Citation Nr: 1301544 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-34 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for low back pain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active service from June 1975 to December 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. As part of his September 2009 VA Form 9, the Veteran requested to be afforded a hearing to be conducted by a Veterans Law Judge. He later withdrew his request for a hearing in March 2010. The issues of entitlement to service connection for bilateral hearing loss, tinnitus, and low back pain are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There is no competent or credible evidence of a nexus between the post service diagnosis of bilateral patellofemoral pain syndrome and service, and evidence of continuity is not shown. CONCLUSION OF LAW A chronic disability of the bilateral knees was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties To Notify And Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. As for the claim seeking service connection for a bilateral knee disorder, which is here being denied, in a December 2007 letter the RO notified the Veteran of the information and evidence to substantiate his service connection claim, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. The letter advised the Veteran to submit or identify any additional information that he felt would support his claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also included the following enclosures: "How You Can Help and How VA Can Help You," and "What the Evidence Must Show - Service connected comp." The letter also included timely Dingess notice. For the reasons discussed above, therefore, the Board finds that VA has fulfilled its VCAA notification duties to the Veteran to the extent necessary. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. There is no evidence of any failure on the part of VA to further comply with VCAA that reasonably affects the outcome of this case. Finally, the duty to assist the appellant has been satisfied in this case. The Veteran's service treatment records, private medical records, and a VA examination report, are in the claims file and were reviewed by both the RO and Board in connection with the appellant's claim. The appellant has not informed VA of any outstanding existing medical records which may be helpful in the adjudication of his claim. VA is not on notice of any evidence needed to decide the claim which has not been obtained. As noted, a VA examination was obtained with regard to the claim for service connection for bilateral knee disorder. This examination was conducted in June 2008. To that end, 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 Board finds that the June 2008 VA examination findings, and the opinion obtained in this case, is adequate, as it was predicated on a review of the Veteran's claims file. The examiner considered all of the pertinent evidence of record, to include the Veteran's service and post-service records. There is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue of entitlement to service connection on appeal has been met. 38 C.F.R. § 3.159(c)(4). Contentions As part of a VA Form 21-4138, received in December 2007, the Veteran reported that he first had trouble with his knees in January 1973 while participating in the ROTC at Fort Benning, Georgia. He added that he continued to have knee-related episodes throughout his active duty career. He attributed his claimed knee disorder to his participating in strenuous physical activities during his military career. Another VA Form 21-4138, dated in July 2008, shows that the Veteran again pointed out that he had first had problems with his knees in 1973. While the Veteran noted he had knee problems in about 1999, he added that his claimed disorder had not been treated since his 1988 service separation. Laws and Regulations Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. In adjudicating a claim, including as to continuity of symptomatology, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Although the Veteran asserts that his currently-manifested bilateral knee disorder is related to service, he is not competent to provide an opinion requiring medical knowledge, such as a question of medical causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). He is competent to give evidence about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). Factual Background The service treatment records include a September 1979 treatment record which notes that the Veteran complained of knee pain for a duration of two days. No swelling or discoloration was observed; some grinding was present. The supplied diagnosis is mostly illegible; chondromalacia seems to may have been written. See health record. A March 1983 health record includes a diagnosis of probable right knee lateral collateral ligament strain. Another March 1983 health record shows a diagnosis of right knee ACL (anterior cruciate ligament) strain. An April 1983 health record notes follow-up treatment for the right knee strain. In addition, reports of medical examinations dated in April 1973, November 1974, January 1976, March 1983, March 1979, April 1987, and September 1988 do not show findings relating to the Veteran's knees. The Veteran informed VA in July 2007 that he had been incarcerated since August 2002, and that since that time all of his medical treatment had been provided through the Texas Department of Criminal Justice. He added that his claimed knee disorder had not been treated during this time due to, in part, indifference on the part of staff and the cost necessary to provide treatment. Medical records obtained from the Texas Department of Criminal Justice, while showing that the Veteran was treated for various other disorders, do not show that he either complained of knee-related problems, or that treatment for his knees was provided. The report of a June 2008 VA orthopedic examination report shows that the Veteran gave a history of a bilateral knee disorder beginning in the 1980's. He reported no specific injury, but added he experienced popping, cracking, and buckling during airborne school. He added he tore right knee ligaments in 1975 during basic training, and added he had not been treated for his knees since his 1988 service discharge. The Veteran was noted to have been incarcerated since 2002. After examining the Veteran, bilateral patellofemoral pain syndrome was diagnosed. The examiner essentially opined that it was less likely than not that the Veteran's bilateral knee disorder was caused by or a result of the Veteran's military service, to include in-service trauma sustained as a parachutist. As supplied rationale for the supplied negative nexus opinion, the examiner noted that no in-service physical examination records included findings of abnormal findings relating to the knees, there was no chronic knee disorder while the Veteran performed active duty (with no evidence of left knee findings at all), and no evidence of knee treatment since the Veteran's discharge. The examiner is shown to have specifically noted the in-service diagnoses of right knee strain (March 1983), probable leg strain (April 1983), probable ACL strain (March 1983), and chondromalacia (September 1979). The Veteran has also submitted several lay statements concerning his claimed disorders. One letter, dated in January 2009, asserts that the Veteran suffered from knee pain as a result of in-service physical training. Another January 2009 letter, which states that the Veteran was his former unit commander, indicates that that the Veteran had knee-related difficulties during his military service. A letter dated in March 2009 indicates that the letter writer served with the Veteran in the military, at which time he observed the Veteran having knee-related problems. A May 2009 letter, states that the Veteran had problems with his knees and ears in service. Analysis As above discussed, a June 2008 negative medical opinion has been supplied by a VA examiner concerning the Veteran's claimed bilateral knee disorder. An opinion including positive nexus findings has not been associated with the evidence of record. Alternatively, as noted, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. The Veteran in the course of a June 2008 VA examination informed the examiner that he had not been treated for his knees since his 1988 service discharge. The evidence also shows that he was shown to have a disability relating to his knees in 2008. See VA examination report. Thus, a period of about 20 years separates the Veteran's service separation and the first post service findings of a knee-related disorder. The Veteran's affirmative denial of post service treatment in June 2008 suggests an absence of symptoms referable to a knee-related disorder. In adjudicating a claim, including as to continuity of symptomatology, the Board must assess the competence and credibility of the veteran. See Buchanan, Washington, 19 Vet. App. at 368-69. The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Although the Veteran asserts that his current knee problems are related to service, he is not competent to provide an opinion requiring medical knowledge, such as a question of medical causation. Espiritu. He is competent to give evidence about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. Layno. Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker, Cartwright. The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. In this regard, the Board notes that the record is devoid of objective evidence of any knee-related symptomatology until approximately 20 years after service. This includes those assertions raised as part of lay statements supplied in 2009; this statements essentially only spoke of the fact that the Veteran had trouble with his knees during his military service. This is not in dispute. As such, the Board finds that any assertions by the Veteran or others as to possible etiology of his now diagnosed bilateral knee disorder to be less than competent. In this case, the Veteran clearly has a current knee-related disorder, namely, bilateral patellofemoral pain syndrome. See June 2008 VA orthopedic examination report. The remaining question, therefore, is whether there is medical evidence of a relationship between the current bilateral disability - patellofemoral pain syndrome -- and military service. As above noted, the VA physician who examined the Veteran in June 2008 opined that it was "less likely as (less than 50/50 percent probability)" that the Veteran had a bilateral knee disorder that was either caused by or the result of the Veteran's military service (to include trauma sustained as a result of parachuting). In support of this opinion, the physician commented, as above discussed, that no physical examination reports conducted during the Veteran's active service documented knee-related problems, and that a chronic knee disorder had not been established while the Veteran was on active duty. To this, the examiner further observed that no in-service left knee treatment was shown to have been afforded the Veteran. Also, and of significant note, the examiner commented that there was no evidence of knee-related treatment subsequent to the Veteran's 1988 service discharge. The Board again notes that an opinion including positive nexus findings has not been associated with the evidence of record. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) [service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service]. In this case, as mentioned, the medical evidence does not show treatment or diagnosis of knee-related problems until 20 years after service. Also, and of significant note, the Veteran conceded in the course of the above-discussed June 2008 VA examination that he had not been treated for his knees since his 1988 service discharge. Thus, the record is absent of evidence of continuity of symptomatology, and medical evidence of a nexus between service and the currently-diagnosed bilateral patellofemoral pain syndrome. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER Entitlement to service connection for a bilateral knee disorder is denied. REMAND For the reasons discussed below, the remaining issues on appeal concerning entitlement to service connection for bilateral hearing loss, tinnitus, and low back pain require the development of additional evidence via remand. As part of a VA Form 21-4138, received in December 2007, concerning his low back pain and tinnitus, he mentioned that these two conditions had only gradually become worse since about 2002. He related these claimed disorders to his participating in strenuous physical activities during his military career, as well as to his exposure to loud noises, including explosions. Another VA Form 21-4138, dated in July 2008, shows that the Veteran claimed not to have had much of a problem with hearing loss or tinnitus before 2003. He added that he first experienced problems in the mid-1980's. The Veteran also noted that his back problems first began in the late 1980's. He added that none of his claimed disorders had been treated since his 1988 service separation. Review of the Veteran's service treatment records shows that a September 1976 health record shows complaints of ears ringing at night. A January 1977 health record shows complaints of low back pain following a fall. A back-related disorder was not diagnosed. A March 1981 treatment record includes an audiometry chart. This chart shows that the Veteran's bilateral hearing was not abnormal. See Hensley v. Brown, 5 Vet. App. 155 (1993). Decibel threshold levels higher than 20 indicate some degree of hearing loss. Hensley. Also, no hearing loss, as defined pursuant to 38 C.F.R. § 3.385, was identified. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 ) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley, at 159. The service treatment records also include a January 1977 health record, which shows that the Veteran was seen for complaints of low back pain; questionable urinary tract infection was diagnosed. A September 1981 health record includes complaints of back pain. A back disorder was not diagnosed. Additional audio examination charts, dated in September 1976, March and August 1981, March 1983, and April 1987 also show neither abnormal hearing (Hensley), or hearing loss (38 C.F.R. § 3.385). In addition, reports of medical examinations dated in April 1973, November 1974, January 1976, March 1983, March 1979, April 1987, and September 1988 do not show findings relating to any of the currently-claimed hearing loss, tinnitus, or low back disorders. Medical records obtained from the Texas Department of Criminal Justice includes a November 2004 treatment record showing that the Veteran was seen for tinnitus-related complaints. The Veteran was also afforded a VA audio examination in June 2008. He complained of both tinnitus and hearing loss. He gave a history of in-service acoustic trauma exposure, including heavy construction machinery, aircraft engine noise, small arms fire, and some artillery noise. The Veteran also gave a history of tinnitus, starting in 1986 while in the military. Audiometric examination showed findings of, as defined in 38 C.F.R. § 3.385, bilateral hearing loss. The supplied diagnoses were bilateral sensorineural hearing loss and tinnitus. The examining audiologist opined that the hearing loss and tinnitus were not caused by or the result of in-service noise exposure. As rationale for this supplied opinion, it was observed that review of the claims folder showed normal hearing at the time of the Veteran's service separation, and that complaints of hearing difficulty or tinnitus was not found in the claims folder. The audiologist added that the Veteran's tinnitus may have been caused by noise exposure while in the service; however it would be speculation to offer such an opinion based on the records included in the claims folder. The Veteran has also submitted several lay statements concerning his claimed disorders. One letter, dated in January 2009, asserts that the Veteran suffered from low back pain as a result of in-service physical training. Concerning the bilateral hearing loss and tinnitus claims, the Board notes that in this case, the June 2008 VA examiner, after acknowledging that the Veteran was exposed to military noise exposure (including heavy construction machinery, aircraft engine noise, and small arms fire and some artillery, assessed the Veteran as having bilateral sensorineural hearing loss. However, the audiologist opined that the Veteran's sensorineural hearing loss disorder was not "caused by or a result of noise exposure while in the service." The VA examining audiologist seemed to have based the supplied opinion in large part on the fact that audiometric findings reported in conjunction with the Veteran's service discharge examination were within normal limits bilaterally. The examiner also