Citation Nr: 1340030 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 09-02 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acoustic neuroma, right side of the head. REPRESENTATION Appellant represented by: Robert B. Gross, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1983 to April 1985 (and had subsequent National Guard service). This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In May 2010 the Board remanded the case for additional development. At a June 2012 hearing before a Decision Review Officer (DRO) at the RO, the Veteran testified as to his acoustic neuroma and its claimed symptoms and impairment; a transcript of the hearing is associated with the claims file. As acoustic neuroma, right side of the head, is the underlying disability for which service connection is sought, the matter has been recharacterized as shown above. The appeal is being REMANDED to the RO. VA will notify the appellant if further action on his part is required. REMAND The May 2010 Board remand noted: Private treatment records show that, in July 1987, [the Veteran] was hospitalized and underwent a right posterior fossa craniotomy. In November 1986 (one year and seven months after discharge from active duty), he was seen for headaches, nausea and vomiting, and was felt to have meningitis. Although he was treated appropriately and initially did well, he began losing his hearing in his right ear and developed progressive hearing loss. During the three to four months prior to the July 1987 admission, he developed ataxia, a pressure sensation in his head with a stiff sore neck, and asymmetry of opening of his eyes (the right side seen to open wider than the left.) A CT scan on July 16, 1987, found a hydrocephalus with a right cerebellar pontine angle tumor, compatible with acoustic neurinoma. The records also note that the Veteran had been admitted to a different facility (Seton) the week prior for a ventriculoperitoneal shunt. The complete medical records in connection with the November 1986 treatment for meningitis, the report of the July 16, 1987 CT scan, and the medical records in connection with the ventriculoperitoneal shunt performed at Seton are not associated with the claims file. Thus, VA has notice of additional likely pertinent records; if available, such records must be secured and associated with the claims file. In June 2010, the RO asked the Veteran to provide the identifying information and authorizations for VA to obtain the clinical records from all medical providers/facilities where he had received treatment for complaints related to his acoustic neuroma. This request specifically included the complete clinical records of all treatment the Veteran received beginning in November 1986 for what was thought to be meningitis, the report of the July 16, 1987 CT scan, and the complete clinical records leading up to, and in connection with, the 1987 ventriculoperitoneal shunt procedure at Seton Hospital. He did not respond (although his attorney submitted additional argument with exhibits in May 2012 and he provided testimony at a hearing before a DRO in June 2012). In the May 2012 written argument, the Veteran's attorney cited to the Veterans Claims Assistance Act of 2000 (VCAA) as requiring VA to make reasonable efforts to obtain relevant (non-federal) records and to continue to attempt to obtain relevant federal records until it is reasonably certain the federal records are unobtainable. As the May 2010 Board remand did not advise the Veteran that ultimately it is his responsibility to ensure that private records are received, another attempt to secure the records is necessary. The Veteran is once again advised that under 38 C.F.R. § 3.158, if evidence requested in connection with a claim for VA benefits (to include identifying information and releases for private records) is not received within a year of the request, the claim is to be considered abandoned. The May 2010 Board Remand ordered an examination of the Veteran to determine the likely etiology of his right acoustic neuroma. The examiner was to explain the rationale for all opinions offered, and specifically comment on the opinions that are already in the record (October 2008 private and 2009 VA), expressing agreement or disagreement with each, and the basis for the agreement or disagreement. The Veteran was afforded a VA neurologic examination in July 2010 (with addendums to the report provided in July 2010 and July 2012). In the addendum opinions, the examiner opined that it is more likely than not the Veteran's acoustic neuroma was present prior to military service. In the July 2010 addendum, the examiner opined that "the Veteran "was shown to have an asymetric high-frequency hearing loss in 1984 which progressively increased asymmetrically during service;" however, the examiner further opined that "[g]iven the fact that the cause of these tumors remains unknown, it cannot be said that the tumor was or was not aggravated during military service." In the subsequent, July 2012 addendum, the examiner opined that "[i]t is unlikely given the nature of this tumor that it could have been aggravated during military service." No further explanation was provided and the examiner did not address/consider the opinions that are already in the record. Further, since the May 2010 Board remand, the Veteran has submitted two additional opinions in support of his claim (dated in June and October 2010) from C. N. Bash, M.D. The United States Court of Appeals for Veterans Claims (Court) has held that a medical examination report must contain not only clear conclusions with citation to supporting factual data, but also a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Consequently, the examination report is inadequate for rating purposes, and another examination is necessary. Finally, in the July 2012 addendum opinion, the examiner noted that "[t]he cause for acoustic neuroma is unknown however bilateral acoustic neuroma is clearly genetic in origin." A congenital or developmental abnormality is not of itself a disease or injury within the meaning of applicable legislation [i.e., not a compensable disability]. 38 C.F.R. §§ 3.303(c), 4.9. However, service connection may be granted for disability due to aggravation of a congenital abnormality by superimposed disease or injury in service. See Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). VA's General Counsel has held that a congenital defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990). See also 38 C.F.R. § 3.303(c). Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify all providers of treatment he received for complaints related to his acoustic neuroma since his discharge from active duty service, and to provide any authorizations necessary for VA to obtain the complete clinical records of any such private treatment. Of particular interest are the complete clinical records of all treatment the Veteran received beginning in November 1986 for what was thought to be meningitis, the report of the July 16, 1987 CT scan, and the complete clinical records leading up to, and in connection with, the 1987 ventriculoperitoneal shunt procedure at Seton Hospital. The RO should secure for the record copies of complete clinical records (i.e., those not already associated with the claims folder) from the sources identified. The Veteran should be notified if any identified records sought are not received pursuant to the RO's request. If any private provider does not respond to the RO's request for records identified, the Veteran should be so advised, and further advised that ultimately it is his responsibility to ensure that private treatment records are received. 2. If, and only if, the Veteran responds to the above requests for identifying information and releases and after the development sought is completed, the RO should arrange for the record to be forwarded to a neurologist for review and an advisory medical opinion. The consulting physician should review the entire record (to specifically include this remand, the Veteran's service and postservice treatment records, the May 2012 written argument from his attorney, his lay statements and June 2012 DRO hearing testimony, and all of the medical opinions already of record), and provide an opinion that responds to the following: (a) Based on the factual evidence of record, did the onset of the Veteran's neuroma most likely occur (i) prior to his April 1983 entry on active duty (ii) during his active service (iii) or after his separation from service (in April 1985)? Please indicate whether it represents acquired pathology or whether it is a congenital or developmental abnormality. Please identify the factual evidence that supports the conclusions. (b) If the response to (a) is that the onset of the neuroma was most prior to active duty (i.e., prior to April 1983) is there any evidence in the factual record that it increased in severity during service? Please identify such evidence. If the neuroma is opined to be a congenital or developmental abnormality, please indicate whether any pathology was superimposed on it during service, specifically commenting on whether the July 2010 addendum finding of "asymetric high-frequency hearing loss in 1984 which progressively increased asymmetrically during service" represents an increase in severity/superimposed disability. (c) If the acoustic neuroma is considered to have most likely had its onset postservice, is there any basis in the record for relating it to disease, injury, or event in service? The consulting physician should explain the rationale for all opinions, and should specifically comment on the opinions already in the record (October 2008, June 2010 and October 2010 private and 2009, July 2010 and July 2012 VA), expressing agreement or disagreement with each, and the basis for the agreement or disagreement. 3. Following the above, and any further development deemed necessary, the RO should readjudicate the claim. [If the Veteran does not respond to the requests for identifying information and authorizations for VA to secure the additional private treatment records sought (or responds with only partial and/or non-pertinent information), this matter must be processed under 38 C.F.R. § 3.158(a) (as abandoned) after a year following the request.] If it remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).