Citation Nr: 0716190 Decision Date: 06/01/07 Archive Date: 06/18/07 DOCKET NO. 01-03 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for a pulmonary disorder. 3. Entitlement to service connection for a heart disorder. 4. Entitlement to service connection for a neck disorder. 5. Entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for post-traumatic stress disorder (PTSD). 6. Entitlement to separate 10 percent ratings for bilateral tinnitus. 7. Entitlement to an effective date prior to July 30, 1999, for the grant of service connection for post-concussive headaches. 8. Entitlement to an effective date prior to January 19, 2001, for the grant of service connection for tinnitus. 9. Entitlement to an effective date prior to January 19, 2001, for the grant of service connection for otitis media. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Clifford R. Olson, Counsel INTRODUCTION The veteran served on active duty from August 1977 to June 1978. This case comes to the Board of Veterans' Appeals (Board) from a May 2000 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for post-concussion headaches, effective July 30, 1999, and denied service connection for pulmonary and heart disorders. In a June 2002 rating decision the RO denied entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for PTSD, and in August 2003 the RO denied service connection for left ear hearing loss and neck disorders. In a February 2005 rating decision the RO granted service connection for tinnitus, rated as 10 percent disabling, and otitis media, with effective dates of January 19, 2001. The veteran perfected appeals of those issues. In an August 2004 rating decision the RO denied entitlement to a total rating based on individual unemployability. The veteran submitted a notice of disagreement with that decision in April 2005, and the RO issued a statement of the case in November 2005 and a supplemental statement of the case in December 2005. The veteran, however, failed to submit a substantive appeal within 60 days of the statement of the case or the supplemental statement of the case. For that reason the issue of entitlement to a total rating based on unemployability is not within the Board's jurisdiction. See 38 U.S.C.A. § 7105 (West 2002); Roy v. Brown, 5 Vet. App. 554 (1993); 38 C.F.R. § 20.200 (2006). In May 2006, a hearing was held before the undersigned Veterans Law Judge, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). The veteran has been provided a copy of the hearing transcript and has not reported any disagreement with it. The veteran has also raised the issues of entitlement to service connection for a back disorder and PTSD based on in- service sexual trauma; service connection for depression, the residuals of a right wrist laceration, gastroesophageal reflux disease, and a dental disorder as secondary to her service-connected seizure disorder; an increased rating and earlier effective date for the grant of service connection for right shoulder bursitis; clear and unmistakable error in the RO's January 1981 failure to grant an increase in compensation for a dependent child; and entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a heart disorder. These issues have not yet been adjudicated by the RO and are referred to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board does not have jurisdiction of issues not yet adjudicated by the RO). The issues of service connection for left ear hearing loss, a pulmonary disorder, a heart disorder, and a neck disorder; and entitlement to an earlier effective date for the grant of service connection for post-concussion headaches are addressed in the remand portion of the decision below and are remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The RO denied entitlement to service connection for left ear hearing loss in May 2000. The veteran was notified of that decision and did not appeal. 2. The evidence submitted subsequent to the May 2000 decision is new, in that it is not cumulative and was not previously submitted to agency decisionmakers. The evidence is also material because it relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. The injury that the appellant incurred at the VA medical center (MC) in 1993 was not a result of VA hospital care, medical or surgical treatment, or examination. 4. The veteran's service-connected bilateral tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260. 5. The veteran's initial claim for service connection for tinnitus was received on January 19, 2001. 6. The RO denied entitlement to service connection for otitis media in October 1978. The veteran was notified of that decision and did not appeal, and the October 1978 decision is final. 7. The veteran's petition to reopen her claim for service connection for otitis media was received on January 19, 2001. CONCLUSIONS OF LAW 1. The May 2000 rating decision in which the RO denied entitlement to service connection for a left ear hearing loss is final, new and material evidence has been received, and the claim is reopened. 38 U.S.C.A. § 7105 (West 1991); 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 20.1103 (1999); 38 C.F.R. § 3.156 (2006). 2. The criteria for entitlement to VA compensation benefits for PTSD pursuant to 38 U.S.C.A. § 1151 have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2006). 3. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for bilateral tinnitus. 38 U.S.C.A. §1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2006); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 4. The criteria for an effective date prior to January 19, 2001, for the grant of service connection for tinnitus have not been met. 38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.1(p), 3.151, 3.155, 3.157, 3.400 (2006). 5. The criteria for an effective date prior to January 19, 2001, for the grant of service connection for otitis media have not been met. 38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.1(p), 3.151, 3.155, 3.157, 3.400 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Regarding VA's duty to inform the veteran of the evidence needed to substantiate her claims, the RO notified her of the information and evidence needed to establish entitlement to compensation pursuant to 38 U.S.C.A. § 1151 in June 2003 and June 2005; and entitlement to an earlier effective date in April 2006. In those notices the RO also informed her of the information and evidence that she was required to submit, including any evidence in her possession, and the evidence that the RO would obtain on her behalf. The Board finds, therefore, that VA has fulfilled its duty to inform the veteran of the evidence she was responsible for submitting, and what evidence VA would obtain in order to substantiate her claims. See 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); 38 C.F.R. § 3.159(b) (2006). Although the notices were sent following the decisions on appeal, the delay in issuing the notice was not prejudicial to the veteran. The delay did not affect the essential fairness of the adjudication, because the RO re-adjudicated the claims, based on all the evidence of record, after the notices were sent. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. April 5, 2006). Because entitlement to compensation pursuant to 38 U.S.C.A. § 1151 has been denied, any question regarding the effective date is moot and any deficiency in the content of the notice is not prejudicial to the veteran. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran has not been informed of what evidence is needed in order to reopen the previously denied claim for service connection for hearing loss. Because the Board has reopened the claim, however, that failure is not prejudicial to the veteran. In addition, she has not been informed of the evidence needed to show entitlement to separate ratings for bilateral tinnitus. VA has no duty to inform her of the evidence needed to substantiate that claim, or to assist in the development of the evidence, because there is no entitlement to separate ratings under the law. See Beverly v. Nicholson, 19 Vet. App. 394 (2005). Regarding the duty to assist the veteran in obtaining evidence in support of her claims, the RO has obtained the VA treatment records she identified. She has not indicated the existence of any other evidence that is relevant to her claims; as such, all relevant data has been obtained for determining the merits of her claims and no reasonable possibility exists that any further assistance would aid her in substantiating her claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2006). Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 101(16), 1131 (West 2002). In order to establish service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2006); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service Connection for Left Ear Hearing Loss A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103 (2000). If a claim of entitlement to service connection has been previously denied and that decision became 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.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). "New" evidence means existing evidence not previously submitted to agency decisionmakers, that is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996); 38 C.F.R. § 3.156 (2002). The RO initially denied service connection for left ear hearing loss in October 1978 because an examination at that time showed her hearing to be normal. The RO found in May 2000 that new and material evidence had not been received to reopen that claim because an audiometric examination in May 2000 again showed the hearing acuity in the left ear to be normal. The veteran was notified of the May 2000 decision and did not appeal, and that decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The evidence received subsequent to the May 2000 decision includes the report of a VA audiometric examination in July 2003 that revealed a speech recognition score of 92 percent in the left ear. That evidence indicates that the veteran has a left ear hearing loss disability as defined in 38 C.F.R. § 3.385. In addition, the examiner indicated that the hearing loss could be related to noise exposure during service. This evidence is new, in that the evidence of record in May 2000 indicated the hearing in the left ear was normal. The evidence is also material because it relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. The Board finds, therefore, that evidence that is both new and material has been received, and the claim for service connection for left ear hearing loss is reopened. The Board further finds that additional development is needed prior to considering the substantive merits of the claim for service connection. Compensation for PTSD Pursuant to 38 U.S.C.A. § 1151 Compensation benefits shall be awarded for a "qualifying additional disability" in the same manner as if the additional disability were service connected. The additional disability qualifies for compensation if the disability is not the result of the veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. The veteran claims to have PTSD as the result of a sexual assault by a VA physician that occurred when she was seeking medical treatment for ear disease in 1993. She has presented medical evidence showing that she has PTSD as a result of that sexual assault. VA's General Counsel has determined, however, that the statute authorizes the payment of compensation only for disabilities that actually result from the VA treatment or examination, and not disabilities that are incidental to that treatment but due to an intervening cause. "A sexual assault, or other intentional tort committed by a VA employee, generally may not be considered part of "treatment" or an "examination" within the meaning of 38 U.S.C. § 1151, but would constitute an independent and intervening occurrence." See VAOPGCPREC 1-99. For that reason the Board finds that the VA examination or treatment did not cause the veteran's PTSD, and that entitlement to compensation pursuant to 38 U.S.C.A. § 1151 is not shown as a matter of law. Separate Ratings for Bilateral Tinnitus The veteran contends that she is entitled to separate 10 percent ratings for each ear because her tinnitus is bilateral. In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005), the United States Court of Appeals for Veterans Claims (Court) held that the version of Diagnostic Code 6260 that was in effect prior to June 2003 required the assignment of separate ratings for bilateral tinnitus. VA appealed this decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit). In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit held that the Court had erred in not deferring to VA's interpretation of its own regulation that Diagnostic Code 6260 provides no more than a single 10 percent rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The veteran's service-connected tinnitus has been assigned a 10 percent rating, which is the maximum schedular rating available for tinnitus. See 38 C.F.R. §4.87, Diagnostic Code 6260. Because there is no legal basis for awarding separate ratings for bilateral tinnitus, her appeal is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Earlier Effective Dates The veteran contends that she is entitled to an effective date in June 1978, following her separation from service, for the grants of service connection for tinnitus and otitis media because she had those disorders in service and has had them ever since. The law and regulations provide that unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2006). The situation presented in this case is specifically addressed in both law and regulations. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2) (emphasis added). Regarding the claim for tinnitus, the evidence shows that the veteran did not submit any claim for service connection for tinnitus until January 19, 2001. In a July 1978 application she claimed entitlement to service connection for hearing loss and otitis media, but she made no reference to tinnitus. There is nothing in any of the numerous statements she submitted prior to January 19, 2001 that expresses any intent to claim entitlement to service connection for tinnitus. See Crawford v. Brown, 5 Vet. App. 33, 35 (1993) (in order to constitute an informal claim under 38 C.F.R. § 3.155(a), the document must identify the benefit being sought). A complaint of tinnitus was recorded on a VA audiometric examination on May 6, 2000. She complained of noise exposure in service, but did not report tinnitus in service. She stated that tinnitus came on gradually and had been present over the last 10 years. She described it as a high pitched beeping. The examiner did not diagnose tinnitus or connect it to service. Because this report was made within the year before the claim was received, the Board has considered the provisions of 38 C.F.R. § 3.157. That regulation provides: a) General. Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of Sec. 3.114 with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report. (b) Claim. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. In addition, receipt of one of the following will be accepted as an informal claim in the case of a retired member of a uniformed service whose formal claim for pension or compensation has been disallowed because of receipt of retirement pay. The evidence listed will also be accepted as an informal claim for pension previously denied for the reason the disability was not permanently and totally disabling. (1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non- VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. (2) Evidence from a private physician or layman. The date of receipt of such evidence will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. (3) State and other institutions. When submitted by or on behalf of the veteran and entitlement is shown, date of receipt by the Department of Veterans Affairs of examination reports, clinical records, and transcripts of records will be accepted as the date of receipt of a claim if received from State, county, municipal, recognized private institutions, or other Government hospitals (except those described in paragraph (b)(1) of this section). These records must be authenticated by an appropriate official of the institution. Benefits will be granted if the records are adequate for rating purposes; otherwise findings will be verified by official examination. Reports received from private institutions not listed by the American Hospital Association must be certified by the Chief Medical Officer of the Department of Veterans Affairs or physician designee. 38 C.F.R. § 3.157 (2006). The threshold requirement for a VA medical report to be considered an informal claim is found in the first sentence of subsection (b). Either (1) a formal claim for pension or compensation must have been allowed or, in the alternative, (2) a formal claim for compensation disallowed for a very specific and limited reason, that the service-connected disability is not compensable in degree. This provision does not refer to any claim for compensation for any disability. The sentence must be read together, in its entirety, as a consistent whole. The rest of the sentence specifies that receipt of one of the following (medical records) will be accepted as (1) an informal claim for increased benefits or (2) an informal claim to reopen. The first reference to increased benefits refers to the first situation where a claim has been allowed. The second reference to an informal claim to reopen refers to the second situation where a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree. This provisions does not provide an earlier effective date in other situations, such as an initial claim for service connection for a disability or a claim to reopen after a final denial on any basis other than the disability not being compensable. The last sentence of subsection (b)(1) may cause some confusion. It states that the provisions of the paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. This last sentence of the sub-subsection does not abrogate the threshold