210914-184704
210914-184704
| Board of Vet. App. | Oct 29, 2021Background
- Veteran served on active duty from June 1966 to May 1968 and has a current diagnosis of bilateral hearing loss (BHL); VA conceded in-service hazardous noise exposure.
- The Veteran filed a Board appeal (VA Form 10182) in Sept 2021 linked to a June 2021 AOJ rating decision; that June 2021 decision addressed only BHL (tinnitus was later granted in Oct 2021).
- A June 2021 VA examination diagnosed BHL but opined against a nexus to service based solely on the absence of a significant threshold shift between entrance (June 1966) and separation (May 1968) audiograms.
- The Board found that reliance on lack of in-service hearing loss alone is legally insufficient under Hensley and McCray because the examiner did not adequately connect current BHL to conceded in-service noise exposure.
- It is unclear whether the 1968 separation audiogram used ASA or ISO-ANSI units; historically ASA-to-ISO conversions are required for proper comparison and can materially affect threshold-shift findings.
- The Board remanded the BHL claim for a new, adequately reasoned medical opinion that reviews the full record (including this remand), addresses nexus to service, discusses which audiometric standard was used (and converts data where necessary), and considers the Veteran’s lay statements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BHL is properly on appeal | Veteran’s 10182 and statement raise BHL (and tinnitus); Board should consider BHL on appeal | AOJ’s June 2021 decision addressed BHL; initial appeal form referenced tinnitus but record includes BHL argument | Board construed filings liberally and found BHL is on appeal; remand proceeded on BHL |
| Adequacy of June 2021 VA nexus opinion | Examiner failed to opine whether current BHL is related to in-service noise; relied only on absence of in-service threshold shifts | Examiner relied on no significant shift between entrance and separation audiograms to deny nexus | Opinion inadequate under Hensley/McCray; remand for new etiological opinion required |
| Proper treatment of audiometric standards and threshold shifts | Separation audiogram standard is unclear; ASA-to-ISO conversion must be considered because it may show a significant shift | Examiner did not discuss which standard was used or perform conversions | Remand orders clinician to determine units (ASA vs ISO-ANSI), apply conversions where needed, and assess whether service significant threshold shift/hearing loss occurred under both standards |
| Duty to assist / necessity of remand | VA must obtain adequate medical opinion and consider Veteran’s lay reports; failure to do so is predecisional error | AOJ provided an exam but it lacked necessary analysis; Board must ensure adequacy | Remand warranted under Barr as a predecisional duty-to-assist error; obtain new opinion that reviews record and explains conclusions |
Key Cases Cited
- Hensley v. Brown, 5 Vet. App. 155 (1993) (absence of in-service manifestation is not fatal; examiner must address whether current hearing loss relates to in-service noise)
- McCray v. Wilkie, 31 Vet. App. 243 (2019) (medical opinion must provide a reasoned explanation linking conclusions to supporting data)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must ensure examinations/opinions it obtains are adequate)