Citation Nr: 1752372 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 10-29 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for an acoustic neuroma. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel INTRODUCTION The Veteran had honorable active service in the United States Army from December 1966 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The case was previously before the Board in November 2012, December 2013, March 2015, and January 2016. In November 2012, the Board remanded the issue of service connection for bilateral hearing loss to the Agency of Original Jurisdiction (AOJ) for additional development, including, a VA examination to determine the etiology of the Veteran's bilateral hearing loss. In December 2013, the Board added the issue of entitlement to service connection for an acoustic neuroma. The Board also remanded the claims to the AOJ for additional development, including an addendum opinion to consider additional evidence submitted by the Veteran. In March 2015, the Board remanded the claims to the AOJ for additional development, including a VA examination to determine the nature and etiology of the Veteran's claimed disabilities. In a January 2016 decision, the Board denied the Veteran's claims for service connection for bilateral hearing loss, and acoustic neuroma of the right ear. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In June 2017, the Court vacated the January 2016 decision and remanded the matter to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that his bilateral hearing loss and acoustic neuroma are related to service. In an August 2008 statement, the Veteran asserted that he was exposed to hazardous noises while performing his duties in service as a combat engineer demolition specialist. The Veteran asserted that his duties included locating and destroying land mines, and that he was not provided proper ear protection. In an April 2013 statement, the Veteran reported that he refrained from seeing a doctor in service as much as possible because his supervisors frowned upon anyone going on sick call. The Veteran also reported that his separation hearing test was administered by the 10-11 year old daughter of one of the doctors. The Veteran also stated that after he filed his claim, he was diagnosed with acoustic neuroma. A VA treatment provider reportedly told the Veteran and his spouse that the most common cause of this tumor was exposure to loud noises, and that his training as a demolitions specialist/heavy equipment operator would certainly qualify as a probable cause. In a February 2013 statement, the Veteran's brother stated that the Veteran had a hard time hearing ever since he came home from service late in 1969. In a January 2014 statement, the Veteran's fellow service member reported that he was the Veteran's roommate prior to enlistment, and the Veteran had normal hearing prior to enlistment in the Army. Upon discharge from service, he noticed that the Veteran had a slight change in his ability to hear. The Veteran served in the United States Army from December 1966 to December 1969. Service treatment records are silent as to any complaints, treatment or clinical diagnosis for hearing loss. In November 2012, the Board noted that the Veteran was a combat engineer/blaster in service, and therefore conceded noise exposure. Post-service VA treatment records reflect a diagnosis of hearing loss, partial from November 2008, a diagnosis of vestibular schwannoma in November 2012, and a diagnosis of acoustic neuroma from October 2013. The Veteran was afforded a VA examination in September 2008, which reflected a diagnosis of bilateral sensorineural hearing loss. The examiner noted an opinion could not be offered without leading to speculation because there were no service medical records in the file. In a November 2008 opinion, an examiner opined that it was at least as likely as not that the Veteran's hearing loss was related to his military service due to the absence of acoustic damage upon separation from the military and lack of documentation to support hearing loss upon separation. The examiner did not appear to consider the Veteran's lay statements regarding his exposure to hazardous noises in service. In a January 2013 VA examination, an examiner opined that the Veteran's hearing loss was not at least as likely as not (50% probability or greater) caused by or a result of an event in military service. The examiner noted that in October 2012, the Veteran was diagnosed with a right sided vestibular schwannoma, which is a benign tumor on the 8th cranial nerve. The Veteran reported that the treatment provider advised him that the tumor was due to noise exposure. The examiner noted that this was incorrect, and noted that it was not documented in the treatment notes. The examined noted that vestibular schwannomas are very rare and are not associated with noise exposure. The examiner opined that the Veteran's hearing loss was not caused by or the result of military noise exposure. The examiner noted that the Veteran's hearing was well within normal limits upon separation, acoustic trauma was not supported in the service medical records, the hearing loss was of delayed onset and the right-sided asymmetry was caused by a rare vestibular schwannoma. A January 2014 VA medical opinion was obtained regarding the etiology of the Veteran's acoustic neuroma. The examiner opined that the Veteran's acoustic neuroma was not caused by or a result of military noise exposure, and the Veteran's hearing loss was not caused by or a result of military noise exposure. The examiner did not consider the research study abstracts submitted by the Veteran, did not discuss the lay statements regarding the Veteran's hearing loss since service, and did not clearly address the etiology of the Veteran's hearing loss symptoms in both ears prior to the Veteran's diagnosis of an acoustic neuroma. The Veteran was afforded an examination in July 2015. The examiner opined it was not at least as likely as not that the Veteran's acoustic neuroma was related to military noise exposure. The examiner noted that based upon a review of medical literature; there was no consensus on whether exposure to loud noise was a risk factor for the development of acoustic neuroma. The July 2015 examiner further opined the Veteran's current hearing loss was not caused by or a result of noise exposure during military service. The examiner noted that that given normal hearing bilaterally at entrance into and exit from the military in combination with the literature indicating that there was no evidence to support noise-induced hearing loss developing years after exposure to noise. The examiner inaccurately applied a standard of proof that is higher than the standard under the benefit of the doubt rule. Therefore, the Board finds that a VA examination is warranted to determine the nature and etiology of the Veteran's bilateral hearing loss and acoustic neuroma. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the current nature and etiology of the Veteran's claimed bilateral hearing loss and acoustic neuroma. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. a. In regards to the Veteran's claim for service connection for acoustic neuroma, the examiner should address whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's claimed acoustic neuroma manifested during, or is otherwise causally or etiologically related to, active duty service, to include as due to conceded exposure to noise in service. b. If the Veteran's acoustic neuroma is found to be related to his service, whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's bilateral hearing loss is proximately due to the Veteran's acoustic neuroma. c. If the Veteran's acoustic neuroma is found to be related to his service, whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's bilateral hearing loss is aggravated (permanently increased in severity) by the Veteran's acoustic neuroma. d. The examiner should also address whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's claimed bilateral hearing loss manifested during, or is otherwise causally or etiologically related to, active duty service, to include as due to conceded exposure to noise in service. The examiner should consider and discuss the following: i. the Veteran's lay statements alleging onset during service, his difficulty hearing during service and his difficulty hearing after service; ii. the lay statements from the Veteran's brother and the Veteran's friends that the Veteran had difficulty hearing after service; iii. medical literature and abstracts submitted by the Veteran. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. The examiner should note that "in keeping" with the benefit of the doubt rule, which is the standard of proof for veterans benefits, "Congress has not mandated that a medical principal must have reached the level of scientific consensus to support a claim for veterans benefits." Wise v. Shinseki, 26 Vet.App. 517, 531 (2014). Instead, Congress adopted a "low standard of proof" for VA to employ to "resolve a scientific or medical question in the claimant's favor so long as the evidence for and against that question is in "'approximate balance.'" Id. If the examiner finds that an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or by the examiner (does not have the knowledge or training). 2. Readjudicate the claims on appeal in light of all of the evidence of record. If the issues remain denied, the Veteran and his representative should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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) (2017).