did not provide any explanation of that statement, nor did the examiner elaborate on what audiometric results are normally associated with acoustic trauma. It would have been helpful had the examiner brought her expertise to bare in this manner regarding medically known or theoretical causes of sensorineural hearing loss or described how hearing loss which results from noise exposure or acoustic trauma generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure or acoustic trauma in service as opposed to some other cause. In addition, and of significant note, the examiner commented that there was no complaints of hearing difficulty or tinnitus found in the Veteran's claims folder. This is an inaccurate statement. As noted above, a service treatment record dated in 1976 notes complaints of tinnitus, as does a post service private treatment record dated in 2004. These findings are also pertinent because the examiner indicated that while the Veteran's tinnitus may have been caused by in-service noise exposure, it would be speculation to offer such an opinion based upon review of the Veteran's claims folder. Again, the Board notes that a service treatment record dated in September 1976 shows that the Veteran complained of ringing in his ears. 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). Based on the foregoing, the Board finds that a clarifying medical opinion is necessary for the purpose of determining the nature and etiology of any hearing loss and tinnitus that may be present. Concerning the instant claim where the Veteran is seeking service connection for low back pain, as noted, the Veteran was seen during active duty for complaints concerning pain concerning his low back. See January 1977 health record. He also complained of back pain during his military service in September 1981. He was also treated while incarcerated in February 2003 for complaints of chronic low back pain, at which time sacroilitis was diagnosed. A February 2003 private X-ray report includes a diagnosis of L5 spondylolysis. A May 2006 private medical record includes a diagnosis of low back pain. The record contains a current diagnosis of lumbar spine sacroilitis, evidence of treatment provided the Veteran for his low back in service, as well as the Veteran's assertions that his back problems were related to his participating in strenuous activities while in the military. A VA medical examination is required to be provided or medical opinion obtained if there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and insufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). In order to afford the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that a medical opinion in conjunction with the review of the entire record and examination of the Veteran is warranted to indicate whether or not the Veteran suffers from a low back disorder related to his active duty service. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should return the claims file to the VA examiner who conducted the June 2008 VA audio examination, if this audiologist is available. The examiner must review the claims file, to include a copy of this remand, and provide an opinion on the following: (i) While the service treatment records, to include the examinations at the time of service entrance and separation, do not show hearing loss at that time, is any current hearing loss at least as likely as not (50 percent probability or greater) etiologically related to in-service noise exposure (i.e., did in-service noise exposure cause the Veteran to progressively lose his bilateral hearing over the years). The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. In-service noise exposure is conceded. (ii) Is any current tinnitus at least as likely as not (50 percent probability or greater) etiologically related to in-service noise exposure (i.e., is the Veteran's complaint of tinnitus consistent with his in-service noise exposure). If the examiner is of the opinion that the tinnitus is a symptom of hearing loss, then the examiner should so expressly state. The examiner should concede that the Veteran does currently suffer from tinnitus. The examiner must provide a rationale for the opinions expressed. In rendering the requested opinions, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. In rendering the above opinions, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley, at 159. If the June 2008 VA examiner is unavailable, the case should be referred to another qualified examiner in order to obtain the above requested opinions. Should a new VA examination be required, one should be scheduled. 2. The Veteran should be afforded an appropriate VA examination to determine the etiology of any current lumbar spine disorder. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should identify all current chronic lumbar spine-related disorders and provide an opinion as to whether it is at least as likely as not that such disorders are in any way related, in whole or in part, to the Veteran's active duty service including symptoms documented during service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. The RO/AMC must notify the Veteran that it is his responsibility to report for a scheduled VA examination, if scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. § 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. Following completion of the foregoing, the RO/AMC must review the claim folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be taken. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). 5. Thereafter, and following any other indicated development, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs