Citation Nr: 1009366 Decision Date: 03/12/10 Archive Date: 03/17/10 DOCKET NO. 06-36 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an increased disability evaluation in excess of 20 percent for residuals of a fracture of the right wrist with arthritis, deformity of bone, and weakness of grip, to include consideration of a separate compensable rating for sensory polyneuropathy. 4. Entitlement to a separate compensable rating for sensory polyneuropathy due to residuals of a fracture of the right wrist with arthritis, deformity of bone, and weakness of grip, with sensory polyneuropathy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD LouElla Kuta, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1942 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2006 and February 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the benefits sought on appeal. The Veteran testified before the undersigned at a videoconference hearing in January 2010. A transcript is of record. In September 2008, the RO received a letter an attorney, stating he was representing the Veteran regarding his pending claims before VA. In November 2008, the RO sent a letter to the Veteran instructing him to complete and return, VA Form 21-22, appointing the attorney as his representative. There was no response from the Veteran. During his January 2010 hearing, the Veteran stated that he was represented by the attorney. He was instructed to send a letter notifying VA of the attorney's appointment as his representative. No correspondence was received from the Veteran. Additionally, the attorney is not accredited as a representative by VA's Office of General Counsel. Under VA regulation, agents and attorneys who commence representation on or after June 23, 2008, must file an application for accreditation with VA's Office of General Counsel (OGC), unless acting on a one time basis in a single claim. 38 C.F.R. §§ 14.629, 14.630 (2009). VA currently recognizes the American Legion as the Veteran's representative the claims folder contains an unrevoked VA Form 21-22 appointing that organization as the his representative, and that organization has acted on his behalf during the course of this appeal. In a November 2009 deferred rating decision the RO noted a pending claim for service connection for a right shoulder condition. This is issue is not currently in appellate status before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for bilateral hearing loss and tinnitus, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The service-connected residuals of a right wrist fracture consist of pain, weakness, and limitation of motion without ankylosis; and moderate incomplete paralysis of the lower radicular group. CONCLUSION OF LAW The criteria for a rating of 40 percent for the residuals of a fracture of the right wrist with arthritis, deformity of bone, and weakness of grip with sensory polyneuropathy have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.71a, 4.124a, Diagnostic Codes 5215, 8512 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009) redefined VA's duty to assist the claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The United States Court for Veterans Appeals (Court) had held that at a minimum, adequate VCAA notice in an increased rating claim required that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The Federal Circuit vacated the Court's decision, overturning the requirement that VA provide notice that the claim could be substantiated by evidence of a disability's impact on daily life and that VA provide notice with regard to potential diagnostic code criteria (element 2). Vazquez- Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The generic first, third, and fourth elements of the Court's decision were not disturbed by the Federal Circuit. VA provided VCAA required notice regarding his increased rating claim, in correspondence sent to the Veteran in October 2008. This letter told the Veteran that he could substantiate the claim with evidence that the disability had worsened, notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his increased rating claim, and identified his duties in obtaining information and evidence to substantiate his claim. The October 2008 letter further provided notice of the type of evidence necessary to establish a disability rating and effective date for the claimed disability under consideration, in accordance with Dingess. The letter told him that he could substantiate the claim with evidence of the impact of his disability on employment, provided examples of evidence that could substantiate the claim, and provided all elements of the notice required by Vazquez-Flores. For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Veteran, nonetheless, received this notice in the October 2008 letter. VCAA notice was provided after the initial adjudication of the claim. The timing deficiency was cured by readjudication of the claim in supplemental statements of the case that were issued after the notice was provided. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained all available records, including service records, and records from VA and private treatment and examination providers. Additionally, the Veteran was afforded adequate VA examinations in response to his claim. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Increased Rating Criteria Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2009). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2009). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2009). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Normal range of motion in the wrist is 70 degrees of dorsiflexion (extension), 80 degrees of palmar flexion, 80 degrees of forearm supination, and 85 degrees of forearm supination. See 38 C.F.R. § 4.71a, Plate I. Under Diagnostic Code 5215, a 10 percent rating, the maximum rating, is warranted when there is limitation of motion of the wrist with dorsiflexion less than 15 degrees or with palmar flexion limited in line with the forearm. 38 U.S.C.A. § 4.71a. Under Diagnostic Code 5214, a 20/30 percent disability evaluation is warranted when there is favorable ankylosis in 20 to 30 degrees dorsiflexion in the minor/major wrist. A 30/40 percent disability evaluation is contemplated for ankylosis of the minor/major wrist in any other position, except favorable. A 40/50 percent rating is assigned for ankylosis of the minor/major wrist when ankylosis is unfavorable, in any degree of palmar flexion, or with ulnar or radial deviation. 