Citation Nr: 21069892 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 19-20 749 DATE: November 22, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. FINDING OF FACT The Veteran's left ear hearing loss is related to hazardous noise exposure incurred during active service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1967 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) from an April 2016 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In January 2020, the Board denied entitlement to service connection for bilateral hearing loss. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2021 Order, the Court granted a Joint Motion for Remand (JMR) submitted by the Veteran and the Secretary of VA (Parties), vacated the January 2020 Board decision, and remanded the matter for compliance with the JMR instructions. The Parties agreed that vacatur and remand were warranted because the Board erred by relying on two inadequate examinations and failing to consider the Veteran's reports of in-service hazardous noise exposure. JMR at 2-3. Specifically, the Parties agreed that the March 2016 and June 2019 examiners failed to address the Veteran's reports of hazardous noise exposure and lack of hearing protection. Id. Additionally, the Parties agreed that the Board erred by failing to "discuss whether [the Veteran's] current hearing loss resulted from his in-service noise exposure." Id. at 3. The Parties also agreed that on readjudication the Board must address the findings and opinion of the January 2016 VA examination. Id. at 4. After issuance of the JMR, the case returned to the Board and in June 2021, the Board remanded the issue of entitlement to service connection for bilateral hearing loss for the AOJ to obtain a VA examination and etiology opinion. An examination and etiology opinion were obtained in July 2021. In an August 2021 rating decision, the AOJ granted service connection for right ear hearing loss. The AOJ denied service connection for left ear hearing loss in August 2021 and September 2021 Supplemental Statements of the Case. Accordingly, as service connection for right ear hearing loss has been granted, the issue before the Board is service connection for left ear hearing loss. The Veteran relates his left ear hearing loss to an acoustic neuroma that he asserts was caused by hazardous noise exposure in service. See November 2021 Appellant's Post-Remand Brief. Alternatively, the Veteran asserts that the Veteran's left ear hearing loss is the result of a neuroma was caused by exposure to herbicide agents in Korea. See March 2020 Correspondence; February 2019 VA Form 21-526EZ; August 2016 Correspondence. Because the record supports the former theory, it will not address the latter. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The first element of service connection, a current disability, is met as the Veteran has hearing loss in the left ear that meets the criteria of 38 C.F.R. § 3.385. See June 2019 and March 2016 VA audiology examinations. The second element of service connection, in-service incurrence, is also met, as the AOJ has conceded the Veteran was exposed to hazardous noise in service. In this regard, the AOJ supported granting service connection for right ear hearing loss on the July 2021 examiner's etiology opinion that related hearing loss to in-service noise exposure. See August 2021 rating decision. The Board will not disturb this favorable finding. The first two elements of service connection having been met, this case turns on a causal relationship between the current disability and in-service incurrence, otherwise known as a nexus. As noted above, the Parties have agreed that the June 2019 and March 2016 VA etiology opinions are inadequate for failure to address the Veteran's reports of in-service noise exposure. Accordingly, the Board affords those opinions no probative weight. The January 2016 VA audiology examination recorded pure tone threshold results for the right ear and noted that the left ear could not be tested because "[t]here was no response at the maximal output level of the audiometer for the left ear." The audiologist opined that the Veteran's hearing loss was at least as likely as not caused by in-service hazardous noise exposure but did not specify whether the opinion applied to the right, left, or both ears. Thus, this opinion carries minimal weight. The July 2021 VA audiologist opined that the Veteran's right ear hearing loss was at least as likely as not caused by in-service hazardous noise exposure. On the other hand, the audiologist opined that the Veteran's left ear hearing loss was less likely than not caused by service. This negative opinion, however, is not supported by a clear rationale. Instead, the audiologist stated that "[t]he left ear is dead following removal of an Acoustic Neuroma 10+ years ago." This statement leaves the impression that the examiner attributed hearing loss in the left ear solely to removal of the neuroma. The examiner then stated that acoustic neuromas are not related to acoustic trauma or hazardous noise exposure, but did not support this statement with citation to any medical authority. Because the July 2021 negative opinion regarding the left ear lacks supporting rationale and citation to medical authority, it is inadequate and carries no probative weight. In contrast, the Veteran has provided competent and credible medical evidence demonstrating a causal relationship between loud-noise exposure and the development of an acoustic neuroma. In November 2021, the Veteran submitted a medical article titled Exposure to Loud Noise and Risk of Acoustic Neuroma published in the February 2006 volume of the American Journal of Epidemiology (available at https://academic.oup.com/aje/article/163/4/327/103732; last accessed on November 19, 2021). The article concludes that "loud noise exposure is a risk factor for acoustic neuroma." Although the July 2021 examiner indicated that "hazardous noise is not causally linked to acoustic tumors," she acknowledged that acoustic neuromas are "very slow growing" and the Veteran's acoustic neuroma "could have been developing" during service, presumably as a result of loud noises. The July 2021 examiner's opinion that the Veteran's left ear hearing loss is due solely to the removal of an acoustic neuroma lacks probative weight. In this regard, VA treatment records show that the Veteran experienced left ear hearing loss for several years before the neuroma was even discovered. See March 2007 VA audiology consult (stating the Veteran has noticed hearing loss for the past year, worse in the left ear); May 2009 VA audiology consult (stating asymmetrical hearing loss was noted in March 2007, the Veteran reported worsening left ear hearing loss in 2009, and left ear hearing impairment is "significantly worse" than it was in 2007); August 2009 VA primary care note (stating the Veteran had hearing loss in the left ear for the past 2 years before MRI revealed an acoustic neuroma); February 2010 VA audiology note (indicating acoustic neuroma was surgically removed last month). Furthermore, the July 2021 examiner acknowledged that the neuroma could have begun developing in service, which would mean its development could have been triggered by in-service noise exposure. This would also mean that the neuroma could have been slowly growing post-service while the Veteran's left ear hearing slowly deteriorated to the point at which his complaints of hearing loss prompted discovery of the neuroma. Based on the specific facts and evidence of this case, as highlighted in the preceding discussion, the Board finds that the record stands in relative equipoise and it will resolve reasonable doubt in the Veteran's favor. As noted above, all negative opinions of record are inadequate and lack probative weight. In this regard, the JMR reflects the Parties' agreement that the March 2016 and June 2019 etiology opinions are inadequate for failure to consider in-service hazardous noise exposure. Similarly, the July 2021 negative opinion is inadequate for failure to provide a credible supporting rationale, failure to support a proposition with medical authority, and failure to discuss the possibility that in-service noise exposure led to hearing loss apart from any impairment caused by removal of the neuroma. Although there are no favorable opinions of record linking left ear hearing loss to service, remand is unnecessary as the record contains sufficient evidence to be in relative equipoise and remanding for further development would only serve to develop potentially negative evidence. See Andrews v. McDonough, 34 Vet. App. 216 (2021) (explaining that remand should not be undertaken if further development might only lead to a denial and the evidence of record is sufficient to grant the claim); 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination."). In this regard, the Veteran submitted competent and credible medical evidence in the form of a published research study showing that loud noise exposure is associated with an increased risk for developing an acoustic neuroma. The July 2021 examiner acknowledged that acoustic neuromas are "very slow growing" and the neuroma that affected the Veteran's left ear could have even begun developing during service. In addition, VA treatment records reveal the Veteran experienced left ear hearing loss for years before the neuroma was even detected, which shows that his hearing loss in the left ear cannot be attributed solely to removal of the neuroma. After resolving reasonable doubt in the Veteran's favor, this evidence leads to the conclusion that the development of a left ear acoustic neuroma indicates his left ear and hearing impairment in that ear was affected by the same hazardous noise exposure that caused service-connected impairment in the right ear. Accordingly, service connection for left ear hearing loss is granted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, Associate 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.