Citation Nr: 19152425 Decision Date: 07/08/19 Archive Date: 07/08/19 DOCKET NO. 16-00 281 DATE: July 8, 2019 ORDER The appeal to reopen service connection for left ear hearing loss is granted. The severance of service connection for tinnitus was not proper and service connection is restored. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for right ear hearing loss is remanded. FINDINGS OF FACT 1. A final April 1977 Agency of Original Jurisdiction (AOJ) rating decision denied service connection for left ear hearing loss on the basis that there was “no evidence of a hearing loss incurred in or aggravated by service.” 2. A November 2011 AOJ rating decision which denied service connection for right and left ear hearing loss did not become final; the Veteran submitted a Notice of Disagreement (NOD in August 2012 and, after a Statement of the Case (SOC) was issued in October 2013, the Veteran submitted new and material evidence in support of the claim which was not adjudicated as part of the appeal. 3. The evidence of record since the April 1977 denial of service connection for left ear hearing loss includes the Veteran’s description of a left ear injury in service, medical opinion suggesting that left ear hearing loss is due to military service, and a medical evaluation for possible acoustic neuroma stemming from the reported military injury which, if accepted as true, is material to the basis for the prior final denial. 4. A September 2012 AOJ rating decision which severed service connection for tinnitus did not become final; after an SOC was issued in October 2013, the Veteran submitted new and material evidence in support of the claim which was not adjudicated as part of the appeal. 5. The November 2011 AOJ rating decision which awarded of service connection for tinnitus was not clearly and unmistakably erroneous as there was competent evidence that tinnitus first began during active service. CONCLUSIONS OF LAW 1. The April 1977 rating decision which denied service connection for left ear hearing loss is final. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1976). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for left ear hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The severance of service connection for tinnitus was not proper, and service connection is restored. 38 U.S.C. §§ 1110, 1131, 5107, 5109A, 5112 (2012); 38 C.F.R. § 3.105, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army as a paratrooper from October 1972 until March 1975. This appeal comes before the Board of Veterans’ Appeals (Board) from AOJ rating decisions. Jurisdiction The Board first observes that the Veteran was scheduled for a Board hearing on March 26, 2019. On that day, the local DAV representative submitted a form signed by the Veteran stating simply “I withdraw my appeal for hearing loss at this time.” At the same time, the Veteran also submitted an Intent to File a Claim Form to his local intake center which did not identify the benefit being sought. The national DAV representative then proceeded to submit a written brief in support of the case two months later, in May 2019. To date, the record does not reflect what claim the Veteran intended to file in March 2019. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. 20.204. A withdrawal must be “explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). On this record, there is no specific evidence as to whether the Veteran understood the consequences of withdrawal, including the increase of time until his case would be heard and the loss of an earlier effective date. Since the Board cannot be sure this withdrawal meets the criteria laid out in DeLisio, it will deem the appeal as not being withdrawn. The Veteran seeks to reopen a service connection claim for hearing loss. The AOJ has determined that the new and material standard applies. It is a well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits and that, once apparent, a potential jurisdictional defect may be raised by the court, tribunal or any party, sua sponte, at any stage in the proceedings. Barnett v. Brown, 83 F.3d 1380, 1383 (1996). Within the VA regulatory system, the Board is the sole arbiter of decisions concerning its jurisdiction. 38 C.F.R. § 20.101(c). The Board has statutory authority to review all questions necessary to a decision in the matter, and is not necessarily limited to the issue certified for appeal. 38 U.S.C. §§ 511(a), 7104(a). See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). An appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. An NOD must be filed within one year from the date that that the AOJ mailed notice of the rating decision. Otherwise, that determination becomes final. See 38 C.F.R. § 20.302(a). A timely filed NOD places the issue(s) into appellate status, which requires the issuance of an SOC. See 38 C.F.R. §§ 3.103(f), 19.26; see also, e.g., Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). A substantive appeal must be filed within 60 days from the date the AOJ mailed a claimant the SOC (or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends). 38 C.F.R. §§ 20.200, 20.300, 20.302. Otherwise, the rating decision becomes final. See 38 C.F.R. § 20.1103. However, the filing of a timely substantive appeal, as opposed to an NOD, is not a jurisdictional bar to the Board’s jurisdiction. Therefore, the Board can implicitly or explicitly waive the issue of timeliness with regard to a substantive appeal. Nonetheless, the Board may decline to exercise jurisdiction over an appeal, if a substantive appeal was not timely filed. See Percy, 23 Vet. App. at 45. Also, if new and material evidence is received during an applicable appellate period following a AOJ decision, the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). VA has an express regulatory obligation to make a determination regarding the character of the new evidence submitted. An initial claim remains pending, despite a subsequent final decision, until VA determines that evidence timely submitted after a decision on the initial claim was not new and material under 38 C.F.R. § 3.156(b). Mitchell v. McDonald, 27 Vet. App. 431, (2015); Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed. Cir. 2014) (distinguishing Williams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir. 2008)). Once a decision becomes final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Evidence is new and material if it: (1) has not been previously submitted to agency decision-makers; (2) by itself or in connection with evidence previously included in the record, relates to an unestablished fact necessary to substantiate the claim; (3) is neither cumulative nor redundant of evidence already of record at the time the last prior final denial of the claim sought to be opened; and (4) raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Further, the threshold for raising a reasonable possibility of substantiating the claim is low. Shade, 24 Vet. App. at 117. Evidence may be considered new and material if it contributes “to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it will not eventually convince the Board to alter its rating decision.” Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). For the purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence submitted since the last final AOJ or Board decision will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In general, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Every veteran is presumed to have been in sound condition upon entry into service except as to defects, infirmities, or disorders noted at the time of entry. 38 U.S.C. 1111; 38 C.F.R. 3.304(b). In order to rebut the presumption of soundness, it must be shown with clear and unmistakable evidence that a disorder preexisted service and that the disorder was not aggravated by service. Id. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A “[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions....” 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Where the presumption of soundness has initially attached, the burden is on VA to rebut the presumption by clear and unmistakable evidence that the disease or injury was both preexisting and not aggravated by service. See, e.g., McKinney v. McDonald, 28 Vet. App. 15, 23 (2016) (citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004), Horn v. Shinseki, 25 Vet. App. 231, 234 (2012), and Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). VA is not precluded from determining that the presumption of soundness is rebutted, even if there is conflicting evidence. See Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004) (“The clear and unmistakable evidentiary standard... does not require the absence of conflicting evidence.”). A determination that a condition had its onset prior to service may be supported by contemporaneous evidence or recorded history in the record which provides a sufficient factual predicate to support a medical opinion, see Miller v. West, 11 Vet. App. 345, 348 (1998), or a later medical opinion based on statements made by a veteran about the preservice history of the condition. See Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000). A preexisting injury or disease is considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the condition. See Wagner, 370 F.3d at 1096 (holding that when no preexisting condition noted on entry to service, government may show lack of aggravation by establishing that any increase was due to the natural progress of the preexisting condition). In addressing the aggravation prong of the presumption of soundness, VA must rely on affirmative evidence to prove that there was no aggravation, rather than the notion that the record contains insufficient evidence of aggravation. See Horn, 25 Vet. App. at 235. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that “clear and convincing” burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an “onerous” evidentiary standard, requiring that the no-aggravation result be “undebatable.” Cotant v. West, 17 Vet. App. 116, 131 (2003) (citations omitted). The threshold for normal hearing is from 0 to 20 decibels; higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. If the degree of hearing loss noted on an entrance medical examination did not meet VA’s definition of a “disability” for hearing loss under 38 C.F.R. § 3.385, the Veteran is entitled to the presumption of soundness under 38 C.F.R. § 1111. McKinney v. McDonald, 28 Vet. App. 15, 21 (2016). According to McKinney, abnormal hearing which does not meet the thresholds of a hearing loss ”disability” and cannot be deemed a “defect” which is noted on the entrance examination. A Veteran bears the evidentiary burden to establish all elements of a claim. Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)). However, the benefit of the doubt doctrine does not apply to a new and material analysis. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Historically, the Veteran served on active duty from October 1972 until March 1975. In March 1977, he filed an application for service connection for hearing loss reporting an inability to hear in the left ear which began during service in June 1973. He described a left ear injury during a parachute jump. The Veteran’s service treatment records were available for consideration which included his entrance examination. Two separate audiometric tests at entrance confirmed left ear hearing loss disability per VA standards manifested by 55 and 60 decibel readings at 4000 hertz. There was no hearing loss disability in the right ear per VA standards. In December 1974, the Veteran was evaluated for left ear pain treated with Auralgan otic drops (gtts). His separation examination reflected a 60 decibel reading in the left ear at 4000 hertz and 0 decibels for 500, 1000, and 2000 hertz. The right ear had hearing thresholds of 0 decibels at 500, 1000, 2000 and 4000 hertz. The Veteran was scheduled for a VA examination, but this examination was cancelled by the AOJ. There were no other available records. Notably, the AOJ searched for records of claimed treatment for a VA hospital at Fort Bragg, but it appears the National Personnel Records Center (NPRC) responded by submitting STRs. An April 1977 AOJ rating decision denied service connection for hearing loss on the basis that there was “no evidence of a hearing loss incurred in or aggravated by service.” It appears the AOJ only considered left ear hearing loss. By letter dated May 4, 1977, the Veteran was notified of this decision and his appellate rights. The Veteran did not submit an NOD, or new and material evidence, within one year of the notice of decision. That claim, therefore, is final. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1976). The Veteran submitted an application to reopen the claim in July 2011. Private audiology records in 2011 diagnosed the Veteran with bilateral high frequency sensorineural hearing loss, left worse than right, “noise-induced type” as well as tinnitus in the left ear. The examiner recorded a history of the Veteran’s description of hearing loss onset during service with a post-military history as a radio announcer and no significant noise exposure. The examiner opined that “It seems most likely (over 50% chance) that [the Veteran’s] hearing loss occurred during his military service, based on the history.” A November 2011 VA audiology examination found bilateral hearing loss per VA standards. The Veteran reported the onset of tinnitus in service, and the examiner opined that the Veteran’s tinnitus was a symptom associated with his hearing loss. The examiner opined that the Veteran’s left ear hearing loss pre-existed service and that there was no aggravation during service beyond a normal progression. The examiner explained that the Veteran’s discharge examination showed no change in preexisting hearing loss for the left ear when compared to the enlistment examination. The examiner provided no opinion regarding right ear hearing loss. A November 2011 AOJ rating decision reopened the April 1977 prior final denial and denied the claim on the merits. In so doing, the AOJ found that acoustic trauma had not been shown by the record and that there was no medical link between hearing loss and military service. The AOJ appears to have specifically adjudicated both left and right ear hearing loss. Notably, the AOJ granted service connection for tinnitus on the basis that the VA examiner related tinnitus to military service. By letter dated November 21, 2011, the Veteran was notified of this decision and his appellate rights. In March 2012, the AOJ received an addendum to the November 2011 examination report wherein the examiner found that tinnitus was less likely than not caused by military noise exposure. It was explained that there was no evidence of nerve damage consistent with tinnitus during active duty service, and that the reported tinnitus was likely related to the pre or post service events that caused the current hearing loss. The Veteran filed a timely NOD in August 2012. In so doing, the submitted a July 2012 VA treatment record which noted the Veteran’s report of a left ear injury during a parachute drop wherein he struck the left side of a metal helmet with a metal buckle of a parachute riser. He described chronic pain and subjective hearing loss since that injury. It was noted that he had recently been evaluated for hearing loss with an auditory examination and a magnetic resonance imaging (MRI) scan to rule out acoustic neuroma. A September 2012 AOJ rating decision severed service connection for tinnitus on the basis of clear and unmistakable error. Thereafter, the Veteran submitted a September 2012 VA clinic record which included a diagnosis of bilateral high frequency hearing loss, noise-induced type, and left ear tinnitus. The examiner commented as follows: Patient’s history suggests that his hearing worsened while he was in the military, and that tinnitus in left ear developed then. However, the discharge audiogram does not confirm a worsening of his hearing. The tinnitus, however, might have started as a result of his military service – it’s not easy to tell. His hearing in the high frequencies is definitely worse now than in the 1970’s, despite not being exposed to loud noise since then. The Veteran also submitted an extensive statement describing the circumstances of his left ear injury during service. He described that, immediately after the injury, he obtained medical treatment for dizziness. He described that, post service, he had filed a service connection claim and had been experiencing dizziness and “swishing” motion in his left ear. He further described having hearing difficulties since service. In December 2012, the Veteran filed an NOD with respect to the severance of service connection for tinnitus. An SOC was furnished to the Veteran in October 2013 regarding issues of severance of service connection for tinnitus, and service connection for hearing loss. Thereafter, the Veteran submitted an October 2013 VA clinic record which noted his history of having an MRI performed at Shiprock for dizziness and back pain. It was noted that he had been prescribed meclizine. In May 2014, the Veteran submitted a VA Form 9. In June 2014, the AOJ wrote the Veteran a letter which advised him that “[w]e cannot accept your VA Form 9, Appeal to Board of Veterans’ Appeals at this time because a decision in regard to your appeal has not been made.” A November 2014 AOJ rating decision denied an application to reopen a claim of service connection for hearing loss, and the AOJ has determined that the appeal before the Board ensues from this rating decision. On this record, the Board finds that the November 2011 AOJ rating decision which reopened and denied a claim of service connection for left ear hearing loss, and denied service connection for right hearing loss for first time, did not become final. In this respect, the Veteran filed an NOD in August 2012 and after the issuance of an SOC in October 2013, the Veteran submitted medical evidence reflecting that he had been prescribed medicine (meclizine) for dizziness and had an MRI performed – presumably due to a possible acoustic neuroma resulting from the in-service left-sided head injury. This evidence was new and material and required a readjudication of the claim prior to finality attaching. 38 C.F.R. § 3.156(b); Mitchell, 27 Vet. App. 431, (2015); Beraud, 766 F.3d 1402, 1405 (Fed. Cir. 2014). Thus, after reviewing the procedural posture of this case, the Board finds that the issues before the Board are whether new and material evidence has been submitted since the final April 1977 AOJ decision which denied service connection for left ear hearing loss, and entitlement to service connection for right ear hearing loss. Additionally, the Board finds that the September 2012 AOJ rating decision which severed service connection for tinnitus did not become final. After an SOC was issued in October 2013, the Veteran submitted new and material evidence in support of the claim which was not adjudicated as part of the appeal. The Veteran then submitted VA Form 9 reflecting an intent to appeal the claim to the Board. As that claim remains unadjudicated based on evidence received in October 2013, the Board finds that the untimely filed Form 9 reflects an intent to appeal this decision to the Board, the untimeliness factor may be waived given the circumstances. Percy, 23 Vet. App. at 45. 1. Application to reopen a claim of service connection for left ear hearing loss As noted above, a final April 1977 AOJ rating decision denied service connection for left ear hearing loss on the basis that there was “no evidence of a hearing loss incurred in or aggravated by service.” The Board finds that a November 2011 AOJ rating decision which denied service connection for left ear hearing loss did not become final. As such, the issue is whether new and material evidence has been submitted since the final April 1977 rating decision. The evidence of record since the April 1977 denial of service connection for left ear hearing loss includes the Veteran’s description of a left ear injury in service, medical opinion suggesting that left ear hearing loss is due to military service, and a medical evaluation for possible acoustic neuroma stemming from the reported military injury which, if accepted as true, is material to the basis for the prior final denial. Thus, the Board finds that new and material evidence has been presented to reopen the claim. The Board defers consideration of the adjudication of service connection for left ear hearing loss on the merits pending additional development addressed in the remand below. 2. Severance of service connection for tinnitus As discussed above, the Board finds that the issue of whether the severance of service connection for tinnitus was proper is an issue before the Board. Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous, with the burden of proof being upon VA. However, the review of the record is not limited to evidence that was before the AOJ at the time of the original adjudication. See 38 C.F.R. § 3.105(d); see also Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Daniels v. Gober, 10 Vet. App. 474 (1997). A change in diagnosis may be accepted as a basis for a severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. 38 U.S.C. § 5112(b)(6); 38 C.F.R. § 3.105(d). In this case, a November 2011 rating decision awarded service connection for tinnitus on the basis that a November 2011 VA examiner related tinnitus to military service. This appears to be a misreading of the VA examination report as the examiner only commented that tinnitus was a symptom associated with hearing loss. The AOJ obtained an addendum which explained that the Veteran’s tinnitus was likely related to pre or post service events, and the AOJ relied on this addendum to sever service connection. At the November 2011 VA examination, the Veteran reported the onset of tinnitus in service. Tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring or clicking. See Dorland’s Illustrated Medical Dictionary, 1322 (32nd ed. 2012). In adopting the current rating criteria for tinnitus under Diagnostic Code (DC) 6260, VA described tinnitus as follows: Tinnitus is classified either as subjective tinnitus (over 95% of cases) or objective tinnitus. In subjective or “true” tinnitus, the sound is audible only to the patient. In the much rarer objective tinnitus (sometimes called extrinsic tinnitus or “pseudo-tinnitus”), the sound is audible to other people, either simply by listening or with a stethoscope. 67 Fed. Reg. 59033-01 (Sept. 19, 2002). Thus, tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002). In severing service connection, the AOJ did not specifically address the Veteran’s allegation that his tinnitus started in service. There has been no credibility determination refuting this report. Thus, at the time of the November 2011 rating decision which awarded service connection for tinnitus, there was credible lay evidence of the onset of tinnitus in service. As noted above, tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone as a purely subjective sensation. See Charles, 16 Vet. App. 370 (2002). Thus, the Board finds that the November 2011 AOJ rating decision which awarded of service connection for tinnitus was not clearly and unmistakably erroneous as there was competent evidence that tinnitus first began during active service. Service connection for tinnitus, therefore, is restored. REMAND With regard to the claims of service connection for right and left hearing loss, the Board finds that additional development is required prior to any further adjudication. The Veteran reports a parachute jump injury to his left ear which was treated in service which he asserts is the cause of his hearing loss disability. He also mentioned additional symptoms of dizziness since this accident. The available records disclose that he was evaluated for possible acoustic neuroma with an MRI scan, and has been prescribed Meclizine. However, the actual results from the MRI or exact diagnosis is not of record. This requires further clarification. Accordingly, these matters are remanded for the following: 1. Associate with the claims folder updated VA treatment records, clarify what facility the Veteran obtained treatment for hearing problems on February 28, 1975 (see VA Form 21-526 received March 14, 1977 - describing a VA hospital/medical center at Fort Bragg), and determine whether any earlier VA treatment records are available (see VA Form 10-7131 dated December 23, 1986). 2. Assist the Veteran in obtaining complete records from “Shiprock” which reportedly included an MRI of the brain to evaluate potential acoustic neuroma, and the approximate date of this evaluation. See VA clinic record dated October 31, 2013 (reporting the MRI and evaluation was performed at Shiprock). 3. Thereafter, forward the claims folder to an appropriate examiner to evaluate whether his right and/or left ear hearing loss has been caused or aggravated by service. The need for additional examination is left to the discretion of the VA examiner. The examiner is requested to provide opinions on the following questions: a) Whether the Veteran manifests an acoustic neuroma and, if so, whether it is at least as likely as not (50 percent probability or greater) that such disorder was incurred in service? The examiner should consider the Veteran’s descriptions of injury and symptoms (identified below) in light of the December 1974 treatment record for left ear pain. b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s pre-existing left ear hearing loss was aggravated during service beyond the normal progress of the disorder, to include consideration of both noise exposure as well as the December 1974 left ear injury? c) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right ear hearing loss began in service or is causally related to active service, to include consideration of both noise exposure as well as the December 1974 left ear injury? In providing this opinion, the examiner should consider the following: • the audiometric tests conducted during service; • a December 1974 evaluation for left ear pain treated with Auralgan otic drops (gtts); • the Veteran’s statement, received on March 14, 1977, describing his left ear injury; • a June 2011 physician diagnosis of bilateral high frequency sensorineural hearing loss – noise-induced type – that seemed most likely (over 50% chance) that [the Veteran’s] hearing loss occurred during his military service, based on the history” (see Medical Treatment Record – Non-Government Facility” received July 28, 2011); • a September 2012 opinion that the Veteran’s “history suggests that his hearing worsened while he was in the military, and that tinnitus in left ear developed then. However, the discharge audiogram does not confirm a worsening of his hearing. The tinnitus, however, might have started as a result of his military service – it’s not easy to tell. His hearing in the high frequencies is definitely worse not than in the 1970’s despite not being exposed to loud noise since then” (see Medical Treatment Record – Government Facility received July 16, 2012); • the Veteran’s description of injury and symptoms received on December 14, 2012; and • the history of the Veteran being prescribed meclizine and being evaluated for possible acoustic neuroma. 4. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.C. Schumacher, Attorney Advisor 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.