Citation Nr: 1327307 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 08-37 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Shelly Bao, Attorney ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from December 1962 to December 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board denied the Veteran's claims in a July 2012 decision. The Veteran filed an appeal to the United States Court of Appeals for Veterans Claims. In a May 2013 Court Order, pursuant to a Joint Motion for Remand, the Veteran's claims were remanded to the Board for additional development. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits of the claims can be reached. A Veteran is presumed sound on entry into service except for conditions noted on examination at the time of entry into service, or shown by clear and unmistakable evidence to have pre-existed service. 38 U.S.C.A. § 1132 (West 2002); 38 C.F.R. § 3.303(c) (2012). Only those conditions recorded in examination reports can be considered as noted and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of a condition. 38 C.F.R. § 3.304(b) (2012). Determination of the existence of a pre-existing condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion or a later medical opinion based upon statements made by the Veteran about the pre-service history of his condition. Miller v. West, 11 Vet. App. 345 (1998); Harris v. West, 203 F.3d. 1347 (Fed. Cir. 2000). To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (2003), 70 Fed. Reg. 23027 (2005). A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2002). The Veteran's service medical records reveals that the Veteran's hearing thresholds were elevated at 4000 Hertz at his entrance examination in December 1962 and on his separation examination in October 1964. The Veteran denied ear trouble on report of medical history forms prepared in conjunction with the examinations. Private treatment records dated in January 1999 show that the Veteran was diagnosed with mixed hearing loss in the left ear and with sensorineural hearing loss in the right ear, probable ossicular disruption related to prior traumatic injury versus otosclerosis. At a VA audiological examination in December 2006, the Veteran was diagnosed with bilateral sensorineural hearing loss and intermittent tinnitus of the left ear. The examiner opined that the etiology of the tinnitus was at least as likely as not due to hearing loss. In an addendum opinion dated in August 2007, another audiologist indicated that a review of the entrance and separation examinations showed that the Veteran's hearing thresholds were approximately the same at his induction and separation examinations. The audiologist noted that the progression of the hearing loss likely related to the pre-service condition and civilian occupational noise exposure. The examiner opined that the progression of the Veteran's hearing loss was unrelated to service and existed prior to induction. Although the Veteran was afforded a VA examination and an addendum opinion was obtained, the examiners did not consider whether the reported blast injury in service caused or aggravated the Veteran's tinnitus or aggravated the pre-existing hearing loss. Consequently, another VA examination should be scheduled prior to adjudication of the issues on appeal. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to determine the nature and etiology of bilateral hearing loss and tinnitus. The examiner must review the claims file and should note that review in the report. The examiner should reconcile the opinion with the December 2006 VA medical opinion and the August 2007 VA addendum opinion. All opinions should be supported by a clear rationale, and include a discussion of the facts and medical principles involved. (a) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus is related to service. The examiner should consider the Veteran's statements regarding the blast injury in service and the Veteran's statements regarding a continuity of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). (b) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss is related to service. The examiner should consider the Veteran's statements regarding the blast injury in service and the Veteran's statements regarding a continuity of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). (c) The examiner should state whether bilateral hearing loss or hearing loss of either ear clearly and unmistakably pre-existed service. The examiner should cite to any evidence of record that demonstrates that the disability clearly and unmistakably existed prior to service. (d) The examiner should provide an opinion as to whether bilateral hearing loss was aggravated by the Veteran's period of active service, including the blast injury sustained by the Veteran during service. Aggravation means a permanent worsening of the underlying condition beyond the natural progress of the disorder. (e) The examiner should provide an opinion as to whether it is clear and unmistakable that bilateral hearing loss was not aggravated beyond the natural progression of the disorder by the Veteran's active service. 3. Then, readjudicate the claims. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or 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). _________________________________________________ HARVEY P. ROBERTS 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).