Clyde McKinney, Jr. v. Robert A. McDonald

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 13-2273

CLYDE MCKINNEY, JR., APPELLANT,

V.

ROBERT A. MCDONALD,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued April 2, 2015 Decided March 11, 2016)

Landon E. Overby of Providence, Rhode Island, with whom Kenneth L. LaVan of Fort

Lauderdale, Florida, was on the brief, for the appellant.

Ronen Z. Morris and Carolyn F. Washington, with whom Leigh A. Bradley, General Counsel;

and Mary Ann Flynn, Assistant General Counsel, were on the brief, all of Washington, D.C., for the

appellee.

Before DAVIS, SCHOELEN, and BARTLEY Judges.

SCHOELEN, Judge, filed the opinion of the Court. BARTLEY, Judge, filed an opinion

joining in part, concurring in part, and dissenting in part.

SCHOELEN, Judge: Clyde McKinney, Jr., appeals through counsel an April 10, 2013,

Board of Veterans' Appeals (Board) decision that denied disability compensation for (1) a respiratory

disorder to include as due to asbestos exposure, (2) bilateral hearing loss, and (3) tinnitus.1 Record

(R.) at 3-21. This matter was referred to a panel of the Court, with oral argument, to address whether

the hearing loss noted on Mr. McKinney's entrance examination was a preexisting disability under

1

Mr. McKinney does not raise any argument concerning the Board's denial of disability compensation benefits

for tinnitus. See Appellant's Brief (Br.). Accordingly, the Court finds that Mr. McKinney has abandoned this claim on

appeal and the Court will dismiss the appeal as to this claim. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015)

(en banc) (dismissing appeal as to issues abandoned by a represented appellant); Cacciola v. Gibson, 27 Vet.App. 45,

48 (2014) (noting that "when an appellant expressly abandons an issue in his initial brief or fails to present any challenge

and argument regarding an issue, the abandoned issue generally is not reviewed by the Court").

38 U.S.C. § 1111.2 For the following reasons, the Board's decision will be vacated and the matters

remanded for further adjudication.

I. HEARING LOSS

A. Background

Mr. McKinney served on active duty in the U.S. Navy as a boatswain's mate from April 1969

to April 1971. As part of an entrance medical examination, he underwent a January 1969

audiometric test to assess his hearing acuity.3 His puretone thresholds, in decibels, were recorded

in the medical report as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 5 5 5 N/A 35

LEFT 5 0 15 N/A 35

R. at 897. Block 74, on the second page of the medical report, is reserved for a medical examiner

to provide a "SUMMARY OF DEFECTS AND DIAGNOSES," discovered during the entrance

examination. Id. The only "defect or diagnosis" the examiner noted in block 74 was defective

vision. Id. On this same page, block 76 contains a physical profile (PULHES) report, which reflects

the results of a rating system used by the military to evaluate a servicemember's physical health upon

entrance into and separation from service. See McIntosh v. Brown, 4 Vet.App. 553, 555 (1993).

"PULHES" is an acronym that represents the profile's six categories: "P" stands for "physical

capacity or stamina"; "U" stands for "upper extremities"; "L" stands for "lower extremities"; "H"

2

Oral argument was held on April 2, 2015, at William and Mary Law School in Williamsburg, Virginia. The

Court extends its appreciation to the law school for its hospitality.

3

An audiometric test measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz

(Hz)). In Hensley v. Brown, 5 Vet.App. 155, 157 (1993), this Court stated that "the threshold for normal hearing is from

0 to 20 dB, and higher thresholds levels indicate some degree of hearing loss."

2

stands for "hearing and ear"; "E" stands for "eyes"; and "S" stands for "psychiatric." Para. 9-3(b)

(1)-(6), Army Regulation (AR) 40-501 (Feb. 20, 1962).

A profile serial is assigned on a scale of 1 to 4 for each of the six categories, with "1"

indicating the highest level of fitness.4 Under "H" a "1" is assigned if the decibel level at 4000 Hz

does not exceed 40. Appendix (App'x) VIII to Para. 9-3(b), AR 40-501. Mr. McKinney was

assigned a "2" for his vision, but he received a "1" in the other PULHES categories.5 Mr. McKinney

apparently was assigned a "B" on his PULHES report because of his vision, indicating that he "may

have minor impairment under one or more PULHES factors which disqualify him or her for certain

critical MOS [military occupation specialities] training or assignment" but "no significant limitation"

and is considered "combat fit."6 Para. 9-5, AR 40-501. Notwithstanding the "B" assignment on his

entrance examination, the Navy determined that Mr. McKinney's hearing impairment was minor and

caused "no significant limitation" in his ability to perform most Navy jobs. Id.

Mr. McKinney was not treated for hearing loss during service nor was a hearing examination

conducted as part of his separation examination. R. at 899-900. In April 2009, Mr. McKinney filed

a claim for disability compensation for bilateral hearing loss asserting that he was exposed to artillery

fire in training missions and noise from helicopters. R. at 877; see also R. at 155-56. In May 2011,

a VA hearing examiner reviewed Mr. McKinney's 1969 audiology test results and opined that he had

"a pre-existing hearing loss at 4000 Hz, bilaterally" and that "[a]ll other thresholds tested were

within normal limits." R. at 108. After reviewing the results of a current VA audiological

examination, the VA examiner diagnosed Mr. McKinney with bilateral hearing within normal limits

between 250 and 1000 Hz with sloping bilateral hearing loss at 200 to 8000 Hz. R. at 107.

4

A person who receives a numerical designation of "1" under all categories, is considered to "possess a high

level of physical and mental fitness and is medically fit for any military assignment." Para. 9-3(c)(1), AR 40-501.

5

A person, such as Mr. McKinney, with a physical profile of "2" under any of the categories, meets the medical

entry standards, but "possesses some medical condition [or] physical defect[,] which may impose some limitation on his

military occupation classification and assignment." Para. 9-3(c)(2), AR 40-501.

6

In addition to the numerical classifications from 1 to 4, alphabetical designations are assigned to the various

physical categories "with respect to their organic functional ability." Para. 9-7, AR 40-501.

3

An audiometric test performed in conjunction with the May 2011examination showed

puretone thresholds, in decibels as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 5 25 40 55 55

LEFT 0 15 30 50 45

Id. The hearing examiner stated that because no audiometric test was performed as part of

Mr. McKinney's separation examination, she could not offer an opinion "regarding a hearing loss,

or hearing threshold shift bilaterally . . . without resorting to speculation." R. at 108.

In June 2009, the VA regional office (RO) denied the claim. R. at 1141-44. In March 2012,

an addendum was added to the May 2011 hearing examination report. R. at 96. The examiner stated

that she could not offer an opinion regarding the effect of in-service noise exposure on

Mr. McKinney's hearing without resorting to speculation. Id. Mr. McKinney appealed the decision

to the Board. R. at 829-31.

On April 10, 2013, the Board issued the decision here on appeal. R. at 3-21. In denying the

hearing loss claim, the Board found that Mr. McKinney was not entitled to the presumption of

soundness because his military service entrance audiometric test showed that he had "some degree

of preexisting hearing loss." R. at 16. In reaching this determination, the Board relied on Hensley,

supra, to conclude that because Mr. McKinney's entrance audiometric test revealed that the puretone

threshold at 4000 Hz was outside the range of normal hearing, he had some degree of hearing loss

when he entered service. R. at 16-17.

The Board stated that because the VA hearing examiner's statement did not provide an

opinion regarding aggravation or the etiology of Mr. McKinney's hearing loss, the statement

"provides neither positive nor negative support for service connection." R. at 19. Because there

was "no other competent medical opinion evidence addressing the etiology of [Mr. McKinney's]

hearing loss," the Board concluded that his preexisting hearing loss was not incurred or aggravated

4

by service. Id. However, the Board found that Mr. McKinney's statements that he was exposed to

loud noise during service were competent, credible, and consistent with the circumstances of his

service. R. at 18.

B. Parties' Arguments

Mr. McKinney argues that the Board erred when it determined that his military entrance

examination showed that he had a preexisting hearing loss. Appellant's Br. at 16-20. The appellant

has alternately stated that his entrance medical examination showed that he had "imperfect" hearing,

"abnormal hearing impairment," and a "decibel loss." Appellant's First Supplemental Memorandum

of Law at 7; Oral Argument Recording at 9:57, 15:04, 18:59. Nevertheless, he argues that because

the degree of hearing loss noted on his entrance examination did not constitute a hearing disability

under 38 C.F.R. § 3.385 (2015), the Board erred when it concluded that he had a preexisting hearing

loss. Appellant's Br. at 16-20; Appellant's Second Supplemental Memorandum of Law.

Additionally, at oral argument, Mr. McKinney argued that the fact that the Navy did not find that his

hearing loss prevented him from serving is further proof that he did not have a preexisting hearing

loss for VA purposes. Oral Argument Recording at 15:04.

The Secretary argues that the Board properly denied Mr. McKinney's claim because the

hearing loss noted on his entrance examination showed that he had a preexisting condition, and the

Board's determination that his hearing loss was not aggravated by service is plausible. Secretary's

Br. at 20-21. In response to the appellant's § 3.385 argument, the Secretary asserts that this

regulation is irrelevant to the presumption that he was in sound condition when he entered service

because § 3.385 establishes when a hearing loss is a disability solely for the purpose of payment of

disability compensation benefits. Secretary's Br. at 18-19.

C. Analysis

1. Presumption of Soundness

Because the degree of hearing loss noted on Mr. McKinney's entrance medical examination

(35 dB at 4000 Hz in both ears) did not meet VA's definition of a "disability" for hearing loss under

38 C.F.R. § 3.385, the Court holds that Mr. McKinney was entitled to the presumption of soundness

under section 1111. The Court reaches this conclusion after considering certain related statutory and

regulatory provisions governing VA disability compensation.

5

Section 1110 sets forth the basic entitlement to disability compensation and provides that the

Secretary will compensate a veteran "[f]or disability resulting from personal injury suffered or

disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease

contracted in line of duty."7 Thus, under section 1110, a claim for disability compensation may not

be granted unless a disability results from a disease or injury that was incurred or aggravated during

service. See Terry v. Principi, 340 F.3d 1378, 1382 (Fed. Cir. 2003) (stating that section 1110 makes

"clear that if a disability cannot be attributed to an injury or a disease incurred or aggravated in the

line of duty, the disability is not compensable"). "Disability" as used in section 1110 refers to

"impairment of earning capacity due to disease, injury, or defect, rather than to the disease, injury,

or defect itself." Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc); Hunt v. Derwinski,

1 Vet.App. 292, 296-97 (1991). After VA determines that a veteran has a current disability resulting

from a disease or injury that is related to service, the disability is evaluated under the disability rating

schedule, and the payment of monetary benefits is tied to the percentage rating assigned to the

veteran's disability. See 38 C.F.R. § 4.1 (2015) ("The percentage ratings represent . . . the average

impairment in earning capacity resulting from . . . disease and injuries and their residual conditions

in civilian occupations.").8

Determining for disability compensation purposes whether a disease or injury is related to

service often raises the question whether the disease or injury arose during service or preexisted the

veteran's military service. Section 1111 provides a framework for making this determination and

provides that a veteran who claims entitlement to disability compensation under section 1110 is

7

Section 1110 provides:

For disability resulting from personal injury suffered or disease contracted in line of duty, or for

aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military,

naval, or air service, during a period of war, the United States will pay to any veteran thus disabled

and who was discharged or released under conditions other than dishonorable from the period of

service in which said injury or disease was incurred, or preexisting injury or disease was aggravated,

compensation as provided in this subchapter, but no compensation shall be paid if the disability is a

result of the veteran's own willful misconduct or abuse of alcohol or drugs.

8

Because the impairment in earning capacity is the basis for disability evaluations, VA must consider the effect

of the appellant's disability on his ability "to function under the ordinary conditions of daily life, including employment."

38 C.F.R. § 4.10 (2015). Therefore, when assigning a disability rating VA must consider the disability "from the point

of view of the veteran working or seeking work." 38 C.F.R. § 4.2 (2015).

6

entitled to a presumption that he or she was in sound condition upon entry into service "except as

to defects, infirmities, or disorders noted" during an entrance examination. Section 1111 specifically

references section 1110 and states:

For the purposes of section 1110 of this title . . ., every veteran shall be taken to have

been in sound condition when examined, accepted, and enrolled for service, except

as to defects, infirmities, or disorders noted at the time of the examination,

acceptance, and enrollment, or where clear and unmistakable evidence demonstrates

that the injury or disease existed before acceptance and enrollment and was not

aggravated by such service.

38 U.S.C. § 1111 (emphasis added).

Therefore, when no preexisting medical condition is noted upon entry into service, a veteran

is presumed to have been sound in every respect. See Wagner v. Principi, 370 F.3d 1089, 1096

(Fed. Cir. 2004); Horn v. Shinseki, 25 Vet.App. 231, 234 (2012); Bagby v. Derwinski, 1 Vet.App.

225, 227 (1991). Critical to determining whether a defect, infirmity, or disorder has been "noted"

is whether the condition is "recorded" in an examination report. 38 C.F.R. § 3.304(b) (2015).

Noting only a history of a condition at the time of the entrance examination "does not constitute a

notation" of a preexisting condition. 38 C.F.R. § 3.304(b)(1); see Crowe v. Brown, 7 Vet.App. 238,

245 (1994) (noting that the presumption of soundness only attaches "where there has been an

induction examination in which the later-complained-of-disability was not detected").

If a veteran is entitled to the presumption, the burden then falls on VA to rebut the

presumption by clear and unmistakable evidence that the injury or disease manifested in service was

both preexisting and not aggravated by service. See 38 U.S.C. § 1111 (the Secretary's burden is

derived from the phrase "or where clear and unmistakable evidence demonstrates that the injury or

disease existed before acceptance and enrollment and was not aggravated by service"); Wagner,

370 F.3d at 1096; Horn, 251 Vet.App. at 234; Bagby, 1 Vet.App. at 227.

Conversely, when a medical condition is noted during an entrance examination and a veteran

claims that the preexisting condition was aggravated during service, a related but different statutory

provision is applicable: Section 1153, title 38, U.S. Code, provides that "[a] preexisting injury or

disease will be considered to have been aggravated by active military . . . service, where there is an

increase in disability during such service, unless there is a specific finding that the increase in

disability is due to the natural progress of the disease."

7

The Court concludes that Mr. McKinney had preexisting hearing loss that was "noted" on

his 1969 entrance examination. Our concurring colleague would find that no hearing loss was

"noted" on Mr. McKinney's entrance examination because, although the audiological thresholds

indicating hearing loss were recorded at the time of the 1969 service entrance examination, there was

no contemporaneous medical opinion interpreting the significance of those thresholds. However,

we find that the contemporaneous recording of an auditory examination threshold above 20 dB at

4000 Hz at service entrance was sufficient to constitute a "notation" of a hearing defect even without

a contemporaneous medical examination interpreting the significance of those results.

In Hensley v. Brown, the Court, relying on a particular medical treatise, recognized that

puretone hearing thresholds above 20 dB "indicate some degree of hearing loss." 5 Vet.App. at 157.

Hensley's recognition of this medical standard provided the Board with a basis for discerning the

significance of the contemporaneously recorded 1969 audiology test results. See R. at 16 (Board

citing Hensley for the proposition that hearing thresholds greater than 20 dB "indicate some degree

of hearing loss"). Because the presence of hearing loss is based on an objective standard, the Board

is easily able to identify hearing loss that is revealed on an audiometric test.

We agree with our concurring colleague's observation that Hensley did not address what

constitutes a notation under section 1111 and § 3.304(b) because the naval examiner, relying on

audiometric tests, concluded that Mr. Hensley had defective hearing. However, by explaining the

medical basis for the naval examiner's interpretation of the audiometric test results, Hensley provided

the Board in this case with a foundation for determining that the 1969 audiometric test revealed that

Mr. McKinney had abnormal hearing at 4000 Hz.

Even if there were some question as to the significance of the 1969 audiometric test results,

the record included the May 2011 VA hearing examiner's report opining that the 1969 audiology test

showed that Mr. McKinney had abnormal hearing at 4000 Hz. This report provided additional

evidence that the medical standard adopted in Hensley was an accurate barometer for gauging the

presence of hearing loss. Significantly, Mr. McKinney challenges neither the medical standard for

abnormal hearing announced in Hensley nor the 2011 VA hearing examiner's use of that standard

in rendering her opinion that Mr. McKinney had abnormal hearing at 4000 Hz. Given the Board's

8

reliance on Hensley, it is unclear how our concurring colleague reached the conclusion that the

temporal requirement of noting a defect, infirmity, or disorder at entry is not fulfilled in this case.

It is also perplexing that our concurring colleague concludes that Mr. McKinney's entrance

examination was not "out of the ordinary" simply because the naval examiner did not state that

Mr. McKinney had defective hearing, post at 28. In point of fact, it is not surprising that the naval

examiner did not note defective hearing. The 1969 audiology report reveals that at 4000 Hz,

Mr. McKinney's hearing acuity was 35 dB bilaterally, denoting some degree of bilateral hearing loss.

However, because his hearing acuity was below 40 dB bilaterally, he was assigned a "1" under the

PULHES rating system, denoting the highest degree of fitness for hearing. App'x VIII to Para. 9-5,

AR 40-501. This designation means only that Mr. McKinney's hearing did not, at that time,

constitute a condition that "may impose some limitation on his military occupation classification and

assignment." Para. 9-3(c)(2), AR 40-501. Under the PULHES rating system, he was considered

highly fit despite the presence of some degree of hearing loss. In other words, the abnormal 1969

audiological test result simply was not significant to the military at the time of its recording; the

result became significant to Mr. McKinney only when he applied for disability benefits. Hence,

unlike our concurring colleague, the majority finds no basis for attaching significance to the fact that

the naval examiner does not expressly state that Mr. McKinney's hearing was defective. Thus, the

majority concludes that preexisting hearing loss was noted on Mr. McKinney's entrance examination.

Nonetheless, whether Mr. McKinney's preexisting hearing loss means that he was not entitled

to the presumption of soundness may not be resolved without reviewing VA's regulation defining

hearing loss as a disability.

2. Hearing Loss as a Disability

In addition to the statutory provisions discussed above, the Court must consider

38 C.F.R. § 3.385, which defines "what constitutes a hearing disability." 55 Fed. Reg. 12,348

(Apr. 3, 1990). In Hensley, the Court recognized that, on an audiometric test, puretone thresholds

above 20 dB may constitute hearing loss, even though such hearing loss may not constitute a

"disability" under § 3.385 for VA benefits purposes. 5 Vet.App. at 157. Under the VA disability

scheme, the Secretary has "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."

9

38 U.S.C. § 501(a)(1). This authority includes permission to establish "regulations with respect to

the nature and extent of proof and evidence . . . to establish the right to benefits under such laws."

Pursuant to this rulemaking authority, the Secretary implemented 38 C.F.R. § 3.385, which states

that impaired hearing is considered a "disability for compensation purposes" when the "audiometry

threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 [Hz] is 40 [dB] or greater; or

when audiometry thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000

[Hz] are 26 [dB] or greater; or when speech recognition scores using the Maryland CNC Test are less

than 94[%]." Thus, the regulation provides that unless the impaired hearing meets these minimum

thresholds, it is not a "disability" under section 1110.9

In Palczewski v. Nicholson, 21 Vet.App. 174, 177-79 (2007), the Court inquired whether

§ 3.385 represents the Secretary's "interpretation and refinement of the term 'disability' referred to

in 38 U.S.C. § 1110"; and the Court concluded that the regulation reasonably interpreted what

constitutes a hearing disability. The Court noted that when the Secretary promulgated § 3.385, he

stated that "'the purpose of the regulation is to provide a gauge of what constitutes a hearing

disability.'" 21 Vet.App. at 178-79 (quoting 55 Fed. Reg. 12,348 (Apr. 3, 1990)). Generally, once

VA determines that a veteran has a disease or injury that was incurred or aggravated by service,

service connection is granted for the resulting disability without regard to its severity. The severity

of the disability is usually considered only after service connection has been granted and VA is

assigning a disability rating to compensate the veteran for the impairment in earning capacity

attributed to the disability.

Hearing loss is an exception to this rule. Because hearing loss is not considered a "disability"

unless the loss exceeds a certain threshold on an audiometric test, a minimum degree of hearing loss

is a prerequisite for entitlement to disability compensation benefits. Indeed, the Secretary explained

in the Federal Register that "a change in hearing as a result of military service is a disability only if

it exceeds the specified levels" in the regulation. 55 Fed. Reg. 12,348. The Secretary also stated that

§ 3.385 applies before a determination regarding service connection is made. Id. (emphasis added).

This interpretation means that if a veteran's hearing loss is not a "disability" under § 3.385, there is

9

This regulation reflects a determination by the Secretary that certain degrees of hearing loss are not

considered disabilities because they do not result in an impairment in earning capacity.

10

no need for VA to determine whether the hearing loss is related to service because no entitlement

to disability compensation exists if the hearing loss falls below the minimum standards.

Thus, contrary to the Secretary's argument, § 3.385 affects more than the payment of disability

compensation benefits. Instead, the regulation establishes when hearing loss constitutes a disability

for entitlement to disability compensation benefits. See Hensley, 5 Vet.App. at 157. If the veteran's

hearing loss does not meet the standards under § 3.385, he or she is denied disability compensation

benefits for hearing loss.

3. Winn and Terry

It is these statutory and regulatory provisions that the Court must consider to resolve the issue

before it. The information on an entrance medical examination is a key to resolving whether a

claimant is entitled to the presumption of soundness. When an entrance medical examination reveals

that a veteran has any "defects, infirmities, or disorders," the noted condition is considered to have

preexisted service. The Secretary focuses his argument on the ordinary meaning of the term "defect,"

which he contends is broad and includes virtually any imperfection that is noted on an entrance

examination.10 See Secretary's Memorandum of Law at 2; Oral Argument Recording at 38:53-39:11,

50:03-51:33. In this vein, he argues that the Board properly determined that Mr. McKinney had a

"defect" noted on his entrance examination because he had some degree of hearing impairment. Oral

Argument Recording at 38:53-39:11, 50:03-51:33. On initial consideration, the Secretary's argument

seems persuasive.

The persuasiveness of this argument, however, is diminished when the Court considers

relevant precedent from this Court and the U.S. Court of Appeals for the Federal Circuit (Federal

Circuit) interpreting the statutory term "defects" used in section 1111. In Winn v. Brown, 8 Vet.App.

510, 515 (1996), this Court interpreted "defects" as it applied to personality disorders. Under

38 C.F.R. § 3.303(c) (2015), "[c]ongenital or developmental defects, refractive error of the eye,

10

The Secretary notes that even if "defect" does not include any and every abnormal or deviant characteristic,

"infirmities" and "disorders" are also broadly defined and the inclusion of all three terms in the statute shows a broad

congressional intent that these terms be construed in a manner similar to the way "defect" is construed. Secretary's

Memorandum of Law at 2. The Court notes that "infirmity" is defined as "the quality or state of being infirm," which,

in turn, is defined as "of poor or deteriorated vitality" or a "state of being feeble." MERRIAM-WEBSTER'S COLLEGIATE

DICTIONARY 598 (10th ed. 1999). Finally, a "disorder" is "an abnormal physical or mental condition." Id. at 334.

11

personality disorders and mental deficiency . . . are not diseases or injuries within the meaning of

applicable legislation." Mr. Winn was seeking disability compensation benefits for a personality

disorder that was not noted on an entrance examination. He argued that he was entitled to the

statutory presumption of soundness and that the Secretary needed to produce clear and unmistakable

evidence that his personality disorder preexisted service and was not aggravated by service.

Additionally, he argued that 38 C.F.R. § 3.303(c) was invalid because it was inconsistent with the

plain language of section 1111.

Because "defects," is not defined in the statute, the Court in Winn applied the fundamental

canon of statutory construction that the words of a statute are given their ordinary, contemporary,

common meaning. Winn, 8 Vet.App. 515-16. In doing so, the Court examined the ordinary meaning

of "defect," which the Court noted is defined as an "imperfection that impairs worth or utility" or a

"lack of something necessary for completeness, adequacy, or perfection." Id. at 516 (quoting NEW

WORLD DICTIONARY 333 (3d ed. 1988)); see also Perrin v. United States, 444 U.S. 37, 42 (1979)

(stating that "unless otherwise defined, words [in a statute] will be interpreted as taking their

ordinary, contemporary, common meaning"); McGee v. Peake, 511 F.3d 1352,1356 (Fed. Cir. 2008);

Trafter v. Shinseki, 26 Vet.App. 267, 284 (2013). The Court observed that "defect" is defined

broadly, that its ordinary meaning is "virtually unlimited." Winn, 8 Vet.App. at 516. Hence, the

Court stated that "everyone [] has a defect" because no one is perfect. Id.

However, the Court concluded that Congress did not intend "defect"as used in section 1111

would have this broad meaning. Id. Hence, the Court considered not only the bare meaning of word

"defect" but also the placement and purpose of that word in the statutory scheme. See Winn,

8 Vet.App. at 515-16; see also Holloway v. United States, 526 U.S. 1, 6 (1999) (the Court must

"consider not only the bare meaning of the critical word or phrase 'but also its placement and purpose

in the statutory scheme.'" (quoting Bailey v. United States, 516 U.S. 137, 145 (1995)). Upon such

consideration, the Court in Winn observed that section 1111 (creating the presumption of soundness),

in which the term "defect" appears, is closely connected to section 1110 (creating entitlement to

disability compensation for disabilities resulting from disease or injury incurred or aggravated in

service). 8 Vet.App. at 515-16. Significantly, to determine the meaning of "defect," the Court linked

the statutory term "defect" in section 1111 with the phrase in section 1110, "disability resulting from

12

personal injury . . . or disease." Because of the close connection between these statutory provisions,

Winn stated that "the language of [section] 1111 must be read in connection with [section] 1110 on

which [it] is conditioned." Id. at 516.

Reading these two provisions in conjunction, the Court held that "defect" could not be

construed broadly as the ordinary meaning of that term encompasses any imperfection. Id. Rather,

the Court stated that the term "'defect' in section 1111 necessarily means a defect that amounts to or

arises from a disease or injury" resulting in a disability authorized by section 1110. Id. Thus, Winn's

interpretation of "defect" is based on the existing correlation between that word in section 1111 and

the phrase in section 1110 providing that VA will pay compensation for any disability resulting from

personal injury or disease contracted in or aggravated by service. Because § 3.303(c) provides that

"a personality disorder . . . is not the type of disease or injury-related defect" recognized by VA, the

Court concluded that the presumption of soundness did not "apply" to Mr. Winn's claim, even though

his personality disorder was not noted on his entrance examination.11 Id. By construing the term

"defect" narrowly, the Court stated that its interpretation "is internally consistent with section 1111

and consistent with the title 38 statutory scheme as a whole." Id.

In Terry v. Principi, 340 F.3d 1378 (Fed. Cir. 2003), the Federal Circuit embraced this

Court's interpretation of "defect." Mr. Terry argued that the exclusion of refractive error of the eye

from "disease or injury" in § 3.303(c) violated sections 1110 and 1111. The Federal Circuit held that

the Secretary's interpretation of "injury" or "disease" adopted in § 3.303(c) was a permissible

construction of those statutory terms. Id. at 1384. Like this Court in Winn, the Federal Circuit

rejected Mr. Terry's argument that the terms "defects, infirmities, or disorders" should be broadly

construed. The Federal Circuit explicitly followed Winn's holding that "defect" should be read

narrowly to include only those defects that VA considers to "'amount[] to or arise[] from a disease

or injury.'" Id. at 1385-86 (quoting Winn, 8 Vet.App. at 516). Thus, Terry and Winn did not apply

the ordinary meaning of "defect" in section 1111 because the courts in these decisions concluded that

the ordinary meaning of that term is not consistent with the statutory and regulatory scheme

governing disability compensation for veterans. In sum, Winn and Terry stand for the proposition

11

The Court also determined that the regulation did not conflict with section 1111 as VA might properly

exclude personality disorders from the category of diseases from which a "disability" might arise. 8 Vet.App. at 516.

13

that when VA, by regulation, provides that disability compensation is not permitted under section

1110 for a particular condition, the excluded condition can never amount to a "defect" within the

meaning of section 1111.

4. Application of Winn and Terry

The interpretation by Winn and Terry of "defect" used in section 1111 guides this Court's

interpretation of that statutory term as it applies to hearing loss. When the Secretary promulgated

§ 3.385, he took an approach different from the one he adopted when he promulgated § 3.303(c).

Unlike personality disorders or refractive errors, hearing loss is not excluded from the category of

diseases and injuries under section 1110 for which disability compensation may be awarded.

However, the Secretary's exclusion of certain levels of hearing impairment from consideration as

disabilities restricts disability compensation benefits for hearing loss. Just as Winn and Terry

interpreted "defect" narrowly to exclude conditions that might not result in disabilities under section

1110, the Court holds that "defect" should be narrowly interpreted so that it does not encompass a

level of hearing impairment that is not considered a "disability" under § 3.385.

The Court is not persuaded by the Secretary's contentions at oral argument that the appellant's

reliance on Winn and Terry is misplaced because those cases involved claimants who did not have

any defects, infirmities, or disorders noted on their entrance examinations. In making this argument,

the Secretary fails to recognize that Winn and Terry's narrow interpretation of "defect" was not based

on the fact that the claimants' personality disorder and refractive error were not noted on their

entrance examinations. Rather, Winn and Terry narrowly interpreted "defect" because VA prohibits

disability compensation benefits for personality disorders and refractive errors. It is this rationale

that the Court applies here to hold that when the level of hearing loss noted on an entrance

examination does not meet VA's definition of a hearing "disability," that level of hearing loss is not

a "defect."12 If in this case the Court were to adopt the Secretary's argument, and construe "defect"

broadly to conclude that any level of hearing loss is a "defect," the Court would have to disregard

the holdings in Winn and Terry. Morever, in following the Secretary's suggestion, the meaning of

12

Although the focus of the parties was on "defect," because the meaning of "defects," "infirmities," and

"disorders" (as discussed in footnote 10) are broad and overlapping, the Court concludes that the same rationale for

interpreting "defect" narrowly applies equally to "infirmities" and "disorders."

14

"defect" under section 1111 would vary from case to case. Hence, a "defect" would be given a broad

or narrow interpretation depending upon whether the "defect" was or was not noted on an entrance

examination. The Court will not follow this suggestion. We shall interpret the term "defect"

consistently under either scenario. See Clark v. Martinez, 543 U.S. 371 (2005) (holding that giving

different meanings to the same statutory phrase "would be to invent a statute rather than interpret

one"). In either case, a determination as to whether a "defect," under section 1111, is or is not noted

on an entrance examination will be based on whether disability compensation benefits are available

for the condition for which the veteran seeks benefits.

5. Absurd Result

The Secretary also argued that because Mr. McKinney's preexisting hearing loss was a

"defect" under section 1111, the Board properly treated his claim as a claim for aggravation of a

preexisting disability under 38 U.S.C. § 1153. Secretary's Br. at 20-21. At oral argument,

Mr. McKinney argues that this is not possible. Oral Argument Recording at 56:41-59:02; see also

Appellant's Second Supplemental Memorandum of Law at 4-5. He points out that pursuant to

section 1153, a preexisting injury or disease is considered to have been aggravated "where there is

an increase in disability during service" (emphasis added). He contends that under the Secretary's

interpretation of section 1111, a claimant with hearing loss noted on entrance that does not meet the

criteria of § 3.385, may not establish aggravation because the claimant's preexisting hearing

impairment would not be a "disability." Therefore, the claimant could not demonstrate that there was

an "increase in disability." In light of the Court's discussion above that hearing loss that does not

meet the requirements of § 3.385 is not a "defect" because it is not considered a disability for VA

purposes, the Court agrees with Mr. McKinney and finds that the Secretary's interpretation of

"defect" would produce the absurd result described by Mr. McKinney. Morever, because the

Secretary's interpretation of "defect" fails to consider the overall disability compensation scheme

pertaining to hearing loss, the Court is not persuaded by his interpretation. In sum, the Court holds

that the hearing loss noted on Mr. McKinney's entrance medical examination was not a "defect,

infirmity, or disorder." Thus, the Board erred in concluding that Mr. McKinney was not entitled to

the presumption of soundness. The Board's determination is reversed.

15

6. The Board erred in relying on the May 2011 hearing examiner's opinion to deny

Mr. McKinney's claim.

After concluding that Mr. McKinney was not entitled to the presumption of soundness, the

Board denied his claim on the basis that no competent medical evidence established a causal

relationship between Mr. McKinney's hearing loss and service. R. at 18-19. In doing so, the Board

noted that the only medical evidence addressing the nexus issue was a May 2011 opinion and a 2012

addendum to that opinion. R. at 19. The VA examiner concluded that because no audiometric test

was performed as part of Mr. McKinney's 1971 separation examination, she could not offer a

"definitive" nexus opinion "without resorting to speculation." R. at 96, 108.13 The Board concluded

that the VA examiner's opinion "provides neither positive nor negative support" for the claim.

R. at 19. Relying on the examiner's opinion, the Board concluded that "additional development" was

not needed. R. at 8.

The appellant argues that the VA "examiner did not provide an adequate rationale for why

it would be speculative to render" a nexus opinion. Appellant's Br. at 21. The Secretary disagrees

with Mr. McKinney's assertion. Secretary's Br. at. 21-22. "An examiner's conclusion that a

diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion

just as much as a firm diagnosis or a conclusive opinion." Jones v. Shinseki, 23 Vet.App. 382-90

(2010). As with other medical opinions, the examiner must provide a rationale for his opinion. See

Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (stating that a medical examiner must support an

opinion with an analysis that the Board can consider and weigh); see also Nieves-Rodriguez v. Peake,

22 Vet.App. 295, 304 (2008) ("[M]ost of the probative value of a medical opinion comes from its

reasoning."). Thus, "before the Board may rely on a VA examiner's conclusion that an etiology

opinion would be speculative, the examiner must explain the basis for such an opinion or the basis

for the examiner's opinion must be apparent from the Board's review of the evidence." Id.

13

In March 2012, this same VA examiner submitted an addendum to her May 2011 opinion

reiterating her opinion that, without a separation examination, she could not offer an opinion regarding the

effect of in-service noise exposure on Mr. McKinney's hearing without resorting to speculation. R. at 96.

16

Here, the VA examiner did not provide a rationale for her conclusion that in order to render

a nexus opinion, an audiology test conducted contemporaneously with a separation examination was

needed. Although the VA examiner clearly identified the evidence she needed, it is unclear that the

phrase in her 2011 opinion and 2012 addendum "without resorting to speculation" reflects the limits

of knowledge in the medical community at large or the limits of the VA examiner's knowledge.

R. at 96, 108.

It is possible that the examiner's opinion is based on the supposition that hearing loss

attributable to noise exposure would result in an immediate, measurable change in hearing acuity that

would be reflected on an audiometric test. However, the cursory statement again makes her rationale

unclear. Nor does the Board's review of the evidence clarify the basis for the examiner's opinion.

The Board, without discussion, merely summarized the VA examiner's statement, adopted her

opinion, and proceeded to deny the claim because of a lack of nexus evidence. R at 19. Thus, the

basis of the examiner's opinion is not apparent from either the examiner or the Board. The Court is

placed in the position of having to surmise the rationale for the VA examiner's conclusion that a

nexus opinion would be speculative.

Even if the Court were to assume that the VA examiner's opinion was based on the notion

that hearing loss resulting from noise exposure would cause an immediate change in hearing, the

examiner's opinion is deficient because she did not consider evidence in the record that may indicate

that such a change occurred in Mr. McKinney's hearing shortly after his in-service noise exposure.

Mr. McKinney testified at a January 2011 hearing that he first noticed a change in his hearing during

the "[19]70's" R. 155-56.14 This testimony is relevant because Mr. McKinney served in the military

between 1969 and 1971. If Mr. McKinney first noticed hearing loss during service or soon after

discharge, this fact may have assisted the VA examiner in determining the likelihood that

Mr. McKinney's in-service exposure to acoustic trauma affected his hearing. But, there is no

indication that the VA examiner considered the import of Mr. McKinney's testimony.

A medical opinion is adequate when it is based upon consideration of the veteran's prior

medical history and examinations and also describes the disability in sufficient detail so that the

14

The Board did not make a finding that this testimony was not credible. R. at 19.

17

Board's "'evaluation of the claimed disability will be a fully informed one.'" Ardison v. Brown,

6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)). Here, the

VA examiner's failure to consider Mr. McKinney's testimony when formulating her opinion renders

that opinion inadequate. See Barr v. Nicholson, 21 Vet.App. 301, 310-11 (2007) (finding that a

medical examination that ignores lay assertions regarding continued symptomatology is inadequate

because it fails to take into account the veteran's prior medical history); Dalton v. Nicholson,

21Vet.App. 23, 39 (2007) (finding a medical examination inadequate where the examiner

"impermissibly ignored the appellant's lay assertions that he sustained a back injury during service").

Because the examiner did not did not provide a clear rationale for her opinion or consider relevant

evidence in formulating her opinion, the Court holds that the Board erred in relying on that opinion

to deny Mr. McKinney's claim. Accordingly, this matter is vacated and remanded for the Board to

readjudicate Mr. McKinney's hearing loss claim. On remand, the Board should obtain a medical

opinion that is consistent with this opinion.

II. RESPIRATORY DISABILITY

A. Background

In April 2007, Mr. McKinney filed a claim for disability compensation benefits for a

respiratory disorder. R. at 675. Mr. McKinney stated that the Navy ships on which he served were

"full of asbestos." R. at 610-11; see also R. at 154 (testimony that Mr. McKinney's naval duties

included "clean[ing] up paint, treat[ing] ship for rust"). In support of his claim, Mr. McKinney

submitted an October 1996 medical opinion from Dr. Schonfeld, a pulmonologist, stating that he had

reviewed a single chest x-ray showing the type of bilateral pleural thickening "seen following

asbestos exposure." R. at 680. Additionally, Dr. Schonfeld commented that the chest x-ray was

"consistent with a diagnosis of pleural asbestosis."15 Id. Mr. McKinney also submitted a

December 1996 opinion from Dr. Altschuler, another pulmonologist, who concurred with

Dr. Schonfeld's diagnosis. R. at 681. Dr. Altschuler stated that he had reviewed "chest films with

findings of bilateral pleural thickening" and noted that the appellant's symptoms included shortness

15

"Asbestosis" is a "form of pneumoconiosis (silicatosis) caused by inhaling fibers of asbestos, marked by

interstitial fibrosis of the lung." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 161-62 (32d ed. 2012).

18

of breath and a "noticeable" cough. Id. Dr. Altschuler diagnosed Mr. McKinney with

bilateral"asbestos-related pleural disease." Id. Further, Dr. Altschuler opined that Mr. McKinney's

"present malady [was] caused by the asbestos toxin exposure incident to his sailing occupation." Id.

Finally, Mr. McKinney submitted a November 2003 referral from the Methodist Charlton

Medical Center to Dr. Attiah, a pulmonologist. R. at 614. The referral worksheet noted that

Mr. McKinney had dyspnea (shortness of breath) with a history of "apparent exposure to asbestos."

Id. Mr. McKinney was referred to Dr. Attiah for "pulmonary function tests related to asbestos

exposure." Id. Mr. McKinney signed an authorization and consent-to-release-information form to

allow the RO to obtain Dr. Attiah's treatment records "for asbestos exposure." R. at 615-17.

Mr. McKinney stated that Dr. Attiah's office was located at the Methodist Charlton Medical Center

and provided the RO with the address of the medical center as well as a phone number for Dr. Attiah.

Id.

In September 2007, the RO requested Dr. Attiah's treatment records for pleural asbestosis

from the Methodist Charlton Medical Center. R. at 588. In November 2007, the RO made a second

request for these records. R. at 589. In December 2007, the Methodist Charlton Medical Center

informed the RO that Dr. Attiah's office was not located at that facility and suggested that the RO

contact him at the phone number Mr. McKinney provided. R. at 570. There is no indication that

the RO made any further attempt to contact Dr. Attiah.

In February 2008, Mr. McKinney underwent a VA respiratory examination. R. at 562-63.

The examiner noted that Mr. McKinney's service medical records did not include any treatment for

respiratory complaints and that a 1971 chest x-ray revealed no abnormality. R. at 562.

Mr. McKinney reported that he had been experiencing shortness of breath for the last 20 to 30 years

both at rest and on exertion. Id. The VA examiner noted that a 2006 chest x-ray revealed no

abnormality and that 2007 pulmonary function tests showed a "restrictive pattern with mild

impairment." Id. The examiner opined that Mr. McKinney's "shortness of breath is less likely than

not secondary to his asbestos." R. at 563.

In February 2008, the RO denied the claim for a respiratory disability. R. at 1180-84. The

appellant appealed the decision by filing a Notice of Disagreement. R. at 487, 489. On

August 4, 2008, the RO issued a Statement of the Case, which stated that "[a]ll attempts to locate

19

the treatment reports from Methodist Charlton Medical Center, from both the veteran and the treating

facility, were unsuccessful." R. at 462.

The record also includes a 2009 VA medical record indicating that Mr. McKinney was

diagnosed with restrictive lung disease. R. at 276. An October 2009 chest x-ray revealed "no

evidence of pleural disease." R. at 240. Additionally, a September 2009 computerized tomography

(CT) scan revealed "no evidence of pleural plaques or asbestosis." R. at 284.

In April 2011, the Board denied entitlement to service connection for a respiratory condition,

to include as due to asbestos exposure. R. at 138-50. Mr. McKinney appealed this decision to the

Court, and in March 2012, the parties entered into a joint motion for remand (JMR), which the Court

subsequently granted. The parties agreed that the Board failed to discuss Dr. Schonfeld's

October 1996 "favorable medical opinion" and to "fully assess lay evidence of record." R. at 67.

In the April 2013 decision here on appeal, the Board denied the claim for a respiratory

disability. R. at 12-15. The Board acknowledged that two pulmonologists diagnosed Mr. McKinney

with asbestosis in 1996. Id. But the Board denied disability compensation benefits for asbestosis

because there was no proof of a current diagnosis of asbestosis. Id. Additionally, the Board denied

disability compensation benefits for restrictive lung disease on the basis that the evidence

demonstrated that Mr. McKinney's restrictive lung disease was not "etiologically related to service."

Id.

B. Board's Treatment of Medical Evidence

The Secretary must "make reasonable efforts to assist a claimant in obtaining evidence

necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A;

see Loving v. Nicholson, 19 Vet.App. 96, 102-03 (2005). The Secretary's duty to assist includes, in

appropriate cases, the duty to conduct a thorough and contemporaneous medical examination.

38 U.S.C. § 5103A(d)(1); see Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); Green v. Derwinski,

1 Vet.App. 121, 124 (1991). "[O]nce the Secretary undertakes the effort to provide an examination

when developing a service-connection claim, . . . he must provide an adequate one."

Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). An examination is adequate "where it is based

upon consideration of the veteran's prior medical history and examinations and also describes the

disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be

20

a fully informed one.'" Stefl, 21 Vet.App. at 123 (quoting Ardison v. Brown, 6 Vet.App. 405, 407-08

(1994)); Green, 1 Vet.App. at 124.

As with any finding on a material issue of fact and law presented on the record, the Board

must support its determination that the claimant does not have a current disability for VA purposes

with an adequate statement of reasons or bases that enables the claimant to understand the precise

basis for that determination and facilitates review in this Court. 38 U.S.C. § 7104(d)(1);

McClain v. Nicholson, 21 Vet.App. 319, 321 (2007); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).

To comply with this requirement, the Board must analyze the credibility and probative value of

evidence, account for evidence that it finds persuasive or unpersuasive, and provide reasons for its

rejection of material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506

(1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

Mr. McKinney argues that the Board did not give an adequate statement of reasons or bases

for its conclusion that he did not have a current asbestos-related disability. Appellant's Br. at 12-14.

Mr. McKinney points out that the Board's conclusion implies that he no longer has asbestosis. The

Board's determination appears to be premised on the idea that his asbestosis, which was present in

1996, and perhaps as late as 2003, was resolved. Id.. Mr. McKinney argues that this is a medical

conclusion that the Board could not reach properly without having independent medical evidence

in the form of a medical opinion that addresses whether Mr. McKinney's asbestosis resolved.

Appellant's Br. at 12-13. In response, the Secretary argues that the 1996 medical reports are not

"relevant evidence" because those diagnoses of an asbestos-related disability predate

Mr. McKinney's claim by more than a decade. Secretary's Br. at 11-12. Because the Secretary

asserts that these reports were not "relevant," he contends that "the Board had no obligation to further

discuss why [Mr. McKinney] did not have a current asbestos-related disability" or to obtain a

medical opinion to address the previous diagnoses. Id.

The Court agrees with Mr. McKinney that the Board gave an inadequate statement of reasons

or bases for summarily rejecting the 1996 medical reports because they were not sufficiently

proximate to the date of the Mr. McKinney's claim. The Board does not question the accuracy of

any of the medical diagnoses in the record. Yet, the Board determined that Mr. McKinney did not

have a current asbestos-related respiratory disorder without addressing the nature of the claimed

21

asbestos-related disability, including whether Mr. McKinney's asbestos-related respiratory disorder

resolved itself or was incorrectly diagnosed, or whether it was acute or chronic. Without addressing

these issues, the Court concludes that the Board's discussion of the evidence is inadequate.

The Court is also not persuaded by the Secretary's argument that because the 1996 medical

reports predated Mr. McKinney's claim these records were not relevant. Although the reports

significantly predate the date of the veteran's claim and do not, alone, establish the presence of a

current asbestos-related disability, they are relevant because the records detail Mr. McKinney's

claimed in-service exposure to asbestos and contain diagnoses of asbestosis. R. at 680-81.

