’s hearing loss is related to his service.
R. at 42-45. The Board also
stated that it
is the fact finder in this case, and it finds as fact that the [
appellant’s] report of
hearing loss in the 1970s or 1980s is the most accurate report as to its
onset. It is
aware of [Dr. Carey’s] opinion that others notice[d] hearing loss before
the
[appellant]; however, the Board still finds that the onset of [his]
hearing loss was in
the 1970s or 1980s–not before then. Thus, that is the fact that the
examiner is asked
to accept when addressing the etiology of the bilateral hearing loss.
3

R. at 44.
In June 2012, a medical examiner diagnosed the appellant with high
frequency hearing loss
in both of his ears. R. at 40. The examiner noted that the Board told her
that the appellant’s hearing
loss began in the 1970s or 1980s. R. at 39. She stated that if she “must
accept an onset of hearing
loss in the 1970s or 1980s, 15-25 years after the service, then it is less
than likely that the hearing
loss is related to Previous DocumentacousticNext Hit Previous HittraumaNext Hit from the service.” R. at 41. The
examiner also stated, however,
that, given the appellant’s memory lapses, his “own conflicting reports of
when the hearing loss
began,” and the “numerous laystatements claimingonset of hearing loss in
the early1960s or before,
there appears to be reasonable doubt regarding the accuracy of hearing
loss onset in the 1970[]s or
1980[]s.” Id. The examiner stated that if the appellant’s hearing loss did
begin at an earlier date,
then it would likely be related to his service. Id.
On September 21, 2012, the Board issued the decision here on appeal. The
Board denied the
appellant entitlement to disability benefits for bilateral hearing loss
and TDIU. R. at 3-29.
II. ANALYSIS
A. Hearing Loss
Establishing service connection for a claimed disorder, and thus
entitlement to disability
benefits, generally requires medical evidence or, in certain circumstances,
lay evidence of the
following: (1) a current disability; (2) in-service incurrence or
aggravation of a disease or injury; and
(3) a nexus between the claimed in-service disease or injuryand the
present disability. See Davidson
v. Shinkseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson,
492 F.3d 1372, 1376-77
(Fed. Cir. 2007); Hickson v. West, 12 Vet.App. 247, 253 (1999).
There is no dispute that the appellant currently suffers from a hearing
disorder and that he
was exposed to loud noises during his service. R. at 13-14. The only
question remaining, then, is
whether the appellant’s in-service loud noise exposure caused his current
hearing loss.
Findings of fact made by the Board while adjudicating a claim for
disability benefits are
reviewed under the “clearly erroneous” standard of review. See 38 U.S.C. §
7261(a)(4); Rose v.
West, 11 Vet.App. 169, 171 (1998). “A factual finding ‘is “clearly
erroneous” when although there
is evidence to support it, the reviewing court on the entire evidence is
left with the definite and firm
4

conviction that a mistake has been committed.'” Hersey v. Derwinski, 2
Vet.App. 91, 94 (1992)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
When making factual determinations, the Board is required to provide a
written statement
of the reasons or bases for its findings and conclusions adequate to
enable an appellant 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,
56-57(1990). Tocomplywith this requirement,theBoardmust analyze
thecredibilityandprobative
value of the evidence, account for the evidence that it finds persuasive
or unpersuasive, and provide
the reasons for its rejection of 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); Gilbert,
1 Vet.App. at 57.
The Court is concerned about the way the Board developed this case. When
it first decided
this case in November 2010, its decision-making process was relatively
straightforward. The April
2010 VA examiner essentially stated that, because the appellant’s hearing
loss began, at the earliest,
in the 1970s, it could not be linked to his service. R. at 423. The Board
made the factual
determination that the appellant’s disorder did, indeed, begin in the
1970s. R. at 289. It dismissed
laystatements indicatingthat his disorder mayhave begun much earlier
bynoting that the 1970s date
came from the appellant’s recollections, which, it found, are “more
probative . . . since [he] is the
sufferer of the malady and is in a better position to state the onset of
his hearing loss.” Id. To a mind
not trained in medicine, this reasoning seems logical enough. Once the
Board completed its fact-
finding, a simple syllogism led it to the outcome it reached.
But after the Court granted the parties’ motion to vacate the Board’s
decision and remand the
appellant’s claim,thingsgot muchmorecomplicated. Dr.
CareycorrectedtheBoard’s misconception
that a person afflicted with hearing loss generally recognizes the onset
of his disorder before his
friends and family members become aware that his hearing acuity has
deteriorated. R. at 183. Dr.
Carey’s statement cast significant doubt on the Board’s decision to
discard the lay statements the
appellant submitted in support of his claim.
After receiving Dr. Carey’s opinion, the Board felt it needed to obtain
additional medical
evidence before it could decide this case. It requested that another
examiner review the matter. In
5

its instructions to theexaminer,however,theBoardessentiallyignoredDr.
Carey’s attemptto correct
its earlier misapprehension about the nature of hearing loss and insisted
that the examiner accept as
incontrovertible truth its finding that the appellant’s hearing loss began
in the 1970s at the earliest.
When the Board told the examiner that the appellant’s hearing loss began
in the 1970s, it
stated that it was making a factual finding. That is to say, it made the
kind of factual finding that it
is required to put down in writing and explain in a decision that can be
appealed to this Court. See
38 C.F.R. § 19.7(b) (2013) (“The decision of the Board will be in writing
. . . [and] the decision will
also include separately stated findings of fact and conclusions of law on
all material issues of fact
and law presented on the record”). The Board’s actions suggest that when
it sat to write its decision,
it did not review the evidence with an open mind, but instead contorted
the evidence to fit a theory
of the case that it developed long ago. More disturbingly, the Board’s
unyielding instructions
obviously weighed on the June 2012 examiner as she tried to form her
opinion. R. at 39-41. The
Board’s conduct raises the possibility that it was improperly developing
the record “to obtain
evidence against the appellant’s claim.” Mariano v. Principi, 17 Vet.App.
305, 312 (2003). If
nothing else, the Board tread very close to that most reprehensible of
actions.
Those observations aside, the Board’s statement of reasons or bases is
deficient for a number
of reasons. First, the Board made inconsistent and poorlyexplained
findings about the adequacyand
probative value of the April 2010 examiner’s opinion. The Board first
found that the examiner’s
opinion is “somewhat lacking in that she did not provide a thorough
rationale” and “is evidence
against the [appellant’s] claim, although the Board admits that it lacks a
fully articulated and well-
reasoned opinion.” R. at 8, 14-15. In other words, it is inadequate. See
Nieves-Rodriguez v. Peake,
22 Vet.App. 295, 301 (2008) (holding that a medical opinion must “contain
not only clear
conclusions with supporting data, but also a reasoned medical explanation
connecting the two”);
Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (holding that a medical
opinion is adequate “where
it is based upon consideration of the veteran’s prior medical history and
examinations and also
describes the disability, if any, in sufficient detail so that the Board’s
‘evaluation of the claimed
disability will be a fully informed one.'”) (quoting Ardison v. Brown, 6
Vet.App. 405, 407 (1994)).
A few pages later, however, the Board stated that it “finds that the
adequate opinion of the April
6

2010 VA examiner [and the June 2012 examiner’s opinion] are far more
probative than the
[appellant’s] own opinion as to the etiology of his hearing loss.” R. at
19.
These two conclusions arepatentlycontradictory. On remand, the Board
should state plainly
whether it believes that the April 2010 examiner’s opinion is adequate and
thoroughly explain its
reasoning. Tothe extent that the Board believes that the examiner’s
opinion is inadequate but worthy
of some probative value, it should clearly state the amount of probative
value it assigns to the
examiner’s opinion and explain why that amount is warranted.
See Monzingo v. Shinseki,
26 Vet.App. 97, 107 (2012) (holding that the probative value assigned to
an inadequate medical
examination is reduced “based upon the amount of information and analysis
it contains”).
Second, the Board’s conclusion that the June 2012 examiner’s opinion is
adequate is not well
explained. The examiner stated that a 2006 Institute of Medicine (IOM)
study “determined that hearing loss from acoustic trauma is instantaneous or has a rapid development and there is no reasonable basis for delayed-onset hearing loss from noise exposure.” R. at 41; see IOM. Noise and Military Service: Implications for Hearing Loss and Tinnitus. Washington, DC: The National Academies Press, 2006 (IOM Report). That is not an entirely faithful
summary of what the IOM concluded.1
The IOM did say that “based on the anatomical and physiological data
available on the recovery process following noise exposure, it is unlikely” that the onset of hearing loss begins years after noise exposure occurs. IOM Report at 47. The IOM qualified this statement, however, by noting that “[t]here is not sufficient evidence from longitudinal studies in laboratory animals or
humans to determine whether permanent noise-induced hearing loss can
develop much later in one’s lifetime” and that “definitive studies to address this issue have not been performed.” Id.

The June 2012 examiner’s statement may have suggested to the Board that the IOM had  fully investigated the question at issue here and found “no reasonable basis for delayed-onset hearing loss from noise exposure.” R. at 41. That is clearly not the case.
Moreover,eveniftheJune2012examiner’sopinion thathearinglossalmost
alwaysdevelops
immediatelyafter exposure to dangerouslyloud noises is accurate, her
conclusion that “if she [must]
1
The Board had actual knowledge of the existence of this report when it
reached its decision here on appeal
and the Court “‘may take judicial notice of facts of universal notoriety,
which need not be proved, and of whatever is
generallyknownwithin[its] jurisdiction.'” Brannon v. Derwinski, 1 Vet.App.
314, 316 (1991) (quotingB.V.D. Licensing
Corp. v. Body Action Design, Inc., 846 F.2d 727, 728 (Fed. Cir. 1988)).
7

accept an onset of hearing loss in the 1970s or 1980s . . . then it is
less than likely that the hearing loss is related to acoustic trauma from the service” is undermined by the fact that neither she nor the Board identified an instance dating to the 1970s or 1980s when the appellant was exposed to a noise of sufficient volume and duration to result in permanent deterioration to
his hearing acuity. Id. On the contrary, the examiner supported her suggestion that record evidence revealing that the appellant’s hearing loss began in the early1960s might be accurate by noting that the record contains
“a more limited history of post-service noise exposure.”2
Id. For these reasons, the Board did not
fully explain its conclusion that the examiner’s opinion is adequate and
highly probative.
Third, the Board dismissed statements written by the appellant’s sister
and acquaintance for
reasons thatareentirelyinsupportable.3
First,theBoardfoundtheappellant’ssisterandacquaintance
not credible because “the Board finds as fact that the earliest onset date
of hearing loss was in the
1970[]s” and their statements are “contradictoryto the Board’s finding
that the most accurate earliest
onset date is in the 1970[]s.” R. at 20. The Board is essentially saying
that it has made up its mind
about when the appellant’s hearing loss began and it will not tolerate any
disagreement with the
conclusion it has reached. The law governing credibility determinations
does not countenance such authoritarian fact finding practices. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lay statements may be labeled not credible “because of possible  bias, conflicting statements,
etc.”); Caluza, 7 Vet.App. at 511 (“The credibility of a witness can be
impeached by showing of

The examiner stated that “there appears to be reasonable doubt regarding
the accuracy of hearing loss onset in the 1970[]s or 1980[]s.” R. at 41. The Board dismissed this statement by suggesting that it represented an improper
encroachment by the medical examiner on its role as factfinder. The
examiner’s opinion, however, could be read as a
permissible medical conclusion. She may be stating that, because the
appellant’s “memory issues” may have skewed his
memory of distant events and the record contains a “more limited history”
of exposure to loud noises in the 1970s or
1980s, it is medically unlikely that his report that his disorder began at
that time is accurate.
Dr. Carey’s opinion and a brief submitted by the appellant to the Board
both refer to a statement made by the
appellant’s ex-wife. R. at 176, 183. According to these documents, the
appellant’s ex-wife corroborated the other lay
statements. Id. The Board did not mention her statement and it is not in
the record that the Secretary submitted to the
Court. If it does exist and contains the information that Dr. Carey and
the appellant said it does, then the Board should
specifically consider it on remand. See Thompson v. Gober, 14 Vet.App. 187,
188 (2000) (stating that the Board must
provide an adequate statement of reasons or bases “for its rejection of
any material evidence favorable to the claimant”);
see also Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001) (finding that
the Board is not required to discuss all
evidence of record but must discuss relevant evidence); Schafrath v.
Derwinski, 1 Vet.App. 589, 593 (1991) (stating that
the Board must discuss, inter alia, all relevant evidence).
3
2
8

interest, bias, inconsistent statements, or, to a certain extent, bad
character.”).

The Board may not ignore these statements just because it doesn’t like what they have to say.
The Board next found that the statement given by the appellant’s
acquaintance is not credible because he did not provide a “context or basis to indicate how or why[he] noted that the [appellant’s] hearing was failing.” R. at 20. The appellant’s acquaintance wrote that he has “known George Naulty [since] before he entered the service 1953 and after he was discharged in 1957. Sometime in the early sixt[ie]s I noticed his hearing was failing.” R. at 354. It
is entirely unclear what more the Board wants. The acquaintance stated that he had known the appellant since 1953 (context) and about a decade later he noticed that the appellant wasn’t hearing so well anymore (basis).
The Court is not entirely sure what “context and basis” means from a legal
standpoint and how it applies to a credibility determination.4
A Board finding that the author of a statement is not credible indicates that it believes that the statement is implausible or cannot be trusted. Caluza, 7
Vet.App. at 511 (“Credible testimony is that which is plausible or capable
of being believed.”).
Certainly, the Board can assign a statement reduced probative value if it
feels that it is conclusory and not fully explained, but before it takes the significant step of  labeling it implausible or mendacious, it needs to demonstrate why its author isn’t trustworthy. Id.; see Buchanan, 451 F.3d
at 1337. The Board did not explain how the absence of “context and basis”
rendered this statement or its author untrustworthy. Moreover, the Court notes that the Board accepted the appellant’s assertion that his hearing loss began in the 1970s or 1980s without thoroughly discussing whether he provided adequate “context and basis” for his statement. R. at 20.
Finally, the Board determined that these statements placing the onset of
the veteran’s hearing
loss in the 1960s are not credible because they are “not consistent with
the [appellant’s] own report
of when he felt he noticed hearing loss.” R. at 20. The appellant has, in
various statements, given
a 30-year window of time when he may have begun to lose his hearing. The
Board rejected any of
the appellant’s statements referring to the first decade of that window
and accepted only his April
2010 assertion that his hearing loss began, at the earliest, in the 1970s.
The Board wields the phrase “context and basis” as though it is a legal
term of art, but it does not cite to any
legal authority that defines or explains it.
4
9

The Board as fact finder is tasked here with weighing the appellant’s
various assertions against these two statements. It has not found that there is reason to believe that the appellant’s sister or his acquaintance have a motivation to exaggerate, suffers from  a medical disorder that undermines the ability to remember past events, has submitted conflicting statements,
or has done anything else that would indicate that she or he is not telling the truth. See Buchanan,  451 F.3d at 1337; Caluza, 7 Vet.App. at 511. On the other hand, the Board cherry-picked one of the appellant’s many contradicting statements and chose to believe it, even though it is fully aware that he is not the most trustworthy historian. On remand, the Board should more thoroughly explain
its reasoning.
Finally, the Board refused to loosen its grip on its conclusion that the
appellant “is in the best position to discuss his own medical history, which includes when he first noticed hearing loss.” R. at 20. The Board wrote that it “understands” Dr. Carey’s statement that a person afflicted with hearing loss will often not be the first to notice that his hearing acuity has diminished. Id. The
Board wrote, however, that it “stands by its assessment that the [appellant] in this case is in the best position to address when his hearing loss first started since this is one of his own senses.” Id.
The Board has once again decided to ignore a statement that might
undermine the conclusion it has decided to reach. Only this time it is ignoring a statement made by a medical expert and conveying medical information. The Board has no medical expertise and it did not cite to any independent medical authority that indicates that Dr. Carey’s statement is inaccurate. It was therefore inappropriate for the Board to summarily reject the medical information that Dr. Carey provided to it.5 See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011) (holding that when a Board inference “results in a medical determination, the basis for that inference must be  independent and it must be cited”); Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991) (holding that when the Board reaches a medical conclusion, it must support its findings with “independent medical  evidence”). For this and the other reasons discussed above, the Board’s decision to deny the appellant’s claim is not adequately explained.
The Court notes that the Board also supported its decision to dismiss Dr.
Carey’s opinion by labeling it a “hypothetical.” R. at 21. Dr. Carey stated that a person’s hearing loss is “often” first noticed by “family members or other close contacts.” R. at 21. Dr. Carey was clearly demonstrating that the Board’s decision to reject the statements made by the appellant’s sister and acquaintance was based on its medically erroneous belief that those afflicted with hearing loss are more aware of the onset of the disorder than those around
them. It is Dr. Carey’s correction of the faulty medical premise for the Board’s decision that the Board improperly chose to ignore.
5
10

B. TDIU
When a VA adjudicator determines whether a claimant is entitled to TDIU, ”
neither
[claimant’s] non-service-connected disabilities nor his advancing age may
be considered.” Van
Hoose v. Brown, 4 Vet.App. 361, 363 (1993); see also Pratt v. Derwinski, 3
Vet.App. 269, 272
(1992). The adjudicator must view the effects of the claimant’s service-
connected disorders in
isolation to determine whether they alone are sufficient to fully
undermine his ability to obtain and
maintain “substantially gainful” employment. Id.; 38 C.F.R. § 4.16(b) (
2013).
The appellant is currentlyonly receiving disability benefits for his back
disorder. The Board
concluded that the effects of his condition do not undermine his
employability to the degree
necessary for him to qualify for TDIU. R. at 25-29. As Dr. Carey noted,
however, and the Board
seemed to acknowledge, if the appellant, on remand, succeeds in obtaining
entitlement to disability
benefits for his hearing disorder, he will stand a better chance of
achieving entitlement to TDIU. R.
at 26, 185.
“[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.”
Henderson v. West, 12 Vet.App. 11, 20 (1998) (quoting Harris v. Derwinski,
1 Vet.App. 180, 183
(1991)) (alteration in original). When the Court concludes that “the
matter on appeal is inextricably
intertwined with an issue or claim still pending before VA, the Court
generally will decline, for
reasons of judicial economy or on prudential grounds, to review the merits
of the claim or issue
adjudicated in the Board decision before the Court.” Tyrues v. Shinseki,
23 Vet.App. 166, 177-78
(2009) (en banc), as modified by 26 Vet.App. 31 (2012) (en banc).
If the Board decides, on remand, to award the appellant entitlement to
disability benefits for
his hearing disorder, then he will be eligible for TDIU if his hearing
disorder and his back disorder
together cause him to be unemployable as that term is defined in the
applicable regulation. The
hearing disorder and TDIU questions are therefore inextricably intertwined,
and the appellant’s
request for TDIU should be remanded to the Board to be reconsidered when
his hearing loss claim
is finally decided.
11

Although nothing further need be done on this matter, the Court does note
that the Board’s
present TDIU analysis is, at times, loose and untidy. The Court will
therefore pause to direct the
Board to applicable legal authority in the hope that the Board will shore
up its analysis and perhaps
prevent this case from reappearing here at a future date.
First, although the severity of the appellant’s back disorder has been
documented by medical
experts on a number of occasions, there is no medical opinion (other than
Dr. Carey’s, which the
Board discounted) that clearly states whether the appellant’s back
disorder renders him
unemployable. The Board inferred that the appellant is not unemployable by
marshaling and
interpreting the multifarious medical and lay observations found in the
record. It also chided the
appellant for failing to submit “competent or credible medical evidence or
opinion to corroborate his
contention that his service-connected spine disability alone, renders him
unable to secure or follow
substantially gainful employment.” R. at 28.
The Court is not confident that the Board appropriately applied the burden
of proof standard
applicable in TDIU cases. In Beaty v. Brown, 6 Vet.App. 532, 537 (1994),
the Court determined
that, when an appellant has submitted a request for TDIU, the Board “may
not reject that claim
without producingevidence, as distinguished from mere conjecture, that the [
appellant] can perform
work that would produce sufficient income to be other than marginal.”
Furthermore, the Board may
not “rely[] on the absence of evidence rather than anyaffirmative evidence
of employability. Absent
any such evidence, the Board’s speculation cannot form the basis for a
denial of the veteran’s TDIU
claim.” Bowling v. Principi, 15 Vet.App. 1, 8 (2001) (emphasis in the
original). The Board could
improve its analysis on remand by bringing it closer to the standards
stated in Beaty and Bowling.
Second,theBoardnotedthat”nomedicalprofessional hasstatedthat[
theappellant’s] service
connected lumbosacral strain alone precludes him from securing or
following a substantiallygainful
occupation.” R. at 29. It failed to note that no examiner had stated that
the appellant’s symptoms
do not “preclude[] him from securing or following a substantially gainful
occupation.” Id.
Third, the Board stated that a “VA examination is not warranted [because]
the [appellant’s]
allegations of not being able to work due to the low back disorder are not
credible.” R. at 8. Case
law indicates that in TDIU cases, it is often necessary to engage an
examiner to sift through a
claimant’s sypmtomatology, determine which symptoms are caused by his
service-connected
12

disabilities, and state how those symptoms would affect his ability to
work in a field that matches
his educational attainment and areas of occupational expertise. See Floore
v. Shinseki, 26 Vet.App. 376, 380 (2013) (holding that “theneed for a medical examination report on the effects of a disability on the ability to work is predicated on the circumstances of each case”); Moore v. Nicholson, 21 Vet.App. 211, 218 (2007) (holding that “the Board had a duty, where the critical issue was [TDIU], to request a medical opinion to discuss what effect the [appellant’s] service-connected disability had on his ability to work.”). As the Court already noted, the record contains many documents that chronicle the appellant’s back symptoms. A VA examination is warranted if the Board is unable to glean the medical conclusions necessary to resolve this case from those documents.
Moreover, the Board criticized the appellant for opining that his back
disorder renders him unable to work, explaining that “he is not competent to offer such an opinion because such matters require medical expertise.” R. at 28. If the Board means to say that this case cannot be resolved without the aid of independent medical authority, then it should realize that it is equally incompetent to resolve it. See Kahana, 24 Vet.App. at 435; Colvin v. Derwinski, 1 Vet. App. at 172.
Fourth, because VA has only granted the appellant entitlement to a 20%
disability rating for
his low back disorder, the Board cannot summarily grant him entitlement to
TDIU. See 38 C.F.R.
§ 4.16(a). The Board, at this point, is a gatekeeper. It must determine
whether the appellant’s
disability renders him unemployable, and, if it does, then it must forward
the appellant’s TDIU
request to the director of Compensation Service “for extra-schedular
consideration.” 38 C.F.R.
§ 4.16(b).
Referral to a VA official for extraschedular consideration is also
available when the rating
criteria applied to assign a disability rating to a veteran’s disorder do
not fully account for the
symptoms of an “exceptional”disability. 38 C.F.R. § 3.321(b). The ”
governing norm” for
determining whether extraschedular referral is warranted under § 3.321(b)
is “[a] finding that the
case presents such an exceptional or unusual disability picture with such
related factors as marked
interference with employment or frequent periods of hospitalization as to
render impractical the
application of the regular schedular standards.” Id.
The end result of § 4.16(b) and § 3.321(b) is the same–the Board
determines whether a
veteran’s claim should be referred to the appropriate departmental
official for extraschedular
13

consideration. But the regulatory standard that the Board must apply to
reach that determination
differs depending on whether it is applying § 4.16(b) or § 3.321(b).
Kellar v. Brown, 5 Vet.App.
157, 162 (1994) (holding that “the effect of a service-connected
disability appears to be measured
differently for purposes of extraschedular consideration under []§ 3.321(
b)(1) . . . and for the
purposes of a TDIU claim under []§ 4.16”). Here, the Board confounded the
distinct § 4.16(b) and
§ 3.321(b) inquiries. R. at 29. On remand, it should ensure that it only
applies the standard found
in § 4.16(b) and the law explaining that standard to the facts of this
case.
Finally, the Board should be mindful that when the symptoms of the
appellant’s service-
connected and non-service-connected disorders are indistinguishable, they
should be attributed to
his service-connected condition. Mittleider v. West, 11 Vet.App. 181, 182 (
1998).

C. Other Matters
The Court will not at this time address any additional arguments the
appellant has raised.
See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (
holding that “[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”).
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, 16 Vet.App. 529, 534 (2002); 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 the Secretary to provide
for “expeditious treatment” of claims remanded by the Court).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs and a
review of the record,
the Board’s September 21, 2012, decision is VACATEDandthemattersonappeal
areREMANDED
for further proceedings consistent with this decision.
DATED: June 30, 2014
14

Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
15

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