38 U.S.C.A. § 4.71a. Diagnostic Code 8513, involves neurological impairment of the lower radicular group. This Code provides a 20 percent disability rating for mild incomplete paralysis. A 30 percent rating is provided for moderate incomplete paralysis involving the non-dominant extremity and a 40 percent rating for moderate incomplete paralysis involving the dominant extremity. A 40 percent rating (non-dominant) and a 50 percent rating (dominant) requires severe incomplete paralysis. A 60 percent rating (non-dominant) and a 70 percent rating (dominant) requires complete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8512 (2009). The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124(a). The words "slight," "moderate," and "severe", as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just." 38 C.F.R. § 4.6. Service treatment records and statements from the Veteran indicate he is right-handed. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Background In November 2007, the Veteran was afforded a VA examination. The Veteran reported constant daily pain and loss of range of motion. He reported wearing a brace. The Veteran reported paresthesias over all five digits and in the hand with the radial, median, and ulnar nerve affected. The examiner noted the right wrist had no increased warmth to touch and was exquisitely tender in the navicular region. Range of motion was 0 degrees flexion extension and side bending, and any attempts caused the patient severe pain. Sensory was intact in all five fingers and motor responses were grossly intact, but the Veteran was unable to squeeze with any significant force without causing intense pain. Radial and ulnar pulses were +2/4 and equal bilaterally. An EMG was abnormal and nerve conduction velocity showed evidence of dysfunction of the sensory as well as the motor component of the right median and ulnar nerve. The study was consistent with sensory motor polyneuropathy. X-ray studies indicated widening of the navicular lunate joint space, chondrocalcinosis, vascular calcification, and degenerative changes which had progressed slightly since October 2004. The Veteran was diagnosed with a navicular fracture, sensory motor polyneuropathy, and traumatic osteoarthritis. The examiner stated the Veteran's condition had worsened to the point of significantly interfering with his ability to complete activities of daily living. In March 2009, the Veteran underwent a VA examination. He reported weakness, tremors, stiffness, numbness, paresthesias, and pain. He reported that it was difficult to feed himself, sometimes with a spoon. Upon examination, the forearm and hand muscle strength was 4/5 and motor function impairment was weak. The examiner diagnosed the Veteran with a deformity of the bone and weakness of grip with sensory polyneuropathy. There was no paralysis, neuritis, or neuralgia. The Veteran submitted a May 2009 report from Dr. ARG of Advanced Pain Management Specialists. The Veteran reported constant pain in the right wrist due to arthritis and because of this he wore a resting hand splint. He reported that he lost range of motion in the wrist and had poor strength. Upon examination, right wrist extension was 10 degrees, flexion was 15 degrees, ulnar deviation was 5 degrees and radial deviation was 10 degrees. A neurological evaluation of the upper extremity showed generalized decreased strength felt to be related to the underlying range of motion loss and the arthritis. No specific sensory loss or sudomotor changes were present. The examiner diagnosed the Veteran with a right upper extremity impairment. Analysis The right wrist disability is currently evaluated under Diagnostic Code 5214 as 20 percent disabling. That diagnostic code provides the 20 percent evaluation for ankylosis involving the minor wrist. The 20 percent disabling rating has been in effect for more than 20 years and therefore, it is protected. 38 C.F.R. § 3.952 The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether other rating codes are more appropriate than the one used by the RO. Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Veteran's current disability consists of painful and limited motion, as well as neurologic manifestations to include sensory polyneuropathy, decreased sensation, and strength in the distribution of the ulnar and median nerves. Accordingly, it is more appropriate to rate the disability on the basis of limitation of motion under Diagnostic Codes 5215 and impairment of the lower radicular group under Diagnostic Code 8512 than under Diagnostic Code 5214, which applies in cases involving ankylosis. Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet App 524 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONALRY (28TH Ed. 1994) at 86.). The examinations during the course of this appeal have shown that the Veteran has the ability to move the wrist. Additionally, Diagnostic Code 5215 provides for a maximum 10 percent rating for both the minor and major arm where wrist dorsiflexion is limited to less than 15 degrees or where palmar flexion is limited in line with the forearm. Where the criteria for a compensable rating under a diagnostic code are not met, and the schedule does not provide for a zero percent rating, a zero percent evaluation will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2009). Here, VA and private examinations indicate the Veteran has severely limited range of motion of the right wrist. A May 2009 report from Dr. ARG noted right wrist extension was 10 degrees, flexion was 15 degrees, ulnar deviation was 5 degrees and radial deviation was 10 degrees. For a rating higher than 10 percent, there must be ankylosis of the wrist. 38 C.F.R. § 4.71a, Diagnostic Code 5214 (2009). Here, there is no evidence of ankylosis of the wrist, and a 10 percent rating would result in a reduction of the Veteran's rating. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2009), pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, these provisions are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Rating on the Basis of Neurologic Manifestations The November 2007 VA examiner found that any attempts to manipulate the wrist caused severe pain. Motor responses were grossly intact, but the Veteran was unable to squeeze with any significant force. The March 2009 VA examiner noted the Veteran reported numbness, tremors, paresthesias, and pain, along with the inability, at times, to feed himself. The Veteran's functional difficulties appear to have been attributed to pain and neuropathy. Given the functional impairments, the evidence favors a conclusion that the disability in the right wrist approximates moderate incomplete paralysis. Although the November 2007 VA examiner did not state whether the Veteran's condition was "moderate" or "severe," the VA examiner stated the Veteran's condition had worsened to the point of significantly interfering with his ability to complete activities of daily living. While, the March 2009 examiner reported that there was no evidence of paralysis, neuritis, or neuralgia, the examiner found weakness and diminished muscle strength with decreased sensation and grip strength. These symptoms were identified as polyneuropathy. This symptomatology was attributed to the trauma in service. This symptomatology goes beyond the wholly sensory, but does not result in atrophy or abnormal muscle tone. The most recent examiner found that the disability caused mild to severe impairment in most activities of daily living. This symptomatology warrants a rating on the basis of moderate incomplete paralysis of the lower radicular group on the major side. 38 C.F.R. § 4.124a, Diagnostic Code 8512 (2008). Accordingly, a 40 percent rating is warranted on the basis of moderate incomplete paralysis of the lower radicular group. Given the absence of atrophy, the finding that muscle strength is only mildly diminished, and assessment of generally mild to severe impairment in activities of daily living, the evidence is against a finding that the disability approximates severe incomplete paralysis. 38 C.F.R. §§ .47, 4.21, 4.123, 4.124, 4.124a. The Board has considered whether a separate rating is warranted for limitation of motion of the wrist under Diagnostic Code 5215. The 40 percent rating, however, contemplates impaired function of the wrist. VA policy is against granting separate evaluations for the same manifestations of service connected disability. Esteban v. Brown, 6 Vet App 259 (1994); 38 C.F.R. § 4.14 (2009). Evaluations under Diagnostic Code 5215 and 8512 would provide separate evaluations for the same manifestations of the disability, and would constitute prohibited pyramiding. The Board therefore finds that a disability evaluation of 40 percent for moderate incomplete paralysis of the right wrist under Diagnostic Code 8512 is warranted in this matter in lieu of the 20 percent disability evaluation originally assigned under Diagnostic Code 5214. 38 C.F.R. §§ 4.71a, 4.124a. Extra-Schedular In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2009). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for the service- connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran'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 Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the Veteran'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"). When the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, 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 Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's disability is manifested by moderate symptoms of incomplete paralysis and limitation of motion. These symptoms are contemplated by the rating criteria. 38 C.F.R. §§ 4.123, 4.124, 4.124(a) (2009). In the absence of evidence presenting "exceptional" circumstances, referral of the claim is not warranted for consideration of an extraschedular rating; the Veteran's disability is appropriately rated under the schedular criteria. Total Rating for Compensation Based on Individual Unemployability (TDIU) The Court has held that TDIU is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2009) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). There is no medical evidence of unemployability, the Veteran retired in 1990, due to his age and years on the job. He has not alleged unemployability as the result of the right wrist disability. Accordingly, the Board concludes that a TDIU rating is not warranted. ORDER Entitlement to an increased, 40 percent, rating for residuals of a fracture of the right wrist with arthritis, deformity of bone, and weakness of grip, is granted. REMAND The Veteran has consistently stated that he was exposed to aircraft engine noise during service. He stated that he sustained a progressive loss of hearing and developed tinnitus as a result of his service on the flight line. (See November 15, 2005 claim of entitlement to service connection). In January 2006, a VA examiner opined it was unlikely that the Veteran's present hearing loss and tinnitus was "significantly contributed" to by his military noise exposure. In an October 2006 addendum, the VA examiner reported that the Veteran's hearing loss and tinnitus were not related to service. A rationale is needed to explain and clarify this opinion. Additionally, the examiner did not appear to take into account the Veteran's reports of his injuries and symptoms and the Veteran's reports must be considered in formulating the requested opinion. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2009); see 38 C.F.R. § 19.9 (2009). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The RO/AMC should obtain a VA medical opinion from the audiologist who conducted the January 2006 audiological examination, if possible, as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current bilateral hearing loss or tinnitus had its onset in service or is otherwise related to a disease or injury in active duty service. In this regard the examiner should consider the reports of in-service noise exposure and the Veteran's reports of ongoing symptomatology. The examiner should clarify his opinion that it was unlikely that the Veteran's present hearing loss and tinnitus was "significantly contributed" to by his military noise exposure. The examiner should provide a rationale for these opinions. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that the Veteran's reports must be considered in formulating the requested opinion. If the examiner who provided the January 2006 examination is unavailable, the Veteran should be provided a new examination to obtain the necessary opinions. 2. If the claims on appeal are not fully granted, issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. The Veteran 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. 2009). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs