190214-3214
190214-3214
| Board of Vet. App. | May 28, 2021Background
- Veteran served on active duty from August 1969 to May 1971 and filed for service connection for right-ear sensorineural hearing loss.
- A September 2015 VA medical examination informed a legacy-system rating decision; in April 2018 the Veteran opted into RAMP and selected the higher-level review (HLR) lane; the AOJ issued a RAMP HLR decision in September 2018 (the decision on appeal).
- In February 2019 the Veteran elected the Direct Review docket, limiting the Board to evidence in the record at the time of the RAMP opt-in.
- A September 2019 Board denial of service connection for the right ear was the subject of a December 2020 Joint Motion for Partial Remand (JMPR) that vacated the Board’s denial only as to the right ear hearing loss and returned the issue to the Board.
- The parties agreed the September 2015 VA exam was inadequate: the examiner (1) relied on normal entrance/separation audiograms, (2) over-relied on the IOM study about delayed-onset hearing loss, and (3) gave inconsistent answers about in-service threshold shifts.
- The JMPR also found the Board failed to address Watai v. Brown regarding a June 2015 private audiologist report (Dr. Johnson), and ordered remand for a new VA examination and for the RO to offer to provide Dr. Johnson the Veteran’s service treatment records to render an addendum opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of Sept. 2015 VA examination / duty to assist | Sept. 2015 exam was inadequate; Board erred in relying on it | AOJ relied on examiner's negative nexus, normal separation audiograms, and IOM study | Remanded: new VA exam required that complies with Hensley and McCray, clarifies in-service threshold shifts, and gives consistent rationale |
| Proper use of IOM study in etiology opinions | Examiner improperly relied solely on IOM to deny delayed-onset nexus | IOM addresses delayed-onset but is not dispositive | Remanded: examiner must explain how IOM qualifiers affect etiology and cannot rely solely on IOM |
| Consideration of private audiologist (Watai) | Board failed to apply Watai to Dr. Johnson’s June 2015 report; Veteran should be allowed to have STRs sent to Dr. Johnson for addendum | (AOJ implicitly relied on lack of a finalized private opinion) | Remanded: RO must notify Veteran he may authorize VA to send service treatment records to Dr. Johnson (or another private clinician) for an addendum nexus opinion |
Key Cases Cited
- Hensley v. Brown, 5 Vet. App. 155 (1993) (absence of hearing loss at separation does not preclude later service connection)
- McCray v. Wilkie, 31 Vet. App. 243 (2019) (IOM study not dispositive; examiners must address qualifying and contradictory statements when relying on the study)
- Watai v. Brown, 9 Vet. App. 441 (1996) (VA must consider private medical opinions and may provide records to private examiners for addendum opinions)