Citation Nr: 1020063 Decision Date: 06/01/10 Archive Date: 06/10/10 DOCKET NO. 09-02 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss, including as a residual of ear drum damage/perforation. 2. Entitlement to service connection for idiopathic thrombocytopenia purpura (ITP), including due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Sykes, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1962 to April 1966. This appeal to the Board of Veterans' Appeals (Board) is from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. As support for his claims, the Veteran testified at a videoconference in January 2010 before the undersigned Veterans Law Judge of the Board. Regrettably, the Board must remand the claim for service connection for bilateral hearing loss to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development and consideration. However, the Board is going ahead and deciding the claim for ITP. FINDINGS OF FACT There is no indication the Veteran had ITP while in the military, within one year of his discharge, or even for many ensuing years, and there also is no competent and credible evidence otherwise etiologically linking this condition to his military service, including to his presumed exposure to Agent Orange in Vietnam. CONCLUSION OF LAW The Veteran's ITP was not incurred in or aggravated by his military service and may not be presumed to have been incurred in service, including as a result of his exposure to herbicides. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION In the interest of clarity, the Board will initially discuss whether the claim has been properly developed for appellate review. The Board will then address the claim on its underlying merits, providing relevant VA case law, regulations and statutory provisions, the relevant factual background, and an analysis of its decision. I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373- 74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative. In Sanders, the Supreme Court rejected the lower Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory." Id., at 1704. The Supreme Court rejected the Federal Circuit's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party, to show the error was harmful. Id., at 1705-06. The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Id., at 1704-05. Thus, it is clear from the Supreme Court's analysis that, while the Veterans Court could conclude generally that a specific type of error is more likely to prejudice an appellant, the error must nonetheless be examined in the context of the facts of the particular case. Id. The Veterans Court held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), since overturned on other grounds in Vazquez-Flores v. Shinseki, 2009 WL 2835434 (Fed.Cir.), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F. 3d at 889. Additionally, consideration also should be given to "whether the post- adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non- prejudicial." Vazquez-Flores, 22 Vet. App. at 46. See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Veterans Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). In this case, a letter satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in March 2008, prior to initially adjudicating his claim in July 2008, so the preferred sequence. The letter informed him of the evidence required to substantiate his claim and of his and VA's respective responsibilities in obtaining supporting evidence. The letter also complied with Dingess by discussing the downstream disability rating and effective date elements of the claim. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim that is obtainable. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained his service treatment records (STRs), VA treatment records, private treatment records, and lay statements in support of his claim. However, and as will be explained, there is no competent and credible evidence that he had the claimed disorder during service or even for many years after his discharge. Nor is there any suggestion this claimed disorder is the result of his presumed exposure to Agent Orange or other herbicides in Vietnam. So the Board is not required to have him undergo a VA compensation examination for a medical nexus opinion concerning this determinative issue. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). There is only his unsubstantiated lay allegation concerning this purported correlation, which, alone, is insufficient reason for having him examined for this medical nexus opinion. Waters v. Shinseki, No. 2009-7071 (April 6, 2010); Duenas v. Principi, 18 Vet. App. 512, 519 (2004). Therefore, the Board is satisfied that VA has provided all assistance required by the VCAA and appellate review may proceed without prejudicing the Veteran. II. Entitlement to Service Connection for ITP The Veteran contends that he suffers from ITP due to his military service and, specifically, as a result of his presumed exposure to Agent Orange or other herbicides while stationed in Vietnam. Unfortunately, however, after reviewing the relevant evidence of record, the Board finds that the preponderance of the evidence is against his claim for service connection, so the Board must deny his claim. Service connection is granted if the evidence shows a current disability resulted from an injury or a disease that was incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A disorder may be service connected if the evidence of record reveals that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence relating the current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Where the determinative issue involves medical causation or a medical diagnosis, there generally must be competent medical evidence to the effect that the claim is plausible; lay assertions in this regard generally are insufficient. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A layperson generally is incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). But there are exceptions to this general rule. Lay testimony is competent, for example, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When, say, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). An opinion of VA's General Counsel held that service on a deep- water naval vessel off the shores of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A). And the Federal Circuit Court since has clarified that service in the Republic of Vietnam requires service on the landmass of Vietnam or inland waterways. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). The following diseases are associated with herbicide exposure for purposes of this presumption: chloracne or other acneform disease consistent with chloracne, Type II Diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Turning back now to the facts of this specific case, as explained, the first and indeed perhaps most fundamental requirement for any service-connection claim is there must be proof the Veteran has the disability claimed. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225 (service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it; without this minimum level of proof, there can be no valid claim). Concerning this, the Veteran submitted private treatment records dating back to 1998 from Dr. P.M., who diagnosed ITP. Additionally, the Veteran submitted VA treatment records from 2004 to 2008 also showing this diagnosis and subsequent treatment for this disorder. Therefore, the determinative issue is whether the Veteran's ITP is attributable to the his military service - and, in particular, to exposure to Agent Orange while in Vietnam. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The Veteran's military personnel and other records confirm he served in Vietnam during the Vietnam Era, although the exacts dates he was stationed there or in the neighboring coastal waterways aboard the USS Bayfield are not indicated. See 38 C.F.R. § 3.2(f). Indeed, service connection for his Type II Diabetes Mellitus was granted in the July 2008 decision at issue based on his presumed exposure to Agent Orange in and around Vietnam. Therefore, it already has been conceded and presumed he was exposed to Agent Orange in Vietnam. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Regardless, in order for the Veteran to be entitled to presumptive service connection on the basis of that Agent Orange exposure, the record must also establish that he has a disease to which this presumption applies. Further, this specific disorder must manifest to a compensable degree of at least 10-percent disabling within a specified time following the last exposure to Agent Orange. See 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). Unfortunately, although it is presumed he was exposed to Agent Orange since he served in Vietnam during the Vietnam era, the competent medical evidence of record does not also establish that he has a disease of the specific type required that would, in effect, require the Board to presume his ITP was incurred during his military service from that presumed exposure to Agent Orange. VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630-27641 (2003). The Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e). See Brock v. Brown, 10 Vet. App. 155, 162 (1997). But even if, as here, a Veteran is found not entitled to a regulatory presumption of service connection, his claim must still be reviewed to determine whether service connection may be established alternatively on a direct incurrence basis by establishing the required causation. See Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation). The Court has specifically held that the provisions set forth in Combee, which, instead, concerned exposure to radiation, are nonetheless applicable in cases, as here, involving exposure to Agent Orange. McCartt v. West, 12 Vet. App. 164, 167 (1999). Concerning in-service incurrence, the Veteran's STRs are completely unremarkable for any relevant complaints, treatment, or diagnosis of ITP. Further, his April 1966 military separation examination was equally unremarkable for any indication of this condition or attendant symptoms. So there is no objective indication of ITP while he was in service. His military service ended in April 1966, the same month as that separation examination. The Veteran also has failed to provide any objective indication of ITP until 1998, so more than three decades after his military service ended. The lapse of so many years after his separation from service and the first documented complaint of this claimed disorder is probative evidence to be considered in determining whether his current disability may be traced back to his military service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Also, because there is no indication of ITP within one year of his discharge, the Board may not presume it was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Of equal or even greater significance, there is simply no medical evidence of record etiologically linking this diagnosis of ITP to the Veteran's military service, including especially to his presumed exposure to Agent Orange in Vietnam. When specifically questioned about this during his relatively recent January 2010 videoconference hearing, the Veteran said his hematologists have suggested to him that his ITP "could be" related to his military service, even "quite likely" related, but that they will not write supporting letters to this effect. However, to the extent his doctors merely suggested such a cause-and-effect correlation between his ITP and military service in equivocal terms like "could be" related is too speculative and, thus, an insufficient basis for granting service connection. See Obert v. Brown, 5 Vet. App. 30 (1993) (indicating that saying something "may" be true is tantamount to just as well saying it "may not" be true, and that an award of VA benefits may not be based on resort to speculation or remote possibility). Indeed, there are a line of precedent cases discussing the lesser probative value of opinions like this that are equivocal, in various contexts, which essentially state that it is possible that what posited is true. See, e.g., Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Perman v. Brown, 5 Vet. App. 227, 241 (1993); and Winsett v. West, 11 Vet. App. 420, 424 (1998). See, too, Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). But that said, an absolutely accurate determination of etiology is not a condition precedent to granting service connection, nor is definite or obvious etiology. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). That is to say, use of cautious language does not always express inconclusiveness in a doctor's opinion. Rather, the opinion should be viewed in its full context and not characterized solely by the medical professional's choice of words. See Lee v. Brown, 10 Vet. App. 336, 338 (1997). Here, the Veteran said his doctors went a bit further and indicated to him that this purported correlation between his ITP and military service is even "quite likely". But, ultimately, his account of what his doctors purportedly said, filtered as it is through his lay sensibilities, is simply too attenuated and unreliable to be considered competent medical evidence supporting his claim and this notion. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). See also LeShore v. Brown, 8 Vet. App. 406, 409 (1995). And, again, he readily acknowledged during his hearing that his doctors are unwilling for whatever reason to actually document their favorable opinions in writing. The private medical evidence of record includes treatment records from Dr. P.M., beginning in 1998 and continuing through March 2001. These treatment records, however, only show the Veteran suffers from ITP, a fact which the Board is not disputing. Additional treatment records from Drs. N.D. and S.P. from October 2002 through February 2004 also do not include a medical opinion as to the etiology of the Veteran's ITP; instead, these records only chronicle his treatment of the disorder. The medical history contained in these private treatment records beginning in 1998 and continuing through February 2004 in no way indicates or even suggests he may have acquired this disorder as a result of his military service. Similarly, the VA treatment records from December 2004 through March 2008 do not contain this required medical nexus opinion concerning the etiology of the ITP, to in turn relate or attribute it to the Veteran's military service, and in particular to his presumed exposure to Agent Orange in Vietnam. Absent this supporting medical nexus evidence, service connection is not warranted. While the Veteran is competent, even as a layman, to for example describe symptoms of ITP he has experienced, whether in service or during the many years since his discharge, he is not also competent to in turn attribute the ITP and associated symptoms to his presumed exposure to Agent Orange in Vietnam or, for that matter, to any other incident of his military service. This is a medical, not lay, determination. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability, including during service, even where not corroborated by contemporaneous medical evidence, but also indicating the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence, against the other evidence of record). See also 38 C.F.R. § 3.159(a)(2); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). See also Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Therefore, service connection may not be established based on chronicity in service or continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). It is worth reiterating in this regard that evidence that relates the current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97 Accordingly, for these reasons and bases discussed, the preponderance of the evidence is against the Veteran's claim, so there is no reasonable doubt to resolve in his favor, and his claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The claim for service connection for ITP is denied. REMAND The Veteran also attributes his bilateral hearing loss to his military service, including especially to traumatic damage to his ears when he perforated his eardrums. He says that he had normal hearing upon entering service, and that he even had the best hearing of his unit in boot camp, but that subsequently, due to his job as a gun loader, he sustained injuries to his eardrums, including two instances of perforation in October 1964 and August 1965, eventually resulting in the need for hearing aids, which he currently uses. As previously, discussed the same principles of service connection apply to this claim. To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in some cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in- service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). Regarding this first requirement, there is no disputing the Veteran has bilateral hearing loss. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In the absence of this proof, there could be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). To this end, he submitted VA treatment records beginning in April 2004 and continuing through January 2009 illustrating repeated complaints concerning his hearing. Additionally, in the audiological evaluation during the October 2008 VA compensation examination, his average pure tone threshold level of 63.75 decibels for his right ear meets the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385. Similarly, the readings for his left ear meet these regulatory requirements since he had an average of 58.75 decibels for his puretone threshold levels. Finally, his speech recognition ability was 92 percent for his right ear and 80 percent for his left ear. Id. Additionally, based on the results of that hearing test, the VA examiner determined there was normal sloping to severe bilateral sensorineural hearing loss. So there is no disputing the Veteran has bilateral hearing loss and, indeed, of sufficient severity according to the threshold minimum rating requirements of § 3.385 to also be considered an actual disability by VA standards. See also Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability). Hence, resolution of the appeal of this claim turns on whether this disorder is attributable to the Veteran's military service, including to the type of injury mentioned. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Regarding this purported correlation between his current hearing loss disability and military service, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2010. And in his hearing testimony, he made particular note of the fact that the October 2008 VA examiner linked tinnitus (ringing in his ears) to his military service, but not also inexplicably the hearing loss still at issue. Service connection indeed since has been granted for tinnitus in March 2009 on the basis of that VA examiner's opinion linking this condition to the Veteran's military service. Further in support of his claim for hearing loss, the Veteran's service treatment records (STRs) note two separate instances of treatments for ear pain in service. He complained of ear pain in October 1964 and again in August 1965. However, the October 2008 VA compensation examiner failed to render an opinion concerning whether the Veteran's current bilateral hearing loss could be related to or the result of those two instances of treatment for ear pain during service, especially since the Veteran says the ear pain was the result of significant injury, namely, perforating his eardrums. Unlike the tinnitus, that VA examiner did not comment on the etiology of the hearing loss. And this additional comment is needed to fairly decide this claim for hearing loss. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i) (2009). Accordingly, this remaining claim for hearing loss is REMANDED for the following additional development and consideration: 1. If possible, have the VA compensation examiner that evaluated the Veteran in October 2008 (and who linked the Veteran's tinnitus to his military service) provide additional comment on the likelihood (very likely, as likely as not, or unlikely) the Veteran's hearing loss also is related or attributable to his military service - including especially to the events that precipitated his evaluation and treatment in October 1964 and August 1965. If, for whatever reason, it is not possible or feasible to have this same VA examiner provide further comment, then have someone else equally qualified make this important determination. This may, however, require having the Veteran reexamined, but this is left to the designee's discretion. The Veteran is hereby advised that, if it is determined he needs to be reexamined, failure to report for this reexamination, without good cause, may have adverse consequences on his pending claim for hearing loss. Irrespective of whether another examination is needed, the claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical and other history - including especially concerning the evaluation and treatment he received during service. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. 2. Then readjudicate this claim in light of the additional evidence. If this claim is not granted to the Veteran's satisfaction, send him a supplemental statement of the case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim. The Veteran has the right to submit additional evidence and argument concerning the claim 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs