Stanley J. PALCZEWSKI, Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Appellee.
No. 04-1001.
United States Court of Appeals for Veterans Claims.
Argued Sept. 28, 2006. Decided April 24, 2007.
21 Vet. App. 174
Ella Krainsky, with whom Tim S. McClain, General Counsel; Paul J. Hutter, Acting General Counsel; R. Randall Campbell, Assistant General Counsel; Brian B. Ripple, Deputy Assistant General Counsel, and Caren H. Kang and Christopher Wallace, all of Washington, D.C., were on the brief, for the appellee.
Before KASOLD, HAGEL, and MOORMAN, Judges.
HAGEL, Judge:
Stanley J. Palczewski, through counsel, appeals a February 17, 2004, decision of the Board of Veterans Appeals (Board) that, among other dispositions, denied entitlement to service connection for tinnitus and bilateral hearing loss. The Court has jurisdiction pursuant to
I. BACKGROUND
Mr. Palczewski served on active duty in the U.S. Army from February 1995 to February 1999. An October 1994 enlistment medical examination reports “normal” ears and contains audiometry results, which list pure tone decibel (“dB“) thresholds of “0” at all frequencies, except 6,000 hertz (“Hz“), with readings of 30 dB in the right ear and 10 dB in the left ear. Record (R.) at 23. An accompanying report of medical history prepared by Mr. Palczewski is negative for hearing loss.
On September 20, 1999, Mr. Palczewski underwent an audiogram. The audiometry report lists pure tone dB thresholds of “0” for all frequencies except 5 dB at 500 Hz and 15 dB at 6,000 Hz in the right ear, and 5 dB at 3,000 Hz and 40 dB at 6,000 Hz in the left ear. See R. at 45. A December 1998 separation examination report contained audiometry results, including puretone dB thresholds of 10 dB at 500 Hz and 20 dB at 6,000 Hz in the right ear, and 10 dB at 500 Hz and 45 dB at 6,000 Hz in the left ear. All other pure tone dB thresholds were listed as “0.” R. at 55.
In February 1999, Mr. Palczewski filed an application for VA disability compensation for high frequency hearing loss and tinnitus. In June 1999, he was provided a VA audio examination. The examination report indicates pure tone threshold results of 10 dB at 500 Hz; 5 dB at 1,000 Hz; 5 dB at 2,000 Hz; 5 dB at 3,000 Hz; and 10 dB at 4,000 Hz for the right ear, and 5 dB at 2,000 Hz; 0 dB at 500, 1,000, 3,000, and 4,000 Hz for the left ear. The examiner found speech recognition scores of 98% for the right ear and 96% for the left ear, which were considered “excellent” by the examiner. R. at 139. Based on these results, the examiner found that Mr. Palczewski had normal hearing, except for a mild hearing loss at 6,000 Hz in the left ear. At this examination, Mr. Palczewski reported experiencing a high-pitched ringing in both ears that “comes and goes.” R. at 138-39. In July 1999, a VA regional office denied his application for compensation for bilateral hearing loss and tinnitus. Mr. Palczewski appealed this decision to the Board.
In February 2004, the Board issued the decision now on appeal, in which it continued to deny entitlement to disability compensation for bilateral hearing loss and tinnitus. Specifically, the Board determined that, pursuant to
On appeal, Mr. Palczewski makes three assignments of error. First, he argues that the record indicates that he has experienced high frequency hearing loss since his separation from service and that the only basis for the Board‘s denial of entitlement to disability compensation for that condition is an ultra vires regulation,
In response, the Secretary argues that the Court should affirm the Board‘s February 2004 decision with respect to the denial of service connection for hearing loss, because Mr. Palczewski has not provided any evidence that he currently has a hearing disability in accordance with
Further, the Secretary argues that, because Mr. Palczewski has failed to present evidence of a current disability, he is not entitled to an additional VA medical examination under
II. ANALYSIS
A. Bilateral Hearing Loss
1. Validity of 38 C.F.R. § 3.385
“The Secretary has the 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.”
When a court reviews an agency‘s construction of the statute which it administers, the process is twofold. See Terry v. Principi, 340 F.3d 1378, 1381-82 (Fed. Cir. 2003). First, the court must consider whether Congress has directly spoken to the precise questions at issue. See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 844, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984); see also Terry, 340 F.3d at 1382. If the answer is yes (i.e., the intent of Congress is clear), that is the end of the matter for the court, as the agency must give effect to
“[S]ubstantial deference is given to the statutory interpretation of the agency authorized to administer the statute.” Livesay v. Principi, 15 Vet. App. 165, 172 (2001) (en banc) (citing Chevron, 467 U.S. at 844); see also Tallman v. Brown, 7 Vet. App. 453, 463-65 (1995). Therefore, we will defer to “VA‘s reasonable interpretation of a statutory provision when the law does not directly address the precise question at issue.” Gallegos v. Principi, 283 F.3d 1309, 1312 (Fed. Cir. 2002). The Secretary‘s interpretation will not be set aside unless it is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.”
Pursuant to
The Secretary implemented
The term “disability” is not generally defined by any statute. See
In implementing § 3.385, VA stated that “the purpose of the regulation is to provide a gauge of what constitutes a hearing disability.” 55 Fed.Reg. 12,348; see also 58
Here, the challenged regulation,
In explaining its reasons for excluding hearing losses at frequencies above 4,000 Hz, VA noted that “studies have shown that even when all frequencies above 4,000 Hz are eliminated by means of filtering, speech recognition scores remain at the 95% level.” 55 Fed.Reg. 12,348. The Secretary emphasizes this statement and argues that VA was reasonable in limiting “disability” to hearing losses in frequencies affecting speech recognition, which would affect a veteran‘s earning capacity.
Having considered these arguments and caselaw, we hold that VA‘s interpretation of a hearing disability as expressed in the explanatory statement of § 3.385 is reasonable. As previously noted, Congress did not precisely define the term “disability” in section 1110. Thus, the Court will afford the Secretary‘s definition contained in § 3.385 substantial deference. See Chevron, 467 U.S. at 844. In explaining the rationale for his definition of hearing disability, the Secretary noted that only changes in hearing that exceed specified levels should be considered disabilities and that not every change in hearing in service should be service connected. 55 Fed.Reg. 12,348. In this respect, the limitation contained in § 3.385 is similar to that contained in
With respect to limiting “hearing disability” to hearing losses below 6,000 Hz, the Secretary looked to the level of hearing that is affected by speech recognition. This rationale is in accordance with this Court‘s interpretation of the term “disability” as an “impairment of earning capacity.” Allen, 7 Vet. App. at 448.
The Secretary‘s regulations are entitled to deference provided that he articulates a satisfactory explanation for his actions, including a “rational connection between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S. Ct. 239, 9 L. Ed. 2d 207 (1962). Here, the Court concludes that the Secretary has provided a reasonable explanation of the rationale for excluding from the definition of hearing disability, hearing loss at a frequency greater than 4,000 Hz. Despite Mr. Palczewski‘s disagreement with the Secretary‘s interpretation of hearing disability, he has not alleged any basis for finding that interpretation “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.”
2. VA‘s Duty to Provide a Contemporaneous Medical Examination in the Context of a Service-Connection Determination Based on Hearing Loss
As described previously in this opinion, the Court faces a unique situation here because VA defines hearing loss disability (and thus service connection) in terms of the degree of the hearing impairment, an element that may fluctuate between the time the claim is filed and the time of a final agency determination, i.e., when the Board issues its opinion. A hearing loss is not a “disability” unless or until it reaches a threshold defined by
Applying the definition of “disability” contained in § 3.385 to the results of the June 1999 hearing examination that was approximately one-month old, the regional office determined that Mr. Palczewski did
Section 5103A of title 38, U.S.Code, requires the Secretary to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant‘s claim for benefits.”
(A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability;
(B) Establishes that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in
(C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability.
See
This Court‘s caselaw requiring a “contemporaneous” examination has not been applied in situations where the issue on appeal to the Board is a denial of service connection. Rather, the Court‘s cases regarding the requirement of a “contemporaneous” examination address situations in which service connection has been established and only the issue of the current level of disability is before the Board. See Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (remanding a claim because the record did not adequately reveal the current state of the claimant‘s service-connected disability); see also Francisco v. Brown, 7 Vet. App. 55,
Mr. Palczewski was provided a VA examination for his claimed hearing loss in June 1999, one month prior to the regional office‘s decision denying service connection for hearing loss on the basis that he did not have a current hearing loss disability as defined by § 3.385. On appeal, Mr. Palczewski argues that he meets the requirements of
To the extent that Mr. Palczewski argues that he is entitled to a new medical examination because the June 1999 examination was not “contemporaneous” with the Board‘s February 2004 decision, that argument must fail. Although evidence submitted between the date of the regional office‘s decision and the Board‘s review of that decision could, in particular instances, conceivably require that a new medical examination be provided, the mere passage of time between those events does not. See
Mr. Palczewski has not cited any statute, regulation, or caselaw to support his theory that the Secretary did not fulfill his duty to assist by failing to seek an additional medical examination based solely on the mere passage of time between the regional office‘s decision and the Board‘s review of that decision. Further, he ignores Caluza, which clearly ties the requirement that the Secretary provide a thorough and contemporaneous examination to situations where “the record does not adequately reveal the current state of a claimant‘s disability. . . .” Caluza, 7 Vet. App. at 505.
Finally, the record does not reflect that Mr. Palczewski asserted before the regional office, Board or Court that there was a deficiency with the June 1999 VA medical examination or that he submitted or identified additional lay or medical evidence that raised the question of whether the medical evidence of record was sufficient to render a decision on his claim at the regional office or Board level. See
B. Tinnitus
Mr. Palczewski argues that he is entitled to a reversal of the Board‘s denial of service connection for tinnitus because he has met the requirements necessary to establish entitlement to service connection. In order to establish a claim for service connection, the appellant generally must show (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and (3) medical evidence of a nexus between the claimed in-service injury or disease and the current disability. See Caluza, 7 Vet. App. at 506; see also Hickson v. West, 12 Vet. App. 247, 252 (1999). Here, although the Board concluded that Mr. Palczewski manifests tinnitus, the rec-
Notwithstanding the foregoing, the current record does show lay evidence of tinnitus during service and evidence of current symptoms of tinnitus, which does entitle Mr. Palczewski to a medical examination. See
III. CONCLUSION
Upon consideration of the foregoing analysis, the record on appeal, and the parties’ briefs, that part of the February 17, 2004, decision of the Board that denied service connection for hearing loss is AFFIRMED. That part of the Board‘s February 17, 2004, decision that denied service connection for tinnitus is VACATED, and that matter is REMANDED to the Board for readjudication consistent with this order.