Veteranclaims’s Blog

August 9, 2017

Single Judge Application; Acoustic Trauma Delayed Onset Hearing Loss; Savage v. Shinseki, 24 Vet.App. 259 (2011)

Excerpt from decision below:

“The Secretary also concedes that the Board failed to adequately address medical evidence submitted by Mr. Hall that directly contradicted the October 2015 VA examiner’s opinion that “hearing loss due to noise occurs at the time of exposure and not subsequently.” R. at 593. In his April 2014 Substantive Appeal, Mr. Hall cited a Johns Hopkins study that found acoustic trauma can cause delayed hearing loss and change of structure of hair cells in the inner ear. R. at 502.
The Secretary asserts that this evidence “directly undercuts one of the VA examiner’s central reasons for finding no service connection” that hearing loss due to noise occurs at the time of exposure.” Secretary’s Brief at 11. Thus, the Board was required to discuss this evidence and whether clarification from the VA examiner was necessary. See Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (holding that the Board has a duty under 38 C.F.R. § 19.9(a) (2017), to remand a case
“[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision”); see also Savage v. Shinseki, 24 Vet.App. 259 (2011)(the Board may have a duty to seek clarification of unclear or insufficient medical opinions).

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-1294
JERRY W. HALL, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
DAVIS, Chief Judge: U.S. Army veteran Jerry W. Hall appeals through counsel a February 10, 2016, Board of Veterans’ Appeals (Board) decision that, in part, denied service connection for bilateral hearing loss.1 For the following reasons, the Court will set aside the Board’s February 2016 decision, and remand the matter for further proceedings consistent with this decision.
I. ANALYSIS
Mr. Hall argues that the Board clearly erred in finding that his preexisting right ear hearing
loss did not increase in severity during service. Mr. Hall contends that the Board’s error warrants
reversal because the presumption of aggravation attached and was not rebutted by clear and
unmistakable evidence. In the alternative, Mr. Hall argues that the Board failed to provide an
adequate statement of reasons or bases for finding that there was no in-service increase and that
the medical research he submitted did not warrant clarification from the October 2015 VA
examiner. Additionally, Mr. Hall argues that the Board failed to provide an adequate statement of
reasons or bases for finding that left ear hearing loss was noted on entrance into service.
1 The Board also remanded the issue of entitlement to service connection for bilateral lower extremity
peripheral neuropathy, and the Court is without jurisdiction to address this nonfinal matter. See Breeden v. Principi,
17 Vet.App. 478 (2004).
2
Pursuant to 38 U.S.C. § 1153 (2017), “[a] preexisting injury or disease will be considered
to have been aggravated by active military, naval, or air service, where there is an increase in
disability during such service, unless there is a specific finding that the increase in disability is due
to the natural progress of the disease.” See also 38 C.F.R. § 3.306(a) (2017). When an increase
in severity during service is shown, clear and unmistakable evidence is required to rebut the
presumption of aggravation. 38 C.F.R. § 3.306(b); see also Horn v. Shinseki, 25 Vet.App. 231,
235 n.5 (2011) (noting that the statutory presumption of aggravation requires that, when a
condition that was noted on entry worsened in service, the burden shifts to the Secretary to
establish, with clear and unmistakable evidence, that the worsening was due to the natural
progression of the disease).
As with all its material determinations of fact and law, the Board is required to support its
determinations as to aggravation of any preexisting conditions with a written statement of reasons
or bases that is understandable by the claimant and facilitates review by this Court. See 38 U.S.C.
§ 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). This statement of reasons or bases
must explain the Board’s reasons for discounting favorable evidence, Thompson v. Gober,
14 Vet.App. 187, 188 (2000), discuss all issues raised by the claimant or the evidence of record,
Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d
1335 (Fed. Cir. 2009), and discuss all provisions of law and regulation where they are made
“potentially applicable through the assertions and issues raised in the record,” Schafrath v.
Derwinski, 1 Vet.App. 589, 592 (1991); see also Majeed v. Principi, 16 Vet.App. 421, 431 (2002).
As an initial matter, the Secretary concedes, and the Court’s review confirms, that the Board
clearly erred in finding “no probative medical evidence showing that [Mr. Hall’s] preexisting loss
underwent an increase in disability during service,” as the audiograms in his service treatment
records show at least a 5-decibel increase in his right ear during service. Record (R.) at 10.
Therefore, the Court will reverse the Board’s finding that Mr. Hall’s right ear hearing loss did not
increase in service. “Reversal is appropriate ‘where the Board has performed the necessary fact
finding and explicitly weighed the evidence’ and this Court, based on the entire evidence, . . is left
with the definite and firm conviction that a mistake has been committed.” Pettiti v. McDonald,
27 Vet.App. 415, 430 (2015) (quoting DeLoach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013));
see also Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (“[R]eversal is the appropriate remedy
when the only permissible view of the evidence is contrary to the Board’s decision.”).
3
Because the Court has reversed the Board’s finding that Mr. Hall’s right ear hearing loss
did not worsen in service, remand is warranted for the Board to discuss the presumption of
aggravation in the first instance. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is
appropriate “where the Board has incorrectly applied the law, failed to provide an adequate
statement of reasons or bases for its determinations, or where the record is otherwise inadequate”);
see also Hensley v. West, 212 F.3d. 1255, 1263 (Fed. Cir. 2000) (stating that “appellate tribunals
are not appropriate fora for initial fact finding”). It has been established that Mr. Hall had right
ear hearing loss at entry into service and that there was an increase in severity during service.
However, the Board has not yet determined whether that increase was due to the natural progress
of the disease or whether the presumption of aggravation has been rebutted by clear and
unmistakable evidence. See 38 C.F.R. § 3.306; Horn, 25 Vet.App. at 235.
Additionally, the Secretary concedes several other errors in the Board’s decision that must
be addressed on remand. The Secretary concedes that the Board provided an inadequate statement
of reasons or bases for rejecting Mr. Hall’s testimony that his hearing worsened in service.
Specifically, in rejecting his testimony without providing any foundation for why an absence of
evidence would be expected, the Board relied on the fact that he did not seek treatment until 2012.
See Horn, 25 Vet.App. at 239 n.7 (and cases cited thereat) (requiring proper evidentiary foundation
to employ absence of evidence as substantive negative evidence).
The Secretary also concedes that the Board failed to adequately address medical evidence submitted by Mr. Hall that directly contradicted the October 2015 VA examiner’s opinion that
“hearing loss due to noise occurs at the time of exposure and not subsequently.” R. at 593. In his April 2014 Substantive Appeal, Mr. Hall cited a Johns Hopkins study that found acoustic trauma
can cause delayed hearing loss and change of structure of hair cells in the inner ear. R. at 502.
The Secretary asserts that this evidence “directly undercuts one of the VA examiner’s central reasons for finding no service connection” that hearing loss due to noise occurs at the time of exposure.” Secretary’s Brief at 11. Thus, the Board was required to discuss this evidence and
whether clarification from the VA examiner was necessary. See Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (holding that the Board has a duty under 38 C.F.R. § 19.9(a) (2017), to remand a case
“[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision”); see also Savage v. Shinseki, 24 Vet.App. 259 (2011)(the Board may have a duty to seek clarification of unclear or insufficient medical opinions).
4
Absent an adequate statement of reasons or bases to support the Board’s decision, judicial
review is frustrated. See 38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527. Therefore, the Court
agrees with the Secretary that remand, not reversal, is required with respect to Mr. Hall’s right ear
hearing loss because further development is needed and there is not only one “permissible view”
of the evidence. See Tucker, 11 Vet.App. at 374; Gutierrez, 19 Vet.App. at 10.
With respect to Mr. Hall’s left ear hearing loss, the Court holds that this matter must also
be remanded. Although the Secretary argues that the evidence of record showed no in-service
increase in left ear hearing loss and Mr. Hall left service without left ear hearing loss, the Board
conceded in-service noise exposure, establishing an in-service incident or event. R. at 7. Thus,
the only remaining question as to his left ear hearing loss is one of nexus between the in-service
noise exposure and current disability. On remand, an opinion as to nexus may be provided when
the medical literature submitted by Mr. Hall is addressed by the Board or if clarification from the
VA examiner is sought. Thus, his entitlement to service connection for left ear hearing loss may
be affected. See Gurley v. Nicholson, 20 Vet.App. 573, 575 (2007) (recognizing validity of a
judicial-economy remand when two issues are inextricably intertwined); see also Harris v.
Derwinski, 1 Vet.App. 180, 183 (1991) (where a decision on one issue could 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 waste of judicial resources,” the two claims are
inextricably intertwined). Accordingly, remand is warranted for left ear hearing loss.
Because the claims are being remanded, the Court need not address Mr. Hall’s additional
arguments as to other inadequacies in the Board’s statement of reasons or bases. See Mahl v.
Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there
is no need to analyze and discuss all the other claimed errors that would result in a remedy no
broader than a remand.”). However, in pursuing his claim on remand, Mr. Hall will be free to
submit additional argument and evidence as to the remanded matter, and the Board must consider
any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
5
II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the February 10, 2016, decision
and REMANDS the matter for further proceedings consistent with this decision.
DATED: August 8, 2017
Copies to:
Amy F. Odom, Esq.
VA General Counsel (027)

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