McGee v. Wilkie, 18-2811
| Decision Date | 16 July 2019 |
| Docket Number | 18-2811 |
| Parties | Daniel McGee, Sr., Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
| Court | United States Court of Appeals For Veterans Claims |
Note Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Daniel McGee, Sr. VA General Counsel
Before Davis, Chief Judge.
U.S Army veteran Daniel McGee, Sr., served honorably as an armor reconnaissance specialist from July 1973 to July 1975, including a deployment to Korea.[1] The noise and artillery fire led to hearing loss in service. A February 2008 rating decision granted service connection for bilateral hearing loss at a noncompensable level.
Mr. McGee now appeals a May 18, 2018, decision of the Board of Veterans' Appeals that denied a compensable disability rating for the bilateral hearing loss.[2] Because the Board failed to seek clarification of potentially favorable evidence and failed to reconcile widely divergent audiogram results, the Court will set aside the May 2018 Board decision and remand the bilateral hearing loss claim for further proceedings consistent with this opinion.
In his informal brief, Mr. McGee states that "[r]ecords from Ear Nose & Throat Associates of Fort Myers[, ] Fl[orida] 33908"[3] support his claim for a compensable disability rating. The Secretary concedes that remand is warranted for the Board to discuss these private medical records and to seek clarification of their content.[4] The Court agrees with the concession.
The Board must support its determinations with an adequate statement of reasons or bases that enables a claimant to understand the precise basis for its decision and facilitates review in this Court.[5] The statement of reasons or bases must explain the Board's reasons for discounting favorable evidence, [6] discuss all issues raised by the claimant or the evidence of record, [7] and discuss all provisions of law and regulation where they are made "potentially applicable through the assertions and issues raised in the record."[8]
VA evaluates service-connected hearing loss through the mechanical application of a veteran's audiometric testing results to a rating table.[9] Specifically, VA conducts two audiometric tests for compensation purposes: A puretone audiometry test, which measures puretone decibel thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), and a controlled speech discrimination test, the Maryland CNC.[10] Based on the results of these tests, each ear is assigned an evaluation corresponding to its level of hearing impairment using either Table VI, which requires results from both tests, or, in certain circumstances, Table VIa, which requires only the puretone threshold results.[11] The evaluations for each ear are combined using Table VII to determine the appropriate disability rating.[12]
The Board found that "audiometric testing results have never shown the [v]eteran to have more than Level II hearing loss in either the right or the left ear at any point in the appeal period."[13]The Board reiterated the results of no less than four VA examinations from January 2008 to October 2017 in which the puretone threshold measurements failed to measure hearing loss in either ear beyond Level II, which results in a noncompensable disability for hearing loss. The record also included two private hearing examinations, one conducted in March 2008 and the second conducted in June and reported in July 2017.
Regarding the March 2008 private examination report, the Board stated that "the results are set out in graph form and are unclear."[14] Apparently, the Board failed to note that the measurements from 1000 to 4000 Hz were also recorded in tabular form.[15] Although the record includes speech discrimination results, it does not indicate whether they were obtained by the Maryland CNC test.
For these reasons, the Board remanded with instructions to seek clarification of these private test results. Although the VA inquiry does not appear in the record, the response was a rather acerbic letter from one of the principals of the private medical facility to the effect that their staff did not have time to fill out a VA form when all the information was evident in the audiogram and suggesting that this activity could more properly be discerned by underworked VA bureaucrats.[16]
A second private medical examination, including an audiogram, took place in June and July 2017. In this instance, the audiogram measurements were not recorded in tabular form, but only in a graph. The audiogram measurements of that test suggest that Mr. McGee's hearing had deteriorated to the point that it may have constituted an exceptional pattern of hearing impairment under § 4.86 and might result in a compensable disability rating. Again, however, these records do not state whether the speech discrimination results were obtained by the Maryland CNC test. Moreover, the graph shows no data point at 3000 Hz, which would be necessary for rating purposes under VA regulations.
The Board neither sought clarification of the records from the June/July private examination nor discussed them in the opinion here on appeal. This omission constitutes a failure to discuss evidence potentially favorable to the veteran. Moreover, the Court agrees with the Secretary that the Board failed to fulfill its duty to seek clarification under Savage.
Although both sets of private medical records were generated by "Ear Nose & Throat Associates," the June and July records contain a different street address and zip code, and list entirely different medical personnel than the March 2008 records.[17] Despite the identical name of the medical concerns, it is not clear that they are the same entity, or that similar responses may be expected to a clarification inquiry. Thus, any perception by the Board that a request for clarification of the June 2017 results would be futile is unjustified.
On remand, the Board must seek clarification in two respects. First, VA should inquire whether the speech discrimination results were obtained by the Maryland CNC test. Second, VA should inquire whether there was an audiogram measurement at 3000 Hz not reflected in the graph. The Court notes that while the March 2008 graph did not include a data point at 3000 Hz, for the left ear, the tabular data included a measurement at that frequency.
After seeking clarification, the Board needs to obtain medical evidence to explain the divergence of audiogram measurements the Court observes between VA and private tests.[18] The Court notes that all but one of the measurements in the March 2008 private examination varied by at least 10 decibels as compared to the September 2008 VA audiogram measurements. The measurements for the right ear in the June 2017 private audiogram varied by an even wider margin from those of the October 2017 VA audiogram. The Board did not explain whether such results could be within the normal variance in audiograms and lacked any medical basis for such an assessment.[19]
Further, both sets of audiograms from 2017 show a marked deterioration in hearing from earlier measurements. It is left to the Board's discretion whether further testing is required.
Remand is warranted for the Board to provide an adequate statement of reasons or bases and find facts in the first instance regarding the June 2017 private audiological examination.[20] On remand Mr. McGee may also submit additional evidence and arguments, [21] which the Board must consider.[22]
On consideration of the foregoing, the Board's May 18, 2018, decision is SET ASIDE and the bilateral hearing loss claim is REMANDED for further adjudication consistent with this opinion. The balance of the appeal is dismissed.
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Notes:
[1] Record (R.) at 705 (DD Form 214).
[2] The Board also denied entitlement to TDIU. Mr. McGee raises no argument as to that Board determination. The Court therefore considers that issue abandoned and will not consider it. See Pederson v McDonald, 27 Vet.App. 276 (2015) (en banc).
[3] Informal Brief at 2.
[4] See Savage v. Shinseki, 24 Vet.App. 259, 269 (2011) ().
[5] 38 U.S.C. § 7104(d)(...
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