Citation Nr: 20004192 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 19-26 124 DATE: January 16, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for right ear neuroma with hearing loss is reopened. Entitlement to service connection for right ear neuroma with hearing loss is granted. FINDINGS OF FACT 1. A February 2014 rating decision denied entitlement to service connection for right ear neuroma with hearing loss. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 2. Some of the evidence received since February 2014, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for right ear neuroma with hearing loss. 3. There is an approximate balance of positive and negative evidence as to whether the Veteran’s current right ear neuroma with hearing loss disability is related to his military service. CONCLUSIONS OF LAW 1. The February 2014 rating decision, which denied the Veteran’s claims of entitlement to service connection for right ear neuroma with hearing loss, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. The evidence received since the February 2014 rating decision is new and material, and the claim of entitlement to service connection for right ear neuroma with hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for right ear neuroma with hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to November 1967. In December 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Service Connection In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition to the basic service connection principles outlined above, hearing loss is not deemed disabling for VA purposes unless the claimed hearing loss is of a particular level of severity. In that regard, hearing impairment will be considered a disability only when the puretone threshold for any of the frequencies at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or, speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Analysis The Veteran contends that his right ear acoustic neuroma and resulting hearing loss is a result of his active duty service. Specifically, he stated that he was exposed to combat related noise from small arms fire, mortars, and F4 fighter jets. The Veteran stated post-service, he was not exposed to extensive loud noises. The Veteran has a current diagnosis of right ear acoustic neuroma with hearing loss. As such, element one under Shedden is met. In its February 2014 rating decision, the agency of original jurisdiction (AOJ) conceded the Veteran’s in-service acoustic trauma. As such, element two under Shedden is met. With regard to the third element of service connection, the Board finds the evidence of record is at least in relative equipoise regarding the nexus element of service connection. The Veteran service treatment records do not document complaints, treatments, or diagnosis of a right ear condition, to include hearing loss or neuroma. The Board notes that on November 6, 2013, the Veteran submitted a private audiological exam; however, while the report appears to have utilized a pure-tone audiometric test, there is no indication that it was conducted by a state-licensed audiologist, nor is there any indication that the required Maryland CNC test was given in accordance with 38 C.F.R. § 4.85(a). See Savage v. Shinseki, 24 Vet. App. 259, 263-64 (2011). Therefore, this examination is inadequate for rating purposes. On November 25, 2013, the Veteran was afforded a VA examination to determine the nature and etiology of his right ear hearing loss. The Veteran’s puretone thresholds in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 80 105 +115 110 LEFT 30 25 15 25 30 The Veteran’s average puretone threshold in the right and left ears were +102.5 and 23.75, respectively. Speech recognition scores based on the Maryland CNC Test was zero percent in the right ear and 94 in the left. The examiner noted bilateral sensorineural hearing loss in the high frequency range of 500 to 4000 Hz. The condition did not exist prior to service. The examiner stated that the Veteran was in Vietnam and worked around jets. The Veteran reported wearing hearing protection on the flight line, but not while on the flight line close to the jets. The examiner stated that this amount of noise exposure would suggest permanent hearing loss due to acoustic trauma. However, the Veteran’s separation hearing test was well within normal limits for both ears. Additionally, the Veteran’s profound right ear hearing loss is due to acoustic neuroma. The neuroma would not be caused by noise exposure while in military service. The Veteran’s left ear hearing loss was limited to high frequencies and most likely caused by aging. In July 2014 and 2016, the Veteran submitted a private medical opinion from his neurological surgeon who had been treating him for many years. The surgeon diagnosed the Veteran with a right vestibular schwannoma. The surgeon opined that it is likely as not that the Veteran’s tumor is a result of acoustic trauma during military service. The surgeon stated that the Veteran did not have a genetic syndrome to explain the tumor. However, the Veteran had a history of in-service noise exposure and documented hearing loss in the right ear. The surgeon stated that there is literature supporting noise exposure as a link factor for vestibular schwannoma. Therefore, the Veteran’s tumor is a result of his military service. In August 2015, the Veteran was afforded a VA examination to determine the nature and etiology of his right ear condition. The Veteran stated that he had progressive hearing loss in his right ear. An MRI confirmed his acoustic neuroma. The examiner confirmed the Veteran’s right ear benign neoplasm diagnosis. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran’s exit exam was completely within normal limits, and the association between acoustic trauma and acoustic neuroma had not been established. In support of the opinion, the examiner noted two articles: Occupational Noise Exposure and Risk of Acoustic Neuroma and Loud Noise Exposure and Acoustic Neuroma. The authors of the articles stated that the studies did not support the hypothesis that occupational noise exposure is a risk factor for acoustic neuroma. However, the Loud Noise Exposure authors stated that although the results provided some evidence for associations between leisure-time exposures to loud noise without hearing protection and acoustic neuroma, they could not rule out alternative explanations, including recall bias. The authors concluded that their findings did not support an association between occupational exposure to loud noise and acoustic neuroma. In August 2016, the Veteran submitted articles entitled Medifocus Guidebook on Acoustic Neuroma and Cause of Hearing Loss-Acoustic Neurinoma. The articles stated that acoustic neuroma tumors could grow for many years, often decades, before becoming symptomatic. The grow often causes gradual hearing loss. The Board has weighed the probative value of the competing medical opinions and has determined that the evidence for and against the Veteran’s claim for right ear neuroma with hearing loss is at least in equipoise as to whether the Veteran’s disability is related to his military service. Therefore, after resolving all doubt in the Veteran’s favor, the Board finds the evidence supports a grant of service connection for right ear neuroma with hearing loss. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.