Citation Nr: 1500735 Decision Date: 01/08/15 Archive Date: 01/13/15 DOCKET NO. 10-24 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 60 percent for degenerative joint disease of the lumbar spine. 2. Entitlement to service connection for bilateral ankle sprains and Achilles tendonitis. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Carter, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to October 1971, with service in Vietnam from October 1970 to October 1971. The Veteran also had additional service in the Army Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This appeal was processed using the Virtual Benefits Management System (VBMS) and the Virtual VA electronic claims file. Accordingly, any future consideration of the case should take into consideration the existence of this electronic record. The November 2014 Informal Hearing Presentation (IHP), submitted by the Veteran's representative, discussed service connection for left leg sciatic nerve condition as an issue currently on appeal. That issue is not in appellate status, as the last final denial on a new and material basis was in the September 2008 rating decision, to which a timely Notice of Disagreement (NOD) was not filed. See 38 C.F.R. § 20.302 (2014). Nevertheless, that issue will be discussed below in association with the issue of an evaluation in excess of 60 percent for degenerative joint disease of the lumbar spine. See 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5235-5243, Note (1) (2014). The issues of service connection for coronary artery disease (CAD), arteriosclerotic artery disease, and ischemic heart disease, all claimed as due to herbicide exposure, have been raised by the record in an August 2014 VA Form 21-526EZ, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The issues of service connection for service connection for bilateral hearing loss, service connection for tinnitus, and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. For the entire rating period on appeal, service-connected degenerative joint disease of the lumbar spine has not been manifested by unfavorable ankylosis of the entire spine or any additional associated neurological abnormalities, to include the left lower extremity. 2. The Veteran's current bilateral ankle sprains and Achilles tendonitis are not related to documented in-service ankle injuries nor otherwise incurred during military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 60 percent for degenerative joint disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.21, 4.71a, DC 5242-5243 (2014). 2. The criteria for service connection for bilateral ankle sprains and Achilles tendonitis have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided by a letter in November 2006 and the September 2008 rating decision. Neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notice or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Additionally, these claims were recently re-adjudicated in a June 2014 supplemental statement of the case. Thus, adjudication of these claims is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). As the record currently stands, VA treatment records, and VA examination reports dated June 2002, May 2008, and June 2008. The reports are adequate because, taken together, they provide an etiological opinion with supporting rationale that considered the relevant evidence of record and provide the necessary findings to properly rate the lumbar spine disorder under the applicable diagnostic codes. Service treatment records, VA medical records and private records are associated with the claims file. Although records from the Veteran's period of Reserve service are apparently not yet fully associated with the claims file, obtaining those records is not necessary to adjudicate the two claims on appeal. This is because the Veteran alleges the ankle disorder was incurred during his period of active duty service and he does not allege continuous symptoms. Additionally, the lumbar spine evaluation appellate period began well after any Reserve service. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose at any point during the appeal period. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating these identified claims on appeal. Increased Evaluation for Lumbar Spine Disability Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran seeks a higher evaluation for service-connected degenerative joint disease of the lumbar spine (hereafter "back disability"), rated as 60 percent disabling. This disability is rated under 38 C.F.R. §§ 4.27 (explaining hyphenated diagnostic codes), 4.71a, DC 5242-5243. Under the General Rating Formula for Rating IVDS Based on Incapacitating Episodes, a 60 percent rating, the maximum available, is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, DC 5243. DC 5242 provides for degenerative arthritis of the spine (see also DC 5003). DC 5003 provides that degenerative arthritis, established by x-ray findings, is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. DCs 5235-5242 are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula a 100 percent rating, the maximum available, is assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. See 38 C.F.R. § 4.71a, Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)). The criteria for an evaluation in excess of 60 percent have not been met at any time during the entire increased rating period on appeal. The evidence does not demonstrate that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine or any of the above-described symptoms indicative of unfavorable ankylosis to warrant the next higher 100 percent rating. At the May 2007 VA examination, the Veteran described the functional impairment of his back disability as not being able to move as he might get stuck either standing, sitting, or laying down and ambulating. At the May 2008 VA examination, the Veteran reported stiffness, visual disturbances, and weakness as symptoms of his back disability. Upon physical evaluation, range of motion testing revealed limited active forward flexion and limited extension, as well as further limited movement by pain. There was 70 degrees (out of 90 degrees) flexion and 20 degrees (out of 30 degrees) extension, when pain was considered. There was no additional limitation of motion due to fatigue, weakness, loss of endurance, or incoordination. The examiner noted a normal gait and concluded there was no ankyloses. In light of the Veteran's limitations of lumbar spine movement, it is apparent that the Veteran's spine is not fixated or immobile to support a finding of unfavorable ankylosis of the entire spine. The examiner also noted there was no sign of IVDS with chronic and permanent nerve root involvement. Moreover, VA treatment records reveal ongoing complaints and treatment for lumbar spine .pain but also show active movement. The Veteran informed the May 2008 VA examiner that his back pain can be elicited by physical activity, functional impairment is demonstrated by limited physical activity, and his back disability has not resulted in any incapacitation. Such complaints of limited physical movement supports a finding that the Veteran's entire spine is limited, but not fixated, as he is still able to demonstrate active movement of the lumbar spine. As such, the record does not reflect that the Veteran has symptoms of unfavorable ankylosis, as outlined above. A separate evaluation may be warranted for any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, DCs 5235-5243, Note (1). Service connection has already been granted for sciatic nerve peripheral neuropathy of the right lower extremity at 10 percent disabling, effective September 7, 2006. With regard to any other associated neurological abnormalities associated with the service-connected back disability, the record is silent for any such findings. Although the Veteran informed the May 2007 and May 2008 VA examiners of experiencing pain in his legs due to the service-connected back disability, neurological testing of the left lower extremity revealed negative straight leg raising test results, normal knee jerk reflexes, normal motor function, and normal sensory function. The Veteran also denied having any bladder and bowel complaints associated with his back disability, and no abnormalities were documented after rectal and male genital physical evaluations. He did report in VA treatment records, left leg numbness, but as noted above, the objective evidenced indicated that there are no left leg neurological complications. October 2013 VA records noted intact sensation, negative Lasegue test, normal muscle strength, negative straight leg raises, normal knee and ankle reflexes. The impression included no neurologic deficits. As such, the evidence of record indicates the service-connected back disability has not been manifested by objective findings of unfavorable ankylosis of the entire spine or any additional associated neurological abnormalities, to include the left lower extremity. The Board has considered the Veteran's reported history of symptomatology for his service-connected back disability s. It is acknowledged that he is competent to report such symptoms and observations because this requires only personal knowledge as it comes through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he is not competent to identify specific levels of his service-connected back disability according to the appropriate diagnostic codes and relevant rating criteria. In this case, such competent evidence concerning the nature and extent of the Veteran's disability has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran's subjective complaints and worsened symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board has also considered a higher evaluation in this case based on the presence of additional functional loss not contemplated in the current 60 percent evaluation based on the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. As discussed above, the Board finds that the functional equivalent of unfavorable ankylosis of the thoracolumbar spine is not shown, even when considering the Veteran's ongoing complaints of pain and limited physical activity. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. As such, the service-connected back disability does not more closely approximate unfavorable ankylosis of the entire spine. An extra-schedular evaluation may be provided for exceptional cases. 38 C.F.R. § 3.321. The threshold factor (first step) for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral under the next step is required. In the second step, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). If such an exhibition is determined, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for Completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. Turning to the first step of the of the extra-schedular analysis, the relevant rating schedule (38 C.F.R. § 4.71a, DC 5242-5243) reasonably describe the Veteran's level of severity and symptomatology caused by his service-connected back disability. As discussed above, his complaints associated with this disability encompasses pain, tenderness, functional limitations, and limited range of motion, all of which are specifically contemplated by the schedular rating criteria. Thus, even in regard to the collective and combined effect of all of the Veteran's service-connected disabilities, no referral for extra-schedular consideration is required under the circumstances of this case. See Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014). Service Connection for Bilateral Ankle Sprains and Achilles Tendonitis In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In September 2006, the Veteran requested service connection for a chronic bilateral foot disorder. In the September 2008 rating decision, the RO recharacterized the issue as bilateral ankle sprains and Achilles tendonitis. In the November 2008 notice of disagreement, the Veteran explained that he fractured his foot at Fort Jackson, South Carolina while in Army Preparatory Training. He was treated with a cast at the troop clinic/hospital. He also noted a second fracture while stationed in South Vietnam, Da Nang and treated with ace bands at the evacuation hospital in 1971. He did not seek further treatment because was prescribed aspirin for pain and medication for swelling. The evidentiary record shows current diagnoses of chronic bilateral ankle sprains and chronic Achilles tendonitis, as documented in the June 2008 VA joint examination report. On the question of in-service injury or disease, review of the Veteran's service treatment records during his period of active service from March 1970 to October 1971 confirm his report of in-service ankle injuries. April 1970 records document the Veteran injured his right foot but that x-ray results were within normal limits. In August 1971, the Veteran's left ankle was injured after being hit by a fork lift tire. X-ray results were negative for a fracture and he was treated with an ace bandage and told to keep off the foot and elevate it for 24 hours. Despite the Veteran's current diagnosis and in-service injury to the right and left ankles, the most probative evidence of record indicates that there is no relationship between the current diagnosis and documented in-service injury. In June 2002, the Veteran underwent a VA joints examination; however, no medical opinion was provided as the examiner noted the Veteran's complaints of ankle pain but did not render any diagnoses related to the ankles. On VA examination in June 2008, the VA examiner conducted a thorough examination of the Veteran's ankles, noted review of the claims file, and stated "[he] cannot resolve this issue without resorting to mere speculation. The Veteran has a 38 year history of silent record from 1970 when he injured his ankles to the present day." Although the June 2008 VA examiner's rationale was solely based on the absence of treatment records since service, neither the evidence of record nor the Veteran suggests the existence of any outstanding complaints and/or treatment records for the ankles since separation from service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). The Veteran also does not allege continuity of symptoms. Therefore, the Board finds that the June 2008 VA medical opinion and rationale is based on an accurate factual history and contains sufficient detail as to why an opinion could not be rendered. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate; a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability. Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010). As explained above, the June 2008 VA examiner explained why he could not render an opinion regarding the relationship between the Veteran's bilateral ankle disorder and in-service ankle injuries. As a result, the Board finds the examiner's statement is adequate because is supported with sufficient rationale for why a nexus opinion could not be provided, yet lacks probative value for this claim on appeal due to the absence of an etiological opinion. The Board notes that the Veteran is competent to report symptoms of ankle pain that he experiences as it comes through the use of his senses. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, he does not have the experience, education, training, and expertise to provide an opinion regarding the etiology of his bilateral ankle disorder. Based on the evidence of record, there is no probative evidence that demonstrates his current bilateral ankle disorder is related to service, nor is there any indication that such evidence exists in order for VA to obtain. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An evaluation in excess of 60 percent for degenerative joint disease of the lumbar spine is denied. Service connection for bilateral ankle sprains and Achilles tendonitis is denied. REMAND A remand is required for the AOJ to verify all of the Veteran's periods of active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA) during his service in the Arm Reserves. The Veteran's service treatment records (STRs) show some degree of hearing loss in the left ear by 25 decibels at the 4000 Hertz range on March 1977 and February 1983 Reserve examination audiogram reports. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). A December 1990 periodic examination audiogram result showed bilateral hearing loss for VA purposes by 40 decibels in the right and left ears at the 4000 Hertz range. See 38 C.F.R. § 3.385. The Veteran has been diagnosed with bilateral hearing loss for VA purposes, as documented in the May 2008 VA examination report. Nevertheless, questions remain as to whether his documented findings of impaired hearing in the left ear in March 1977 and February 1983 and bilateral hearing loss for VA purposes in December 1990 were during a period of qualifying active military service. Review of the file reveals that his DD Form 214 documents active duty service in the Army from March 1970 to October 1971 with subsequent service in the Army Reserves as noted by the following records. A March 1977 DA Form 3540 indicates the Veteran's initial enlistment in the Army Reserves for three years, a January 1980 DA Form 3540 documents reenlistment for three years, November 1982 DD Form 4/3 indicates reenlistment with 10 years of prior inactive service, and a September 1985 DD Form 4/1 shows reenlistment and an August 1991 DD Form 4/1 shows reenlistment for six years. A July 1990 Reassignment Order reveals his term of service expired on September 14, 1991, as well as a September 1996 Reassignment Order during service in the Army Reserves. At this time, the evidence currently of record does not clearly specify when he was on active duty, ACDUTRA, and INACDUTRA after separation from active duty in October 1971, which includes the most relevant time in question when findings of impaired hearing in the left ear as noted in March 1977 and February 1983 and of bilateral hearing loss for VA purposes as noted in December 1990. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2014). Active military service includes disability resulting from injury or disease incurred in or aggravated during active duty and ACDUTRA and disability resulting from injury (but not disease) incurred in or aggravated during INACDUTRA or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C.A. §§ 101(21), (24), 106 (West 2014); 38 C.F.R. § 3.6(a), (d) (2014). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as summer camp, which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is sometimes referred to as weekend warrior training. These drills are deemed to be part-time training. To establish status as a "veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The mere fact that a claimant has established status as a "veteran" for other periods of service (e.g., the veteran's prior period of active duty) does not obviate the need to establish that he is also a "veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, in order for him to achieve "veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury (but not disease) incurred or aggravated during INACDUTRA. See id.; Paulson, 7 Vet. App. at 470. Thus, the Board finds that, in order to properly adjudicate his claims of entitlement to service connection for bilateral hearing loss and tinnitus, all periods of active duty, ACDUTRA, and INACDUTRA must be verified. Thereafter, additional VA medical opinions are needed in light of any newly associated evidence after verification of the Veteran's periods of service. Since adjudication of these remaining claims may impact adjudication of the TDIU claim, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the TDIU claim must also be remanded. Accordingly, the case is REMANDED for the following actions: 1. Contact all appropriate sources in order to verify the specific dates when the Veteran was on active duty, ACDUTRA, and INACDUTRA. Document for the claims file what repositories were contacted and why. If necessary, the Veteran should be requested to provide any assistance in obtaining this clarifying information. All verified dates of service and all responses received should be documented in the claims file. Any outstanding service personnel records also should be obtained and associated with the claims file. Records concerning service merely denoting the amount of points he obtained, including cumulatively, are not helpful in this regard insofar as determining exactly when the Veteran was on ACDUTRA and INACDUTRA. Since these records are in the custody of a Federal department or agency, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2). The AOJ, therefore, must make as many attempts for these records as are necessary to comply with this VA regulation. Also appropriately notify the Veteran and his representative if unable to obtain these records. 38 C.F.R. § 3.159(e)(1) (2014). 2. After all additional records are associated with the claims file, furnish the Veteran's entire claims file to the physician who conducted the May 2008 VA examination and opinion (or a suitable substitute if that physician is unavailable). All efforts made should be documented and incorporated with the record. The relevant documents in the record, including a copy of this remand, should be made available to the physician for review. Based upon a review of the record, the physician must provide the following opinions: a) Is it at least as likely as not (i.e., probability of 50 percent) that the Veteran's current bilateral hearing loss and tinnitus are due to (related to or had its onset during) his active duty military service or a period of ACDUTRA? b) Is it at least as likely as not (i.e., probability of 50 percent) that the Veteran's current bilateral hearing loss and tinnitus are consistent with acoustic trauma (during active duty, ACDUTRA, and/or INACDUTRA) or more likely related to infection, disease, advancing age or other non-service related cause, to include firing weapons once per year as a civilian police officer (as noted in the May 2008 VA examination report)? A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing the above actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the action taken in the preceding paragraphs. 4. When the development has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). These 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. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs