Citation Nr: 18110652 Decision Date: 06/13/18 Archive Date: 06/13/18 DOCKET NO. 15-02 842 DATE: June 13, 2018 ORDER New and material evidence has been received to reopen a previously denied claim for service connection for a left ear hearing loss disability. Entitlement to service connection for a left ear hearing loss disability is granted. REMANDED Entitlement to service connection for a left ear acoustic neuroma is remanded. FINDINGS OF FACT 1. In July 1984, the Regional Office denied a claim for service connection for a bilateral hearing loss disability; the Veteran did not appeal that decision nor did he submit new and material evidence within one year. 2. Evidence submitted since the July 1984 decision was unavailable to the agency decisionmakers and relates to unestablished facts necessary to establish service connection for a left ear hearing loss disability. 3. The evidence is approximately evenly balanced as to whether a current left ear hearing loss disability is related to in-service acoustic trauma. CONCLUSIONS OF LAW 1. The additional evidence received since the July 1984 rating decision is new and material, and the claim for service connection for a left ear hearing loss disability is reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2017). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for a left ear hearing loss disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1967 to April 1984. Request to Reopen Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). One exception to the general rule of finality is 38 U.S.C. § 5108, which provides that, if new and material evidence is presented with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. “New evidence means evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to establish the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.” 38 C.F.R. § 3.156(a). “In determining [whether evidence is new and material], the credibility of the evidence is to be presumed. This presumption is made only for the purpose of determining whether the case should be reopened. Once the evidence is found to be new and material and the case is reopened, the presumption that it is credible and entitled to full weight no longer applies.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran filed his initial claim for service connection for a bilateral hearing loss disability in May 1984, which was denied in November 1984. The Veteran did not file a notice of disagreement or submit new and material evidence within one year after he was notified of the November 1984 decision, and therefore the November 1984 decision is final. See 38 U.S.C. § 7105. According to the November 1984 decision, the Veteran had a current hearing loss disability, but for the left ear, this disability existed before he joined the Army. The rating decision concluded there was no evidence that the pre-existing disability was aggravated during active duty service. The decision did not include a comprehensive list of the evidence which was then available to the Agency of Original Jurisdiction (AOJ). But, based on the text of the decision and the date stamps on the various documents in the claims file, the available evidence related to the hearing loss issue consisted of the Veteran’s initial application for benefits, copies of his service treatment records, and a VA examination report, dated July 1984. The July 1984 examination report contains hearing test results showing a left ear hearing loss disability, but the examiner did not give his opinion about the probability that a pre-existing disability was aggravated by in-service noise. Since the November 1984 decision, additional evidence has been added to the claims file, including the transcript of the Veteran’s April 2018 hearing testimony, a statement from him describing exposure to the noise of explosions in service, and a December 2013 medical opinion from a VA audiologist. Although the ultimate opinion of the audiologist was not favorable to the Veteran’s claim, the examiner identified a “definite shift” in the severity of the Veteran’s left ear hearing loss during his service. In the audiologist’s opinion, the reason for the shift could be the Veteran’s acoustic neuroma, a benign tumor of the left ear first identified in October 2012. The other possible reason for the increased severity, the examiner explained, was the Veteran’s in-service exposure to loud noise. The examiner further opined that there was “no way of knowing” whether the in-service aggravation of the Veteran’s left ear hearing loss was due to noise exposure or acoustic neuroma. Absent a specific finding to the contrary, the law presumes that the cause of the increase identified by the examiner as a “definite shift” in the severity of the Veteran’s pre-service hearing loss was aggravation during military service. See 38 U.S.C. § 1153. Under these circumstances, the December 2013 medical opinion tends to indicate that a finding to the contrary would be unreasonable. In his hearing testimony, the Veteran indicated that he was exposed to some loud noise in his post-service employment. But, unlike his experience with military noise exposure, the Veteran generally wore hearing protection in his post-service employment. For the purpose of the Veteran's request to reopen his claim, the Board must presume that the newly submitted evidence is credible. See Justus, 3 Vet. App. at 513. According to the November 1984 rating decision, evidence that a pre-existing hearing loss disability was aggravated in service was unavailable at that time. Both the December 2013 medical opinion and the Veteran’s recent statements tend to support a finding of in-service aggravation. For this reason, the Board finds that the evidence submitted since November 1984 is new evidence is new and material and the previously denied claim for service connection for a left ear hearing loss disability is reopened. Entitlement to service connection for a left ear hearing loss disability The Veteran contends that he developed hearing loss in his left ear as a result of his exposure to loud noise during military service. The results of a series of hearing tests, administered by a VA audiologist in December 2013, indicate that, for both ears, the Veteran meets the criteria for hearing loss disability as defined by 38 C.F.R. § 3.385. The Veteran attributes his hearing loss to his exposure to the sound of explosions during his military service. According to his Certificate of Discharge from Active Duty (DD 214) Form, his military occupation specialty was explosive ordnance disposal and, in his hearing testimony, the Veteran described his exposure to the loud noises of explosives. Acoustic trauma due to combat or other loud noise has been accepted as satisfying the in-service disease or injury element of a claim for service-connected hearing loss. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (sound of mortars firing); Hensley v. Brown, 5 Vet. App. 155,159 (1993) (jet aircraft noise). Thus, the Board concludes that the Veteran sustained an injury during his military service. The third and last element of the Veteran's claim for service connection is the existence of a causal link – or “nexus” – between military acoustic trauma and his present hearing loss. On this question, the December 2013 VA examining audiologist reached opposing conclusions for the left and right ear. To support this opinion, the examiner relied on hearing test results taken shortly before the Veteran jointed the Army. According to test data from July 1965, the Veteran had normal hearing in the right ear, but he already had a high frequency hearing loss disability in the left ear. Nevertheless, service connection is potentially available for pre-existing disabilities which were aggravated during military service. See 38 U.S.C. § 1110. Under 38 U.S.C. § 1153, a preexisting injury or disease will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See also 38 C.F.R. § 3.306(a). According to the December 2013 examiner, there was a “definite shift” in the severity of the auditory threshold test results for the left ear between entrance and discharge. There were also several in-service hearing tests, but for the purposes of brevity, this decision will describe only the first and last in detail. At the time of the July 1965 hearing examination, the Veteran’s auditory thresholds were as follows:   HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 15 LEFT 0 0 5 15 60 At the time of the Veteran’s retirement physical, an examiner obtained the following thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 25 55 LEFT 25 20 45 75 65 In the examiner’s opinion, it was at least as likely as not that in-service noise exposure caused the threshold shift in the right ear. She provided the following rationale: “Comparing entrance and exit exams, there is a significant threshold shift in the right ear.” For the left ear, the examiner offered a different opinion due to the uncertainty associated with the Veteran’s acoustic neuroma, a benign tumor of the left ear first identified in October 2012. In her opinion, the presence of some high-frequency hearing loss in the left ear at the time of the Veteran’s entry into service indicated “the possibility of the acoustic neuroma already being present. However, there is absolutely no way of knowing whether it was or not. There is a definite shift in [the Veteran’s] left ear hearing from the time of entrance to the time of discharge. However, there is absolutely no way of knowing whether the shift is due to aggravation due to noise exposure while in service, or due to the progression of acoustic neuroma.” In other words, the examiner acknowledged that both in-service acoustic trauma and the progression of a pre-existing acoustic neuroma could explain the in-service aggravation of the Veteran left ear hearing loss. 38 U.S.C. § 1153 requires the Board to presume that the hearing loss was aggravated by service, “unless there is a specific finding that the increase in disability is due to the natural progress of the disease.” Given the examiner’s uncertainty, the December 2013 opinion cannot support such a finding. Taking the examiner’s opinion together with the Veteran’s documented exposure to loud noise associated with explosive and his credible hearing testimony, the Board finds that the evidence is at least evenly balanced as to whether left ear hearing loss was aggravated in service, beyond its normal progression, by in-service acoustic trauma. By law, the doubt resulting from this relative equipoise in the evidence is resolved in The Veteran's favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ . . ., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding . . . benefits.”). REASONS FOR REMAND Entitlement to service connection for a left ear acoustic neuroma is remanded. To help decide the Veteran’s separate claim for service connection for left ear acoustic neuroma, the AOJ also obtained an opinion from the December 2013 examining audiologist. According to the audiologist’s report, the acoustic neuroma was not caused by the Veteran’s exposure to loud noises in service. The examiner further noted that, according to information from the Mayo Clinic, an acoustic neuroma can potentially be caused by a malfunctioning gene on chromosome 22. The AOJ obtained a similar opinion form a VA nurse practitioner in November 2013, which emphasized the length of time between the Veteran’s discharge from military service and the discovery of acoustic neuroma. But the nurse practitioner did not identify the likely cause of the condition. Nor did she estimate how long acoustic neuromas take to develop. In their written statements, the Veteran and his representative have criticized the audiologist’s opinion. The representative’s brief argues that, by indicating that there was no way to know whether the acoustic neuroma was present during service, the examiner’s report amounted to a conclusion that she could not provide the requested opinion without speculating. She did not, however, indicate whether an expert with different qualifications – or additional evidence – could potentially answer the relevant questions. The audiologist’s statement about a defect in one of the Veteran’s chromosomes, moreover, raises the issue of whether the acoustic neuroma is a congenital condition. As VA’s general counsel has explained, a disease, even if it is of hereditary or congenital origin, can be incurred or aggravated in service if its symptomatology did not manifest until after entry on active duty. See VAOGCPREC 8-88 (Sept. 1988), reissued as VAOPGCPREC 67-90 (July 18, 1990). But congenital or developmental defects are not considered “diseases or injuries” within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. Only congenital “defects”, as opposed to congenital “diseases” are excluded from the types of disabilities that may be service connected, as congenital defects are not considered diseases or injuries. The test for distinguishing a congenital defect from a congenital disease is whether the disorder in question is subject to change. See VAOPGCPREC 67-90. “[C]ongenital or developmental defects are normally static conditions which are incapable of improvement or deterioration.” Id. The opinion states further: “A disease, on the other hand, even one which is hereditary in origin, is usually capable of improvement or deterioration.” Id. Congenital defects are potentially eligible for service connection only to the extent that the defect is subject to in-service superimposed disease or injury. See VAOPGCPREC 82-90; Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). As noted above, the audiologist’s opinion suggests that it is possible that the acoustic neuroma existed before the Veterans’ military service, potentially raising the issue of whether a pre-existing disability was aggravated during service. See Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). Because they did not provide all the information needed to apply these principles, the Board finds that the opinions of the VA audiologist and nurse practitioner are inadequate and this appeal will be remanded with instructions to obtain a new opinion. The Veteran has also criticized the audiologist’s report and asked for an opinion from a specialist. The Board agrees that, in this case, an opinion from an ear, nose, and throat specialist could potentially be more helpful than the opinions already in the record. Finally, the AOJ should attempt to make sure that all potentially relevant medical records are part of the record. VA treatment records refer to radiation oncology treatment after the discovery of acoustic neuroma, but it is not clear whether copies of those records have been requested. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 to authorize the release of any outstanding private medical records concerning the Veteran’s acoustic neuroma, including radiation oncology records. For any records identified by the Veteran, the AOJ should make at least two requests for any identified records, unless it is clear after the first request that a second request would be futile. The AOJ should also obtain updated copies of any VA treatment records since February 2018. 2. Send the claims file to a VA ear, nose, and throat specialist. If the requested opinion cannot be provided without a new examination, a new examination should be arranged. The examiner should review the claims file and then provide an addendum report which responds to the following questions: (a) Is there unequivocal evidence that the Veteran’s current acoustic neuroma existed prior to his entry into service? (b) If so, is there unequivocal evidence that the disorder DID NOT undergo a permanent increase in severity (aggravation)? (c) If there is not unequivocal evidence that the disorder did not undergo a permanent increase in severity (aggravation), is it at least as likely as not (50 percent probability or higher) that the Veteran’s acoustic neuroma was initially manifested during service during disorder existed during service or is related to any in-service event or occurrence, including the Veteran’s presumed exposure to herbicides in Vietnam? (d) Is the Veteran’s acoustic neuroma a defect or a disease, (generally, a congenital abnormality that is subject to improvement or deterioration is considered a disease)? (e) If a defect, then was there any superimposed disease or injury in connection with the congenital defect? (f) If a disease, then is it at least as likely as not (at least a 50 percent probability) that the Veteran’s left ear acoustic neuroma was aggravated during the Veteran’s military service? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. A comprehensive medical rationale is requested for all opinions and findings entered. 3. The AOJ must ensure that all examination reports and opinions requested above are in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Nye, Associate Counsel