requirements at the beginning of the subsection, or the other provisions of the effective date laws and regulations. It must not be taken out of context but must be read in relation to the prior wording. The first part about a disability for which service-connection has previously been established clearly refers to the situation in which a formal claim for compensation has been allowed, as referred to at the beginning of the subsection. The second part does not refer to any claim. Rather, it refers to the remainder of the situations described in subsection (b): where a formal pension claim has been allowed and the veteran is seeking increased pension benefits, where pension or compensation has been disallowed because of receipt of retirement pay, or where pension was previously denied for the reason the disability was not permanently and totally disabling. When 38 C.F.R. § 3.157 is read in context, in its entirety, it is clear that it has very limited application, does not apply to the veteran's claims, and that it does not form a basis for an earlier effective date in this case. For that matter, the Board does not find any law or regulation which would over-ride the requirements of 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Those provisions clearly establish that the effective date will be the date that the claim is received. See Shields v. Brown, 8 Vet. App. 346, 349 (1995) (an earlier effective date cannot be granted in the absence of statutory authority; i.e., in the absence of a claim). In this case, that means that the effective date for service connection for tinnitus can be no earlier than January 19, 2001. Regarding the claim for otitis media, the veteran claimed service connection in the July 1978 application, which the RO denied in October 1978. The veteran was notified of the October 1978 decision and did not appeal that issue, and the October 1978 denial of service connection for otitis media is final. 38 U.S.C. § 4005(c) (1976); 38 C.F.R. § 19.153 (1978). Because the October 1978 denial of service connection for otitis media is final, an effective date based on the July 1978 application is precluded as a matter of law. Sears v. Principi, 16 Vet. App. 244, 248 (2002), aff'd 349 F.3d 1326 (Fed. Cir. 2003) ("The statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. The rule of finality regarding an original claim implies that the date of that claim is not to be a factor in determining an effective date if the claim is later reopened."). The veteran did not again claim entitlement to service connection for otitis media until January 19, 2001. Although she submitted numerous statements regarding other issues, in none of those statements did she express any intent to claim service connection for otitis media. Crawford, 5 Vet. App. at 35. Thus, the earliest possible effective date is January 19, 2001. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400; see also Shields, 8 Vet. App. at 349. In a report dated June 2, 2000, the veteran's VA physician stated that she had chronic otitis media on the right that was more likely than not related to her military service. Because this was within one year of the claim, the Board has again considered the application of 38 C.F.R. § 3.157 to this claim. As discussed above, that regulation does not apply to reopening all claims, but by its clear terms applies only where a claim has previously been denied because the disability was not compensable in degree. Since that is not the situation here, the regulation does not apply and does not provide a basis for an earlier effective date. The preponderance of the evidence shows that the earliest communication which could be considered a claim for service connection for tinnitus or a petition to reopen a claim for service connection for otitis media was received on January 19, 2001. As the preponderance of the evidence is against an earlier effective date, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER New and material evidence having been received, the claim of entitlement to service connection for left ear hearing loss is reopened. The claim of entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 is denied. The claim of entitlement to separate 10 percent disability ratings for bilateral tinnitus is denied. An effective date prior to January 19, 2001, for the grant of service connection for tinnitus is denied. An effective date prior to January 19, 2001, for the grant of service connection for otitis media is denied. REMAND Regarding the left ear hearing loss, the veteran's service personnel records show that her military occupational specialty (MOS) was communication equipment repair. Her service medical records show that although she was treated for otitis media in the right ear, the left ear was repeatedly shown to be normal. Left ear hearing acuity throughout service, including when tested on separation from service in February 1978 was normal. The available medical evidence indicates that a left ear hearing loss was initially diagnosed in July 2003, more than 25 years after her separation from service. The VA examiner in July 2003 found that the test results were consistent with a history of noise exposure. It is not clear from the examination report, however, whether the examiner was limiting that finding to the right ear hearing loss, which was documented on separation from service, or including the left ear hearing loss, which was not. The Board finds, therefore, that an additional examination and opinion are needed. The veteran has also claimed entitlement to service connection for a pulmonary disorder, a heart disorder, and a neck disorder. She reported having received treatment for these disabilities from VA since her separation from service, but her treatment records prior to August 1998 have not been associated with the claims file. The VA treatment records are deemed to be evidence of record, and a determination on the merits of her appeal should not be made without consideration of that evidence. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Her service medical records show that she was treated for chest congestion and coughing in September 1977, assessed as an upper respiratory infection; coughing and cold symptoms in October 1977, assessed as a cold and possible mild bronchitis and later as otitis media; a runny nose and cough in December 1977, assessed as acute respiratory disorder; and a sore throat with coughing in January 1978, assessed as viral syndrome. Physical examinations consistently showed the lungs to be normal. When examined on separation from service in February 1978 she reported feeling short of breath when running, but examination again showed the lungs and chest to be normal. The available medical records indicate that the veteran began receiving treatment for what became chronic asthma/bronchitis in July 1998. Her VA physician has provided the opinion that her current chronic pulmonary disability is related to the symptoms she had in service, but that opinion was based on her report of continuing symptomatology since service. Additional development is needed in order to determine whether she has had pulmonary symptoms since service, and whether her current disability is related to service. The medical evidence shows that the veteran has a congenital heart disorder, diagnosed as endomyocardial fibrosis. She contends that the heart disorder was aggravated by her military service, and that the heart disease was noted when she received treatment at the VAMC in the early 1990s. Those VA treatment records should be considered prior to determining the merits of her claim. The medical evidence indicates that she currently has degenerative joint and disc disease of the cervical spine. She contends that the current neck problems are related to an injury that she incurred in service. Her service medical records reflect complaints of neck pain after hitting her head on a metal pole in November 1977, which was attributed to muscle tension. Later in November 1977 she again complained of neck pain, after a bunk fell on her neck. X- rays of the cervical spine at that time disclosed no abnormalities. She also complained of a stiff neck in January 1978, which was attributed to viral syndrome. Although her physician has provided an opinion that the currently diagnosed neck disorder is related to the injuries she incurred in service, that opinion was based on her report of having experienced neck pain since then. Her VA treatment records since service should be considered prior to determining whether her report of continuing symptomatology is credible. In a May 2000 rating decision the RO granted service connection for headaches, effective with the date of claim for service connection of July 30, 1999. The veteran perfected an appeal of the effective date assigned for the grant of service connection, and contends that she is entitled to an effective date in June 1978. She claimed service connection for headaches in July 1978, which the RO finally denied in October 1978. The veteran has asserted that the October 1978 rating decision was clearly and unmistakably erroneous in denying service connection for headaches, which issue the RO has not yet addressed. This issue is inextricably intertwined with her appeal of the effective date assigned for the grant of service connection, which is deferred pending the RO's adjudication of her claim of clear and unmistakable error. Accordingly, these issues are remanded for the following action: 1. Obtain the veteran's treatment records from the VAMCs in Tampa and Bay Pines, Florida, including the St. Petersburg Outpatient Clinic, from June 1978 to August 1998. If those records have been retired, they should be recalled and associated with the claims file. 2. After the development requested above has been completed to the extent possible, forward the veteran's claims file to a VA physician. The physician is asked to provide an opinion on whether the currently diagnosed left ear hearing loss disability is not likely, likely, or at least as likely as not (a probability of 50 percent or greater) etiologically related to military service. That opinion should be based on review of the evidence of record and sound medical principles, and not solely on the veteran's reported history. 3. After the development requested in Paragraph #1 has been completed to the extent possible, forward the veteran's claims file to a VA physician. The physician is asked to provide an opinion on whether the currently diagnosed asthma, bronchitis, and/or chronic obstructive pulmonary disease is not likely, likely, or at least as likely as not (a probability of 50 percent or greater) etiologically related to the chest congestion and coughing documented during service. That opinion should be based on review of the evidence of record and sound medical principles, and not solely on the veteran's reported history. 4. After the development requested in Paragraph #1 has been completed to the extent possible, provide the veteran a medical examination and obtain an opinion on whether the degenerative joint and disc disease of the cervical spine is not likely, likely, or at least as likely as not (a probability of 50 percent or greater) etiologically related to the neck injury during service. The claims file and a copy of this remand should be made available to and be reviewed by the examiner. The opinion should be based on review of the evidence of record and sound medical principles, and not solely on the veteran's reported history. 5. Adjudicate the issue of whether the October 1978 decision was clearly and unmistakably erroneous in denying service connection for headaches. 6. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the veteran, she and her representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The veteran and her representative should be afforded the applicable time period in which to respond. 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 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________________________ J. E. DAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs