Veteranclaims’s Blog

December 13, 2017

Hearing claim; 38 U.S.C. § 1111; physical profile (PULHES) report; Army Regulation (AR) 40-501 (Feb. 20, 1962);

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-2273
CLYDE MCKINNEY, JR., APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued April 2, 2015 Decided March 11, 2016)
Landon E. Overby of Providence, Rhode Island, with whom Kenneth L. LaVan of Fort
Lauderdale, Florida, was on the brief, for the appellant.
Ronen Z. Morris and Carolyn F. Washington, with whom Leigh A. Bradley, General Counsel; and Mary Ann Flynn, Assistant General Counsel, were on the brief, all of Washington, D.C., for the appellee.
Before DAVIS, SCHOELEN, and BARTLEY Judges.

SCHOELEN, Judge, filed the opinion of the Court. BARTLEY, Judge, filed an opinion
joining in part, concurring in part, and dissenting in part.
SCHOELEN, Judge: Clyde McKinney, Jr., appeals through counsel an April 10, 2013,
Board of Veterans’ Appeals (Board) decision that denied disability compensation for (1) a respiratory disorder to include as due to asbestos exposure, (2) bilateral hearing loss, and (3) tinnitus.1 Record (R.) at 3-21. This matter was referred to a panel of the Court, with oral argument, to address whether the hearing loss noted on Mr. McKinney’s entrance examination was a preexisting disability under
1 Mr. McKinney does not raise any argument concerning the Board’s denial of disability compensation benefits for tinnitus. See Appellant’s Brief (Br.). Accordingly, the Court finds that Mr. McKinney has abandoned this claim on appeal and the Court will dismiss the appeal as to this claim. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015)(en banc) (dismissing appeal as to issues abandoned by a represented appellant); Cacciola v. Gibson, 27 Vet.App. 45, 48 (2014) (noting that “when an appellant expressly abandons an issue in his initial brief or fails to present any challenge
and argument regarding an issue, the abandoned issue generally is not reviewed by the Court”).

38 U.S.C. § 1111. For 2 the following reasons, the Board’s decision will be vacated and the matters remanded for further adjudication.

I. HEARING LOSS
A. Background
Mr. McKinney served on active duty in the U.S. Navy as a boatswain’s mate from April 1969 to April 1971. As part of an entrance medical examination, he underwent a January 1969 audiometric test to assess his hearing acuity.3 His puretone thresholds, in decibels, were recorded in the medical report as follows:
HERTZ
500 1000 2000 3000 4000
RIGHT 5 5 5 N/A 35
LEFT 5 0 15 N/A 35
R. at 897. Block 74, on the second page of the medical report, is reserved for a medical examiner
to provide a “SUMMARY OF DEFECTS AND DIAGNOSES,” discovered during the entrance
examination. Id. The only “defect or diagnosis” the examiner noted in block 74 was defective
vision. Id. On this same page, block 76 contains a physical profile (PULHES) report, which reflects the results of a rating system used by the military to evaluate a servicemember’s physical health upon entrance into and separation from service. See McIntosh v. Brown, 4 Vet.App. 553, 555 (1993).
“PULHES” is an acronym that represents the profile’s six categories: “P” stands for “physical capacity or stamina”; “U” stands for “upper extremities”; “L” stands for “lower extremities”; “H”
2 Oral argument was held on April 2, 2015, at William and Mary Law School in Williamsburg, Virginia. The
Court extends its appreciation to the law school for its hospitality.
3 An audiometric test measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz
(Hz)). In Hensley v. Brown, 5 Vet.App. 155, 157 (1993), this Court stated that “the threshold for normal hearing is from
0 to 20 dB, and higher thresholds levels indicate some degree of hearing loss.”

2
stands for “hearing and ear”; “E” stands for “eyes”; and “S” stands for “psychiatric.” Para. 9-3(b)(1)-(6), Army Regulation (AR) 40-501 (Feb. 20, 1962).
A profile serial is assigned on a scale of 1 to 4 for each of the six categories, with “1”
indicating the highest level of fitness.4 Under “H” a “1” is assigned if the decibel level at 4000 Hz does not exceed 40. Appendix (App’x) VIII to Para. 9-3(b), AR 40-501. Mr. McKinney was assigned a “2” for his vision, but he received a “1” in the other PULHES categories.5 Mr. McKinney apparently was assigned a “B” on his PULHES report because of his vision, indicating that he “may have minor impairment under one or more PULHES factors which disqualify him or her for certain
critical MOS [military occupation specialities] training or assignment” but “no significant limitation”
and is considered “combat fit.”6 Para. 9-5, AR 40-501. Notwithstanding the “B” assignment on his
entrance examination, the Navy determined that Mr. McKinney’s hearing impairment was minor and
caused “no significant limitation” in his ability to perform most Navy jobs. Id.
Mr. McKinney was not treated for hearing loss during service nor was a hearing examination
conducted as part of his separation examination. R. at 899-900. In April 2009, Mr. McKinney filed
a claim for disability compensation for bilateral hearing loss asserting that he was exposed to artillery
fire in training missions and noise from helicopters. R. at 877; see also R. at 155-56. In May 2011,
a VA hearing examiner reviewed Mr. McKinney’s 1969 audiology test results and opined that he had
“a pre-existing hearing loss at 4000 Hz, bilaterally” and that “[a]ll other thresholds tested were
within normal limits.” R. at 108. After reviewing the results of a current VA audiological
examination, the VA examiner diagnosed Mr. McKinney with bilateral hearing within normal limits
between 250 and 1000 Hz with sloping bilateral hearing loss at 200 to 8000 Hz. R. at 107.
4 A person who receives a numerical designation of “1” under all categories, is considered to “possess a high
level of physical and mental fitness and is medically fit for any military assignment.” Para. 9-3(c)(1), AR 40-501.
5 A person, such as Mr. McKinney, with a physical profile of “2” under any of the categories, meets the medical
entry standards, but “possesses some medical condition [or] physical defect[,] which may impose some limitation on his
military occupation classification and assignment.” Para. 9-3(c)(2), AR 40-501.
6 In addition to the numerical classifications from 1 to 4, alphabetical designations are assigned to the various
physical categories “with respect to their organic functional ability.” Para. 9-7, AR 40-501.
3
An audiometric test performed in conjunction with the May 2011examination showed
puretone thresholds, in decibels as follows:
HERTZ
500 1000 2000 3000 4000
RIGHT 5 25 40 55 55
LEFT 0 15 30 50 45
Id. The hearing examiner stated that because no audiometric test was performed as part of
Mr. McKinney’s separation examination, she could not offer an opinion “regarding a hearing loss,
or hearing threshold shift bilaterally . . . without resorting to speculation.” R. at 108.
In June 2009, the VA regional office (RO) denied the claim. R. at 1141-44. In March 2012,
an addendum was added to the May 2011 hearing examination report. R. at 96. The examiner stated
that she could not offer an opinion regarding the effect of in-service noise exposure on
Mr. McKinney’s hearing without resorting to speculation. Id. Mr. McKinney appealed the decision
to the Board. R. at 829-31.
On April 10, 2013, the Board issued the decision here on appeal. R. at 3-21. In denying the
hearing loss claim, the Board found that Mr. McKinney was not entitled to the presumption of
soundness because his military service entrance audiometric test showed that he had “some degree
of preexisting hearing loss.” R. at 16. In reaching this determination, the Board relied on Hensley,
supra, to conclude that because Mr. McKinney’s entrance audiometric test revealed that the puretone
threshold at 4000 Hz was outside the range of normal hearing, he had some degree of hearing loss
when he entered service. R. at 16-17.
The Board stated that because the VA hearing examiner’s statement did not provide an
opinion regarding aggravation or the etiology of Mr. McKinney’s hearing loss, the statement
“provides neither positive nor negative support for service connection.” R. at 19. Because there
was “no other competent medical opinion evidence addressing the etiology of [Mr. McKinney’s]
hearing loss,” the Board concluded that his preexisting hearing loss was not incurred or aggravated
4
by service. Id. However, the Board found that Mr. McKinney’s statements that he was exposed to
loud noise during service were competent, credible, and consistent with the circumstances of his
service. R. at 18.
B. Parties’ Arguments
Mr. McKinney argues that the Board erred when it determined that his military entrance
examination showed that he had a preexisting hearing loss. Appellant’s Br. at 16-20. The appellant
has alternately stated that his entrance medical examination showed that he had “imperfect” hearing,
“abnormal hearing impairment,” and a “decibel loss.” Appellant’s First Supplemental Memorandum
of Law at 7; Oral Argument Recording at 9:57, 15:04, 18:59. Nevertheless, he argues that because
the degree of hearing loss noted on his entrance examination did not constitute a hearing disability
under 38 C.F.R. § 3.385 (2015), the Board erred when it concluded that he had a preexisting hearing
loss. Appellant’s Br. at 16-20; Appellant’s Second Supplemental Memorandum of Law.
Additionally, at oral argument, Mr. McKinney argued that the fact that the Navy did not find that his hearing loss prevented him from serving is further proof that he did not have a preexisting hearing loss for VA purposes. Oral Argument Recording at 15:04.
The Secretary argues that the Board properly denied Mr. McKinney’s claim because the hearing loss noted on his entrance examination showed that he had a preexisting condition, and the Board’s determination that his hearing loss was not aggravated by service is plausible. Secretary’s Br. at 20-21. In response to the appellant’s § 3.385 argument, the Secretary asserts that this regulation is irrelevant to the presumption that he was in sound condition when he entered service because § 3.385 establishes when a hearing loss is a disability solely for the purpose of payment of
disability compensation benefits. Secretary’s Br. at 18-19.

C. Analysis
1. Presumption of Soundness
Because the degree of hearing loss noted on Mr. McKinney’s entrance medical examination (35 dB at 4000 Hz in both ears) did not meet VA’s definition of a “disability” for hearing loss under 38 C.F.R. § 3.385, the Court holds that Mr. McKinney was entitled to the presumption of soundness under section 1111. The Court reaches this conclusion after considering certain related statutory and regulatory provisions governing VA disability compensation.
5
Section 1110 sets forth the basic entitlement to disability compensation and provides that the Secretary will compensate a veteran “[f]or disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.”7 Thus, under section 1110, a claim for disability compensation may not be granted unless a disability results from a disease or injury that was incurred or aggravated during
service. See Terry v. Principi, 340 F.3d 1378, 1382 (Fed. Cir. 2003) (stating that section 1110 makes “clear that if a disability cannot be attributed to an injury or a disease incurred or aggravated in the line of duty, the disability is not compensable”). “Disability” as used in section 1110 refers to “impairment of earning capacity due to disease, injury, or defect, rather than to the disease, injury, or defect itself.” Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc); Hunt v. Derwinski, 1 Vet.App. 292, 296-97 (1991). After VA determines that a veteran has a current disability resulting
from a disease or injury that is related to service, the disability is evaluated under the disability rating schedule, and the payment of monetary benefits is tied to the percentage rating assigned to the veteran’s disability. See 38 C.F.R. § 4.1 (2015) (“The percentage ratings represent . . . the average impairment in earning capacity resulting from . . . disease and injuries and their residual conditions
in civilian occupations.”).8
Determining for disability compensation purposes whether a disease or injury is related to service often raises the question whether the disease or injury arose during service or preexisted the veteran’s military service. Section 1111 provides a framework for making this determination and provides that a veteran who claims entitlement to disability compensation under section 1110 is
7 Section 1110 provides:
For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of
service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs.
8 Because the impairment in earning capacity is the basis for disability evaluations, VA must consider the effect of the appellant’s disability on his ability “to function under the ordinary conditions of daily life, including employment.” 38 C.F.R. § 4.10 (2015). Therefore, when assigning a disability rating VA must consider the disability “from the point of view of the veteran working or seeking work.” 38 C.F.R. § 4.2 (2015).

6
entitled to a presumption that he or she was in sound condition upon entry into service “except as to defects, infirmities, or disorders noted” during an entrance examination. Section 1111 specifically references section 1110 and states:
For the purposes of section 1110 of this title . . ., every veteran shall be taken to have
been in sound condition when examined, accepted, and enrolled for service, except
as to defects, infirmities, or disorders noted at the time of the examination,
acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.
38 U.S.C. § 1111 (emphasis added).
Therefore, when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound in every respect. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet.App. 231, 234 (2012); Bagby v. Derwinski, 1 Vet.App.
225, 227 (1991). Critical to determining whether a defect, infirmity, or disorder has been “noted”
is whether the condition is “recorded” in an examination report. 38 C.F.R. § 3.304(b) (2015).
Noting only a history of a condition at the time of the entrance examination “does not constitute a
notation” of a preexisting condition. 38 C.F.R. § 3.304(b)(1); see Crowe v. Brown, 7 Vet.App. 238,
245 (1994) (noting that the presumption of soundness only attaches “where there has been an
induction examination in which the later-complained-of-disability was not detected”).
If a veteran is entitled to the presumption, the burden then falls on VA to rebut the
presumption by clear and unmistakable evidence that the injury or disease manifested in service was
both preexisting and not aggravated by service. See 38 U.S.C. § 1111 (the Secretary’s burden is
derived from the phrase “or where clear and unmistakable evidence demonstrates that the injury or
disease existed before acceptance and enrollment and was not aggravated by service”); Wagner,
370 F.3d at 1096; Horn, 251 Vet.App. at 234; Bagby, 1 Vet.App. at 227.
Conversely, when a medical condition is noted during an entrance examination and a veteran
claims that the preexisting condition was aggravated during service, a related but different statutory
provision is applicable: Section 1153, title 38, U.S. Code, provides that “[a] preexisting injury or
disease will be considered to have been aggravated by active military . . . 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.”
7
The Court concludes that Mr. McKinney had preexisting hearing loss that was “noted” on
his 1969 entrance examination. Our concurring colleague would find that no hearing loss was
“noted” on Mr. McKinney’s entrance examination because, although the audiological thresholds
indicating hearing loss were recorded at the time of the 1969 service entrance examination, there was
no contemporaneous medical opinion interpreting the significance of those thresholds. However,
we find that the contemporaneous recording of an auditory examination threshold above 20 dB at
4000 Hz at service entrance was sufficient to constitute a “notation” of a hearing defect even without
a contemporaneous medical examination interpreting the significance of those results.
In Hensley v. Brown, the Court, relying on a particular medical treatise, recognized that
puretone hearing thresholds above 20 dB “indicate some degree of hearing loss.” 5 Vet.App. at 157.
Hensley’s recognition of this medical standard provided the Board with a basis for discerning the
significance of the contemporaneously recorded 1969 audiology test results. See R. at 16 (Board
citing Hensley for the proposition that hearing thresholds greater than 20 dB “indicate some degree
of hearing loss”). Because the presence of hearing loss is based on an objective standard, the Board
is easily able to identify hearing loss that is revealed on an audiometric test.
We agree with our concurring colleague’s observation that Hensley did not address what
constitutes a notation under section 1111 and § 3.304(b) because the naval examiner, relying on
audiometric tests, concluded that Mr. Hensley had defective hearing. However, by explaining the
medical basis for the naval examiner’s interpretation of the audiometric test results, Hensley provided
the Board in this case with a foundation for determining that the 1969 audiometric test revealed that
Mr. McKinney had abnormal hearing at 4000 Hz.
Even if there were some question as to the significance of the 1969 audiometric test results,
the record included the May 2011 VA hearing examiner’s report opining that the 1969 audiology test
showed that Mr. McKinney had abnormal hearing at 4000 Hz. This report provided additional
evidence that the medical standard adopted in Hensley was an accurate barometer for gauging the
presence of hearing loss. Significantly, Mr. McKinney challenges neither the medical standard for
abnormal hearing announced in Hensley nor the 2011 VA hearing examiner’s use of that standard
in rendering her opinion that Mr. McKinney had abnormal hearing at 4000 Hz. Given the Board’s
8
reliance on Hensley, it is unclear how our concurring colleague reached the conclusion that the
temporal requirement of noting a defect, infirmity, or disorder at entry is not fulfilled in this case.
It is also perplexing that our concurring colleague concludes that Mr. McKinney’s entrance
examination was not “out of the ordinary” simply because the naval examiner did not state that
Mr. McKinney had defective hearing, post at 28. In point of fact, it is not surprising that the naval
examiner did not note defective hearing. The 1969 audiology report reveals that at 4000 Hz,
Mr. McKinney’s hearing acuity was 35 dB bilaterally, denoting some degree of bilateral hearing loss.
However, because his hearing acuity was below 40 dB bilaterally, he was assigned a “1” under the
PULHES rating system, denoting the highest degree of fitness for hearing. App’x VIII to Para. 9-5,
AR 40-501. This designation means only that Mr. McKinney’s hearing did not, at that time,
constitute a condition that “may impose some limitation on his military occupation classification and
assignment.” Para. 9-3(c)(2), AR 40-501. Under the PULHES rating system, he was considered
highly fit despite the presence of some degree of hearing loss. In other words, the abnormal 1969
audiological test result simply was not significant to the military at the time of its recording; the
result became significant to Mr. McKinney only when he applied for disability benefits. Hence,
unlike our concurring colleague, the majority finds no basis for attaching significance to the fact that
the naval examiner does not expressly state that Mr. McKinney’s hearing was defective. Thus, the
majority concludes that preexisting hearing loss was noted on Mr. McKinney’s entrance examination.
Nonetheless, whether Mr. McKinney’s preexisting hearing loss means that he was not entitled
to the presumption of soundness may not be resolved without reviewing VA’s regulation defining
hearing loss as a disability.
2. Hearing Loss as a Disability
In addition to the statutory provisions discussed above, the Court must consider
38 C.F.R. § 3.385, which defines “what constitutes a hearing disability.” 55 Fed. Reg. 12,348
(Apr. 3, 1990). In Hensley, the Court recognized that, on an audiometric test, puretone thresholds
above 20 dB may constitute hearing loss, even though such hearing loss may not constitute a
“disability” under § 3.385 for VA benefits purposes. 5 Vet.App. at 157. Under the VA disability
scheme, the Secretary has “authority to prescribe all rules and regulations which are necessary or
appropriate to carry out the laws administered by [VA] and are consistent with those laws.”
9
38 U.S.C. § 501(a)(1). This authority includes permission to establish “regulations with respect to
the nature and extent of proof and evidence . . . to establish the right to benefits under such laws.”
Pursuant to this rulemaking authority, the Secretary implemented 38 C.F.R. § 3.385, which states
that impaired hearing is considered a “disability for compensation purposes” when the “audiometry
threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 [Hz] is 40 [dB] or greater; or
when audiometry thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000
[Hz] are 26 [dB] or greater; or when speech recognition scores using the Maryland CNC Test are less
than 94[%].” Thus, the regulation provides that unless the impaired hearing meets these minimum
thresholds, it is not a “disability” under section 1110.9
In Palczewski v. Nicholson, 21 Vet.App. 174, 177-79 (2007), the Court inquired whether
§ 3.385 represents the Secretary’s “interpretation and refinement of the term ‘disability’ referred to
in 38 U.S.C. § 1110”; and the Court concluded that the regulation reasonably interpreted what
constitutes a hearing disability. The Court noted that when the Secretary promulgated § 3.385, he
stated that “‘the purpose of the regulation is to provide a gauge of what constitutes a hearing
disability.'” 21 Vet.App. at 178-79 (quoting 55 Fed. Reg. 12,348 (Apr. 3, 1990)). Generally, once
VA determines that a veteran has a disease or injury that was incurred or aggravated by service,
service connection is granted for the resulting disability without regard to its severity. The severity
of the disability is usually considered only after service connection has been granted and VA is
assigning a disability rating to compensate the veteran for the impairment in earning capacity
attributed to the disability.
Hearing loss is an exception to this rule. Because hearing loss is not considered a “disability”
unless the loss exceeds a certain threshold on an audiometric test, a minimum degree of hearing loss
is a prerequisite for entitlement to disability compensation benefits. Indeed, the Secretary explained
in the Federal Register that “a change in hearing as a result of military service is a disability only if
it exceeds the specified levels” in the regulation. 55 Fed. Reg. 12,348. The Secretary also stated that
§ 3.385 applies before a determination regarding service connection is made. Id. (emphasis added).
This interpretation means that if a veteran’s hearing loss is not a “disability” under § 3.385, there is
9 This regulation reflects a determination by the Secretary that certain degrees of hearing loss are not
considered disabilities because they do not result in an impairment in earning capacity.
10
no need for VA to determine whether the hearing loss is related to service because no entitlement
to disability compensation exists if the hearing loss falls below the minimum standards.
Thus, contrary to the Secretary’s argument, § 3.385 affects more than the payment of disability
compensation benefits. Instead, the regulation establishes when hearing loss constitutes a disability
for entitlement to disability compensation benefits. See Hensley, 5 Vet.App. at 157. If the veteran’s
hearing loss does not meet the standards under § 3.385, he or she is denied disability compensation
benefits for hearing loss.
3. Winn and Terry
It is these statutory and regulatory provisions that the Court must consider to resolve the issue
before it. The information on an entrance medical examination is a key to resolving whether a
claimant is entitled to the presumption of soundness. When an entrance medical examination reveals
that a veteran has any “defects, infirmities, or disorders,” the noted condition is considered to have
preexisted service. The Secretary focuses his argument on the ordinary meaning of the term “defect,”
which he contends is broad and includes virtually any imperfection that is noted on an entrance
examination. See 10 Secretary’s Memorandum of Law at 2; Oral Argument Recording at 38:53-39:11,
50:03-51:33. In this vein, he argues that the Board properly determined that Mr. McKinney had a
“defect” noted on his entrance examination because he had some degree of hearing impairment. Oral
Argument Recording at 38:53-39:11, 50:03-51:33. On initial consideration, the Secretary’s argument
seems persuasive.
The persuasiveness of this argument, however, is diminished when the Court considers
relevant precedent from this Court and the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) interpreting the statutory term “defects” used in section 1111. In Winn v. Brown, 8 Vet.App.
510, 515 (1996), this Court interpreted “defects” as it applied to personality disorders. Under
38 C.F.R. § 3.303(c) (2015), “[c]ongenital or developmental defects, refractive error of the eye,
10 The Secretary notes that even if “defect” does not include any and every abnormal or deviant characteristic,
“infirmities” and “disorders” are also broadly defined and the inclusion of all three terms in the statute shows a broad
congressional intent that these terms be construed in a manner similar to the way “defect” is construed. Secretary’s
Memorandum of Law at 2. The Court notes that “infirmity” is defined as “the quality or state of being infirm,” which,
in turn, is defined as “of poor or deteriorated vitality” or a “state of being feeble.” MERRIAM-WEBSTER’S COLLEGIATE
DICTIONARY 598 (10th ed. 1999). Finally, a “disorder” is “an abnormal physical or mental condition.” Id. at 334.
11
personality disorders and mental deficiency . . . are not diseases or injuries within the meaning of
applicable legislation.” Mr. Winn was seeking disability compensation benefits for a personality
disorder that was not noted on an entrance examination. He argued that he was entitled to the
statutory presumption of soundness and that the Secretary needed to produce clear and unmistakable
evidence that his personality disorder preexisted service and was not aggravated by service.
Additionally, he argued that 38 C.F.R. § 3.303(c) was invalid because it was inconsistent with the
plain language of section 1111.
Because “defects,” is not defined in the statute, the Court in Winn applied the fundamental
canon of statutory construction that the words of a statute are given their ordinary, contemporary,
common meaning. Winn, 8 Vet.App. 515-16. In doing so, the Court examined the ordinary meaning
of “defect,” which the Court noted is defined as an “imperfection that impairs worth or utility” or a
“lack of something necessary for completeness, adequacy, or perfection.” Id. at 516 (quoting NEW
WORLD DICTIONARY 333 (3d ed. 1988)); see also Perrin v. United States, 444 U.S. 37, 42 (1979)
(stating that “unless otherwise defined, words [in a statute] will be interpreted as taking their
ordinary, contemporary, common meaning”); McGee v. Peake, 511 F.3d 1352,1356 (Fed. Cir. 2008);
Trafter v. Shinseki, 26 Vet.App. 267, 284 (2013). The Court observed that “defect” is defined
broadly, that its ordinary meaning is “virtually unlimited.” Winn, 8 Vet.App. at 516. Hence, the
Court stated that “everyone [] has a defect” because no one is perfect. Id.
However, the Court concluded that Congress did not intend “defect”as used in section 1111
would have this broad meaning. Id. Hence, the Court considered not only the bare meaning of word
“defect” but also the placement and purpose of that word in the statutory scheme. See Winn,
8 Vet.App. at 515-16; see also Holloway v. United States, 526 U.S. 1, 6 (1999) (the Court must
“consider not only the bare meaning of the critical word or phrase ‘but also its placement and purpose
in the statutory scheme.'” (quoting Bailey v. United States, 516 U.S. 137, 145 (1995)). Upon such
consideration, the Court in Winn observed that section 1111 (creating the presumption of soundness),
in which the term “defect” appears, is closely connected to section 1110 (creating entitlement to
disability compensation for disabilities resulting from disease or injury incurred or aggravated in
service). 8 Vet.App. at 515-16. Significantly, to determine the meaning of “defect,” the Court linked
the statutory term “defect” in section 1111 with the phrase in section 1110, “disability resulting from
12
personal injury . . . or disease.” Because of the close connection between these statutory provisions,
Winn stated that “the language of [section] 1111 must be read in connection with [section] 1110 on
which [it] is conditioned.” Id. at 516.
Reading these two provisions in conjunction, the Court held that “defect” could not be
construed broadly as the ordinary meaning of that term encompasses any imperfection. Id. Rather,
the Court stated that the term “‘defect’ in section 1111 necessarily means a defect that amounts to or
arises from a disease or injury” resulting in a disability authorized by section 1110. Id. Thus, Winn’s
interpretation of “defect” is based on the existing correlation between that word in section 1111 and
the phrase in section 1110 providing that VA will pay compensation for any disability resulting from
personal injury or disease contracted in or aggravated by service. Because § 3.303(c) provides that
“a personality disorder . . . is not the type of disease or injury-related defect” recognized by VA, the
Court concluded that the presumption of soundness did not “apply” to Mr. Winn’s claim, even though
his personality disorder was not noted on his entrance examination.11 Id. By construing the term
“defect” narrowly, the Court stated that its interpretation “is internally consistent with section 1111
and consistent with the title 38 statutory scheme as a whole.” Id.
In Terry v. Principi, 340 F.3d 1378 (Fed. Cir. 2003), the Federal Circuit embraced this
Court’s interpretation of “defect.” Mr. Terry argued that the exclusion of refractive error of the eye
from “disease or injury” in § 3.303(c) violated sections 1110 and 1111. The Federal Circuit held that
the Secretary’s interpretation of “injury” or “disease” adopted in § 3.303(c) was a permissible
construction of those statutory terms. Id. at 1384. Like this Court in Winn, the Federal Circuit
rejected Mr. Terry’s argument that the terms “defects, infirmities, or disorders” should be broadly
construed. The Federal Circuit explicitly followed Winn’s holding that “defect” should be read
narrowly to include only those defects that VA considers to “‘amount[] to or arise[] from a disease
or injury.'” Id. at 1385-86 (quoting Winn, 8 Vet.App. at 516). Thus, Terry and Winn did not apply
the ordinary meaning of “defect” in section 1111 because the courts in these decisions concluded that
the ordinary meaning of that term is not consistent with the statutory and regulatory scheme
governing disability compensation for veterans. In sum, Winn and Terry stand for the proposition
11 The Court also determined that the regulation did not conflict with section 1111 as VA might properly
exclude personality disorders from the category of diseases from which a “disability” might arise. 8 Vet.App. at 516.
13
that when VA, by regulation, provides that disability compensation is not permitted under section
1110 for a particular condition, the excluded condition can never amount to a “defect” within the
meaning of section 1111.
4. Application of Winn and Terry
The interpretation by Winn and Terry of “defect” used in section 1111 guides this Court’s
interpretation of that statutory term as it applies to hearing loss. When the Secretary promulgated
§ 3.385, he took an approach different from the one he adopted when he promulgated § 3.303(c).
Unlike personality disorders or refractive errors, hearing loss is not excluded from the category of
diseases and injuries under section 1110 for which disability compensation may be awarded.
However, the Secretary’s exclusion of certain levels of hearing impairment from consideration as
disabilities restricts disability compensation benefits for hearing loss. Just as Winn and Terry
interpreted “defect” narrowly to exclude conditions that might not result in disabilities under section
1110, the Court holds that “defect” should be narrowly interpreted so that it does not encompass a
level of hearing impairment that is not considered a “disability” under § 3.385.
The Court is not persuaded by the Secretary’s contentions at oral argument that the appellant’s
reliance on Winn and Terry is misplaced because those cases involved claimants who did not have
any defects, infirmities, or disorders noted on their entrance examinations. In making this argument,
the Secretary fails to recognize that Winn and Terry’s narrow interpretation of “defect” was not based
on the fact that the claimants’ personality disorder and refractive error were not noted on their
entrance examinations. Rather, Winn and Terry narrowly interpreted “defect” because VA prohibits
disability compensation benefits for personality disorders and refractive errors. It is this rationale
that the Court applies here to hold that when the level of hearing loss noted on an entrance
examination does not meet VA’s definition of a hearing “disability,” that level of hearing loss is not
a “defect.” If in this case 12 the Court were to adopt the Secretary’s argument, and construe “defect”
broadly to conclude that any level of hearing loss is a “defect,” the Court would have to disregard
the holdings in Winn and Terry. Morever, in following the Secretary’s suggestion, the meaning of
12 Although the focus of the parties was on “defect,” because the meaning of “defects,” “infirmities,” and
“disorders” (as discussed in footnote 10) are broad and overlapping, the Court concludes that the same rationale for
interpreting “defect” narrowly applies equally to “infirmities” and “disorders.”
14
“defect” under section 1111 would vary from case to case. Hence, a “defect” would be given a broad
or narrow interpretation depending upon whether the “defect” was or was not noted on an entrance
examination. The Court will not follow this suggestion. We shall interpret the term “defect”
consistently under either scenario. See Clark v. Martinez, 543 U.S. 371 (2005) (holding that giving
different meanings to the same statutory phrase “would be to invent a statute rather than interpret
one”). In either case, a determination as to whether a “defect,” under section 1111, is or is not noted
on an entrance examination will be based on whether disability compensation benefits are available
for the condition for which the veteran seeks benefits.
5. Absurd Result
The Secretary also argued that because Mr. McKinney’s preexisting hearing loss was a
“defect” under section 1111, the Board properly treated his claim as a claim for aggravation of a
preexisting disability under 38 U.S.C. § 1153. Secretary’s Br. at 20-21. At oral argument,
Mr. McKinney argues that this is not possible. Oral Argument Recording at 56:41-59:02; see also
Appellant’s Second Supplemental Memorandum of Law at 4-5. He points out that pursuant to
section 1153, a preexisting injury or disease is considered to have been aggravated “where there is
an increase in disability during service” (emphasis added). He contends that under the Secretary’s
interpretation of section 1111, a claimant with hearing loss noted on entrance that does not meet the
criteria of § 3.385, may not establish aggravation because the claimant’s preexisting hearing
impairment would not be a “disability.” Therefore, the claimant could not demonstrate that there was
an “increase in disability.” In light of the Court’s discussion above that hearing loss that does not
meet the requirements of § 3.385 is not a “defect” because it is not considered a disability for VA
purposes, the Court agrees with Mr. McKinney and finds that the Secretary’s interpretation of
“defect” would produce the absurd result described by Mr. McKinney. Morever, because the
Secretary’s interpretation of “defect” fails to consider the overall disability compensation scheme
pertaining to hearing loss, the Court is not persuaded by his interpretation. In sum, the Court holds
that the hearing loss noted on Mr. McKinney’s entrance medical examination was not a “defect,
infirmity, or disorder.” Thus, the Board erred in concluding that Mr. McKinney was not entitled to
the presumption of soundness. The Board’s determination is reversed.
15
6. The Board erred in relying on the May 2011 hearing examiner’s opinion to deny
Mr. McKinney’s claim.
After concluding that Mr. McKinney was not entitled to the presumption of soundness, the
Board denied his claim on the basis that no competent medical evidence established a causal
relationship between Mr. McKinney’s hearing loss and service. R. at 18-19. In doing so, the Board
noted that the only medical evidence addressing the nexus issue was a May 2011 opinion and a 2012
addendum to that opinion. R. at 19. The VA examiner concluded that because no audiometric test
was performed as part of Mr. McKinney’s 1971 separation examination, she could not offer a
“definitive” nexus opinion “without resorting to speculation.” R. at 96, 108.13 The Board concluded
that the VA examiner’s opinion “provides neither positive nor negative support” for the claim.
R. at 19. Relying on the examiner’s opinion, the Board concluded that “additional development” was
not needed. R. at 8.
The appellant argues that the VA “examiner did not provide an adequate rationale for why
it would be speculative to render” a nexus opinion. Appellant’s Br. at 21. The Secretary disagrees
with Mr. McKinney’s assertion. Secretary’s Br. at. 21-22. “An examiner’s conclusion that a
diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion
just as much as a firm diagnosis or a conclusive opinion.” Jones v. Shinseki, 23 Vet.App. 382-90
(2010). As with other medical opinions, the examiner must provide a rationale for his opinion. See
Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (stating that a medical examiner must support an
opinion with an analysis that the Board can consider and weigh); see also Nieves-Rodriguez v. Peake,
22 Vet.App. 295, 304 (2008) (“[M]ost of the probative value of a medical opinion comes from its
reasoning.”). Thus, “before the Board may rely on a VA examiner’s conclusion that an etiology
opinion would be speculative, the examiner must explain the basis for such an opinion or the basis
for the examiner’s opinion must be apparent from the Board’s review of the evidence.” Id.
13 In March 2012, this same VA examiner submitted an addendum to her May 2011 opinion
reiterating her opinion that, without a separation examination, she could not offer an opinion regarding the
effect of in-service noise exposure on Mr. McKinney’s hearing without resorting to speculation. R. at 96.
16
Here, the VA examiner did not provide a rationale for her conclusion that in order to render
a nexus opinion, an audiology test conducted contemporaneously with a separation examination was
needed. Although the VA examiner clearly identified the evidence she needed, it is unclear that the
phrase in her 2011 opinion and 2012 addendum “without resorting to speculation” reflects the limits
of knowledge in the medical community at large or the limits of the VA examiner’s knowledge.
R. at 96, 108.
It is possible that the examiner’s opinion is based on the supposition that hearing loss
attributable to noise exposure would result in an immediate, measurable change in hearing acuity that
would be reflected on an audiometric test. However, the cursory statement again makes her rationale
unclear. Nor does the Board’s review of the evidence clarify the basis for the examiner’s opinion.
The Board, without discussion, merely summarized the VA examiner’s statement, adopted her
opinion, and proceeded to deny the claim because of a lack of nexus evidence. R at 19. Thus, the
basis of the examiner’s opinion is not apparent from either the examiner or the Board. The Court is
placed in the position of having to surmise the rationale for the VA examiner’s conclusion that a
nexus opinion would be speculative.
Even if the Court were to assume that the VA examiner’s opinion was based on the notion
that hearing loss resulting from noise exposure would cause an immediate change in hearing, the
examiner’s opinion is deficient because she did not consider evidence in the record that may indicate
that such a change occurred in Mr. McKinney’s hearing shortly after his in-service noise exposure.
Mr. McKinney testified at a January 2011 hearing that he first noticed a change in his hearing during
the “[19]70’s” R. 155-56.14 This testimony is relevant because Mr. McKinney served in the military
between 1969 and 1971. If Mr. McKinney first noticed hearing loss during service or soon after
discharge, this fact may have assisted the VA examiner in determining the likelihood that
Mr. McKinney’s in-service exposure to acoustic trauma affected his hearing. But, there is no
indication that the VA examiner considered the import of Mr. McKinney’s testimony.
A medical opinion is adequate when it is based upon consideration of the veteran’s prior
medical history and examinations and also describes the disability in sufficient detail so that the
14 The Board did not make a finding that this testimony was not credible. R. at 19.
17
Board’s “‘evaluation of the claimed disability will be a fully informed one.'” Ardison v. Brown,
6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)). Here, the
VA examiner’s failure to consider Mr. McKinney’s testimony when formulating her opinion renders
that opinion inadequate. See Barr v. Nicholson, 21 Vet.App. 301, 310-11 (2007) (finding that a
medical examination that ignores lay assertions regarding continued symptomatology is inadequate
because it fails to take into account the veteran’s prior medical history); Dalton v. Nicholson,
21Vet.App. 23, 39 (2007) (finding a medical examination inadequate where the examiner
“impermissibly ignored the appellant’s lay assertions that he sustained a back injury during service”).
Because the examiner did not did not provide a clear rationale for her opinion or consider relevant
evidence in formulating her opinion, the Court holds that the Board erred in relying on that opinion
to deny Mr. McKinney’s claim. Accordingly, this matter is vacated and remanded for the Board to
readjudicate Mr. McKinney’s hearing loss claim. On remand, the Board should obtain a medical
opinion that is consistent with this opinion.
II. RESPIRATORY DISABILITY
A. Background
In April 2007, Mr. McKinney filed a claim for disability compensation benefits for a
respiratory disorder. R. at 675. Mr. McKinney stated that the Navy ships on which he served were
“full of asbestos.” R. at 610-11; see also R. at 154 (testimony that Mr. McKinney’s naval duties
included “clean[ing] up paint, treat[ing] ship for rust”). In support of his claim, Mr. McKinney
submitted an October 1996 medical opinion from Dr. Schonfeld, a pulmonologist, stating that he had
reviewed a single chest x-ray showing the type of bilateral pleural thickening “seen following
asbestos exposure.” R. at 680. Additionally, Dr. Schonfeld commented that the chest x-ray was
“consistent with a diagnosis of pleural asbestosis.”15 Id. Mr. McKinney also submitted a
December 1996 opinion from Dr. Altschuler, another pulmonologist, who concurred with
Dr. Schonfeld’s diagnosis. R. at 681. Dr. Altschuler stated that he had reviewed “chest films with
findings of bilateral pleural thickening” and noted that the appellant’s symptoms included shortness
15 “Asbestosis” is a “form of pneumoconiosis (silicatosis) caused by inhaling fibers of asbestos, marked by
interstitial fibrosis of the lung.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 161-62 (32d ed. 2012).
18
of breath and a “noticeable” cough. Id. Dr. Altschuler diagnosed Mr. McKinney with
bilateral”asbestos-related pleural disease.” Id. Further, Dr. Altschuler opined that Mr. McKinney’s
“present malady [was] caused by the asbestos toxin exposure incident to his sailing occupation.” Id.
Finally, Mr. McKinney submitted a November 2003 referral from the Methodist Charlton
Medical Center to Dr. Attiah, a pulmonologist. R. at 614. The referral worksheet noted that
Mr. McKinney had dyspnea (shortness of breath) with a history of “apparent exposure to asbestos.”
Id. Mr. McKinney was referred to Dr. Attiah for “pulmonary function tests related to asbestos
exposure.” Id. Mr. McKinney signed an authorization and consent-to-release-information form to
allow the RO to obtain Dr. Attiah’s treatment records “for asbestos exposure.” R. at 615-17.
Mr. McKinney stated that Dr. Attiah’s office was located at the Methodist Charlton Medical Center
and provided the RO with the address of the medical center as well as a phone number for Dr. Attiah.
Id.
In September 2007, the RO requested Dr. Attiah’s treatment records for pleural asbestosis
from the Methodist Charlton Medical Center. R. at 588. In November 2007, the RO made a second
request for these records. R. at 589. In December 2007, the Methodist Charlton Medical Center
informed the RO that Dr. Attiah’s office was not located at that facility and suggested that the RO
contact him at the phone number Mr. McKinney provided. R. at 570. There is no indication that
the RO made any further attempt to contact Dr. Attiah.
In February 2008, Mr. McKinney underwent a VA respiratory examination. R. at 562-63.
The examiner noted that Mr. McKinney’s service medical records did not include any treatment for
respiratory complaints and that a 1971 chest x-ray revealed no abnormality. R. at 562.
Mr. McKinney reported that he had been experiencing shortness of breath for the last 20 to 30 years
both at rest and on exertion. Id. The VA examiner noted that a 2006 chest x-ray revealed no
abnormality and that 2007 pulmonary function tests showed a “restrictive pattern with mild
impairment.” Id. The examiner opined that Mr. McKinney’s “shortness of breath is less likely than
not secondary to his asbestos.” R. at 563.
In February 2008, the RO denied the claim for a respiratory disability. R. at 1180-84. The
appellant appealed the decision by filing a Notice of Disagreement. R. at 487, 489. On
August 4, 2008, the RO issued a Statement of the Case, which stated that “[a]ll attempts to locate
19
the treatment reports from Methodist Charlton Medical Center, from both the veteran and the treating
facility, were unsuccessful.” R. at 462.
The record also includes a 2009 VA medical record indicating that Mr. McKinney was
diagnosed with restrictive lung disease. R. at 276. An October 2009 chest x-ray revealed “no
evidence of pleural disease.” R. at 240. Additionally, a September 2009 computerized tomography
(CT) scan revealed “no evidence of pleural plaques or asbestosis.” R. at 284.
In April 2011, the Board denied entitlement to service connection for a respiratory condition,
to include as due to asbestos exposure. R. at 138-50. Mr. McKinney appealed this decision to the
Court, and in March 2012, the parties entered into a joint motion for remand (JMR), which the Court
subsequently granted. The parties agreed that the Board failed to discuss Dr. Schonfeld’s
October 1996 “favorable medical opinion” and to “fully assess lay evidence of record.” R. at 67.
In the April 2013 decision here on appeal, the Board denied the claim for a respiratory
disability. R. at 12-15. The Board acknowledged that two pulmonologists diagnosed Mr. McKinney
with asbestosis in 1996. Id. But the Board denied disability compensation benefits for asbestosis
because there was no proof of a current diagnosis of asbestosis. Id. Additionally, the Board denied
disability compensation benefits for restrictive lung disease on the basis that the evidence
demonstrated that Mr. McKinney’s restrictive lung disease was not “etiologically related to service.”
Id.
B. Board’s Treatment of Medical Evidence
The Secretary must “make reasonable efforts to assist a claimant in obtaining evidence
necessary to substantiate the claimant’s claim for a benefit.” 38 U.S.C. § 5103A;
see Loving v. Nicholson, 19 Vet.App. 96, 102-03 (2005). The Secretary’s duty to assist includes, in
appropriate cases, the duty to conduct a thorough and contemporaneous medical examination.
38 U.S.C. § 5103A(d)(1); see Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); Green v. Derwinski,
1 Vet.App. 121, 124 (1991). “[O]nce the Secretary undertakes the effort to provide an examination
when developing a service-connection claim, . . . he must provide an adequate one.”
Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). An examination 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
20
a fully informed one.'” Stefl, 21 Vet.App. at 123 (quoting Ardison v. Brown, 6 Vet.App. 405, 407-08
(1994)); Green, 1 Vet.App. at 124.
As with any finding on a material issue of fact and law presented on the record, the Board
must support its determination that the claimant does not have a current disability for VA purposes
with an adequate statement of reasons or bases that enables the claimant to understand the precise
basis for that determination and facilitates review in this Court. 38 U.S.C. § 7104(d)(1);
McClain v. Nicholson, 21 Vet.App. 319, 321 (2007); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
To comply with this requirement, the Board must analyze the credibility and probative value of
evidence, account for evidence that it finds persuasive or unpersuasive, and provide reasons for its
rejection of 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).
Mr. McKinney argues that the Board did not give an adequate statement of reasons or bases
for its conclusion that he did not have a current asbestos-related disability. Appellant’s Br. at 12-14.
Mr. McKinney points out that the Board’s conclusion implies that he no longer has asbestosis. The
Board’s determination appears to be premised on the idea that his asbestosis, which was present in
1996, and perhaps as late as 2003, was resolved. Id.. Mr. McKinney argues that this is a medical
conclusion that the Board could not reach properly without having independent medical evidence
in the form of a medical opinion that addresses whether Mr. McKinney’s asbestosis resolved.
Appellant’s Br. at 12-13. In response, the Secretary argues that the 1996 medical reports are not
“relevant evidence” because those diagnoses of an asbestos-related disability predate
Mr. McKinney’s claim by more than a decade. Secretary’s Br. at 11-12. Because the Secretary
asserts that these reports were not “relevant,” he contends that “the Board had no obligation to further
discuss why [Mr. McKinney] did not have a current asbestos-related disability” or to obtain a
medical opinion to address the previous diagnoses. Id.
The Court agrees with Mr. McKinney that the Board gave an inadequate statement of reasons
or bases for summarily rejecting the 1996 medical reports because they were not sufficiently
proximate to the date of the Mr. McKinney’s claim. The Board does not question the accuracy of
any of the medical diagnoses in the record. Yet, the Board determined that Mr. McKinney did not
have a current asbestos-related respiratory disorder without addressing the nature of the claimed
21
asbestos-related disability, including whether Mr. McKinney’s asbestos-related respiratory disorder
resolved itself or was incorrectly diagnosed, or whether it was acute or chronic. Without addressing
these issues, the Court concludes that the Board’s discussion of the evidence is inadequate.
The Court is also not persuaded by the Secretary’s argument that because the 1996 medical
reports predated Mr. McKinney’s claim these records were not relevant. Although the reports
significantly predate the date of the veteran’s claim and do not, alone, establish the presence of a
current asbestos-related disability, they are relevant because the records detail Mr. McKinney’s
claimed in-service exposure to asbestos and contain diagnoses of asbestosis. R. at 680-81.
Therefore, contrary to the Secretary’s argument, these records are “relevant on their face” to whether
any current respiratory disability is related to the purported in-service asbestos exposure, and the
Board was required to address the reports in assessing entitlement to service connection on that
basis. See Moore v. Shinseki, 555 F.3d 1369, 1375 (Fed. Cir. 2009) (concluding that unobtained
Army hospital records were relevant to a claim for a higher disability evaluation even though the
hospitalization occurred before the period on appeal, because those records “may well contain
evidence that [the veteran] suffers from a serious, and perhaps chronic, psychiatric disorder”);
Romanowsky v. Shinseki, 26 Vet.App. 289, 294 (2013) (rejecting the Board’s finding that evidence
that a disability was diagnosed before the claimant filed a claim for service connection was
categorically not relevant to the issue whether the veteran had a current disability); see also
AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013) (explaining that “VA must consider all
evidence ‘pertinent’ to service connection” (quoting Fagan v. Shinseki, 573 F.3d 1282, 1287-88
(Fed. Cir. 2009))).
The Board’s summary rejection of the 1996 medical reports is related to another inadequacy
in the Board’s reasons or bases: the Board relied on the 2008 VA examination report even though
the examiner did not even mention the veteran’s prior diagnoses of asbestosis, much less indicate that
asbestosis had either previously been misdiagnosed or had resolved. R. at 562-63; see
Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994) (explaining that the Board “cannot evade [its]
statutory responsibility merely by adopting [a medical examiner’s] opinion as its own, where . . . the
[examiner’s] opinion fails to discuss all the evidence which appears to support appellant’s position”).
Given the Board’s duty “to interpret reports of examination in the light of the whole recorded history,
22
reconciling the various reports into a consistent picture,” the Board was required to address the
competing evidence of record as to whether the veteran currently has asbestosis and, if necessary,
to obtain independent medical evidence to resolve that factual issue. 38 C.F.R. § 4.2; see
Clemons v. Shinseki, 23 Vet.App. 1, 6 (2009) (stating that when the Board cannot, on its own,
resolve a medical question regarding the diagnosis and nature of a claimant’s disability, then the
Board should obtain additional medical evidence addressing the issue); Colvin v. Derwinski,
1 Vet.App. 171, 172 (1990) (holding that the Board “must consider only independent medical
evidence to support [its] findings rather than provide [its] own medical judgment in the guise of a
Board opinion” and advising the Board to seek additional medical evidence when the medical
evidence of record is “insufficient” to decide the claim). Its failure to do so in this case further
diminishes the adequacy of its reasons or bases for its decision. See Caluza, 7 Vet.App. at 506;
Gilbert, 1 Vet.App. at 52.
Lastly, the Court notes that the Board characterized Mr. McKinney’s claim as involving
“[e]ntitlement to service connection for a respiratory disability, to include as due to asbestos
exposure.” R. at 3. Therefore, the Board recognized that the scope of Mr. McKinney’s claim was
broad and included entitlement to service connection for any respiratory illness, including one caused
by asbestos exposure. See Clemons, 23 Vet.App. at 5 (holding that an initial claim for service
connection must be “considered a claim for any . . . disability that may be reasonably encompassed”
by the claim considering such factors as “the claimant’s description of the claim; the symptoms the
claimant describes; and the information the claimant submits or that the Secretary obtains in support
of the claim”). Yet, despite its broad characterization of Mr. McKinney’s claim, the Board did not
adequately consider whether any current respiratory disability was related to service generally.
Indeed, the Board acknowledged that the appellant currently suffered from restrictive lung
disease, but it determined that there was no competent medical evidence “suggest[ing] that restrictive
lung disease is related to service.” R. at 15. However, in its analysis of entitlement to service
connection for restrictive lung disease, the Board overlooked the fact that the February 2008 VA
examination report that it had obtained to decide Mr. McKinney’s claim focused solely on whether
a respiratory disability was related to in-service asbestos exposure and did not address linkage to
service on any other basis. R. at 563 (opining that the veteran’s “shortness of breath is less likely
23
than not secondary to his asbestos [exposure]”). Given that the Board characterized the claim
broadly to include all possible service-related etiologies and not just asbestos exposure (R. at 3), the
Court concludes that the Board failed to explain adequately why it relied on the February 2008 VA
examination report to deny this aspect of Mr. McKinney’s claim when that report did not address
whether Mr. McKinney’s respiratory disorder was related to service. See Stefl, 21 Vet.App. at 123
(explaining that, to be adequate, a medical examination or opinion must “describe[] the disability
. . . in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully
informed one'” (quoting Ardison, 6 Vet.App. at 407) (internal quotation marks omitted)); see also
Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (“[O]nce the Secretary undertakes the effort to
provide an examination . . . he must provide an adequate one or, at a minimum, notify the claimant
why one will not or cannot be provided.”). The Board therefore provided inadequate reasons or
bases for relying on that examination report to deny service connection for restrictive lung disease
on any basis other than via asbestos exposure. See Ardison, 6 Vet.App. at 407 (holding that the
Board errs when it relies on an inadequate medical examination report or opinion).
C. Duty To Assist
The Secretary has a duty to assist claimants in developing their claims. 38 U.S.C. § 5103A.
That duty to assist includes the duty to make “reasonable efforts to obtain relevant records,” as long
as the claimant “adequately identifies” those records to the Secretary and authorizes the Secretary
to obtain them. 38 U.S.C. § 5103A(b)(1); see also Loving, 19 Vet.App. at 102. VA will make
reasonable efforts to obtain relevant private medical records generally consisting of an initial request
for the records and, if the records are not received, at least one followup request. 38 C.F.R.
§ 3.159(c)(1) (2015). If the Secretary is unable to obtain those records after making reasonable
efforts to do so, the Secretary must provide notice of that fact to the claimant. See 38 U.S.C.
§ 5103A(b)(2); 38 C.F.R. § 3.159(e). In addition to notifying the claimant what records VA was
unable to obtain and the efforts made to obtain those records, such notice must include “[a]
description of any further action VA will take regarding the claim, including but not limited to notice
that VA will decide the claim based on evidence of record unless the claimant submits the records
VA was unable to obtain,” and “notice that the claimant is ultimately responsible for providing the
evidence.” 38 C.F.R. § 3.159(e)(1)(iii-iv). The Board’s determination that VA has satisfied the duty
24
to assist is reviewed under the “clearly erroneous” standard of review. Hyatt v. Nicholson,
21 Vet.App. 390, 395 (2007); see also Gilbert, 1 Vet.App. at 52. A finding of fact is clearly
erroneous when the Court, after reviewing the entire evidence, “is left with the definite and firm
conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948); see also Gilbert, 1 Vet.App. at 52.
Mr. McKinney argues that the Board violated the duty to assist when it failed to make
reasonable efforts to obtain Dr. Attiah’s records and that the Board did not notify him of the efforts
it had taken to obtain the records or the reasons for its decision to cease its attempts to obtain the
records. Appellant’s Br. at 14-16. The Secretary counters that Mr. McKinney is precluded from
making this argument because it was not included in the earlier JMR. Secretary’s Br. at 12-15. The
Court found that the clarity and specificity of a JMR is critical to determining the scope of the
Board’s duty on remand. Carter v. Shinseki, 26 Vet.App. 534, 543 (2014), vacated on other grounds
sub. nom. Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). The Court in Carter stated that
when an attorney agrees to a [JMR] based on specific issues and raises no additional
issues on remand, the Board is required to focus on the arguments specifically
advanced by the attorney in the motion . . . and those terms will serve as a factor for
consideration as to whether or to what extent other issues raised by the record need
to be addressed.
26 Vet.App. at 542-43. Here, the parties’ JMR stated that “the Board is obligated to conduct a
critical examination of the justification for its previous decision.” R. at 74 (citing
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991)). In Carter, the Court found that similar language
in the JMR before the Court showed that the parties required the Board to examine the record for any
issues that were reasonably raised. Accordingly, the Court concludes that the JMR in this case did
not limit the scope of the Board’s review of newly raised arguments.
