Joseph Martinak v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 05-1195

JOSEPH MARTINAK , APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued June 14, 2007 Decided August 23, 2007 )

Landon E. Overby, of Washington, D.C., for the appellant.

Kenneth A. Walsh, with whom Tim S. McClain, General Counsel; R. Randall Campbell,

Assistant General Counsel; and Edward V. Cassidy, Jr., all of Washington, D.C., were on the brief

for the appellee.

Before KASOLD, MOORMAN, and LANCE, Judges.

LANCE, Judge: The appellant, Joseph Martinak, appeals a January 7, 2005, Board of

Veterans' Appeals (Board) decision. Record (R.) at 1-25. In that decision, the Board denied an

initial disability rating higher than10% for the appellant's service-connected bilateral tinnitus. The

Board also denied a compensable disability rating for the appellant's service-connected chronic

obstructive pulmonary disorder (COPD) and bilateral hearing loss. The appellant has withdrawn

his appeal of his bilateral tinnitus claim in light of Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir.

2006). The Court will, therefore, not consider that claim on appeal. Furthermore, the Secretary has

conceded that the appellant is entitled to a higher initial disability rating for his COPD. Secretary's

Brief (Br.) at 2. Accordingly, the Court will remand that claim to the Board for further adjudication.

The only remaining issue before the Court is the propriety of the Board's adjudication of the

appellant's bilateral-hearing-loss claim. The first question presented is whether the Secretary's

policy of conducting all audiometry testing of hearing-loss claimants in a sound-controlled room is

valid. The second question presented is whether the appellant's VA audiological examination fully

describes the functional effects that his hearing disability has under the ordinary conditions of daily

life. For the reasons stated herein, we hold that the Secretary's policy for conducting audiological

examinations in a sound-controlled room is valid. We further hold that the appellant's VA

audiological examination was adequate. Accordingly, we will affirm the Board's decision with

respect to his bilateral-hearing-loss claim.

I. FACTS

The appellant served in the U.S. Marine Corps from April 1985 until June 2001. R. at 27.

In August 2001, he filed a claim with the Pittsburgh, Pennsylvania, VA regional office (RO)

requesting service connection for several conditions, including bilateral hearing loss. R. at 277-90.

In November 2001, the appellant received a VA audiological examination. Id. at 351-53. In

accordance with the governing VA regulation, the appellant's audiological examination consisted

of a pure tone audiometry test and a speech recognition test. Id. This test was performed in a sound-

controlled room. Id. During the examination, the audiologist also elicited information from the

appellant regarding his medical history. Id. at 351. Among other things, the audiologist noted that

the appellant's bilateral hearing loss and tinnitus were the result of acoustic trauma he experienced

during an in-service mortar explosion. The audiologist also noted that the appellant's bilateral

hearing loss and tinnitus "[a]ffects [his] ability to sleep." Id.

In February 2002, the RO granted the appellant service connection for bilateral hearing loss

and assigned a noncompensable rating. R. at 375-85. The appellant appealed this decision to the

Board. R. at 399, 478-94, 496. In January 2005, the Board issued the decision here on appeal. R.

at 1-25. The Board reviewed the November 2001 VA audiological examination and determined that

the appellant was not entitled to a compensable rating for his bilateral hearing loss. R. at 11-13. The

Board further found that a referral for an extraschedular rating was not warranted. R. at 13-14.

II. ANALYSIS

The appellant argues that the Secretary's policy of conducting audiometry testing in a sound-

controlled room is a plainly erroneous interpretation of, or is otherwise inconsistent with, VA's

regulations on medical examinations. Appellant's Br. at 22-23 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10

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(2006)); see also 38 C.F.R. § 4.85(a) (2006). He further argues that his audiological examination

does not include a full description of the functional effects his disability has under the ordinary

conditions of daily life. Br. at 22-23, 27-29 (citing 38 C.F.R. §§ 4.1, 4.10). Therefore, he contends,

the Board could not properly determine whether a referral for an extraschedular rating was

warranted. Id. (citing 38 C.F.R. § 3.321(b) (2006)). The Secretary argues that the prohibition on

judicial review of the rating schedule precludes this Court from deciding the issue the appellant has

raised on appeal. Secretary's Br. at 20 (citing Wanner v. Principi, 370 F.3d 1124, 1130-31 (Fed.

Cir. 2004); Byrd v. Nicholson, 19 Vet.App. 388, 391 (2005)). The Secretary further argues that the

appellant has not introduced any competent medical or scientific evidence demonstrating that his

policy of conducting audiometry testing in a sound-controlled room is improper. Secretary's Br. at

20. Finally, the Secretary argues that a description of the functional effects of the appellant's

disability is not necessary because the hearing-loss rating schedule relies exclusively on objective

test results that otherwise sufficiently account for the functional loss caused by a hearing disability.

Secretary's Br. at 19-20.

A. Jurisdiction

"'On every writ of error or appeal, the first and fundamental question is that of

jurisdiction . . . .'" Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (quoting Great S.

Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453 (1900)). Our jurisdiction, like that of any other

lower federal court, is determined solely by Congress. Christianson v. Colt Indus. Operating Corp.,

486 U.S. 800, 818 (1988). It cannot be expanded beyond that conferred by statute or permitted by

law. Id. Moreover, Congress has expressly prohibited our review of any "action relating to the

adoption or revision of the schedule of ratings for disabilities." 38 U.S.C. §§ 502, 7252; see Wanner,

370 F.3d at 1130 (explaining that this prohibition reflects an "'apprehension'" on the part of

Congress "'that the VA schedule for rating disabilities . . . would be destroyed by piecemeal review

of individual rating classifications'" (quoting H.R. REP. NO . 100-963, at 28 (1988))). The Secretary

argues that this prohibition deprives this Court of the power to decide the questions presented here.

We disagree.

The Secretary's authority to prescribe the rating schedule is contained in 38 U.S.C. § 1155.

This statute provides, in relevant part:

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The Secretary shall adopt and apply a schedule of ratings of

reductions in earning capacity from specific injuries or combination

of injuries. The ratings shall be based, as far as practicable, upon the

average impairments of earning capacity resulting from such injuries

in civil occupations. The schedule shall be constructed so as to

provide ten grades of disability and no more, upon which payments

of compensation shall be based, namely, 10 percent, 20 percent, 30

percent, 40 percent, 50 percent, 60 percent, 70 percent, 80 percent, 90

percent, and total, 100 percent.

38 U.S.C. § 1155. The Secretary has established the rating schedule in a series of regulations

located in part 4 of title 38 of the Code of Federal Regulations. Among other things, these

regulations list the diseases and injuries which correspond to a particular diagnostic code number,

the related symptoms, manifestations, and other characteristics that determine the proper level of

disability, and the amount of compensation that will be provided therefor.1 The Secretary has also

adopted several regulations prescribing the policies and procedures for conducting VA medical

examinations. See, e.g. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.85(a) (2007). These regulations, like those

establishing the rating schedule, are listed in part 4 of title 38 of the Code of Federal Regulations.

Most are listed in subpart A, "General Policy in Rating." However, at least one of these regulations,

38 C.F.R. § 4.85(a), is listed in subpart B, "Disability Ratings." The Secretary cited section 1155

as his authority for promulgating these regulations. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.85(a).

"The Secretary's discretion over the [rating] schedule, including procedures followed and

content selected, is insulated from judicial review with one recognized exception limited to

constitutional challenges." Wanner, 370 F.3d at 1131. Although the Secretary believes otherwise,

a regulation prescribing the policies and procedures for conducting a VA medical examination is not

a part of the rating schedule or subject to the prohibition on judicial review. The rating schedule

consists only of those regulations that establish disabilities and set forth the terms under which

compensation shall be provided. 38 U.S.C. § 1155. A regulation prescribing the policies and

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According to VA, "[t]he rating schedule is primarily a guide in the evaluation of disability

resulting from all types of diseases and injuries encountered as a result of or incident to military

service." 38 C.F.R. § 4.1 (2007). VA further recognizes that unlisted conditions may be granted

service connection and assigned a hyphenated rating, i.e., one that uses the diagnostic code provision

for an analogous disease or injury listed in the rating schedule. See 38 C.F.R. §§ 4.20 ("Analogous

ratings"), 4.27 (2007) ("Use of diagnostic code numbers").

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procedures for conducting a VA medical examination does not serve these purposes. Indeed, most

of these regulations do not mention a particular disability at all. See, e.g., 38 C.F.R. §§ 4.1, 4.2,

4.10. These regulations also do not set forth the terms under which disability compensation shall

be provided. Those terms and conditions are listed elsewhere, i.e., in the diagnostic codes and rating

tables applicable for a specific disease or injury.

Moreover, the VA General Counsel has opined that the mere placement of a regulation in

part 4 of title 38 of the Code of Federal Regulations does not make the regulation a part of the rating

schedule or subject to the prohibition on judicial review, and we agree. See VA Gen. Coun. Prec.

5-2002 (May 17, 2002) [hereinafter G.C. Prec. 5-2002] ("Placement of a regulation in Part 3 or Part

4 of the C.F.R. is not determinative of its susceptibility to judicial review."); see also Sabonis

v. Brown, 6 Vet.App. 426, 429 (1994) (stating that the Court is not bound by a precedent opinion

of the VA General Counsel). The Secretary's characterization of a particular regulation as part of

the rating schedule does not do so either. See Theiss v. Principi, 18 Vet.App. 204, 213 (2004)

(noting that a court need not accept the agency's characterization of a rule or regulation (citing Hemp

Indus. Ass'n v. Drug Enforcement Admin., 333 F.3d 1082, 1087 (9th Cir. 2003))). Again, the rating

schedule consists only of those regulations which establish disabilities and set forth the terms under

which compensation shall be provided. 38 U.S.C. § 1155. None of the specific regulatory

provisions at issue here serve these purposes. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.85(a).

More importantly, the Secretary's duty to perform medical examinations does not arise under

the rating schedule statute, 38 U.S.C. § 1155. In Green v. Derwinski, we held that a regulation

instructing the Board to return inadequate medical examinations, 38 C.F.R. § 4.2 (1989), was

promulgated by the Secretary pursuant to his statutory "duty to assist a claimant under 38 U.S.C.

§ 3007(a) (1988)," and that the "fulfillment of th[is] statutory duty . . . includes the conduct of a

thorough and contemporaneous medical examination, one which takes into account the records of

prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one."

1 Vet.App. 121, 123-24 (1991); see also 38 U.S.C. § 5103A(d). In other words, the Secretary's

medical examination regulations are actually his construction of the "'gap left . . . by Congress'" in

the duty-to-assist statute. Chevron v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984) (quoting

Morton v. Ruiz, 415 U.S. 199, 231 (1974)); see 38 U.S.C. § 501 (general rulemaking authority).

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Moreover, Congress has deliberately chosen not to include the Secretary's duty to conduct

medical examinations in the rating schedule statute. This omission suggests that judicial review of

VA medical examination regulations is allowed, not that it is precluded. See LeFevre v. Sec'y, Dep't

of Veterans Affairs, 66 F.3d 1191, 1198 (Fed. Cir. 1995) (acknowledging the "well-settled

presumption that agency actions are reviewable"). Furthermore, our statutory obligations require

that we ensure the integrity of the procedures used by the Secretary to gather the evidence necessary

to substantiate a claim. Jolley v. Derwinski, 1 Vet.App. 37, 39-40 (1990) (holding that VA must

follow its own procedural rules by assisting a claimant in obtaining newly discovered medical

records). Our review of the Secretary's medical examination regulations is part of this obligation.

For these reasons, we hold that a regulation prescribing the procedures for conducting a medical

examination is not part of the rating schedule or subject to the prohibition on judicial review of the

rating schedule by this Court.

In addition, even if the Secretary's medical examination regulations were part of the rating

schedule, the prohibition on judicial review would not preclude the Court from deciding the

questions presented. Congress has "only prohibit[ed] review of the substance of the Secretary's

action with respect to the schedule of ratings." Fugere v. Derwinski, 972 F.2d 331, 335 (Fed. Cir.

1992); see also G.C. Prec. 5-2002 ("Generally, the prohibition on judicial review . . . refers only to

the provisions that prescribe the average impairments of earning capacities, divided into ten grades

of disability upon which payments of compensation are based, adopted and adjusted under 38 U.S.C.

§ 1155."). Therefore, the Secretary's interpretation of a regulation prescribing the content of the

rating schedule can be reviewed. See Smith, 451 F.3d at 1347-48; Sellers v. Principi, 372 F.3d 1318,

1324 (Fed. Cir. 2004); Mariano v. Principi, 17 Vet.App. 305, 317-18 (2003). Indeed, the Secretary's

interpretation of a regulation he administers–though entitled to substantial deference–is not beyond

scrutiny. See Smith, 451 F.3d at 1349-50.

The appellant has challenged the Secretary's policy of conducting all audiometry testing in

a sound-controlled room. He has not directly challenged the substance or content of any VA

regulation, compare Wanner, supra, with Sellers, supra. Nor has he lodged a procedural challenge

to any final rule or regulation prescribed by the Secretary. See 38 U.S.C. § 502; Fugere and Theiss,

both supra. The prohibition on judicial review of the rating schedule would not preclude the Court

from answering this question of regulatory interpretation even if the Secretary's medical examination

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regulations were a part of the rating schedule. For these reasons, the Court holds that we have

jurisdiction to consider the issues raised by the appellant here.

B. The Secretary's Policy for Conducting Audiological Examinations

The first issue is whether VA's policy of conducting audiometry testing in a sound-controlled

room is a plainly erroneous interpretation of, or is otherwise inconsistent with, VA's regulations on

medical examinations. See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); Smith,

451 F.3d at 1349, 1351. Congress has not prescribed the precise procedures for conducting VA

medical examinations. See 38 U.S.C. § 5103A(d); see also Chevron, 467 U.S. at 842-43. The

Secretary has exercised his broad authority to resolve this ambiguity by prescribing a series of

regulations on this subject. See 38 U.S.C. § 501. One of these regulations provides, in relevant part,

that "[a]n examination for hearing impairment for VA purposes must be conducted by a state-

licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and

a puretone audiometry test." 38 C.F.R. § 4.85(a). The Secretary has also provided his audiological

examiners with additional guidance. See HANDBOOK OF STANDARD PROCEDURES AND BEST

PRACTICES FOR AUDIOLOGY COMPENSATION AND PENSION EXAMINATIONS, sec. D, pts. 1, 17 (K.C.

Dennis, ed. 2004) [hereinafter Handbook]. The Handbook states that "[a]ll threshold audiometric

tests shall be performed in a sound-controlled room that meets Booth Audiometric Examination

Specifications . . . for construction, fire protection, acoustic performance, and electromagnetic

shielding and Maximum Permissible Noise Levels for Audiometric Rooms[.]" Handbook, sec. D,

pts. 1, 17. This policy is apparently designed to ensure that all audiometric testing is performed in

safe conditions and that the results provided are diagnostically and clinically sound. See VA

CLINICIAN 'S GUIDE , §§ 5.7-5.8 (Lewis R. Coulson, M.D., ed., 2002).

The appellant has not shown that the Secretary's policy is a plainly erroneous interpretation

of § 4.85(a) or that it is otherwise inconsistent with VA's medical examination regulations. See 38

C.F.R. §§ 4.1, 4.2, 4.10. In particular, the appellant has offered no expert medical evidence

demonstrating that an audiometry test conducted in a sound-controlled room produces inaccurate,

misleading, or clinically unacceptable test results. Nor has the appellant offered any expert medical

evidence demonstrating that an alternative testing method exists and that this method is in use by

the general medical community. The appellant has simply offered his own unsubstantiated lay

opinion as to the impropriety of this testing method. The Court will not invalidate the Secretary's

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chosen policy on this basis. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). Moreover,

the Secretary's audiological examinations are designed for one purpose, i.e., to obtain the

information necessary for the full and accurate application of the hearing loss rating schedule. 38

C.F.R. § 4.1. The Secretary has chosen to construct the hearing loss rating schedule based

exclusively on the results provided from two objective tests, a pure tone audiometry test and a

speech discrimination test. 38 C.F.R. § 4.85(a). We cannot second guess the Secretary's decision

in this regard. Therefore, an appellant challenging the Secretary's policy concerning VA's

audiological examination regulations would need to show that the policy is a plainly erroneous

interpretation of, or is otherwise inconsistent with, VA's regulations. See Smith, supra. The

appellant has not met this burden.

There is also no indication that VA has effectively amended § 4.85(a) by adopting the policy

in the Handbook. See United States v. Picciotto, 875 F.2d 345 (D.C. Cir. 1989); Theiss, 18 Vet.App.

at 213-214. This policy did not create "new substantive law." 18 Vet.App. at 214 (italics in

original). It merely clarified the regulation by "provid[ing] concrete guidance as how" the regulation

should "be applied in practice." Stinson v. United States, 508 U.S. 36, 44 (1993) (holding that the

sentencing commission's commentary to the sentencing guidelines is treated as an agency's

interpretation of its own legislative rule). Moreover, the Handbook "reflect[s] the agency's fair and

considered judgment on the matter in question." Auer v. Robbins, 519 U.S. 452, 462 (1997). It was

created prior to the pending litigation and the policy prescribed therein is consistent with the

information provided in other guidance documents issued by the Secretary. See VA CLINICIAN 'S

GUIDE , supra. Thus, the Handbook is "in no sense a 'post hoc rationalizatio[n]' advanced by an

agency seeking to defend past agency action against attack." Auer, 519 U.S. at 462 (quoting Bowen

v. Georgetown Univ., 488 U.S. 204, 212 (1988)). For these reasons, the Court upholds VA's policy

of conducting audiometry testing in a sound-controlled room.

C. The Adequacy of the Appellant's Audiological Examination

A VA medical examination must be "thorough . . . so that the evaluation of the claimed

disability will be a fully informed one." Green, 1 Vet.App. at 124; see 38 C.F.R. §§ 4.1, 4.10.

Moreover, "in addition to [furnishing] etiological, anatomical, pathological, laboratory and

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prognostic data required for ordinary medical classification," a VA medical examination must also

include a "full description of the effects of disability upon the person's ordinary activity." 38 C.F.R.

§ 4.10. In his brief, the Secretary argues that the mere inclusion of objective test results in an

audiological examination report satisfies the former regulatory requirement because the

administration of a speech recognition test during an audiological examination sufficiently accounts

for the functional effects this disability has on a person's ordinary activities. 38 C.F.R. § 4.85(a).

The Secretary also argues that the hearing loss rating schedule relies on the mechanical application

of objective test results. Therefore, the inclusion of any additional description of the functional

effects caused by a hearing disability can serve no purpose. The Secretary's arguments are

unpersuasive.

A court may defer to an agency interpretation of a regulation even if proffered "in a litigating

document." Smith, 451 F.3d at 1350. Moreover, an agency remains free to announce a new

interpretation of a regulation without observing all of the formalities applicable to notice-and-

comment rulemaking. See Stinson, 508 U.S. at 45-46 (citing the informal rulemaking procedures

prescribed in 5 U.S.C. § 553). However, VA counsel's arguments on appeal are nothing more than

his post hoc rationalizations of actions taken in the case. The Secretary, in an internal guidance

document, recently reaffirmed the need for VA audiologists to describe the effect of a hearing

disability on a claimant's occupational functioning and daily activities. Revised Disability

Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007) (on

file with VA), available at http://www.tvc.state.tx.us/VA_Fast_Letters.htm (VA Benefits

Administration communication to All VA Regional Offices and Centers instructing audiologists "to

describe effects on occupational functioning and daily activities" in "both examination worksheets").

As this document indicates, the Secretary has rejected the policy urged by his counsel on appeal.

Instead, he has adopted a different approach, one that presumably better serves the objectives of the

relevant regulations. The policy of describing the results of all tests conducted makes sense,

particularly in the context of the extraschedular rating provision. 38 C.F.R. § 3.321(b). Unlike the

rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to

determine whether a referral for an extraschedular rating is warranted. The Secretary's policy

facilitates such determinations by requiring VA audiologists to provide information in anticipation

of its possible application. In any event, the position taken by counsel does not accurately represent

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the Secretary's "fair and considered judgment on the matter in question." Auer, 519 U.S. at 462.

Accordingly, the Court defers to the policy adopted by the Secretary in his previous guidance

documents and holds that, in addition to dictating objective test results, a VA audiologist must fully

describe the functional effects caused by a hearing disability in his or her final report.

The Court holds that the VA audiologist provided such a description here. The audiologist's

report notes that the appellant's bilateral hearing loss and tinnitus "[a]ffects [his] ability to sleep."

R. at 351-53. This indicates that the examiner did elicit information from the appellant concerning

the functional effects of his disability. That is all the applicable regulatory provisions require. See

38 C.F.R. §§ 4.1, 4.2, 4.10. The audiologist was not required to read the appellant's mind. See

Cintron v. West, 13 Vet.App. 251, 259 (1999) (VA "ha[s] no obligation to read the mind of the

veteran"). Nor was he required to offer a speculative opinion based on information that the appellant

had not provided. See Bloom v. West, 12 Vet.App. 185, 187 (1999) (speculative medical opinion

is inadequate for rating purposes). Moreover, even if the audiologist's description of the functional

effects of his hearing disability was somehow defective, the appellant has not identified any

evidence in the record indicating that a referral for an extraschedular rating is warranted. The

appellant bears the burden of demonstrating on appeal any prejudice caused by a deficiency in an

examination, and he has failed to do so in every respect here. See Marciniak v. Brown, 10 Vet.App.

198, 201 (1997) (stating that the appellant must allege "with specificity any prejudice" that results

from an alleged procedural error); cf. Moore v. Nicholson, 21 Vet.App. 211, 216-17 (2007)

(concluding that the essential fairness of the adjudication was not affected by VA's failure to obtain

service medical records). The Court, therefore, holds that the appellant's audiological examination

was adequate for rating purposes.

The appellant's final argument is that the Board provided inadequate reasons or bases for

assigning him a noncompensable disability rating and for not referring his claim for an

extraschedular rating. Appellant's Br. at 24-30. The Board is required to include in its decision a

written statement of the reasons or bases for its findings and conclusions on all material issues of

fact and law presented on the record; that statement must be adequate to enable an appellant to

understand the precise basis for the Board's decision, as well as to facilitate informed review in this

Court. See 38 U.S.C. 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.

Derwinski, 1 Vet.App. 49, 56-57 (1990). In its decision, the Board explained that as a matter of law

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the appellant cannot receive a higher initial disability rating for his condition, because the hearing-

loss rating schedule calls for the mechanical application of the test scores he received on his

audiological examination. See Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992). Moreover, the

Board also explained that the appellant's disability picture was not so exceptional or unusual as to

warrant a referral for an extraschedular rating. The Court holds that these statements were adequate

and that there is no evidence in the record to question the basis for the Board's conclusion.

III. CONCLUSION

Accordingly, the appellant's appeal of his bilateral tinnitus claim is DISMISSED. The

Board's January 7, 2005, decision with respect to the appellant's COPD claim is VACATED and that

matter is REMANDED for further adjudication. The Board's decision is otherwise AFFIRMED.

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