McKinney v. McDonald, Opinion Number 13-2273, decided
March 11, 2016 involves a claim for bilateral hearing loss and a respiratory
condition related to asbestos. This decision
has everything in it including a discussion of the presumption of soundness,
whether an examination is adequate and whether the examiner would have to
resort to speculation, and the VA’s duty to assist.
The veteran’s entrance examination did not note defective
hearing but an audiology note showed a hearing problem at 400 hertz that the Navy
considered to be minor and causing no significant limitation. The veteran developed hearing loss which he
associated with artillery fire and noise from helicopters. The VA denied noting his entrance hearing
loss, stating he was not owed a presumption of soundness, and relying on a
medical examination that stated without an exit examination showing his hearing
it would be speculative to connect his hearing loss.
The Court determined that because the hearing loss noted on
his entrance examination did not meet the VA’s definition of a disability under
38 CFR Section 3.385 that the veteran was entitled to the presumption of
soundness. The Court noted the
presumption of soundness is owed unless an entrance examination “noted” a
defect, infirmity or disorder. The court
reiterated that a history of a condition does not constitute a notation of a
pre-existing condition for the purposes of the presumption of soundness.
While accepting that hearing loss was noted on the entrance examination,
the court determined that hearing loss did not meet the VA’s definition of a hearing
disability and, therefore, the hearing loss was not a defect which would
prevent the application of the presumption of soundness. The Court reached this
conclusion by noting that 3.385 states that impaired hearing is not a
disability for compensation purposes unless the audiometric threshold is 40 db
or greater—here the threshold was 35 db.
The Court also determined the VA’s examination was
inadequate because she did not provide a rationale for concluding that an
audiology test from the veteran’s separation was needed—the court stated it was
unclear if her opinion that she would have resort to speculation reflected the limits
of her knowledge or the knowledge of the wider medical community. Id. at *17.
The Court also took the examiner for task for failing to consider the
veteran’s testimony that he first noticed hearing loss during service or
shortly after discharge.
Regarding the respiratory issue, the veteran submitted
private medical statements linking his respiratory condition, asbestosis, to
asbestos exposure. However, the VA
rejected them because they were made several years prior to his application for
benefits and also stated there was no current of a current diagnosis of
asbestosis. The Court noted the VA was
to consider all respiratory problems, not just asbestosis. The Court agreed with the veteran that the VA
gave inadequate reasons or bases for summarily rejecting the 1996 medical reports
because they were not sufficiently proximate to the date of the claim. Id. at *21.
The Court also noted the Board relied on an inadequate VA examination
which did not mention the prior diagnosis of asbestosis. The Court also found the VA did not fulfill
its duty to assist. The veteran filed
out an authorization for Dr. Attiah records related to asbestos exposure. The VA sent a request for the records to a
hospital but then received a form stating the hospital did not have the records
but recommended the VA call his office at the number the veteran had already
provided to the VA. The VA simply did
not call that number or attempt to gain those records in any other way, which
the Court considered “particularly glaring because the Board found that the
only evidence in the record that Mr. McKinney was diagnosed with asbestosis was
evidence from 1996. Yet, the 2003
referral sheet from Methodist Charlton Medical Center indicates that the referring
physician attributed Mr. McKinney’s current respiratory disorder to ‘apparent
exposure to asbestos.’” Id. at *26.
A dissent by Judge Bartley expressed her opinion that
because defective hearing was not listed on the entrance examination, it is
unfair to consider that a defect. She
worried “Permitting retrospective interpretation of an entry examination allows
VA to transform the 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
requirements. 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 indicting
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.
Decision by Judge Schoelen and joined by Judge Davis, concurrence
by Judge Bartley.
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