Citation Nr: 1311327 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 10-48 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection by aggravation for a right ear hearing loss disability. 2. Entitlement to service connection for a left ear hearing loss disability. 3. Entitlement to service connection by aggravation for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1967 to December 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2010 of a Department of Veterans Affairs (VA). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND On the claims of service connection, the Veteran has identified VA records pertaining to the claims that have not yet been obtained and further development under the duty to assist is needed. On the claims of service connection for a right ear hearing loss disability and for tinnitus, the record is insufficient to decide the claims on the theory of aggravation of a pre-existing condition and further development under the duty to assist is needed. On the claim of service connection for a left ear hearing loss disability, the record is insufficient to decide the claim on the theory of direct service connection and further development under the duty to assist is needed. Accordingly, the case is REMANDED for the following action: 1. Obtain records from the Dayton, Ohio, VA Medical Center. 2. Afford the Veteran a VA audiology examination by a VA examiner, who has not previously examined the Veteran, to determine: a). Whether the right ear hearing loss disability, which pre-existed service, was aggravated by service; and, b). Whether tinnitus, which pre-existed service, was aggravated by service. The VA examiner is asked to consider the significant facts of the case: On enlistment examination in October 1966, right ear hearing loss was noted. In August 1968, the pre-existing right ear hearing loss was attributed to mumps labyrinthitis with permanent damage to the right auditory nerve at age 12. On an audiogram in December 1970, there was a threshold shift at 2000 Hz from 80 decibels (audiogram on entrance converted to ISO standards) to 95 decibels and a threshold shift at 4000 Hz from 50 decibels (audiogram on entrance converted to ISO standards) to 85 decibels. During service, the Veteran was an Engineman and he worked around heavy and noisy equipment, including diesel engines. In a statement in December 2010 the Veteran stated that he had mild tinnitus before service, which became worse in service. In formulating the opinion, the term "aggravation" means a permanent or irreversible worsening of the pre-existing condition. Aggravation is not conceded if there was no increase in the pre-existing condition on the basis of the evidence, pertaining to the manifestation of the disability before, during, and after service. If however the threshold shifts at 2000 and 4000 Hz were indicative of an increase in severity in service of the pre-existing right ear hearing loss disability, then is the evidence undebatable that the increase in severity of the pre-existing right ear hearing loss was due to the natural progress of the pre-existing condition? If however the Veteran perceived that tinnitus was worse in service, that is, increased in severity in service, then is the evidence undebatable that the increase in severity of the pre-existing tinnitus was due to the natural progress of the pre-existing condition. c). Whether the Veteran has left ear hearing loss disability under 38 C.F.R. § 3.385 (the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or the speech recognition scores using the Maryland CNC Test are less than 94 percent) and, if so, Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), or less likely than not (probability less than 50 percent) that the current left ear hearing loss disability is related to noise exposure in service. The Veteran's file must be provided to the VA examiner for review. 3. After the above development, adjudicate the claims. If any benefit sought is denied, then provide the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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). The 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).