Citation Nr: 1304699 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 07-35 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for depression. 2. Entitlement to service connection for vascular dementia. 3. Entitlement to service connection for hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D G. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from February 1970 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2006 and October 2007 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Des Moines, Iowa. The Veteran contends that he developed vascular dementia, hearing loss, and tinnitus as a result of his period of active service. Additionally, he contends that he has developed dementia and depression due to his service-connected disabilities. Finally, he asserts that his service-connected disabilities prevent him from securing and maintaining substantially gainful employment. In March 2010, the Veteran testified at a video conference hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with his claims file. This matter was previously before the Board in May 2010 at which time it was remanded for additional development. (The issues of entitlement to service connection for hearing loss and tinnitus and entitlement to a TDIU rating are addressed in the remand that follows the decision below.) FINDINGS OF FACT 1. Depression is not attributable to the Veteran's period of active service, and it has not been caused or made worse by service-connected diabetes. 2. The Veteran has not been diagnosed with vascular dementia; a cognitive deficit has not been shown to have been related to the Veteran's period of active service, or as a result of diabetes. CONCLUSIONS OF LAW 1. The Veteran does not have depression that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012); 38 C.F.R. § 3.310 (2006). 2. The Veteran does not have vascular dementia that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (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). Specifically, the 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. Id. at 486. By letters dated in October 2005, December 2005, January 2006, March 2006, April 2006, March 2006, May 2010 and August 2010 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated and evidence obtained necessary to deciding the claims addressed herein. In sum, the Board finds that the duty-to-assist and duty-to-notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service Connection Service connection means that the facts, shown by evidence, 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. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). For the showing of chronic disease in service, there is required a 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." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2012). If the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). Most recently, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in such cases, not only is the combat injury presumed, but so are the consequences of that injury, at least in service. See Reeves v Shinseki, 682 F.3d 988 (Fed. Cir. 2012). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2006). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310 during the pendency of the Veteran's claim. See 71 Fed. Reg. 52744 -47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310 (2012)). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's 1995 ruling in Allen, it was made clear in the comments to the regulation that the 2006 changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the revision amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claims were pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the revision, which version favors the claimant. 38 C.F.R. § 3.310 (2006). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Depression The Veteran asserts that he currently experiences depression that is manifested as a result of his service-connected diabetes. During his March 2010 hearing, he indicated that he was first diagnosed with depression in 2005 or 2006. He described that the symptoms specifically associated with his service-connected diabetes mellitus, and his efforts in controlling his symptoms, have resulted in the onset of his depression. (The Board notes that service connection has been established for posttraumatic stress disorder (PTSD) which has been separately rated as 50 percent disabling.) A review of the Veteran's service treatment records reveals that there are no records of complaints of or treatment for symptoms associated with depression during his period of active service. Following service, a VA outpatient treatment record dated in January 2005 shows that the Veteran reported neck, shoulder and back pain that had had its onset the preceding week when he "backed into a solid wall." He was said to have sustained a whiplash injury while at work. VA outpatient treatment records dated from July 2005 to September 2009 show that the Veteran was treated intermittently for symptoms associated with depression. A lay statement from the Veteran's spouse dated in March 2006 shows that the Veteran was said to have had a difficult time controlling his diabetes mellitus, and that his diabetes mellitus had resulted in erectile dysfunction, which in turn caused the Veteran to be depressed. A VA examination report dated in October 2006 shows that the Veteran reported a long history of feeling down and low, but it was never bad enough to affect his functioning. He reported that things worsened significantly after he retired secondary to his head injury. He described significant frustration by the fact that he was unable to be as physically active as he used to be because of his chronic pain. The diagnosis, in pertinent part, was mood disorder, not otherwise specified, secondary to traumatic brain injury. The examiner explained that his depressive symptoms appeared to be more related to his head injury and less in relation to his diagnosis of diabetes. While it was true that diabetes could leave people at a greater risk for developing depression, the time course in the Veteran's case appeared to relate it more to his head injury than his diagnosis of diabetes. A VA examination report dated in March 2007 shows that the Veteran continued to be treated for the symptoms associated with his PTSD. There was no formal diagnosis of depression. The examiner indicated that the Veteran's physical limitations were more disabling than his PTSD. A VA examination report dated in July 2009 shows that the Veteran continued to be treated for the symptoms associated with his PTSD. There was no formal diagnosis of depression, but the examiner indicated that the Veteran was experiencing some depressed mood related to adjustment of his physical limitations. Records received from the Railroad Retirement Board in October 2010 show that the Veteran was said to have sustained a work-related injury in January 2005, and that in subsequent evaluations his affect was found to be depressed. Having considered the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for depression. There is no contention or evidence that depression was directly incurred in active service. There is no medical opinion or evidence to that effect, and the Veteran has not reported any continuity of symptomatology since military service. During the March 2010 hearing, the Veteran described that his symptoms began approximately in 2005 or 2006. In this regard, VA outpatient treatment records establish that depression was first noted beginning in July 2005. As noted above, the VA examiner in October 2006 concluded that the Veteran's depressive symptoms appeared to be more related to his non-service-connected head injury and less to diabetes. This opinion is highly probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). It would require medical or scientific expertise to say that claimed depression was related to a particular disability, to specifically include the service-connected diabetes mellitus. This is not a matter that is subject to lay observation. There is no indication that the Veteran or his spouse possess the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. Hence, their opinions do not constitute competent evidence. 38 C.F.R. § 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 200) (holding that lay evidence is competent; Barr v. Nicholson, 21 Vet. App. 303 (2007). Given that the competent medical evidence against the claim, for the Board to conclude that the Veteran's depression is manifested as a result of service or a service-connected disability would be contrary to the greater weight of the evidence. 38 C.F.R. § 3.102 (2012); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See generally Gilbert, 1 Vet. App. at 49; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Vascular Dementia The Veteran asserts that he currently experiences vascular dementia that is manifested as a result of his period of active service. During his March 2010 hearing, he indicated that he experienced memory loss that had been diagnosed as vascular dementia. He added that he had been told by his physicians that there was insufficient blood flow to all parts of his brain that was somehow related to his service-connected diabetes mellitus. A review of the Veteran's service treatment records reveals that there are no records of complaints of or treatment for symptoms associated with vascular dementia during his period of active service. Following service, a VA outpatient treatment record dated in January 2005 shows that the Veteran reported neck, shoulder and back pain that had had its onset the preceding week when he "backed into a solid wall." He was said to have sustained a whiplash injury while at work. A radiology report dated in February 2005 includes an impression of a small vascular malformation within the inferior aspect of the left frontal lobe; otherwise it was a normal magnetic resonance imaging (MRI) study of the brain. In March 2005, it was noted that an MRI study of the brain vessels was essentially normal except for a two millimeter vascular entity possibly close to the anterior communicating artery that was not clearly specific for an aneurysm, but that possibility could not be completely ruled out. VA outpatient treatment records dated from July 2005 show that the Veteran began to report memory problems. In December 2005, he reported worsening memory and left-sided headache since injuring his cervical spine in an accident at work. A MRI study revealed "small vessel disease, look for atrophy suggesting dementia." A February 2006 VA neurology consult shows that the Veteran asserted that his memory loss predated his January 2005 whiplash injury. The impression was mild to moderate cognitive impairments in auditory verbal attention, sentence repetition, and memory for word lists in the context of overall average intellectual abilities. These deficits were said to typically be associated with left cerebral hemisphere dysfunction and were consistent with his complaints of left-sided headache since his accident in January 2005 at work. A February 2006 MRI study revealed a small amount of ischemic small vessel disease in the periventricular white matter, small vascular malformation within the medial inferior aspect of the left frontal lobe. The report notes the onset of headache in January 2005 from an accident while operating a forklift. A VA examination report dated in October 2006 shows that the Veteran was diagnosed with cognitive disorder, secondary to traumatic brain injury. Psychiatric history was significant for a head injury in January 2005 with temporal lobe damage. A VA examination report dated in March 2007 shows a diagnosis PTSD, memory loss secondary to traumatic brain injury or general medical condition. In November 2007, the Veteran submitted a treatise suggesting that diabetes increases the risk for cerebromicrovascular disease, possibly through its effects on blood flow regulation. A VA neurology consultation report dated in April 2007 shows that the Veteran reported experienced memory loss even before his January 2005 forklift accident. In the impression, the examiner indicated that the Veteran's cognitive status would preclude competitive employment, and that given his other significant medical problems, he was vocationally disabled. It was also indicated that he had defective dichotic listening performance, defective to average memory performance, and multiple episodic or partial seizure-like symptoms - all consistent with the presence of an organic affective syndrome, most likely associated with clinical or subclinical electrophysiological dysfunction involving the temporal lobes. Isolated defect in sentence repetition raised a question of small left hemisphere lesion, possibly subcortical. Inconsistent performances on executive function tasks and motor sequencing procedures also suggested some degree of prefrontal compromise, although social amenities appeared to be well preserved. There was no evidence of somatization or malingering. VA outpatient treatment records dated from November 2006 to September 2009 show intermittent assessments of cognitive disorder secondary to whiplash. A VA examination report dated in July 2009 shows that the VA examiner indicated that the Veteran did not have vascular dementia. The diagnosis was cognitive defect. The examiner explained that the records did not indicate any concerns for memory until about six months after the January 2005 injury when seen by VA providers. The examiner added that prior to the January 2005 accident, there was no mention of any issues with cognition or memory. Records received from the Railroad Retirement Board in October 2010 show that the Veteran was said to have sustained a work-related injury in January 2005, and that he reported decreased concentration and poor memory since the accident. Having considered the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for vascular dementia. There is no contention or evidence that vascular dementia was directly incurred in active service. There is no medical opinion or evidence to that effect, and the Veteran has not reported any continuity of symptomatology beginning in service. VA and private medical treatment records confirm that the Veteran sustained a whiplash injury in a work-related forklift accident in January 2005. While the Veteran has asserted that his cognitive issues began prior to the January 2005 accident, the medical evidence of record all suggests that symptoms were first demonstrated after that accident. In this regard, the VA outpatient treatment records suggest that the Veteran has a cognitive disorder secondary to whiplash, and the VA examiner in July 2009 concluded that the diagnosed cognitive defect became manifested following the January 2005 incident. The foregoing opinions are considered highly probative as they were definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. The Veteran has not provided any competent medical evidence to rebut the opinions against the claim or otherwise diminish their probative weight. See Wray, 7 Vet. App. at 492-93. The Board recognizes that in November 2007, the Veteran submitted a treatise suggesting that diabetes increases the risk for cerebromicrovascular disease, possibly through its effects on blood flow regulation. However, the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). Here, the Board does not assign this evidence much weight as it does not establish a correlation between the Veteran's asserted disability and his period of active service or his service-connected diabetes mellitus with any degree of medical certainty. Further, this evidence does not address the facts that are specific to his case. As such, this article is of limited probative value. Additionally, there is no evidence of record to suggest that the Veteran's asserted vascular dementia or otherwise diagnosed cognitive disorder had become manifested within any applicable presumptive period. The Board notes that the VA examiner in July 2009 concluded that the Veteran did not have vascular dementia. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In order for the Veteran to be granted service connection for vascular dementia there must be evidence of a service-connected disease or injury and a present disability which is attributable to such disease or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). As the Veteran does not have a diagnosed vascular dementia, service connection for that particular disability cannot be awarded. The Board, nevertheless, has considered whether the diagnosed cognitive defect is otherwise related to the Veteran's period of active service, and as indicated above, the preponderance of the evidence is against the claim. It would require medical or scientific expertise to say that the Veteran's cognitive defect was related to service or to a particular disability, to specifically include the service-connected diabetes mellitus. This is not a matter that is subject to lay observation. There is no indication that the Veteran or his spouse possess the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. Hence, their opinions do not constitute competent evidence. 38 C.F.R. § 3.159(a); see Jandreau, 492 F.3d at 1377; Barr, 21 Vet. App. at 303. Given that the competent medical evidence against the claim, for the Board to conclude that the Veteran has vascular dementia or that a diagnosed cognitive defect is manifested as a result of service or a service-connected disability would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2012); Obert, 5 Vet. App. at 33. Overall, the evidence is not in relative equipoise, as the most probative evidence of record addressing the etiology and onset of the Veteran's disability weighs against service incurrence or a relationship to a service-connected disability. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See generally Gilbert, 1 Vet. App. at 49; Ortiz, 274 F. 3d at 1361. ORDER Service connection for depression is denied. Service connection for vascular dementia is denied. REMAND VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). The Veteran asserts that he currently has bilateral hearing loss and tinnitus which are manifested as a result of noise exposure during his period of active service. The Veteran's Armed Forces Of The United States Report Of Transfer Or Discharge (DD Form 214) of record shows that he served in the Republic of Vietnam from July 1970 to July 1971 and that he received the Combat Infantryman Badge. During his March 2010 hearing, he testified that he was exposed to loud artillery fire and explosions during his active service in Vietnam. He added that he experienced hearing trouble and ringing since that time, which has increased in severity over the years. The Veteran's service treatment records do not mention hearing loss or tinnitus. Following service, a VA audiometric examination report, dated in September 2006, shows that the Veteran reported military noise exposure from artillery and small arms fire for approximately one year. He added that he had occupational noise exposure as a railroad worker for 17 years and recreational noise exposure from carpentry and firearms. He added that he had longstanding constant bilateral tinnitus. The diagnosis was sensorineural hearing loss and tinnitus. The examiner concluded that given the indication of hearing being within normal limits at separation, hearing loss was not incurred in military service, and the tinnitus was likely secondary to his hearing loss. The Veteran is deemed competent as a lay person to report on that which he had personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Id at 469. In this instance, the Board finds the September 2006 VA audiology examination report to be inadequate to the extent that the examiner failed to address the Veteran's lay statements regarding the onset and continuity of hearing problems and tinnitus since service. As such, the Veteran should be afforded a new VA audiology examination to address this point. (As noted, the Veteran is competent to provide evidence of symptoms including hearing loss and ringing of the ears.) The Board also points out that the absence of documented hearing loss while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When the Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-160 1993). The Court has in the past held that where a medical examination does not contain sufficient detail to decide the claim on appeal, the Board must return the report as inadequate for evaluation purposes. Hayes v. Brown, 9 Vet. App. 67, 73 (1996); see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (noting that once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes). As such, the Board finds that, on remand, the Veteran must be scheduled for another VA audiology examination. The Board also notes that the Veteran's service personnel records confirm that he engaged in combat with the enemy. In this regard, in cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b) ; 38 C.F.R. § 3.304(d). To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury. See Dalton, 21 Vet. App. at 23. The Federal Circuit has held that in such cases, not only is the combat injury presumed, but so are the consequences of that injury, at least in service. See Reeves, 682 F.3d at 988. As to the issue of entitlement to a TDIU, the claims being remanded herein are inextricably intertwined with the Veteran's claim for a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The other issues must be addressed by the agency of original jurisdiction (AOJ) before the Board renders a decision on the TDIU claim. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the appropriate VA medical facilities and attempt to obtain medical treatment records pertaining to the Veteran that are not yet associated with the claims file. All records obtained should be associated with the Veteran's claims file. 2. The AOJ should thereafter make arrangements with the appropriate VA medical facility for the Veteran to undergo an audiological examination. The claims file and a copy of this remand must be made available to the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, to include an audiogram, must be accomplished. Specifically, the results of the audiological evaluation must state, in numbers, the findings of puretone decibel loss at 500, 1000, 2000, 3000, and 4000 Hertz, and must also state the results of the word recognition test, in percentages, using the Maryland CNC test. The examiner must record a detailed history of in-service and post-service noise exposure. The examiner must consider the competent statements of the Veteran and other lay statements of record as to the continuity of symptomatology since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service medical records to provide a negative opinion). After a review of the examination findings and the entire evidence of record, the examiner must provide an opinion as to whether it is at least as likely as not that any current hearing loss and/or tinnitus is related to the Veteran's period of active service, or to any incident therein. The examiner must specifically address the question of whether any degree of hearing loss or tinnitus began as a result of any in-service noise exposure. The examiner should explain his/her opinion, including the medical reasons for accepting or rejecting the Veteran's statements of continuity of symptoms since military service. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. The AOJ should then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 4. The AOJ should thereafter readjudicate the claims remaining on appeal, to include the claim for a TDIU rating. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs