Excerpt from decision below:
“In April 2016, the Board requested a “medical expert opinion” to address whether “the
claimed endolymphatic hydrops/Meniere’s disease was caused by or aggravated by the serviceconnected left ear hearing loss and/or tinnitus.” R. at 48-49. The Board noted that the appellant reported that he “experienced dizziness in service” and asked the examiner to “[d]iscuss the significance, if any, of [his] reported in-service symptoms and reported continuity of symptoms since service.” Id.”
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“Second, the Board asked the expert to investigate whether the appellant’s Meniere’s disease “is related to any incident of [his] active service, to include exposure to acoustic trauma.” R. at 49 (emphasis added). Although he couched his conclusions in terms that mirror the Board’s instructions, his discussions do not seem to address whether any incident another than acoustic trauma or injury other than hearing loss and tinnitus caused the appellant’s disorder to develop.”
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“Third, both the Board and examiner failed to note that the appellant reported when he left active service (but not when he entered) that he had experienced “car, train, sea or air sickness.”
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R. at 470. The appellant later reported that the initial symptoms of his present disorder included “get[ting] nauseated very easily driving down the road or riding in the vehicle” and that those symptoms existed prior to 2000. R. at 102. The Board should have reviewed the appellant’s service separation medical report and determined whether it potentially suggests that the motion sickness that he experienced at that time is connected to the initial manifestation of his Meniere’s disease. 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”).”
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“Fourth, in his September 2016 report, the expert wrote that the “hearing loss that appears with Meniere’s is directly caused by this disease.” R. at 53. In a November 2015 hearing before the Board, the appellant’s representative asserted that “tinnitus and . . . hearing loss are symptoms of Meniere’s syndrome, and . . . we feel that this was kind of like an early manifestation of this condition.” R. at 99-100. In other words, the appellant asserted that the hearing loss that he experienced in active service shows that he already had begun to develop Meniere’s disease at that time. The Board should have discussed whether that argument represented a new theory of entitlement that must be addressed. See Robinson v. Peake, 21 Vet.App. 545, 552 (2008); aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 1999).
=======================
“Fifth, the Board did not acknowledge the subtle but important change that the expert made to his opinion after reviewing the article submitted by the appellant. In his initial opinion, the expert wrote that “with a greater than 50% degree of certainty, . . . his Meniere’s disease is NOT related to any incident in [his] active military service including acoustic trauma.” R. at 53. In his second opinion, he wrote that it “is NOT at least as likely as not that the [appellant’s] Meniere’s disease is caused by or related to his in-service noise exposure.” R. at 32. The expert was certain in 2016 that the appellant’s acoustic trauma did not cause his Meniere’s disease to develop. By 2017, he could only say that he cannot be relatively certain that the appellant’s noise exposure and Meniere’s disease are related, causally or otherwise. That change in opinion is important both because it makes the appellant’s argument more plausible and because it suggests that the expert recognized that his initial opinion was not well informed.
=======================
“Sixth, it is hard to understand how the expert could issue a definitive statement of
probability about the etiological issue raised by this case. He reported that neither he nor anyone else has any idea what causes Meniere’s disease to develop. He admitted, however, that the article
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submitted by the appellant showed a “possible” causal relationship between noise exposure and the kind of damage that causes Meniere’s disease. R. at 31. Those bases do not seem to be sufficient support for the expert’s conclusion that the appellant’s in-service noise exposure likely did not cause his disorder to develop. The examiner may have been speculating without admitting that he was doing so.”
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“The expert also noted that a study cited in the article that the appellant submitted involved 8 Meniere’s patients out of a group of 1,800 and suggested that the “occurrence” of Meniere’s in that study group “is so low that it is difficult to assign blame.” R. at 31. It is unclear whether the examiner based that comment on statistical or scientific fact, general supposition, other facts about the patients contained in the article, or his own medical knowledge.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-1540
JIMMY W. TOTTINGHAM, APPELLANT,
V.
PETER O’ROURKE,
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, Jimmy W. Tottingham, appeals through counsel a May
18, 2017, Board of Veterans’ Appeals (Board) decision in which the Board granted him entitlement to disability benefits for right ear hearing loss and denied him entitlement to disability benefits for Meniere’s disease with vertigo. Record (R.) at 2-17. The Board’s disposition of the appellant’s
hearing loss claim is favorable to him. The Court, therefore, will not disturb it. See Medrano v.
Nicholson, 21 Vet.App. 165, 170 (2007). This appeal is timely and the Court has jurisdiction over
the matter on appeal pursuant to 38 U.S.C. ยงยง 7252(a) and 7266. Single-judge disposition is
appropriate when the issues are 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 conclusion that the appellant is not entitled to disability benefits for
Meniere’s disease and remand that matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from July 1983 until July 1986. R.
at 217. His care providers diagnosed him with Meniere’s disease in 2010. R. at 416. He has
argued that his disorder “is the result of noise exposure while on active duty.” R. at 20.
2
In July 2010, the appellant filed a claim for entitlement to disability benefits for Meniere’s
disease. R. at 423-25. In October 2011, the VA regional office (RO) denied his claim. R. at 332-39. In December 2011, private physician Dr. Dennis I. Bojrab opined that “noise
exposure/acoustic trauma from artillery exposure could cause” Meniere’s disease to develop.1 R.
at 320. In March 2012, the RO “confirmed and continued” its prior decision. R. at 316-18.
In April 2016, the Board requested a “medical expert opinion” to address whether “the claimed endolymphatic hydrops/Meniere’s disease was caused by or aggravated by the serviceconnected left ear hearing loss and/or tinnitus.” R. at 48-49. The Board noted that the appellant reported that he “experienced dizziness in service” and asked the examiner to “[d]iscuss the significance, if any, of [his] reported in-service symptoms and reported continuity of symptoms since service.” Id.
In September 2016, a VA otolaryngologist opined that the appellant’s disorder likely is not
related to his active service. R. at 53. The expert stated that he “know[s] of no data that supports
noise induced hearing loss as a ’cause or contributing factor’ to Meniere’s disease.” Id. In
November 2016, the appellant responded to the examiner’s opinion. R. at 36-45. He submitted an
article “suggest[ing] that the relationship between vestibular dysfunction and exposure to
hazardous noise may be more than coincidental.” R. at 41.
In February 2017, the Board asked the expert to “clarif[y]” his opinion. R. at 33. The
Board instructed the expert to specifically address the article submitted by the appellant and his
“lay statements concerning the nature and onset of his symptoms.” R. at 34 (emphasis removed).
In a February 2017 addendum opinion, the expert wrote that the “clear cause of Meniere’s
disease . . . has never been proven scientifically, with a greater than 50% degree of medical
certainty, using molecular, animal or human studies. . . . [T]he ‘exact cause’ is not known.” R. at
31. He stated that the authors of the article submitted by the appellant identified a “possible cause
and effect relationship with noise and vestibular damage,” but again opined that “the causative mechanisms for Meniere’s disease are not yet clearly understood.” Id. (emphasis removed). He concluded that “I can NOT say with a greater than 50% degree of medical certainty, that noise exposure causes or aggravates Meniere’s disease.” R. at 32.
On May 18, 2017, the Board issued the decision presently under review. R. at 2-17.
1 Dr. Bojrab submitted a similar opinion in February 2016. R. at 60.
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II. ANALYSIS
The Board relied on the April 2016 and February 2017 expert opinions to reach its decision.
It did not, however, discuss in sufficient detail the logical implications of the expert’s conclusions
and other pertinent evidence in the record. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d
per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). It also did not sufficiently explain its
determination that the expert’s opinions are adequate. See Nieves-Rodriguez v. Peake, 22 Vet.App.
295, 301 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007).
First, the Board noted in its initial request for an expert opinion that the appellant reported
experiencing “dizziness in service” and asked the examiner in both its initial request and request
for an addendum to discuss the appellant’s assertions. R. at 33, 48-49 . The expert did not do so
in his first opinion (the fact that the Board asked a second time, in bold lettering no less, plainly
demonstrates that fact) and nothing in the second opinion clearly reveals that the expert corrected
his mistake. The Board did not acknowledge that potential oversight in the decision on appeal.
The Board instead, in language that looks much like boilerplate, found that the expert’s “opinions
reflect consideration of the [appellant’s] history, to include reports of in-service noise exposure
and onset of symptoms.” R. at 14. It gave no indication what language in the opinions specifically
“reflect[ed] consideration” of the appellant’s reports of dizziness and other symptoms, and the
Court cannot discern any without some very creative reading. The Board should have better
explained what convinced it that the expert followed its instructions to address the appellant’s
reports of in-service dizziness and other symptoms.
Second, the Board asked the expert to investigate whether the appellant’s Meniere’s disease “is related to any incident of [his] active service, to include exposure to acoustic trauma.” R. at 49 (emphasis added). Although he couched his conclusions in terms that mirror the Board’s instructions, his discussions do not seem to address whether any incident another than acoustic trauma or injury other than hearing loss and tinnitus caused the appellant’s disorder to develop.
The Board should have reviewed this matter and discussed whether the expert’s opinions
adequately inform it about whether the appellant’s experiences during active service may have
caused or contributed to his present diagnosis.
Third, both the Board and examiner failed to note that the appellant reported when he left active service (but not when he entered) that he had experienced “car, train, sea or air sickness.”
4
R. at 470. The appellant later reported that the initial symptoms of his present disorder included “get[ting] nauseated very easily driving down the road or riding in the vehicle” and that those symptoms existed prior to 2000. R. at 102. The Board should have reviewed the appellant’s service separation medical report and determined whether it potentially suggests that the motion sickness that he experienced at that time is connected to the initial manifestation of his Meniere’s disease. 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”).
Fourth, in his September 2016 report, the expert wrote that the “hearing loss that appears with Meniere’s is directly caused by this disease.” R. at 53. In a November 2015 hearing before the Board, the appellant’s representative asserted that “tinnitus and . . . hearing loss are symptoms of Meniere’s syndrome, and . . . we feel that this was kind of like an early manifestation of this condition.” R. at 99-100. In other words, the appellant asserted that the hearing loss that he experienced in active service shows that he already had begun to develop Meniere’s disease at that time. The Board should have discussed whether that argument represented a new theory of entitlement that must be addressed. See Robinson v. Peake, 21 Vet.App. 545, 552 (2008); aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 1999).
Fifth, the Board did not acknowledge the subtle but important change that the expert made to his opinion after reviewing the article submitted by the appellant. In his initial opinion, the expert wrote that “with a greater than 50% degree of certainty, . . . his Meniere’s disease is NOT related to any incident in [his] active military service including acoustic trauma.” R. at 53. In his second opinion, he wrote that it “is NOT at least as likely as not that the [appellant’s] Meniere’s disease is caused by or related to his in-service noise exposure.” R. at 32. The expert was certain in 2016 that the appellant’s acoustic trauma did not cause his Meniere’s disease to develop. By 2017, he could only say that he cannot be relatively certain that the appellant’s noise exposure and Meniere’s disease are related, causally or otherwise. That change in opinion is important both because it makes the appellant’s argument more plausible and because it suggests that the expert recognized that his initial opinion was not well informed.
Sixth, it is hard to understand how the expert could issue a definitive statement of
probability about the etiological issue raised by this case. He reported that neither he nor anyone else has any idea what causes Meniere’s disease to develop. He admitted, however, that the article
5
submitted by the appellant showed a “possible” causal relationship between noise exposure and the kind of damage that causes Meniere’s disease. R. at 31. Those bases do not seem to be sufficient support for the expert’s conclusion that the appellant’s in-service noise exposure likely did not cause his disorder to develop. The examiner may have been speculating without admitting that he was doing so. The Board should have discussed the matter in greater detail.
Finally, the Board should have discussed whether the expert’s attempts to downplay the
appellant’s arguments are convincing. He first noted that “[h]azardous noise exposure is a common occurrence in our society.” R. at 30. The appellant, however, did not assert that he was exposed to routinely occurring hazardous noise. He stated that he was repeatedly exposed to some of the loudest noise that military cannon can produce along with concussions that left him dizzy. It is
not clear that the expert appreciated the extreme noise and pressure changes that the appellant experienced and recognized that the appellant was exposed to those traumas on a regularly recurring basis throughout his service.
The expert also noted that a study cited in the article that the appellant submitted involved 8 Meniere’s patients out of a group of 1,800 and suggested that the “occurrence” of Meniere’s in that study group “is so low that it is difficult to assign blame.” R. at 31. It is unclear whether the examiner based that comment on statistical or scientific fact, general supposition, other facts about the patients contained in the article, or his own medical knowledge. For this and the other reasons
stated above, the Board’s explanation for its conclusion that the expert’s opinions are adequate and
entitled to the most probative weight is not sufficient.
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs and a review of the record,
the portion of the Board’s May 18, 2017, decision denying the appellant entitlement to disability
benefits for Meniere’s disease is VACATED and that matter is REMANDED for further
proceedings consistent with this decision.
DATED: July 26, 2018
Copies to:
Glenn R. Bergmann, Esq.
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