Single Judge Application, Claim Development Must be in Neutral Manner, Austin v. Brown, 6 Vet.App. 547, 552 (1994); Mariano v. Principi, 17 Vet.App. 305, 312 (2003); Hart v. Mansfield, 21 Vet.App. 505, 508 (2007); Tyrues, 23 Vet.App. at 183

Excerpt from decision below: "Sapcoe contends that the Board's statement of reasons or bases for its decision was inadequate because the Board relied on "inherently inconsistent" propositions regarding his history of noise exposure in assessing the probative value to be assigned to the various medical opinions of record.Id. at 12. The Court agrees that the Board's statement of reasons or bases was inadequate, albeit for different reasons." =========================================== ""However, it is equally well established that VA must develop claims and gather evidence in a neutral manner." Tyrues, 23 Vet.App. at 183; see Austin v. Brown, 6 Vet.App. 547, 552 (1994) ("[B]asic fair play requires that evidence be procured by the agency in an impartial, unbiased, and neutral manner."). Specifically, "VA may not pursue . . . development if the purpose is to obtain evidence against the claim." Hart v. Mansfield, 21 Vet.App. 505, 508 (2007). As the Court explained in Mariano v. Principi: Because it would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose.17 Vet.App. 305, 312 (2003) (citing 38 U.S.C. § 7104(d)(1))." ============================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1606 CHARLES SAPCOE, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before HAGEL, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. HAGEL, Judge: Charles Sapcoe appeals through counsel a January 15, 2010, Board of Veterans' Appeals (Board) decision denying entitlement to VA benefits for bilateral hearing loss.1 Record (R.) at 3-15. Mr. Sapcoe's Notice of Appeal was timely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither party requested oral argument or identified issues that theybelieve require a precedential decision of the Court. Because the Board provided an inadequate statement of reasons or bases for its decision, the Court will vacate the January 15, 2010, Board decision and remand the matter for readjudication consistent with this decision. I. FACTS Mr. Sapcoe served on active duty in the U.S. Air Force from February 1957 to February 1961. Prior to entering the military, Mr. Sapcoe worked as a hydraulic press operator for 15 months. In service, he worked as an aircraft control and warning radar repairman and was exposed to noise The Board also awarded Mr. Sapcoe VA benefits for tinnitus and otitis media, and those claims, therefore, are not the subject of this appeal. See 38 U.S.C. § 7266(a) (stating that the Court only reviews final Board decisions adverse to the claimant). 1 from heavy ground radar equipment and generators without hearing protection. In October 1960, Mr. Sapcoe perforated his right ear drum with a Q-tip and was subsequently diagnosed with an ear infection, for which medication was prescribed. Mr. Sapcoe's January1961 separation examination indicates that he punctured his right tympanic membrane during service, but that he had no complications or sequellae from that injury at that time. Mr. Sapcoe's ears were otherwise assessed as normal and the results of an audiological examination revealed that his hearingwas within normal limits. In June 1986, 25 years after separation from service, Mr. Sapcoe began receiving treatment from private physicians for various ear problems. In December 1993, Mr. Sapcoe sought treatment for increased ear congestion that he attributed to taking two recent flights while he had a cold. He was subsequently diagnosed with "high frequency neurosensory hearing loss and eustachian tube dysfunction." R. at 328. Mr. Sapcoe's private physicians later attributed his hearing loss to noise exposure in the military. In September 2005, Mr. Sapcoe filed a claim for VA benefits for bilateral hearing loss, among other ear conditions. In October 2005, Mr. Sapcoe attended a VA audiological examination. The examination report stated that,followingservice, Mr. Sapcoe worked in a machine shop for nine years and periodically visited radar sites for 23 years without wearing hearing protection. The examiner diagnosed Mr. Sapcoe with bilateral hearing loss and opined that it was less likely than not related to service because his hearing was within normal limits at separation, his hearing declined recently, and "the greatest amount of his noise exposure appears to have been after separation from the service." R. at 499. Accordingly, in February 2006, a VA regional office denied his claim for benefits for bilateral hearing loss. Mr. Sapcoe filed a timely Notice of Disagreement with that decision and subsequently perfected his appeal. In March 2006, Mr. Sapcoe submitted a letter to VA explaining that he only worked in a machine shop for four months, not nine years as the VA examiner stated, and that, during the rest of his career, he was only exposed to noise on an occasional basis. He reiterated those assertions to a VA examiner in April 2006 and at a regional office hearing in February 2007. In March 2007, Mr. Sapcoe submitted another letter to VA asserting that "all of [his] exposure to noise came from [] working with and around heavy ground radar equipment while in the [Air Force] and hardly any 2 from [his] civilian career," and clarifying that, during the 23-year period following service where he periodically worked on radar sites, he "was always in a noise[-]free environment building." R. at 344. In April 2008, Mr. Sapcoe testified at a Board hearing that his hearing loss began "immediately in the 1960s" and denied being exposed to noise after service. R. at 234. In June 2008, the Board remanded Mr. Sapcoe's claim for additional development, including a new VA audiological examination, because (1) the private medical records did not take into account his pre-service noise exposure as a hydraulic press operator or the results of his audiological examination at separation from service; and (2) the October 2005 VA medical examination was based on an inaccurate history of noise exposure. Accordingly, in February 2009, Mr. Sapcoe attended a VA medical examination conducted by an audiologist. The audiologist noted that the claims file contained conflicting information regarding the onset of Mr. Sapcoe's hearing loss and his post-service noise exposure. After summarizing Mr. Sapcoe's pertinent medical history and performing an audiological examination, the audiologist diagnosed him with bilateral sensorineural hearing loss and opined that it was less likely than not related to service. The audiologist also indicated that a separate VA examination performed by a physician was necessary to address the etiology of his otitis media. Consequently,inApril 2009,Mr.SapcoeunderwentaVAeardiseaseexamination conducted by a physician. The physician reviewed Mr. Sapcoe's claims file and diagnosed him with bilateral sensorineural hearing loss, among other conditions. The physician then opined: It is at least as likely as not that the primary etiology for the bilateral sensorineural hearing loss . . . is service related military noise exposure. This is due to the amount of noise [Mr. Sapcoe] was exposed to in the service and that he reported the onset of the hearing loss soon after he left the service. Furthermore, he denied professional or recreational noise exposure after leaving the service. It is least likely that the Q-tip injury to the right tympanic membrane contributed to his hearing loss. . . . The tympanic membrane is normal and intact and the hearing loss is sensorineural and not conductive in nature. R. at 155. 3 In light of those conflicting medical opinions, the Board member requested a medical advisoryopinion from the Veterans Health Administration to determine the etiologyof Mr. Sapcoe's hearing loss. In October 2009, a VA audiologist provided such an opinion: In view of the conflicting private and VA medical opinions of record, it is less likely as not (less than 50/50 probability) that [Mr. Sapcoe]'s claimed hearing loss is the result of his active duty in the service. His separation medical evaluation . . . is clear. Ears were examined and considered to be normal. . . . The "Whispered Voice Test" was also performed and results were 15/15 bilaterally. It should be noted that the "Whispered Voice Test"isnotfrequencyspecificand is insensitive to high frequency hearing loss, the type of hearing losses most likely to occur as a result of noise exposure[;] however, the full [a]udiological evaluation above indicates that hearing was well within normal limits in the high frequency ranges bilaterally. R. at 45. In January 2010, the Board issued the decision currently on appeal, which, in pertinent part, denied entitlement to benefits for bilateral hearing loss. Specifically, the Board discounted the positive nexus opinions provided by Mr. Sapcoe's private physicians because they "made no reference to [his] pre- or post-service noise exposure, focusing [their] attention solely on the history of in-service noise exposure as related by[Mr. Sapcoe]," and likewise discounted the April 2009 VA medical opinion because the examiner "relied on [Mr. Sapcoe]'s statement that he had no traumatic noise exposure following his separation from service." R. at 14. The Board noted that those opinions failed to consider Mr. Sapcoe's post-service noise exposure while working next to a machine shop and at radar sites and therefore concluded that they were not entitled to any probative weight. Instead, the Board preferred the October 2005, April 2006, and February 2009 VA medical opinions because they took into account Mr. Sapcoe's pre- and post-service employment, as well as "the vague and sometimes inconsistent answers provided by[Mr. Sapcoe] when questioned as to his noise exposure." Id. The Board also favored those opinions because they were "reinforced by the October 2009 VA medical opinion . . . that noted the normal separation audiometric examination." Id. Consequently, the Board found that the preponderance of the evidence was against Mr. Sapcoe's claim. 4 II. ANALYSIS Mr. Sapcoe argues that the Board erred in obtaining the October 2009 medical advisory opinion from the Veterans Health Administration because the only purpose for obtaining such an opinion was to develop evidence against his claim. Specifically, Mr. Sapcoe asserts that, prior to the Board's request for the medical advisory opinion, he was entitled to an award of benefits for bilateral hearing loss pursuant to U.S.C. § 5107(b) and 38 C.F.R. § 3. 102 because the Board implicitly found that the evidence of record was in equipoise, and that the Board subsequently requested the medical advisory opinion solely to "break the deadlock" between the conflicting February and April 2009 VA medical opinions. Appellant's Brief (Br.) at 10. Alternatively, Mr. Sapcoe contends that the Board's statement of reasons or bases for its decision was inadequate because the Board relied on "inherently inconsistent" propositions regarding his history of noise exposure in assessing the probative value to be assigned to the various medical opinions of record.Id. at 12. The Court agrees that the Board's statement of reasons or bases was inadequate, albeit for different reasons. "[I]t is well established that the Board has the discretion to determine whether further development is needed to make a decision on a claim." Tyrues v. Shinseki, 23 Vet.App. 166, 182(2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), judgment vacated, __ S. Ct. __ (No. 10- 1405, Oct. 3, 2011). To that end, "[t]he Board may obtain a medical opinion from an appropriate health care professional in the Veterans Health Administration . . . on medical questions involved in the consideration of an appeal when, in its judgment, such medical expertise is needed for equitable disposition of an appeal." 38 C.F.R. § 20.901(a). The Court will not overturn the Board's determination that a medical opinion from the Veterans Health Administration was necessary to decide a claim unless it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See Stringham v. Brown, 8 Vet.App. 445, 448 (1995) ("The standard of review this Court applies to a discretionary determination made by the Secretary is whether such determination is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."); see also Boutwell v. West, 11 Vet.App. 387, 391 (1998) (applying that standard of review to the Secretary's decision to obtain an independent medical examination). 5 "However, it is equally well established that VA must develop claims and gather evidence in a neutral manner." Tyrues, 23 Vet.App. at 183; see Austin v. Brown, 6 Vet.App. 547, 552 (1994) ("[B]asic fair play requires that evidence be procured by the agency in an impartial, unbiased, and neutral manner."). Specifically, "VA may not pursue . . . development if the purpose is to obtain evidence against the claim." Hart v. Mansfield, 21 Vet.App. 505, 508 (2007). As the Court explained in Mariano v. Principi: Because it would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose. 17 Vet.App. 305, 312 (2003) (citing 38 U.S.C. § 7104(d)(1)). The Board's statement of reasons or bases is adequate if it allows a claimant to understand the precise basis for the Board's decision and facilitates review in this Court. Gilbert v. Derwinski, 1 Vet.App. 49, 57 ( 1990). The Board may commit error requiring remand when it fails to provide such a statement. Id. In June 2008, the Board determined that the various private medical opinions of record were inadequate because the physicians who rendered them "were apparently not made aware that[,] prior to service, [Mr. Sapcoe] was employed for 15 months as a hydraulic press operator; nor did the physicians address the findings of [his] separation exam[ination] and his January 1995 worker's compensation claim." R. at 226. Likewise, the Board determined that the October 2005 VA medical examination was also inadequate because it was "apparently based . . . on an inaccurate recounting of [Mr. Sapcoe]'s exposure to noise through his work following the military. It is apparent that the examiner was also unaware that [Mr. Sapcoe] had pre-service noise exposure as a hydraulic press operator for 15 months." Id. (emphasis omitted). Accordingly, the Board remanded Mr. Sapcoe's claim for benefits for bilateral hearing loss to obtain a medical opinion " based on the complete claims file" that would "address and reconcile the contradictory etiological opinions of record." Id. Accordingly, theBoardobtainedtheFebruary2009VAaudiologicalexaminationandtheApril2009 VA medical examination, which resulted in conflicting conclusions regarding the etiology of Mr. Sapcoe's hearing loss. In light of these conflicting opinions, the Board apparently determined that it was necessaryto obtain a medical advisoryopinion to equitablydecide the claim. As noted above, 6 the Board has the discretion to obtain such an opinion, provided that it adequately explains its rationale for doing so. Here, however, the Board made no attempt to explain why it sought the medical advisory opinion from the Veterans Health Administration. Rather, it simply summarized the opinion and found that it "reinforced" the October 2005, April 2006, and February 2009 VA medical opinions already of record. R. at 14. Absent an explanation of why a medical advisory opinion was necessary, and in light of the conflicting medical evidence that the Board could have determined was in equipoise, the Board's decision to obtain a medical advisory opinion on the etiology of Mr. Sapcoe's bilateral hearing loss "reasonably could be construed as obtaining additional evidence" against his claim. Previous HitMarianoNext Document, 17 Vet.App. at 312. Consequently, the Court concludes that the Board's statement of reasons or bases for its decision to obtain a medical advisory opinion was inadequate. Moreover, the Board's explanation for the weight it accorded to the other medical opinions was also deficient for a number of reasons. First, the Board relied on the October 2005 VA medical opinion that the Board found to be inadequate in its June 2008 decision. Specifically, in the Board decision currently on appeal, the Board found that opinion to be probative because it "noted [Mr. Sapcoe's] pre-service employment as a hydraulic press operator, as well as post-service noise exposure while working next to a machine shop and as a federal worker visiting radar sites." R. at 14. However, in the June 2008 Board decision, the Board found that another VA medical opinion was necessary, in part, because, the October 2005 VA medical opinion was " apparently based . . . on an inaccurate recounting of [Mr. Sapcoe]'s exposure to nosie through his work following the military" and because "the examiner was also unaware that [Mr. Sapcoe] had pre-service noise exposure as a hydraulic press operator for 15 months." R. at 226. These statements are clearly contradictory and the Board did not explain why the October 2005 VA medical opinion, which it previouslydeterminedwasinadequatein 2008, wasadequateandthereforeworthyofprobativevalue in 2010. Second, the Board also relied on the April 2006 VA medical opinion to deny Mr. Sapcoe's claim for benefits for bilateral hearing loss, even though that opinion only addressed the etiology of his otitis media, not his hearing loss. Therefore, absent any explanation as to why the April 2006 7 VA medical opinion was relevant to Mr. Sapcoe's claim for benefits for hearing loss, it is entirely unclear why the Board found that it weighed against that claim. Finally, the Board did not explain why a failure to discuss Mr. Sapcoe's pre-service noise exposure rendered the private medical opinions and the April 2009 VA medical opinion less probative. To the extent that the Board implied that Mr. Sapcoe's pre- service noise exposure was responsible for his hearing loss, the Board pointed to no evidence of record to support that conclusion, nor did it discuss the presumptions of soundness and aggravation. See Wagner v. Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004). Moreover, to the extent that the Board implied that Mr. Sapcoe was not credible because he did not provide a complete history of noise exposure to those examiners, the Board made no such express credibility determination in its decision. In short, the Board's failure to explain the significance of Mr. Sapcoe's pre- service noise exposure frustrates judicial review. See Gilbert, 1 Vet.App. at 57. Based on the foregoing, the Court concludes that the Board's statement of reasons or bases for its decision was inadequate. Although Mr. Sapcoe argues that reversal is warranted, the Court concludes that he has not carried his burden of demonstrating that "the only permissible view of the evidence is contraryto the Board's decision." Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)). Rather, vacatur and remand is the appropriate remedy in this case because the Board failed to provide an adequate statement of reasons or bases for its decision. See Tucker v. West, 11 Vet.App. 369, 374 (1998). On remand, Mr. Sapcoe is free to submit additional evidence and argument in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). Further, "[a] remand is meant to entail a critical examination of the justification for the decision" by the Board. Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims). 8 III. CONCLUSION Upon consideration of the foregoing, the January 15, 2010, Board decision is VACATED and the matter is REMANDED for readjudication consistent with this decision. DATED: October 24, 2011 Copies to: Scott J. Popma, Esq. VA General Counsel (027) 9