Therefore, contrary to the Secretary's argument, these records are "relevant on their face" to whether

any current respiratory disability is related to the purported in-service asbestos exposure, and the

Board was required to address the reports in assessing entitlement to service connection on that

basis. See Moore v. Shinseki, 555 F.3d 1369, 1375 (Fed. Cir. 2009) (concluding that unobtained

Army hospital records were relevant to a claim for a higher disability evaluation even though the

hospitalization occurred before the period on appeal, because those records "may well contain

evidence that [the veteran] suffers from a serious, and perhaps chronic, psychiatric disorder");

Romanowsky v. Shinseki, 26 Vet.App. 289, 294 (2013) (rejecting the Board's finding that evidence

that a disability was diagnosed before the claimant filed a claim for service connection was

categorically not relevant to the issue whether the veteran had a current disability); see also

AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013) (explaining that "VA must consider all

evidence 'pertinent' to service connection" (quoting Fagan v. Shinseki, 573 F.3d 1282, 1287-88

(Fed. Cir. 2009))).

The Board's summary rejection of the 1996 medical reports is related to another inadequacy

in the Board's reasons or bases: the Board relied on the 2008 VA examination report even though

the examiner did not even mention the veteran's prior diagnoses of asbestosis, much less indicate that

asbestosis had either previously been misdiagnosed or had resolved. R. at 562-63; see

Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994) (explaining that the Board "cannot evade [its]

statutory responsibility merely by adopting [a medical examiner's] opinion as its own, where . . . the

[examiner's] opinion fails to discuss all the evidence which appears to support appellant's position").

Given the Board's duty "to interpret reports of examination in the light of the whole recorded history,

22

reconciling the various reports into a consistent picture," the Board was required to address the

competing evidence of record as to whether the veteran currently has asbestosis and, if necessary,

to obtain independent medical evidence to resolve that factual issue. 38 C.F.R. § 4.2; see

Clemons v. Shinseki, 23 Vet.App. 1, 6 (2009) (stating that when the Board cannot, on its own,

resolve a medical question regarding the diagnosis and nature of a claimant's disability, then the

Board should obtain additional medical evidence addressing the issue); Colvin v. Derwinski,

1 Vet.App. 171, 172 (1990) (holding that the Board "must consider only independent medical

evidence to support [its] findings rather than provide [its] own medical judgment in the guise of a

Board opinion" and advising the Board to seek additional medical evidence when the medical

evidence of record is "insufficient" to decide the claim). Its failure to do so in this case further

diminishes the adequacy of its reasons or bases for its decision. See Caluza, 7 Vet.App. at 506;

Gilbert, 1 Vet.App. at 52.

Lastly, the Court notes that the Board characterized Mr. McKinney's claim as involving

"[e]ntitlement to service connection for a respiratory disability, to include as due to asbestos

exposure." R. at 3. Therefore, the Board recognized that the scope of Mr. McKinney's claim was

broad and included entitlement to service connection for any respiratory illness, including one caused

by asbestos exposure. See Clemons, 23 Vet.App. at 5 (holding that an initial claim for service

connection must be "considered a claim for any . . . disability that may be reasonably encompassed"

by the claim considering such factors as "the claimant's description of the claim; the symptoms the

claimant describes; and the information the claimant submits or that the Secretary obtains in support

of the claim"). Yet, despite its broad characterization of Mr. McKinney's claim, the Board did not

adequately consider whether any current respiratory disability was related to service generally.

Indeed, the Board acknowledged that the appellant currently suffered from restrictive lung

disease, but it determined that there was no competent medical evidence "suggest[ing] that restrictive

lung disease is related to service." R. at 15. However, in its analysis of entitlement to service

connection for restrictive lung disease, the Board overlooked the fact that the February 2008 VA

examination report that it had obtained to decide Mr. McKinney's claim focused solely on whether

a respiratory disability was related to in-service asbestos exposure and did not address linkage to

service on any other basis. R. at 563 (opining that the veteran's "shortness of breath is less likely

23

than not secondary to his asbestos [exposure]"). Given that the Board characterized the claim

broadly to include all possible service-related etiologies and not just asbestos exposure (R. at 3), the

Court concludes that the Board failed to explain adequately why it relied on the February 2008 VA

examination report to deny this aspect of Mr. McKinney's claim when that report did not address

whether Mr. McKinney's respiratory disorder was related to service. See Stefl, 21 Vet.App. at 123

(explaining that, to be adequate, a medical examination or opinion must "describe[] the disability

. . . in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully

informed one'" (quoting Ardison, 6 Vet.App. at 407) (internal quotation marks omitted)); see also

Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) ("[O]nce the Secretary undertakes the effort to

provide an examination . . . he must provide an adequate one or, at a minimum, notify the claimant

why one will not or cannot be provided."). The Board therefore provided inadequate reasons or

bases for relying on that examination report to deny service connection for restrictive lung disease

on any basis other than via asbestos exposure. See Ardison, 6 Vet.App. at 407 (holding that the

Board errs when it relies on an inadequate medical examination report or opinion).

C. Duty To Assist

The Secretary has a duty to assist claimants in developing their claims. 38 U.S.C. § 5103A.

That duty to assist includes the duty to make "reasonable efforts to obtain relevant records," as long

as the claimant "adequately identifies" those records to the Secretary and authorizes the Secretary

to obtain them. 38 U.S.C. § 5103A(b)(1); see also Loving, 19 Vet.App. at 102. VA will make

reasonable efforts to obtain relevant private medical records generally consisting of an initial request

for the records and, if the records are not received, at least one followup request. 38 C.F.R.

§ 3.159(c)(1) (2015). If the Secretary is unable to obtain those records after making reasonable

efforts to do so, the Secretary must provide notice of that fact to the claimant. See 38 U.S.C.

§ 5103A(b)(2); 38 C.F.R. § 3.159(e). In addition to notifying the claimant what records VA was

unable to obtain and the efforts made to obtain those records, such notice must include "[a]

description of any further action VA will take regarding the claim, including but not limited to notice

that VA will decide the claim based on evidence of record unless the claimant submits the records

VA was unable to obtain," and "notice that the claimant is ultimately responsible for providing the

evidence." 38 C.F.R. § 3.159(e)(1)(iii-iv). The Board's determination that VA has satisfied the duty

24

to assist is reviewed under the "clearly erroneous" standard of review. Hyatt v. Nicholson,

21 Vet.App. 390, 395 (2007); see also Gilbert, 1 Vet.App. at 52. A finding of fact is clearly

erroneous when the Court, after reviewing the entire evidence, "is left with the definite and firm

conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364,

395 (1948); see also Gilbert, 1 Vet.App. at 52.

Mr. McKinney argues that the Board violated the duty to assist when it failed to make

reasonable efforts to obtain Dr. Attiah's records and that the Board did not notify him of the efforts

it had taken to obtain the records or the reasons for its decision to cease its attempts to obtain the

records. Appellant's Br. at 14-16. The Secretary counters that Mr. McKinney is precluded from

making this argument because it was not included in the earlier JMR. Secretary's Br. at 12-15. The

Court found that the clarity and specificity of a JMR is critical to determining the scope of the

Board's duty on remand. Carter v. Shinseki, 26 Vet.App. 534, 543 (2014), vacated on other grounds

sub. nom. Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). The Court in Carter stated that

when an attorney agrees to a [JMR] based on specific issues and raises no additional

issues on remand, the Board is required to focus on the arguments specifically

advanced by the attorney in the motion . . . and those terms will serve as a factor for

consideration as to whether or to what extent other issues raised by the record need

to be addressed.

26 Vet.App. at 542-43. Here, the parties' JMR stated that "the Board is obligated to conduct a

critical examination of the justification for its previous decision." R. at 74 (citing

Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991)). In Carter, the Court found that similar language

in the JMR before the Court showed that the parties required the Board to examine the record for any

issues that were reasonably raised. Accordingly, the Court concludes that the JMR in this case did

not limit the scope of the Board's review of newly raised arguments.

Having determined that Mr. McKinney's duty-to-assist argument is not precluded, the Court

will turn to the merits of that argument. Here, the Board generally discussed VA's duties to assist

Mr. McKinney, finding that all necessary development had been completed and that no evidence

remained outstanding, including private treatment records. R. 7-8. However, the Board did not

discuss the June 2007 authorization and consent-to-release forms signed by Mr. McKinney asking

the RO to obtain Dr. Attiah's 2003 medical records for "asbestos exposure" or VA's failed attempts

25

to do so. Specifically, the Board did not discuss the fact that the RO made no further attempt to

contact Dr. Attiah even after receiving a letter from the Methodist Charlton Medical Center stating

that it did not have Dr. Attiah's medical records and suggesting that the RO contact Dr. Attiah at the

telephone number Mr. McKinney provided for Dr. Attiah on the June 2007 forms. Additionally,

there is no record of any notice to Mr. McKinney of the RO's efforts to obtain Dr. Attiah's records.

The RO's failure to further attempt to contact Dr. Attiah after learning this information is

particularly glaring because the Board found that the only evidence in the record that Mr. McKinney

was diagnosed with asbestosis was evidence from 1996. R. at 15. Yet, the 2003 referral sheet from

the Methodist Charlton Medical Center indicates that the referring physician attributed

Mr. McKinney's current respiratory disorder to "apparent exposure to asbestos." R. at 614 (2003

worksheet referring Mr. McKinney to Dr. Attiah for "[p]ulmonary function [t]ests related to asbestos

exposure"). Because the nature of Mr. McKinney's respiratory disorder is a key medical issue in this

case, and VA had previously determined that these records were relevant when it originally sought

to acquire them, Dr. Attiah's 2003 medical records are relevant to the issue regarding the nature of

Mr. McKinney's respiratory disorder. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010)

(holding that VA's duty to assist extends to potentially "relevant" evidence, i.e., "records that have

a reasonable possibility of helping to substantiate the veteran's claim"). Accordingly, the Board erred

in finding that VA fulfilled its duty to assist Mr. McKinney, and remand is required for further

development. See Hyatt, 21 Vet.App. at 395.

III. CONCLUSION

After consideration of the appellant's and the Secretary's briefs, and a review of the record

on appeal, the Board's April 10, 2013, decision is VACATED except to the extent that the Board

made a favorable finding that Mr. McKinney was exposed to loud noise during service. All the

vacated matters are remanded for further adjudication consistent with this opinion.

BARTLEY, Judge, joining in part, concurring in part, and dissenting in part: I dissent from part I of

the decision to the extent that the majority concludes that "Mr. McKinney had a preexisting hearing

loss that was 'noted'" on his entry examination report. Ante at 8. Although I agree with my esteemed

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colleagues as to part I's ultimate conclusion that Mr. McKinney did not demonstrate a hearing defect,

infirmity, or disorder upon entry to service, there is no need to address the meaning of those terms

because the naval examiner at the time of the veteran's entry in 1969 did not note any hearing issue

whatsoever, let alone hearing loss, and the appeal should be decided on that basis.16 Section 1111

of title 38, U.S. Code, imposes a requirement that veterans are presumed sound except as to any

defect, infirmity, or disorder "noted at the time of the examination, acceptance, and enrollment" into

service. 38 U.S.C. § 1111 (emphasis added); see 38 C.F.R. § 3.304(b) (2015) (implementing

regulation). Because that temporal requirement was not met in Mr. McKinney's case, he should be

presumed sound on that basis, rendering most of the Court's part I analysis unnecessary.

The crux of my disagreement stems from the majority's willingness to accept audiology test

results from Mr. McKinney's January 1969 entry examination, which were never interpreted by the

entry examiner as indicating a hearing issue, as a notation for purposes of section 1111. Indeed, in

order to conclude that hearing loss was noted at entry, the Board and the majority rely on a May 2011

VA opinion rendered 42 years after Mr. McKinney's service entry, as well as on hearing loss

standards referenced in Hensley v. Brown, 5 Vet.App. 155, 157 (1993), a case decided 24 years after

Mr. McKinney's service entry. The majority acknowledges that the naval examiner did not list ears

or hearing in the section of the entry examination report reserved for noting "Defects and

Diagnoses," did not otherwise comment on the audiology test results, and did not indicate that he

believed that the veteran's hearing was compromised in any way. R. at 896-97; see ante at 9

(majority concedes that "the naval examiner did not note defective hearing" (emphasis added)).

Instead, the naval examiner assigned Mr. McKinney a PULHES score of 1 for hearing and ears,

R. at 897, indicating the highest level of fitness for that category, see ante at 3. Relying on post-entry

examination interpretation to find that Mr. McKinney had hearing loss at entry is contrary to the

statute.

Given the 1969 examiner's silence as to the veteran's hearing, it is not possible now for VA

to discern the interpretation or significance the entry examiner attached to Mr. McKinney's audiology

results. Nevertheless, the Board and the majority sanction using information from 2011 and 1993

16

I join with the analysis and result in part II of the decision as to the veteran's respiratory disability.

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without acknowledging the section 1111 and § 3.304(b) temporal requirement that should bar

retrospective interpretation of an entry examination in this manner. Ante at 8-9; see 38 U.S.C.

§ 1111.

Contrary to the majority's suggestion, ante at 8, Hensley did not relax or otherwise abrogate

this requirement. Unlike Mr. McKinney, Mr. Hensley received a defective hearing diagnosis upon

entry into service, 5 Vet.App. at 156-57, and there was no need in that case for retrospective

interpretation, and, unsurprisingly, the Court in Hensley did not discuss section 1111's and

§ 3.304(b)'s noting requirement. Accordingly, the Board and the majority's reliance here on Hensley

is misplaced.

Permitting retrospective interpretation of an entry examination allows VA to transform a test

result not identified at the time of entry as out of the ordinary into noting at the time of entry, thereby

perverting the statutory requirement. This retrospective interpretation will create troubling effects:

Men and women entering service would be deemed fully fit to fight and die, with the entry examiner

indicating nothing preexisting; but after service those men and women, now veterans, would be

informed that they were less than whole at entry, that there was preexistence, and that they have a

significant handicap in pursuing disability benefits, i.e., the presumption of soundness, in most cases,

would not apply.

I would hold that no noting of any kind relating to Mr. McKinney's hearing occurred at entry

and that such absence reflects that the veteran's hearing was deemed by the 1969 naval examiner to

be completely unremarkable at entry. On that basis, Mr. McKinney should be presumed sound as

to his hearing. VA is not without recourse where an entry examiner fails to note a preexisting issue

at the time of entry, as may happen from time to time. Any such failure is amply provided for in the

statute–in such cases VA may present clear and unmistakable evidence to rebut the presumption that

the veteran was sound at entry. See 38 U.S.C. § 1111 (authorizing VA to rebut the presumption of

soundness "where clear and unmistakable evidence demonstrates that the injury or disease existed

before acceptance and enrollment and was not aggravated by such service"); H.R. REP. NO. 78-403,

at 2 (1943) (indicating that the presumption of soundness must be rebuttable because defects,

infirmities, or disorders are sometimes "necessarily [ ] overlooked due to the speed with which

persons are taken into service during a war emergency" (emphasis added)); May 13, 1943 Hearing

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Before the H. Comm. on World War Veterans Legislation, 78th Cong. 54 (1943) (recognizing

that"neglect on the part of the doctors" performing military entry examinations under "the stress of

building up manpower" necessitated making the presumption of soundness rebuttable). Accordingly,

I must respectfully dissent from the majority's analysis in part I of its decision.

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