Citation Nr: 1227425 Decision Date: 08/08/12 Archive Date: 08/14/12 DOCKET NO. 05-41 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for pes planus. 3. Entitlement to service connection for a respiratory disorder, to include as secondary to asbestos exposure in service. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1960 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection for the claimed disabilities. The Veteran was scheduled to testify at a Board videoconference hearing in April 2007. However, he failed to report for the hearing as scheduled. The Board then remanded the Veteran's claims for additional development in February 2009 and March 2011. The matter now returns to the Board for further review. The issue of entitlement to service connection for hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Veteran's pes planus preexisted service and was not aggravated by service beyond its normal progression. 2. The Veteran's diagnosed respiratory disorder is not etiologically related to service. CONCLUSIONS OF LAW 1. Pes planus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2011). 2. A respiratory disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2011). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 C.F.R. § 3.159(b)(1), removes the portion of the regulation which states that VA will request that the claimant provide any evidence in his possession that pertains to the claim. See 73 Fed. Reg. 23353-54 (April 30, 2008). Prior to the initial adjudication of the Veteran's claims, a letter dated in February 2005 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided prior to the initial adjudication of the Veteran's claims did not address either the rating criteria or effective date provisions, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to these claimed conditions. B. Duty to Assist The Veteran's service treatment records, VA treatment records, Social Security Administration (SSA) records, VA authorized examination reports and opinions, and lay statements have been associated with the claims file. The Board specifically notes that the Veteran was afforded VA examinations with respect to his disabilities, and that additional VA opinions were also obtained. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran's representative argued in a July 2012 brief that the VA respiratory examination was inadequate because the examiner did not provide a rationale for his opinion. However, as set forth in greater detail below, the Board finds that all VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's pes planus and respiratory conditions with supporting rationales. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). VA has provided the Veteran with opportunity to submit evidence and arguments in support of his claim. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. The record is complete and the case is ready for review. Service Connection In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011). Service connection may 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) (2011). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). A. Pes Planus A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2011). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). During the Veteran's December 1960 enlistment examination, he was diagnosed with pes planus, 2nd degree, not considered disqualifying. He was also diagnosed with bilateral hammertoes, excluding the two great toes, also not considered disqualifying. Therefore, the presumption of sound condition does not attach. Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). In this case, there are no further complaints, treatment, or diagnoses related to pes planus or other foot disabilities. The Veteran underwent additional examinations in December 1961, May 1964, as well as a discharge examination in October 1966. No relevant abnormalities were recorded, and the Veteran specifically denied a history of any foot trouble in May 1964. VA treatment records dated November 2003 show the Veteran was prescribed shoe inserts for the treatment of flat feet. The Veteran was afforded a VA examination in February 2010. He reported being accepted into the Navy with a flat foot condition. He stated that he did a lot of walking, marching, and climbing in service. He was on his feet a lot, and this increased the foot pain he experienced. He was never given any treatment until after he left the military. He currently complained of bilateral foot pain with prolonged walking or standing. There was no pain at rest. He treated his condition with shoe inserts. On examination, there was flattening of the medial arch area with some tenderness bilaterally. The examiner diagnosed pes planus, but stated that it was at least as likely as not that the Veteran's pes planus underwent a natural progression. A supplemental opinion was obtained in April 2011. The claims file was reviewed by the examiner, who noted that the Veteran performed a variety of maintenance activities during service. However, the examiner stated that the Veteran did not engage in any physical activity that would have aggravated his feet beyond a normal progression in the military, and indeed the Veteran had no foot injuries in service. Recent medical literature also showed that veterans with flat feet had fewer injuries than those with normal arches. The Veteran's condition had a normal age progression. Based on the evidence of record, the Board finds that service connection for pes planus is not warranted. While the Veteran entered service with a preexisting condition of pes planus, the overall weight of the evidence is against a finding that it was aggravated by service beyond its normal progression. Service treatment records reflect no complaints or treatment related to the feet, and all periodic examinations were normal. The Veteran specifically denied a history of foot trouble in May 1964, over three years after his entrance on to active duty. Thus, there does not appear to have been any increase in symptomatology associated with pes planus in service. Moreover, to the extent that the Veteran can attest to having some increase in symptoms in service, a VA examiner stated that the Veteran's condition had a normal or natural progression. This opinion was supported by an adequate rationale that the Board finds provides obvious and manifest evidence that any purported increase was due to this natural progression. There is no competent medical evidence to refute this conclusion or to otherwise suggest that the Veteran's condition was aggravated by service. The Board has considered the Veteran's own statements made in support of his claim. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example difficulty hearing, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a factual issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1992) (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")). See Barr v. Nicholson, 21 Vet. App. 303 (2007). In Robinson v. Shinseki, the Federal Circuit held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Federal Circuit set forth a two-step analysis to evaluate the competency of lay evidence. The Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury-to determine whether to grant service connection. See Robinson v. Shinseki, 312 Fed. Appx. 336 (2009) (confirming that, "in some cases, lay evidence will be competent and credible evidence of etiology"). The Board observes that this Federal Circuit decision is nonprecedential. See Bethea v. Derwinski, 252, 254 (1992) (a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"). The Board believes that if Bethea applies to Court decisions, it surely applies to those of a superior tribunal, the Federal Circuit. Here, while the Veteran is certainly competent to report observable symptoms, he has not demonstrated the medical knowledge required to establish that his condition was aggravated by service beyond its normal progression. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Therefore, although the statements of the Veteran offered in support of his claim have been given full consideration by the Board, they are not considered competent medical evidence and do not serve to establish aggravation of the Veteran's pes planus disability during his period of service. B. Respiratory Disorder The Veteran contends that he has a respiratory disorder as a result of asbestos exposure in service. As to claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases. This circular, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M21-1 provisions regarding asbestos exposure were amended. The newer M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. [emphasis added]. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the appellant's claim of entitlement to service connection for asbestosis under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As noted, the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. The Veteran served aboard the USS Arcadia, USS Rankin, and USS Guadalcanal. Development undertaken by VA confirms that asbestos was present on the USS Guadalcanal. Therefore exposure to asbestos in service is conceded. Notably, the Veteran served as a Boatswain's mate. According to VA's May 2002 Asbestos Claims Memorandum, a Boatswain's mate had minimal probability of exposure to asbestos. The Veteran underwent an enlistment examination in December 1960. No relevant abnormalities were noted. A January 1961 chest x-ray was normal. In February 1961, and again in December 1961, the Veteran was treated for a sore throat. Additional examinations in May 1964 and October 1966 were normal. An October 1966 chest x-ray was also normal. The Veteran underwent a VA examination in April 2002. He reported a history of chronic bronchitis, as well as smoking one pack per day for the past 40 years. He had problems with shortness of breath and wheezing. On examination, the lungs were clear to auscultation and percussion. There was no respiratory distress. He was diagnosed with chronic bronchitis. A subsequent chest x-ray revealed findings suggestive of chronic obstructive pulmonary disease (COPD). A November 2003 x-ray showed no acute pulmonary disease. In December 2003, the Veteran diagnosed with an upper respiratory infection, likely viral pharyngitis. A September 2005 x-ray was normal. An additional x-ray in October 2005 showed patchy pneumonic infiltrates. The Veteran reported symptoms suggestive of an acute exacerbation of chronic bronchitis, with some possible allergic components. In January 2006, the Veteran was diagnosed and treated for sinusitis. An August 2006 x-ray showed no infiltrates. In a September 2009 statement, the Veteran reported that he served as a deck hand during service but was often assigned to the engine room. The Veteran underwent a VA examination in February 2010. The claims file was reviewed by the examiner, who noted that the Veteran was a Boatswain's mate and had minimal asbestos exposure. The Veteran reported that he did a lot of painting and paint chipping aboard ship. When he was not painting, he was doing maintenance work. The Veteran denied any history of asbestosis or chronic bronchitis. He did state that every year or two, he developed a respiratory infection that required antibiotic treatment. He reported smoking 1 pack of cigarettes per day for 49 years. He current smoked only one cigarette every other day. After service, the Veteran worked as a Merchant Marine until 1982. His work was similar to the work he did in the military, and he was exposed to asbestos on these ships as well. After that, he worked in factories and washed dishes. On examination, the Veteran's lungs were clear to auscultation. A chest x-ray and pulmonary function test were normal. The examiner stated that the Veteran did not have a current pulmonary condition. He did not have asbestosis and did not have any type of lung condition related to any period of active service. In the March 2011 remand, the Board noted that in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of a current disability is satisfied when the claimant had a disability at the time a claim for VA disability compensation was filed, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. Here, although no disability was evident during the Veteran's most recent examination, earlier reports reflect a diagnosis of chronic bronchitis in 2002, and in 2005 (during the period on appeal), with additional complaints of other respiratory conditions. Therefore, the requirement of a current disability is satisfied. Therefore, a supplemental opinion was obtained in April 2011. The examiner stated that the Veteran's previously diagnosed chronic bronchitis was less likely than not related to military service. The Veteran had minimal exposure to asbestos during service. However, he smoked 1 pack of cigarettes a day for 49 years. Therefore, his current condition was more likely than not related to smoking. Based on the evidence of record, the Board finds that service connection for a respiratory disorder is not warranted. The Veteran has been diagnosed with bronchitis and other respiratory conditions during the period on appeal. However, the overall weight of the evidence is against a finding that any current condition was incurred in or otherwise related to service. Initially, the Board notes that the Veteran was treated in service for a sore throat twice in 1961. However, periodic examinations and chest x-rays for the remainder of the Veteran's 5 years of service revealed no active conditions or other respiratory abnormalities. Asbestos exposure during service is conceded. However, the VA examiner in this case noted that the Veteran's asbestos exposure in service was minimal, and that he also had a 49 pack-year history of smoking. This led the examiner to conclude that the Veteran's current condition was more likely than not related to his history of smoking. There is no competent medical opinion to refute this conclusion or to otherwise suggest that the Veteran has a respiratory condition due to service. As before, the Board has considered the Veteran's own statements made in support of his claim. While the Veteran is certainly competent to report observable symptoms, he has not demonstrated the medical knowledge required to establish that his condition is related to asbestos exposure in service. See Espiritu, supra; see also 38 C.F.R. § 3.159 (a)(1). Therefore, although the statements of the Veteran offered in support of his claim have been given full consideration by the Board, they are not considered competent medical evidence and do not serve to establish a nexus between a current condition and asbestos exposure in service. C. Conclusion The preponderance of the evidence is against finding that the Veteran's pes planus was aggravated by service, or that he has a respiratory condition etiologically related to active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claims. ORDER Service connection for pes planus is denied. Service connection for a respiratory disorder is denied. REMAND With respect to the Veteran's claim for service connection for hearing loss, the Board finds that additional development is required. The Veteran's service treatment records include audiological evaluations. The Board notes that prior to November 1967, audiometric results in service department records were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left in each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. The Veteran underwent an enlistment examination in December 1960. No puretone thresholds were recorded. The Veteran's hearing measured 15/15 on spoken voice and whispered voice testing. During an examination in December 1961, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) 10 (20) 10 (20) 20 (30) 35 (40) LEFT 5 (20) -5 (5) 10 (20) 25 (35) 30 (35) The examining physician noted defective hearing in the right ear. On additional examinations in December 1964 and October 1966, the Veteran's hearing measured 15/15 on spoken voice and whispered voice testing. The Veteran was afforded a VA examination in February 2010. After obtaining a history from the Veteran, reviewing the claims file, and conducting a physical examination, the VA examiner concluded that the Veteran's current hearing loss was less likely than not related to service, as the Veteran's high-frequency hearing loss was not consistent with a pattern of hearing loss due to noise exposure. However, the examiner did not comment as to whether the Veteran's current hearing loss was otherwise incurred in service. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, although the VA examiner in this case concluded that the Veteran's current hearing loss was not consistent with noise exposure, a supplemental opinion was requested by the Board in March 2011 to address whether the hearing loss noted in service is otherwise related to, or the initial manifestation of, current hearing loss. That supplemental opinion was obtained in March 2011. However, the examiner did not address the questions posed by the Board. Instead, she merely stated that the previous examination report clearly stated a complete rationale for all opinions offered, and that hearing loss was less likely than not related to service. For this reason, the March 2011 opinion is inadequate, and the claim must be remanded again for proper development. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). Accordingly, the case is REMANDED for the following action: 1. The claims file, including a copy of this remand, should be forwarded to a VA audiologist, who should review the entire record, particularly the February 2010 VA audiological examination and the Veteran's complete service treatment records. Upon review, he/she should address the following questions: (A) Is the Veteran's currently diagnosed hearing loss at least as likely as not related to noise exposure in service? (B) Is the hearing loss noted in December 1961 at least as likely as not an initial manifestation of the Veteran's current hearing loss? (C) Is the hearing loss noted in December 1961 at least as likely otherwise related to the Veteran's current hearing loss? The examiner must provide a complete rationale for all opinions offered. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. If an opinion cannot be generated without an examination, then the Veteran should be afforded a new VA audiological examination, and the examining audiologist should comply with the above instructions and answer the questions posed. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 2. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2011). 3. After the requested development has been completed, the AMC/RO should readjudicate the merits of the Veteran's claims based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs