Citation Nr: 20043077 Decision Date: 06/25/20 Archive Date: 06/25/20 DOCKET NO. 15-02 842 DATE: June 25, 2020 REMANDED Entitlement to service connection for acoustic neuroma is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1967 to April 1984. This matter comes to the Board from a December 2013 decision of the Agency of Original Jurisdiction (AOJ), which denied the Veteran’s request to reopen a previously denied claim for service connection for a left ear hearing loss disability and also denied service connection for acoustic neuroma. The Veteran timely appealed both rulings. In April 2018, he testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. This appeal previously came to the Board in June 2018, when it issued a decision and remand. The decision reopened and granted the claim for service connection for a hearing loss disability of the left ear. The acoustic neuroma claim was remanded to the AOJ to arrange a new examination. An earlier examination report, completed by a VA audiologist in December 2013, provided some information about the potential relationship between hearing loss and acoustic neuroma. After reviewing the service treatment records, the audiologist indicated that the Veteran had a high frequency hearing loss in his left ear at the time of his entrance examination. According to the audiologist, “This would indicate the possibility of 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 in service, or due to the progression of the acoustic neuroma.” The audiologist also indicated that, according to literature from the Mayo Clinic, a likely cause of an acoustic neuroma was a malfunctioning gene on chromosome 22. As the Board explained in its reasons for remand, the audiologist’s suggestion that the acoustic neuroma could have been present before the Veteran joined the Army raised the issue of whether a pre-existing disability was aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). Attributing the disorder to a malfunctioning gene raised the issue of whether the claimed disability could be a congenital disease or defect. See VAOPGCPREC 82-90; Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). The Board also recognized the Veteran’s request that a specialist should provide a medical opinion in his case and agreed that it was possible that a specialist might be able to provide a more helpful opinion than an audiologist. For these reasons, the Board remanded the acoustic neuroma claim with instructions to obtain a new opinion from an ear, nose, and throat specialist. In its instructions, the Board asked the specialist to answer a series of questions which would be helpful in answering the potential legal issues concerning the presumption of soundness, the in-service aggravation of a pre-existing disability, and questions concerning the possibility of superimposed injury and/or aggravation of a congenital defect or disease, respectively. After successfully complying with the Board’s order to obtain potentially relevant private medical records concerning the Veteran’s acoustic neuroma, the AOJ arranged an examination of the Veteran by an ear, nose, and throat specialist in July 2019. The specialist completed an examination report form indicating a diagnosis of acoustic neuroma, identifying 2012 as the year of initial diagnosis. Although it appears that the specialist conscientiously attempted to answer all of the questions in the June 2018 Board remand, his opinions are somewhat confusing, perhaps partly due to his evident decision to use six separate opinion forms to answer the remand questions. Another reason for the confusion is that the examiner appeared to answer all of the Board’s questions, although some of them were conditional. For example, the examiner was asked to indicate whether or not there was unequivocal evidence that a pre-existing disorder did not undergo in-service aggravation only if he first determined that there was unequivocal evidence that the Veteran’s acoustic neuroma existed before the beginning of his active duty service. All the opinion forms are dated July 2019. On one of these forms, the specialist wrote that, in his opinion, acoustic neuroma did not exist before the Veteran joined the Army. To support this opinion, he wrote that, “The acoustic neuroma was less likely than not present prior to his entry in the USA because he developed left sided progressive hearing loss in 2011 and he entered the USA in 1964. This is too long a time span for the tumor to be present and growing. The chronological history of his hearing loss does not allow consideration of the acoustic neuroma being present in 1964 as the tumor would have been clinically apparent during his military service.” In a separate opinion form, addressing a question concerning the issue of direct service connection, the examiner wrote, “The tumor would have grown resulting in asymmetrical hearing loss while in the military if it had been present during military service.” A medical opinion may be inadequate when it is based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As the Board explained in its decision and remand, at the time of his entrance examination in July 1965, the auditory threshold in the Veteran’s left ear at 4000 Hertz was 60 decibels, which meets the criteria for a hearing loss disability under 38 C.F.R. § 3.385. Meanwhile, his auditory thresholds in the right ear were normal. By the time of his separation examination in February 1984, auditory threshold test results met the criteria for a hearing loss disability in both ears, but the thresholds in the left ear were uniformly higher. Without further explanation from the examiner, it seems as if either or both of these test results might be considered an “asymmetrical hearing loss” in service. This evidence undermines the rationale for the examiner’s opinion, which seems based on the assumptions that the Veteran did not experience an asymmetrical hearing loss in service and, in the case first opinion form, on the clearly inaccurate premise that the Veteran first “developed left sided progressive hearing loss in 2011. . .” Under these circumstances, the Board must remand the acoustic neuroma claim to seek a new opinion. On remand, the AOJ should attempt to clarify another contradiction in the opinion forms submitted by the examiner. On one of the July 2019 opinion forms, the examiner marked a box next to pre-printed text indicating, “The claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.” Because of its inconsistency with the same examiner’s statement that the acoustic neuroma did not develop until after service, it seems likely that this was a mistake. Indeed, on same opinion form in which the examiner marked the box indicating a pre-existing condition, the examiner also wrote, “It is less likely than not that the acoustic neuroma was present during his military service as he retired from the army in 1984 and began having left asymmetrical hearing loss in the 2000s. This is too long a period between military service and the development of symptoms from the tumor to have been present while the patient was on active duty.” There is a similar contradiction in a separate opinion provided by the same examiner concerning the question “If [the claimed condition clearly and unmistakably existed prior to service], please state whether there [is] unequivocal evidence that the disorder DID NOT undergo a permanent increase in severity (aggravation)?” As noted, the surrounding context suggests that the examiner checked the boxes as a result of a mistake, but it would be useful to clarify this matter. The matters are REMANDED for the following action: 1. Send the claims file to the VA ear, nose, and throat specialist who examined the Veteran and submitted a series of medical opinion forms in July 2019. The examiner is advised that the main reason a new opinion is required is that, according to his July 2019 opinion, the veteran’s acoustic neuroma did not develop until many years after his discharge from active duty and that we can know this because, if he did have an in-service acoustic neuroma, then we would expect him to have experienced asymmetrical hearing loss in service. The examiner is further advised that at the time of his 1965 entrance examination, the auditory threshold in the veteran’s left ear at 4000 hertz was 60 decibels, which meets the criteria for a hearing loss disability. At the same time, the auditory thresholds in the veteran’s right ear were normal. According to his 1984 separation examination report, the veteran had a bilateral hearing loss disability at that time, with consistently higher auditory thresholds in his left ear than in his right ear. If the July 2019 examiner is unavailable for any reason, the AOJ should obtain the requested opinion from another qualified person. The examiner should review the claims file and 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 an increase in severity (aggravation) in service? THERE IS NO NEED TO ANSWER THIS QUESTION IF THE EXAMINER GIVES AN AFFIRMATIVE ANSWER TO QUESTION (a). (c) If there is not unequivocal evidence that the disorder did not undergo an increase in severity (aggravation) in service, is it at least as likely as not (50 percent probability or higher) that the Veteran's acoustic neuroma was initially manifested during service or is related to any in-service event or occurrence, including the Veteran's presumed exposure to herbicides in Vietnam? THE EXAMINER SHOULD ONLY ANSWER THIS QUESTION IF HE OR SHE GIVES A NEGATIVE ANSWER TO QUESTION (a). (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? The examiner should only answer this question if he or she concludes that the veteran’s acoustic neuroma is a 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 worsening of the underlying condition as compared to a temporary increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The examiner should only answer this question if he or she concludes that the veteran’s acoustic neuroma is a congenital disease. If the AOJ obtains the requested opinion from the July 2019 examining ear, nose, and throat specialist, he or she should attempt to clarify an apparent contradiction in the medical opinion forms he submitted at that time. The examiner apparently marked a box next to pre-printed text indicating “The claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness” but in the text of his opinion, the examiner indicated that the acoustic neuroma did not develop until after the Veteran’s discharge from service. Please ask the examiner to clarify these statements. A comprehensive medical rationale is requested for all opinions and findings entered. 2. The AOJ must ensure that the opinions requested above comply 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, Counsel 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.