UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-1875
DONALD V. MCCRAY, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued November 1, 2018 Decided June 18, 2019)
Maxwell D. Kinman, of Mason, Ohio, for the appellant.
Mark Villapando, with whom Meghan Flanz, Interim General Counsel; Mary Ann Flynn,
Chief Counsel; and Emily Purcell, Acting Deputy Chief Counsel, all of Washington, D.C., were
on the brief for the appellee.
Before DAVIS, Chief Judge, and SCHOELEN and BARTLEY, Judges.
BARTLEY, Judge: Veteran Donald V. McCray appeals through counsel a June 9, 2017,
Board of Veterans' Appeals (Board) decision denying service connection for a bilateral hearing
loss disability. Record (R.) at 2-17. This appeal is timely and the Court has jurisdiction to review
the Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). This matter was referred to a
panel of the Court to address the Board's dependence on a negative VA medical opinion that relied
on a medical text containing unfavorable findings as well as apparently contradictory findings
regarding delayed-onset hearing loss. The Court holds that a medical text's qualifying or
contradictory aspects may affect the probative value and adequacy of any ensuing medical opinion
that relies on the text. Because the Board erred in failing to assess the impact of apparently
qualifying or contradictory statements in the medical text on the probative value and adequacy of
the negative VA medical opinion, the Court will set aside the June 2017 Board decision as to Mr.
McCray's left ear hearing loss and remand the matter for additional development, if necessary, and
readjudication consistent with this decision. As to his claimed right ear hearing loss, the Court
will likewise set aside the June 2017 Board decision and remand that matter for the Board to
comply with its statutory reasons or bases obligation.
I. FACTS
Mr. McCray served on active duty in the U.S. Army from June 1973 to June 1977. R. at
1273. During service, his military occupational specialty was cannon field fire support specialist.
Id. In Board testimony, he indicated that he was basically an artilleryman and also served as a
"gun or section chief," a motor officer in connection with artillery, and a special weapons
assembler, and had significant noise exposure in service almost every day. R. at 608. He provided
lay statements describing in-service exposure to noise from artillery rounds, hand guns, M16 rifles,
and engine noise; and no exposure to loud noise post-service while working in a financial services
office after college. R. at 22, 611, 869.
At entrance into service in June 1973, Mr. McCray did not report a history of ear problems
and the entry audiogram reflects normal hearing. R. at 1005, 1009. Interim audiograms in
November and December 1976 showed bilateral hearing loss for VA purposes and left ear hearing
loss for VA purposes, respectively. R. at 1037; see 38 C.F.R. § 3.385. At a March 1977 separation
examination, Mr. McCray denied hearing loss but reported a history of problems with his ears. R.
at 995. The exit audiogram showed hearing within normal limits bilaterally with thresholds the
same or better than those shown at enlistment. R. at 1001. In June 1977, he certified that there
had been no change in his medical condition since his earlier separation examination. R. at 1034.
Treatment records from the years immediately following Mr. McCray's separation from
service are not available. R. at 1310-11. From July 2005 to December 2008, Mr. McCray saw
Dr. Charles R. Leach, whose treatment records show that the veteran denied ear problems and that
his hearing was grossly normal. Id. VA treatment records from more recent years show hearing
loss as early as June 2009. R. at 900. At an October 2009 VA audiology consultation, Mr. McCray
denied having worn a hearing aid but reported left ear hearing loss for many years prior due to a
cannon exploding on his left side while he was in service. R. at 577.
Mr. McCray filed a service-connection claim for bilateral hearing loss in March 2010, R.
at 1094, and attended a July 2010 VA examination in which the examiner diagnosed mild left ear
sensorineural hearing loss and found no right ear hearing loss for VA purposes. R. at 841. The
examiner noted that there was no threshold shift between service entrance and separation and
therefore offered a negative medical linkage opinion. Id. In August 2010, a VA regional office
denied the claim, R. at 1302-12, and Mr. McCray appealed, R. at 741, 869.
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At a December 2012 Board hearing, Mr. McCray testified that he noticed hearing loss
while in service, R. at 1304, and sought treatment following service as early as 1979 but was told
that his hearing loss would continue to be a problem and get worse, R. 1305-06. He also testified
that after service he held an office job for a financial services company. R. at 1307. Mr. McCray's
wife testified that she has known him for 20 years, since about 1992, and that he has had hearing
problems the entire time. R. at 1308.
In a January 2013 private audiology report by Dr. Judith A. Caudle, Mr. McCray was
diagnosed with mild to moderate right ear sensorineural hearing loss and mild to profound left ear
sensorineural hearing loss, with Maryland CNC speech recognition scores of 80% in the right ear
and 76% in the left ear. R. at 630. Dr. Caudle reviewed Mr. McCray's service records, noting his
work with artillery, and his report of wearing hearing amplification directly following service. Id.
She opined that his hearing loss was related to service because he was exposed to excessive in-
service noise levels without the benefit of hearing protection and he demonstrated in-service
decreased hearing threshold levels. Id.
In November 2013, the Board remanded the case for a new VA examination and medical
opinion. In December 2013, VA audiologist Dr. Ashley Trotter found no right ear hearing loss for
VA purposes but diagnosed left ear sensorineural hearing loss and concluded that there was no
link to service. As her rationale, she noted that Mr. McCray had a normal entrance and separation
examination and two 1976 in-service audiograms that found "transient hearing loss" and were
"highly suggestive of questionable or non-organic results." R. at 220. Finally, she cited a 2005
Institute of Medicine (IOM) report entitled Noise and Military Service: Implications for Hearing
Loss and Tinnitus, finding that noise-induced hearing loss occurs immediately and there is no
scientific support for delayed onset noise-induced hearing loss. R. at 489. Dr. Trotter offered a
May 2014 addendum to her opinion stating that her opinion remained negative as to linkage
evidence to service. She again characterized the veteran's November 1976 and December 1976
audiogram results as "transient" hearing loss, noted middle ear problems Mr. McCray had
experienced that could contribute to transient hearing loss, and repeated that, based on normal
hearing at separation from service and the IOM report conclusion, there is no scientific support for
delayed onset noise-induced hearing loss. R. at 489.
Dr. Trotter also questioned the accuracy of Dr. Caudle's finding regarding the severity of
Mr. McCray's right ear hearing loss. Dr. Trotter noted that the audiogram Dr. Caudle relied on for
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her opinion was not performed in a government facility, making it unclear whether Dr. Caudle
followed VA's protocol for hearing loss examinations. Id. Finally, Dr. Trotter stated that Dr.
Caudle's audiometric test results regarding the right ear were inconsistent with the results of the
2010 and 2013 VA examiners. Id.
The Board again denied service connection for bilateral hearing loss in October 2014, and
the subsequent appeal to this Court was resolved by a joint motion for remand (JMR) in September
2015 for the Board to consider Dr. Caudle's private audiology opinion. R. at 174-78. In his May
2015 brief filed with this Court, Mr. McCray argued, among other things, that the Board's reliance
on the December 2013 opinion and May 2014 addendum was error because the VA examiner's
conclusion misled the Board as to the contents of the IOM report. In particular, Mr. McCray noted
that, after finding that delayed-onset hearing loss after noise exposure was unlikely "based on the
anatomical and physiological data available," the report went on to also find that "[t]here is not
sufficient evidence from longitudinal studies in laboratory animals or humans to determine
whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after
the cessation of that noise exposure" and that "definitive studies to address this issue have not been
performed." R. at 147. Counsel included in an appendix a three-page excerpt from the IOM report,
namely, pages 42, 203, and 204.
A September 2015 VA audiologist conducted an audiological evaluation and concluded
that Mr. McCray's hearing thresholds for his right ear were normal and that he had "excellent"
(100%) speech discrimination. R. at 63. The VA audiologist diagnosed Mr. McCray with a mild
to profound sensorineural hearing loss in his left ear with "poor" (68%) speech discrimination. Id.
In May 2016, the Board remanded the case for a second addendum opinion from Dr.
Trotter, which she provided in June 2016. R. at 110-14. She again cited the lack of threshold shift
during service, Mr. McCray's normal hearing at separation from service, and the IOM report, in
repeating her negative medical linkage opinion. R. at 40-41. Dr. Trotter reiterated that she was
unsure whether Dr. Caudle's private audiologic results were conducted following VA protocol and
that Dr. Caudle's test results were inconsistent with VA results. Id. Finally, she remarked that
perhaps Dr. Caudle was unaware of the IOM conclusion that there was no sufficient scientific basis
for the existence of delayed-onset hearing loss. R. at 41.
In the June 2017 decision on appeal, the Board conceded in-service acoustic trauma and
found the December 2013 medical opinion and June 2016 addendum adequate and probative and
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denied service connection for left ear hearing loss based on that opinion. R. at 6-9. As to his right
ear, the Board found no current diagnosis of hearing loss for VA purposes. R. at 16. The Board
considered Dr. Caudle's opinion of limited probative value. R. at 14. This timely appeal followed.
II. ANALYSIS
A. Preliminary Matter—The Secretary's Carter Argument
The Court first directs its attention to the Secretary's argument, relying on Carter, that the
Court should refuse to hear Mr. McCray's merits arguments. See Carter v. Shinseki, 26 Vet.App.
534, 542-43 (2014), rev'd on other grounds by Carter v. McDonald, 794 F.3d 1342 (Fed. Cir.
2015). The Court concluded in Carter that when a represented veteran enters into a JMR that
contains clear and precise directions for the Board, the JMR provides guidance as to the issues to
be addressed on remand. Referencing Carter, the Secretary asserts that, although Mr. McCray
raised the IOM report argument in his May 2014 brief to the Board, because the argument wasn't
included in the September 2015 JMR filed with this Court he should be precluded from raising it
now due to piecemeal litigation concerns. Secretary's Br. at 9-10. Mr. McCray responds that,
because in the JMR the parties explicitly agreed to allow the submission of additional evidence
and argument and did not foreclose any avenues of relief or argument below, the Court should hear
the arguments raised in his initial brief, including his IOM report contention. Reply Br. at 3-4.
For several reasons, the Court is unconvinced by the Secretary's argument. First, although
the IOM report arguments were not specifically included as bases for remand in the September
2015 JMR, the parties included a provision clearly authorizing the veteran to present additional
argument below and requiring that the Board "reexamine the evidence of record, seek any other
evidence the Board feels is necessary, and issue a timely, well-supported decision in this case." R.
at 177. The Court in Carter was clear that, even though the terms of a JMR may narrow the Board's
focus on remand, the parties' agreement that the Board committed a specific error doesn't foreclose
a claimant from raising additional arguments when the JMR so provides. Carter, 26 Vet.App. at
543. Because the JMR at issue here made such allowances and did not limit Mr. McCray's future
contentions solely to the issue that was the subject of the September 2015 remand, the Court finds
the veteran's arguments on this matter persuasive. See Carter, 26 Vet.App. at 543 ("the parties
could have limited the Board's duties on remand by using clear language describing the
limitation"). Additionally, unlike the appellant in Carter, who had the same attorney throughout
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Board and Court proceedings, when Mr. McCray agreed to the September 2015 JMR he was
represented not by current counsel but by a different attorney. Not only that, Mr. McCray was
unrepresented by counsel on remand to the Board in June 2017. R. at 2 (June 2017 listing a
veterans service organization as holder of his power of attorney). Because these features
concerning Mr. McCray's September 2015 remand and June 2017 Board decision serve to
distinguish his case and weigh against any limitation as to his arguments, the Court will proceed
to hear the merits of his IOM report argument.
B. The Parties' Contentions and the IOM Report
Mr. McCray argues that Dr. Trotter's opinion and addendum indicate that the IOM report
concluded that there's no sufficient knowledge base for the existence of delayed-onset hearing loss,
while "it is clear that the [report] actually states that there simply [have not] been any studies on
delayed onset hearing loss." Appellant's Br. at 12 (citing R. at 150-152). He contends that "the
[report] clearly states that there 'is little evidence available with which to address [the] question'"
of whether there can be delayed-onset hearing loss long after acoustic trauma. Id. (citing R. at
152). He maintains that the fact that definitive scientific studies on delayed-onset hearing loss
have not been performed shows that the scientific community has not definitely determined that
delayed onset-hearing loss is not possible. Appellant's Br. at 14 (citing Wise, 26 Vet.App. at 532).
Essentially, Mr. McCray argues that the Board's acceptance of the negative VA medical opinion
effectively requires the Board to treat the absence of evidence in the IOM report as though it were
conclusive negative evidence that settled the delayed-onset hearing loss issue. Appellant's Br. at
12.
Among other things, the Secretary responds that Mr. McCray fails to show that the Board's
reference to the IOM report was improper, takes issue with the veteran's characterization of the
report, and asserts that interpretation of the report is Board fact finding that should stand so long
as it has a plausible basis in the record.
An excerpt of the IOM report, consisting of three printed pages, was added to Mr. McCray's
claims file between October 2015, the date the Court approved the parties' JMR, R. at 174-79, and
May 2016, when the Board, pursuant to the JMR, issued an order remanding the claim to the AOJ
for an addendum opinion, R. at 110-114. It was originally attached to the brief filed with this
Court in relation to Mr. McCray's 2014 appeal. R. at 134-153. Following are the relevant portions
of the IOM report that the veteran appears to refer to in his initial brief in this case:
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Finding: The evidence from laboratory studies in humans and animals is sufficient to
conclude that the most pronounced effects of a given noise exposure on puretone
thresholds are measurable immediately following the exposure, with the length of
recovery, whether partial or complete, related to the level, duration, and type of noise
exposure. Most recovery to stable hearing thresholds occurs within 30 days.
Finding: There is not sufficient evidence from longitudinal studies in laboratory
animals or humans to determine whether permanent noise-induced hearing loss can
develop much later in one's lifetime, long after the cessation of that noise exposure.
Although the definitive studies to address that issue have not been performed, based
on the anatomical and physiological data available on the recovery process following
noise exposure, it is unlikely that such delayed effects occur.
....
4. What is the evidence that the effects of noise exposure at younger ages can
lead to delayed onset of noise-induced hearing loss later in life?
There is little evidence available with which to address this question (Chapter
2). No longitudinal studies have examined patterns of hearing loss over time in noise-
exposed humans or laboratory animals who did not develop hearing loss at the time of
the noise exposure. The committee's understanding of the mechanisms and processes
involved in the recovery from noise exposure suggests that a delay of many years in
the onset of noise-induced hearing loss following an earlier noise exposure is
extremely unlikely.
When hearing loss is known to have occurred as a result of a noise exposure,
it has generally been thought that hearing loss for pure tones does not worsen following
the cessation of a given noise exposure. However, there are no longitudinal data from
humans who developed noise-induced hearing loss in early adulthood and were
followed into their 60s, 70s, or 80s. Data from a few longitudinal studies of older
adults, which differed in the way prior noise exposure was documented, have not
produced conclusive results. To the committee's knowledge, only one longitudinal
study has examined changes in hearing in laboratory animals after a noise-induced
hearing loss. In middle-aged gerbils that sustained slight noise-induced hearing loss
and were followed for most of their remaining lifetimes, no change in the amount of
noise-induced hearing loss was seen over time.
R. at 151-52.
In the VA examiner's June 2016 addendum, she stated, as she had in her December 2013
opinion and May 2014 addendum, that
[b]ased on the Institute of Medicine Report on noise exposure in the military[,] which
concluded that[,] based on current knowledge[,] noise induced hearing loss (NIHL)
occurs immediately, i.e.[,] there is no scientific support for delayed onset NIHL weeks,
months, or years after the exposure event, and given the veteran's hearing was within
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normal limits at time of separation exam, his current hearing loss is LESS LIKELY
than not a result of military noise exposure.
R. at 43.
The Board discussed the June 2016 VA addendum opinion, noting that it "relied upon the
study done by the [IOM] entitled 'Noise and Military Service-Implications for Hearing Loss and
Tinnitus (2006)' [and] concluded that based on current knowledge of cochlear physiology there
was no sufficient scientific basis for the existence of delayed-onset hearing loss." R. at 13. The
Board then assessed the probative value of the June 2016 addendum opinion as follows:
The Board finds the [2016] examiner's opinion as to no hearing loss at service
separation to be sound and supported by adequate rationale. The opinion regarding
the current left ear hearing loss [being] not related to his service was rendered
following a review of the Veteran's pertinent history and the examination of the
Veteran, and the examiner's opinion is well supported. It is considered to be the most
probative evidence as to the issue of etiology of left ear hearing loss and is given
controlling weight. For these reasons, the claim is denied.
R. at 17.
C. Recap of Probative Value and Adequacy Principles
The probative value of evidence is its "tendency . . . to establish the proposition that it is
offered to prove. Evidence has probative value if it tends to prove the issue in dispute."
Washington v. Nicholson, 19 Vet.App. 362, 368 (2005) (citing United States v. Welsh, 774 F.3d
670, 672 (4th Cir. 1985)). Under the Board's reasons or bases statutory requirement, 38 U.S.C.
§ 7104(d)(1), and long-standing caselaw, the Board is obligated to analyze the probative value of
evidence of record and account for evidence it finds persuasive or unpersuasive. Caluza v. Brown,
7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). These
obligations necessarily require that, when the Board relies on evidence unfavorable to a claimant,
it must explain why such evidence has persuasive value as to the issue at hand. In other words,
the Board must not only make probative-value assessments as to the favorable and unfavorable
evidence relied on, it must also provide adequate reasons or bases for such probative-value
assessments.
The Court has assessed the adequacy of medical evidence in various ways, but all cases
appear to focus on a few common elements. Many early cases cite the VA regulation that explicitly
addresses adequacy, 38 C.F.R. § 4.2 (2018), which provides that, if the findings in an examination
report are not supported or if the report does not contain sufficient detail, VA adjudicators must
return the report as inadequate for evaluation purposes. See Green v. Derwinski, 1 Vet.App. 121,
8
124 (1991). As discussed in greater detail below, our view of adequacy has evolved through
caselaw, but the Court has preserved and applied these basic principles.
1. Medical Text Evidence
VA disability compensation cases may involve not only medical opinion evidence but also
"sound medical principles found in medical treatises" and "statements contained in authoritative
writings such as medical and scientific articles and research reports or analyses." 38 C.F.R.
§ 3.159(a)(1) (2018) (defining "medical evidence" for VA adjudication purposes). Here we refer
to such documents as medical text evidence.
The Court cautioned early on that, to be useful in compensation claims, a medical text must
do more than provide speculative generic statements about a disability or the relationship between
a disability and purported causal factors. Wallin v. West, 11 Vet.App. 509, 514 (1998) (addressing
the issue in the context of the former well-grounded claim requirement). An excerpt from a generic
medical text that doesn't apply medical principles regarding causation or etiology to the facts of
the individual veteran's case generally won't provide sufficient evidence, standing alone, to serve
as the basis for an award of service connection. Libertine v. Brown, 9 Vet.App. 521, 523 (1996).
Nonetheless, the Court has recognized that medical texts can provide "important support" for
service connection, particularly when interpreted by a medical professional. Sacks v. West,
11 Vet.App. 314, 317 (1998) (citing Rucker v. Brown, 10 Vet.App. 67, 73-74 (1997), and Bielby
v. Brown, 7 Vet.App. 260, 265-67 (1994)).
Moreover, in Harvey this Court rejected an argument that the Board, in interpreting the
meaning of a medical text, inappropriately rendered its own medical opinion. In that case we held
that "interpretation of a medical treatise's meaning and assessment of its probative value as
evidence in support of the claim being adjudicated are within the purview of the Board as
factfinder." Harvey v. Shulkin, 30 Vet.App. 10, 20 (2018).
As to assigning probative value to medical text evidence, the Board generally treats such
evidence in alternate ways. If submitted on its own, unaccompanied by a medical opinion that
applies the medical text to the facts of a case, medical text evidence is generally separately weighed
by the Board and assigned an appropriate level of probative value. For example, in Wise the Court
held that, as part of its evaluation of the evidence of record, the Board had an obligation to consider
and discuss potentially favorable medical text evidence that was unaccompanied by a medical
opinion. Wise v. Shinseki, 26 Vet.App. 517, 531 (2014). However, when medical text evidence
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is submitted as an attachment or accompaniment to a medical opinion, or is quoted in a medical
opinion, the Board might not individually assess its probative value. Instead, as in Mr. McCray's
case, the Board often assesses the value of the medical opinion only, perhaps quoting from portions
of the text that the expert relied on, but not assigning the medical text itself probative value. R. at
13-17; see Polovick v. Shinseki, 23 Vet.App. 48, 51-52 (2009).
2. Medical Opinion Evidence
Because it is settled law that Board members are not medical experts and may not substitute
their medical judgment as to a medical question when medical expertise is required, see Colvin v.
Derwinski, 1 Vet.App. 171, 175 (1991), many, if not most, claims for service connection require
medical opinion evidence. Early caselaw established that the probative value and adequacy of
medical opinion evidence is based on the medical expert's personal examination of the patient,
knowledge and skill in analyzing the data, and the medical conclusion reached. See Guerrieri v.
Brown, 4 Vet.App. 467, 470-71 (1993). More recently, in Stefl, the Court clarified that, to be
adequate, a medical opinion must contain not only clear conclusions with supporting data, but also
a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet.App. 120, 123
(2007).
In Daves, the Court held that, where an expert medical opinion is unclear and susceptible
of two meanings, and the Board did not address either possibility raised by the opinion, remand
was required for the Board to provide clarification or remand for the expert to clarify. Daves v.
Nicholson, 21 Vet.App. 46, 51-52 (2007). In D'Aries, the Court identified several factors to be
considered in assessing the probative value of a medical opinion: the expert's familiarity with the
pertinent medical history, whether there is any inconsistency in the expert's own statements, and
whether the expert has provided a thorough and detailed opinion about an area within his or her
expertise. D'Aries v. Peake, 22 Vet.App. 97, 108 (2008).
In Nieves-Rodriguez, the Court further refined its take on the Board deciding the
persuasiveness of medical opinions, holding that "it is the factually accurate, fully articulated
sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that
contributes probative value to a medical opinion." Nieves-Rodriguez v. Peake, 22 Vet.App. 295,
304 (2008). The Court determined that medical examiners are essentially expert witnesses and
that the probative value of a medical opinion may be reduced, or its adequacy become
questionable, if the opinion is not based on sufficient facts or data, not the product of reliable
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principles and methods, or not the result of principles and methods reliably applied to facts. Id. at
302.
D. Qualifying or Contradictory Statements in Underlying Medical Text Evidence May
Affect the Probative Value or Adequacy of a Medical Opinion
The Court has not addressed factors relevant to the Board's evaluation of probative value
and adequacy in the case of a medical opinion that relies on a medical text that is, at least in part,
entered into the record. Here, the June 2016 audiologic expert noted that the IOM concluded, in
part, that "based on current knowledge of cochlear physiology there was no sufficient scientific
basis for the existence of delayed-onset hearing loss." R. at 13 (Board decision, citing June 2016
Compensation Audiology addendum). However, the IOM report also indicated that "[t]here is not
sufficient evidence from longitudinal studies in laboratory animals or humans to determine
whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after
the cessation of that noise exposure" and that "definitive studies to address this issue have not been
performed." Appellant's Br. at 12-13 (citing to R. at 151-52).
As noted, the Court has previously in various cases assembled a non-exhaustive list of
factors that, depending on the case, may be relevant considerations in determining the adequacy
and probative value of a medical opinion: whether there was personal examination of the patient;
the expert's knowledge and skill in analyzing the data; whether the opinion contains clear
conclusions with supporting data and a reasoned medical explanation connecting the two; whether
the opinion is clear and susceptible of only one meaning; the expert's familiarity with pertinent
medical history; whether there is any inconsistency in the expert's statements; whether the expert
has provided a thorough and detailed opinion about an area within his or her expertise; whether
the expert has provided factually accurate, fully articulated, and sound reasoning for his or her
conclusion; whether the expert relied on sufficient facts or data; whether the opinion is the product
of reliable principles and methods; and whether the opinion is the result of principles and methods
reliably applied to facts. See Nieves-Rodriguez, 22 Vet.App. at 304; D'Aries, 22 Vet.App. at 108;
Stefl, 21 Vet.App. at 123; Daves, 21 Vet.App. at 51-52; Guerrieri, 4 Vet.App. at 470-71.
The Court now includes on this non-exhaustive list another factor: whether the medical
text evidence that the medical opinion relies on contains qualifying or contradictory aspects. If
the Board finds that a medical text that serves as the basis for a medical opinion contains apparent
qualifiers or contradictions, or if the veteran raises the issue or it is reasonably raised from review
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of the evidence of record, the Board must address that issue and explain whether those aspects of
the medical text diminish the probative value of the medical opinion evidence or render the opinion
inadequate, and if not, why not. See D’Aries, 222 Vet.App. at 107 (the Board must explain its
assessment of medical evidence in a manner adequate to enable a claimant to understand the
precise basis for the Board’s decision, as well as to facilitate review in the Court); see also Nieves-
Rodriguez, 22 Vet.App. at 301; Stefl, 21 Vet.App. at 124.
This analysis is required because it is expected that qualifications or contradictions in
medical evidence, including in underlying medical text evidence, may impact the probative value
or adequacy of the medical opinion itself. D'Aries, 22 Vet.App. at 108 (probative value lessened
when a medical opinion contains contradictions). Thus, as here, where the veteran explicitly raised
the issue prior to the Board decision, the Board must respond and not ignore the veteran's
argument.
If the Board requires assistance in understanding or interpreting the underlying medical
text evidence, it may seek clarification from the medical expert who wrote the opinion or from
another source. See Savage v. Shinseki, 24 Vet.App. 257, 273 (2011) (remanding for the Board to
either seek clarification of audiologic examination reports or explain why such clarification is not
necessary); Daves, 21 Vet.App. at 51-52. However, as we determined in Harvey, the Board is
perfectly capable of interpreting medical text evidence on its own, Harvey, 30 Vet.App. at 20, and
is also able to interpret medical opinion evidence. Since these undertakings are inherent in its
adjudicatory fact-finding responsibilities, the Court does not foresee the necessity for extensive
Board remands on this basis.
Accordingly, especially here, where the veteran's arguments concerning apparently
qualifying or contradictory statements in the IOM report were of record when the Board made its
decision, R. at 147-48, the Board was obligated to address the issue when assessing the probative
value and adequacy of the June 2016 medical opinion that relied on the IOM report. Instead, the
Board summarily determined, without mentioning the issue, that the June 2016 addendum opinion
provided "scientific studies and theories to support the medical opinion, was "sound and supported
by adequate rationale," "well-supported," and worthy of "controlling weight." R. at 13, 17.
The Secretary argues that the Court cannot interpret the IOM report because such action
would be outside our scope of review, Secretary's Br. at 11, citing 38 U.S.C. § 7261(c). But the
Court need not evaluate in the first instance whether there are qualifications or conflicts in the
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IOM report, and, if so, whether any such features affect probative value and adequacy. That task
is to be accomplished by the RO and the Board, but neither entity spoke to the issue, thus requiring
remand. See Tucker v. West, 11 Vet.App. 369, 374 (1998).
Additionally, the Secretary argues that Mr. McCray fails to show that the overall premise
of the IOM report is so flawed that it demonstrates clear error as to the Board's determination that
the June 2016 medical opinion is adequate, Secretary's Br. at 10-12, and then proceeds to explain
why the IOM's findings support the VA expert's opinion. Id. at 11. However, the Secretary's
impermissible post-hoc rationale cannot make up for shortcomings in the Board's assessment of
the medical opinion. See Doty v. United States, 53 F.3d 1244, 1251 (Fed. Cir. 1995) ("'Courts may
not accept appellate counsel's post hoc rationalizations for agency action. It is well established that
an agency's action must be upheld, if at all, on the basis articulated by the agency itself.'" (quoting
Motor Vehicle Mfrs. Ass'n of the U.S., Inc., v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50, 103
S. Ct. 2856, 77 L. Ed. 2d 443 (1983))); Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) (explaining
that "it is the Board that is required to provide a complete statement of reasons or bases" for its
decision and "the Secretary cannot make up for [the Board's] failure to do so" by providing his
own reasons or bases on appeal). The veteran raised a potential qualifying or contradictory aspect
of the underlying medical text that the Board did not address; therefore, the Court will remand the
case for the Board to comply with its statutory duty to explain its conclusions as to the
persuasiveness and adequacy of the VA medical opinion that relies on the IOM report.
To the extent that Mr. McCray claims that Dr. Trotter's opinions are inadequate because
she failed to reference the apparently qualifying or contradictory statements in the IOM report, the
Board, in accord with its obligation under 38 U.S.C. § 7261(c) and Caluza, must on remand
analyze the probative value of her opinion in light of this argument. See Caluza, 7 Vet.App. at
506.
The Court reminds the Board, per Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009), that
when evaluating medical text evidence and medical opinion evidence as to an unsettled medical
question, it must bear in mind the reasonable doubt doctrine. As the Court explained in Wise, in
keeping with the benefit of the doubt standard of proof, a medical principle need not reach
scientific consensus to adequately support a grant of VA benefits. Wise v. Shinseki, 26 Vet.App.
517, 532 (2014). Instead, by virtue of 38 U.S.C. § 5107(b)'s low standard of proof, which is
applicable as to all issues material to a claim for veterans benefits, Congress has authorized VA to
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resolve a medical question in a VA claimant's favor so long as evidence for and against that
question is in "approximate balance." Imposing a higher standard of proof would be counter to
the benefit of the doubt standard. See id.
In conclusion, the Court holds that, when the Board relies on a negative medical opinion,
it must, consistent with its reasons or bases responsibility, address the veteran's arguments
challenging the medical text supporting that opinion and assess the existence and impact of
features of the underlying medical text evidence that may affect the probative value and adequacy
of the medical opinion. Because the Board erred in failing to address apparently qualifying or
contradictory statements in the medical text evidence here, the Court will set aside the June 2017
Board decision and remand the matter of service connection for left ear hearing loss. See Tucker,
11 Vet.App. at 374; see also Jones, 23 Vet.App. at 393-94.
E. Right Ear Hearing Loss Claim
Relying on VA audiology reports and opinions, the Board determined that Mr. McCray
does not have right ear hearing loss for VA purposes and that service connection should be denied.
R. at 14-16. Mr. McCray argues that the Board improperly downgraded both Dr. Caudle's
December 2012 audiogram result that showed right ear hearing loss for VA purposes and her
January 2013 diagnosis of right ear hearing loss. Appellant's Br. at 15-17. The Court agrees that
the Board, in concluding that Mr. McCray has no current diagnosis of right ear hearing loss for
VA purposes, R. at 16, failed to take appropriate action and provide adequate reasons or bases for
its determination. See Gilbert, 1 Vet.App. at 57.
Specifically, although the Board discounted Dr. Caudle's audiogram report as to the right
ear, it did not identify any deficiencies as to that audiogram other than the fact that it was at odds
with VA's July 2010 audiogram result. R. at 14. To the extent that the Board implicitly concluded
that Dr. Caudle used a non-VA audiogram protocol, R. at 12-14, without having a foundation for
that conclusion, the Board erred. The Secretary has a duty to assist claimants in developing their
claims, including making "reasonable efforts to assist a claimant in obtaining evidence necessary
to substantiate [a] claim." 38 U.S.C. § 5103A(a)(1). "[P]art of those 'reasonable efforts' includes
seeking clarification of unclear 'evidence,' which necessarily includes medical examination
reports," in accordance with 38 C.F.R. § 19.9(a). Savage, 24 Vet.App. at 264. Section 19.9(a)
provides that, "[i]f further evidence, clarification of the evidence, correction of a procedural defect,
or any other action is essential for a proper appellate decision, a [Board member] shall remand the
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case to the agency of original jurisdiction, specifying the action to be undertaken." 38 C.F.R.
§ 19.9(a) (2018).
Here, the Board not only presumed that Dr. Caudle's audiogram was not performed to VA
protocols without providing an explanation for that determination, it did not undertake the
development outlined in Savage or explain why such development was not necessary. But as our
caselaw makes clear, the Board was obliged to resolve uncertainty as to Dr. Caudle's 2012
audiogram by seeking clarification as to whether it conformed with VA audiogram protocols, prior
to deciding that the veteran did not have right ear hearing loss for VA purposes, or explain why
such development was not required. See Savage, 24 Vet.App. at 273 (in "instances in which
missing information is relevant, factual, and objective–that is, not a matter of opinion–and where
the missing evidence bears greatly on the probative value of the private examination report"
remand was required for the Board to either seek clarification of private examination reports or
explain why such clarification was not necessary).
Thus, the Court concludes that remand and readjudication of Mr. McCray's right ear
hearing loss claim is warranted so that the Board may provide a written statement of reasons or
bases for its findings and conclusions as to Dr. Caudle's 2012 right ear audiogram results and
comply with Savage as necessary. See 38 U.S.C. § 7104(d)(1); Tucker, 11 Vet.App. at 374.
The Court will not address Mr. McCray's additional arguments at this time; he is free to
present any additional arguments and evidence to the Board on remand in accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi,
16 Vet.App. 529, 534 (2002). The Court reminds the Board that "[a] remand is meant to entail a
critical examination of the justification for [the Board's] decision," Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with
38 U.S.C. § 7112.
III. CONCLUSION
Upon consideration of the foregoing, the Court will SET ASIDE the portion of the June 9,
2017, Board decision denying service connection for left and right ear hearing loss and REMAND
those matters for additional development, if necessary, and readjudication consistent with this
decision.
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