Clyde McKinney, Jr. v. Robert A. McDonald
2016 U.S. Vet. App. LEXIS 362
| Vet. App. | 2016Background
- Clyde McKinney, Navy 1969–1971, had an entry audiogram showing 35 dB at 4000 Hz bilaterally; entry exam did not list hearing as a defect and PULHES hearing profile was 1.
- McKinney filed VA claims for bilateral hearing loss (2009) and a respiratory disorder alleged due to asbestos exposure (filed 2007); Board denied both claims in April 2013.
- VA examiners (2011 hearing exam; 2008 respiratory exam) found: (a) record showed preexisting 4000 Hz threshold but could not opine on nexus absent a separation audiogram; (b) restrictive pattern on PFTs but asbestos etiology less likely.
- McKinney submitted favorable private pulmonologist opinions from 1996 diagnosing asbestos-related pleural disease/asbestosis and a 2003 referral noting asbestos exposure; VA attempted but failed to obtain full 2003 treating records.
- The Court vacated the Board as to hearing loss and respiratory claims (remanded for further development), affirmed Board’s favorable finding that McKinney was exposed to loud noise, and dismissed tinnitus as abandoned.
Issues
| Issue | McKinney's Argument | Secretary's Argument | Held |
|---|---|---|---|
| Whether entry audiogram "noted" a preexisting hearing defect under 38 U.S.C. §1111 | Entry audiogram did not show a compensable "disability" under 38 C.F.R. §3.385; therefore presumption of soundness applies | Any audiometric deviation noted on entry (35 dB at 4000 Hz) is a "defect" and defeats the presumption | Court: audiometric result alone qualifies as a "notation" of hearing loss, but because the level did not meet §3.385 disability thresholds, it is not a "defect" for §1111 purposes; presumption of soundness applies; Board erred in denying presumption. |
| Adequacy of May 2011 VA nexus opinion on hearing loss | Examiner failed to provide adequate rationale and ignored veteran’s lay evidence (onset in 1970s); opinion inadequate | Examiner reasonably found nexus speculative without a separation audiogram | Court: examiner’s opinion was inadequately reasoned and failed to consider relevant lay evidence; Board erred in relying on it; remand for adequate opinion. |
| Whether Board adequately considered prior 1996/2003 private records diagnosing asbestosis and whether VA satisfied duty to assist | 1996 and 2003 records are relevant to current diagnosis/etiology; VA failed to obtain Dr. Attiah’s 2003 records and did not notify claimant of unsuccessful attempts | 1996 reports predate the claim and are not dispositive; no further development required | Court: Board gave inadequate reasons for discounting 1996/2003 evidence, improperly relied on an inadequate 2008 exam, and VA failed to make reasonable efforts to obtain Dr. Attiah records; remand required for additional development and adequate opinions. |
| Whether §3.385 (hearing-disability threshold) governs the presumption of soundness analysis | McKinney: §3.385 defines when hearing loss is a compensable disability and thus should inform whether an entry notation is a §1111 "defect" | Secretary: §3.385 is relevant only to compensation/rating not to presumption of soundness | Court: §3.385 properly informs whether an entry finding constitutes a "defect" under §1111 (i.e., sub-threshold hearing loss is not a §1111 defect). |
Key Cases Cited
- Hensley v. Brown, 5 Vet.App. 155 (recognizes >20 dB puretone thresholds indicate some degree of hearing loss)
- Winn v. Brown, 8 Vet.App. 510 (interprets "defect" in §1111 to mean a disease/injury that can give rise to a compensable disability)
- Terry v. Principi, 340 F.3d 1378 (Fed. Cir.) (endorses Winn’s narrow reading of "defect")
- Palczewski v. Nicholson, 21 Vet.App. 174 (upholds §3.385 as a reasonable interpretation of when hearing loss is a compensable disability)
- Jones v. Shinseki, 23 Vet.App. 382 (examiner must provide rationale even if concluding opinion would be speculative)
- Stefl v. Nicholson, 21 Vet.App. 120 (medical opinions must permit a fully informed Board evaluation)
- Barr v. Nicholson, 21 Vet.App. 303 (examination that ignores relevant lay assertions is inadequate)
- Moore v. Shinseki, 555 F.3d 1369 (pre-claim records may be relevant and must be considered when they bear on current condition)