Having determined that Mr. McKinney’s duty-to-assist argument is not precluded, the Court
will turn to the merits of that argument. Here, the Board generally discussed VA’s duties to assist
Mr. McKinney, finding that all necessary development had been completed and that no evidence
remained outstanding, including private treatment records. R. 7-8. However, the Board did not
discuss the June 2007 authorization and consent-to-release forms signed by Mr. McKinney asking
the RO to obtain Dr. Attiah’s 2003 medical records for “asbestos exposure” or VA’s failed attempts
25
to do so. Specifically, the Board did not discuss the fact that the RO made no further attempt to
contact Dr. Attiah even after receiving a letter from the Methodist Charlton Medical Center stating
that it did not have Dr. Attiah’s medical records and suggesting that the RO contact Dr. Attiah at the
telephone number Mr. McKinney provided for Dr. Attiah on the June 2007 forms. Additionally,
there is no record of any notice to Mr. McKinney of the RO’s efforts to obtain Dr. Attiah’s records.
The RO’s failure to further attempt to contact Dr. Attiah after learning this information is
particularly glaring because the Board found that the only evidence in the record that Mr. McKinney
was diagnosed with asbestosis was evidence from 1996. R. at 15. Yet, the 2003 referral sheet from
the Methodist Charlton Medical Center indicates that the referring physician attributed
Mr. McKinney’s current respiratory disorder to “apparent exposure to asbestos.” R. at 614 (2003
worksheet referring Mr. McKinney to Dr. Attiah for “[p]ulmonary function [t]ests related to asbestos
exposure”). Because the nature of Mr. McKinney’s respiratory disorder is a key medical issue in this
case, and VA had previously determined that these records were relevant when it originally sought
to acquire them, Dr. Attiah’s 2003 medical records are relevant to the issue regarding the nature of
Mr. McKinney’s respiratory disorder. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010)
(holding that VA’s duty to assist extends to potentially “relevant” evidence, i.e., “records that have
a reasonable possibility of helping to substantiate the veteran’s claim”). Accordingly, the Board erred
in finding that VA fulfilled its duty to assist Mr. McKinney, and remand is required for further
development. See Hyatt, 21 Vet.App. at 395.
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a review of the record
on appeal, the Board’s April 10, 2013, decision is VACATED except to the extent that the Board
made a favorable finding that Mr. McKinney was exposed to loud noise during service. All the
vacated matters are remanded for further adjudication consistent with this opinion.
BARTLEY, Judge, joining in part, concurring in part, and dissenting in part: I dissent from part I of
the decision to the extent that the majority concludes that “Mr. McKinney had a preexisting hearing
loss that was ‘noted'” on his entry examination report. Ante at 8. Although I agree with my esteemed
26
colleagues as to part I’s ultimate conclusion that Mr. McKinney did not demonstrate a hearing defect,
infirmity, or disorder upon entry to service, there is no need to address the meaning of those terms
because the naval examiner at the time of the veteran’s entry in 1969 did not note any hearing issue
whatsoever, let alone hearing loss, and the appeal should be decided on that basis.16 Section 1111
of title 38, U.S. Code, imposes a requirement that veterans are presumed sound except as to any
defect, infirmity, or disorder “noted at the time of the examination, acceptance, and enrollment” into
service. 38 U.S.C. § 1111 (emphasis added); see 38 C.F.R. § 3.304(b) (2015) (implementing
regulation). Because that temporal requirement was not met in Mr. McKinney’s case, he should be
presumed sound on that basis, rendering most of the Court’s part I analysis unnecessary.
The crux of my disagreement stems from the majority’s willingness to accept audiology test
results from Mr. McKinney’s January 1969 entry examination, which were never interpreted by the
entry examiner as indicating a hearing issue, as a notation for purposes of section 1111. Indeed, in
order to conclude that hearing loss was noted at entry, the Board and the majority rely on a May 2011
VA opinion rendered 42 years after Mr. McKinney’s service entry, as well as on hearing loss
standards referenced in Hensley v. Brown, 5 Vet.App. 155, 157 (1993), a case decided 24 years after
Mr. McKinney’s service entry. The majority acknowledges that the naval examiner did not list ears
or hearing in the section of the entry examination report reserved for noting “Defects and
Diagnoses,” did not otherwise comment on the audiology test results, and did not indicate that he
believed that the veteran’s hearing was compromised in any way. R. at 896-97; see ante at 9
(majority concedes that “the naval examiner did not note defective hearing” (emphasis added)).
Instead, the naval examiner assigned Mr. McKinney a PULHES score of 1 for hearing and ears,
R. at 897, indicating the highest level of fitness for that category, see ante at 3. Relying on post-entry
examination interpretation to find that Mr. McKinney had hearing loss at entry is contrary to the
statute.
Given the 1969 examiner’s silence as to the veteran’s hearing, it is not possible now for VA
to discern the interpretation or significance the entry examiner attached to Mr. McKinney’s audiology
results. Nevertheless, the Board and the majority sanction using information from 2011 and 1993
16 I join with the analysis and result in part II of the decision as to the veteran’s respiratory disability.
27
without acknowledging the section 1111 and § 3.304(b) temporal requirement that should bar
retrospective interpretation of an entry examination in this manner. Ante at 8-9; see 38 U.S.C.
§ 1111.
Contrary to the majority’s suggestion, ante at 8, Hensley did not relax or otherwise abrogate
this requirement. Unlike Mr. McKinney, Mr. Hensley received a defective hearing diagnosis upon
entry into service, 5 Vet.App. at 156-57, and there was no need in that case for retrospective
interpretation, and, unsurprisingly, the Court in Hensley did not discuss section 1111’s and
§ 3.304(b)’s noting requirement. Accordingly, the Board and the majority’s reliance here on Hensley
is misplaced.
Permitting retrospective interpretation of an entry examination allows VA to transform a test
result not identified at the time of entry as out of the ordinary into noting at the time of entry, thereby
perverting the statutory requirement. This retrospective interpretation will create troubling effects:
Men and women entering service would be deemed fully fit to fight and die, with the entry examiner
indicating nothing preexisting; but after service those men and women, now veterans, would be
informed that they were less than whole at entry, that there was preexistence, and that they have a
significant handicap in pursuing disability benefits, i.e., the presumption of soundness, in most cases,
would not apply.
I would hold that no noting of any kind relating to Mr. McKinney’s hearing occurred at entry
and that such absence reflects that the veteran’s hearing was deemed by the 1969 naval examiner to
be completely unremarkable at entry. On that basis, Mr. McKinney should be presumed sound as
to his hearing. VA is not without recourse where an entry examiner fails to note a preexisting issue
at the time of entry, as may happen from time to time. Any such failure is amply provided for in the
statute–in such cases VA may present clear and unmistakable evidence to rebut the presumption that
the veteran was sound at entry. See 38 U.S.C. § 1111 (authorizing VA to rebut the presumption of
soundness “where clear and unmistakable evidence demonstrates that the injury or disease existed
before acceptance and enrollment and was not aggravated by such service”); H.R. REP. NO. 78-403,
at 2 (1943) (indicating that the presumption of soundness must be rebuttable because defects,
infirmities, or disorders are sometimes “necessarily [ ] overlooked due to the speed with which
persons are taken into service during a war emergency” (emphasis added)); May 13, 1943 Hearing
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Before the H. Comm. on World War Veterans Legislation, 78th Cong. 54 (1943) (recognizing
that”neglect on the part of the doctors” performing military entry examinations under “the stress of
building up manpower” necessitated making the presumption of soundness rebuttable). Accordingly,
I must respectfully dissent from the majority’s analysis in part I of its decision.
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