Citation Nr: 1306033 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 06-28 116A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD), anxiety disorder, and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a lumbar spine disability. 5. Entitlement to service connection for a cervical spine disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from September 1969 to September 1973 and from February 1991 to May 1991 with additional service in the Mississippi Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the Veteran's claims. In April 2007, the Veteran presented personal testimony before a decision review officer. In March 2010, the Veteran presented sworn testimony during a personal Board hearing in Jackson, Mississippi. Transcripts of both hearings have been associated with the Veteran's VA claims file. In a September 2010 Board decision, the claims were remanded for further evidentiary development. As will be discussed below, with respect to the issues decided herein, review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denials in a June 2012 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. In June 2012, the Veteran submitted additional evidence directly to the Board. In December 2012, the Veteran, through his representative, submitted a written waiver of local consideration of this evidence. This waiver is contained in the VA claims file. See 38 C.F.R. §§ 19.9, 20.1304(c) (2012). The issues of entitlement to service connection for lumbar and cervical spine disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC. The Veteran will be notified if further action on his part is required. FINDINGS OF FACT 1. The Veteran has an acquired psychiatric disorder, to include MDD, anxiety disorder, and PTSD, that is as likely as not related to his active duty service. 2. The Veteran does not have hearing loss that is attributable to his military service. 3. The Veteran does not have tinnitus that is attributable to his military service. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, an acquired psychiatric disorder, to include MDD, anxiety disorder, and PTSD, was incurred in his active service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated by active military service; nor may it be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2012). 3. The Veteran does not have tinnitus that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA); Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & West Supp. 2012); 38 C.F.R. § 3.159(b) (2012). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (April 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) As to the acquired psychiatric disorder claim, the Board has considered the legislation regarding VA's duty to notify and to assist claimants and finds that, given the favorable action taken herein with regard to the Veteran's acquired psychiatric disability claim, no further discussion of these VCAA requirements is required. With respect to the hearing loss and tinnitus claims, a pre-decisional notice letter in March 2005 complied with VA's duty to notify the Veteran with regard to these issues. In particular, this letter apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. In a letter dated March 2006, the Veteran was also notified of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board additionally finds VA has satisfied its duty to assist the Veteran in the development of his hearing loss and tinnitus claims. Relevant in-service and post-service treatment records as well as Social Security Administration (SSA) records are contained in the claims file. To this end, the Board notes that, pursuant to the September 2010 Board Remand, the AMC attempted to obtain the Veteran's service personnel and treatment records from the National Personnel Records Center (NPRC), the Air Force Personnel Records Center, and the Mississippi Air National Guard. The RO, however, was notified that the service records, in excess of those previously added to the claims file, were not able to be located. The Veteran was notified of this issue in letters from the RO dated in December 2011 and April 2012 The Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate the claims decided herein, including efforts to obtain service treatment records. The Board is cognizant of Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999), wherein the United States Court of Appeals for the Federal Circuit elaborated on VA's responsibility to obtain a veteran's service treatment records. The Board finds, however, that in light of evidence that the records are missing, there is no reasonable possibility that the records may be located or recovered, and thus no useful purpose would be served in remanding this matter for more development. There is no indication that any additional action is needed to comply with the duty to assist. The Veteran was provided VA examinations in connection with his claims, the reports of which are of record. The examination reports dated October 2008 and October 2010 contain sufficient evidence by which to decide the claims. The reports address the nature and etiology of the Veteran's hearing loss and tinnitus. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In short, the Board has considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of these claims has been consistent with said provisions. II. Acquired psychiatric disorder. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (1995). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 359 (1998). If VA determines that a veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. 1154(b); 38 C.F.R. 3.304(f)(1); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The Board notes that recent regulatory amendments have changed the evidentiary standards regarding stressors based on a veteran's fear of hostile military or terrorist activity. See 38 C.F.R. § 3.304(f)(3). Under the recent amendments, lay evidence may establish an alleged stressor where (1) the stressor is related to a veteran's fear of hostile military or terrorist activity; (2) a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor; (3) the stressor is consistent with the places, types, and circumstances of a veteran's service; and (4) there is no clear and convincing evidence to the contrary. Fear of hostile military or terrorist activity occurs where a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010, but which have not been decided by the Board as of July 13, 2010. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010), corrected by 75 Fed. Reg. 41,092 (July 15, 2010). As such, they are applicable to this case. Resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence of record meets the criteria for a grant of service connection for an acquired psychiatric disorder to include MDD, anxiety disorder, and PTSD. In multiple statements dated in May 2005 including a PTSD Stressor Questionnaire as well as in his March 2010 Board hearing testimony, the Veteran has detailed his service in support of aircraft operations during the Vietnam War. Specifically, the Veteran has stated that he was stationed in Thailand from October 1971 to October 1972 and had three period of temporary duty in the Republic of Vietnam. See, e.g., the Veteran's statements dated May 2005. The Veteran has detailed the impact of his duties in Thailand including maintaining radio contact with search and rescue missions. Id. He also described the impact of the death of his friend, Ken Brown, during this period of service. Id.; see also the VA psychological examination dated October 2010. As has been explained above, the majority of the Veteran's service treatment and personnel records from his active duty service dated September 1969 to September 1973 are not available. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control that would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). The Veteran's DD Form 214 and other service personnel records indicate that his primary military occupation specialty (MOS) during the period from September 1969 to September 1973 was that of aircraft operational specialist. It is undisputed that he is the recipient of the Vietnam Service Medal, the Vietnam Campaign Medal, and the Vietnam Cross of Gallantry. Review, however, of the Veteran's service records, including his DD Form 214 and the medals noted therein, do not necessarily in-country service in the Republic of Vietnam. The Veteran's DD Form 214 from his period of service dating from September 1969 to September 1973 does confirm one year of foreign service. Additionally, service dental records dated in October 1971 confirm that he was stationed in the Nakhon Phanom Royal Thai Air Force Base at that time. The Veteran also submitted two lay statements from Mr. E.L.R., Jr., dated May 2005 and October 2007, in which Mr. E.L.R., Jr., stated that he served with the Veteran in Thailand and can confirm that the Veteran was sent on temporary duty assignments to the Republic of Vietnam. Moreover, with respect to the claimed stressors concerning the death of the Veteran's close friend and fellow airman, Ken Brown, the Board has searched the Vietnam Wall Memorial database and recognizes that Air Force Staff Sergeant Kenneth R. Brown was killed in May 1972 over South Vietnam. In addition, the Veteran stated Captain Courtney was also killed in the accident with Staff Sergeant Brown. See the March 2010 Board hearing transcript, pgs. 13-16. The death of Captain Terence F. Courtney on the same date is also confirmed by the Vietnam Wall Memorial database. The database further indicated that the bodies of Staff Sergeant Brown and Captain Courtney were recovered, which is consistent with the Veteran's contentions. Id. Accordingly, affording the Veteran all benefit of the doubt, the Board finds his assertions of in-service stressors to be credible and, to this extent, his in-service stressors are conceded. The Board recognizes the recent amendments to 38 C.F.R. § 3.304(f); however, as indicated above, the Veteran's contentions here do not rely upon a stressor related to his fear of hostile military or terrorist activity. Accordingly, the Board need not discuss the applicability of 38 C.F.R. § 3.304(f)(3) as it relates to the Veteran's claim. Following his September 1973 active duty discharge, the Veteran was treated for chronic anxiety in September 1979. See the letter from Dr. J.B.G. dated March 2005. VA and private treatment records dated August 1998 through March 2005 document complaints of stress-related problems and diagnoses of anxiety disorder and depressive disorder. In a letter dated March 2004, Dr. K.K.G. indicated that the Veteran was diagnosed as having PTSD and major depressive disorder, which "seem to be a result of traumatic experiences which he received while in the U.S. military in Vietnam." In a March 2007 letter, Dr. J.H. concluded that the Veteran meets the full criteria for PTSD, "apparently based on his experiences in Vietnam." The conclusions, however, rendered by Dr. K.K.G. and Dr. J.H. are of little probative value with respect to the question of medical nexus between the Veteran's diagnosed psychiatric disorders and his military service. Critically, the conclusions set forth in the March 2004 and March 2007 letters are admittedly speculative and are not supported by adequate rationale. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence). Moreover, the Court held in Jones v. Shinseki, 23 Vet. App. 382 (2010) that in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. Pursuant to the March 2010 Board Remand, the Veteran was afforded a VA psychological examination in October 2010. The VA examiner noted the Veteran's report of in-service stressors including the deaths of Staff Sergeant Ken Brown and Captain Courtney. After noting the Veteran's psychological symptomatology including anxiety, flashbacks, intrusive thoughts, and nightmares, the examiner diagnosed him with MDD, anxiety disorder, and PTSD. The examiner further opined that the Veteran's "current psychiatric symptoms are most likely related to his experiences in Vietnam." The October 2010 VA medical opinion appears to have been based upon interview of the Veteran, a thorough review of the claims file including the Veteran's contentions, and thoughtful analysis of the Veteran's entire history. See Nieves-Rodriguez, supra; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Therefore, based on the evidence of record, the Board finds that service connection for an acquired psychiatric disorder to include MDD, anxiety disorder, and PTSD is warranted. In sum, the Board finds that the Veteran does suffer from an acquired psychiatric disorder to include MDD, anxiety disorder, and PTSD, which has been sufficiently linked to his wartime experiences. Given the aforementioned, the Board finds that the evidence is at least in equipoise as to the matter of whether the Veteran has acquired psychiatric disorder to include PTSD that is related to his military service. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Accordingly, and resolving all doubt in the Veteran's favor, the Board finds that service connection for a psychiatric disorder to include MDD, anxiety disorder, and PTSD is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b). III. Bilateral hearing loss and tinnitus. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including sensorineural hearing loss, when manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2011). As noted above, service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). For the purposes of applying the law 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 (2012). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Lay assertions, however, may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Here, the Veteran claims that he developed hearing loss and tinnitus that began during his military service. Specifically, he asserts that he sustained acoustic trauma as a result of flight line, aircraft, and heavy equipment noise, as well as, gunfire during his periods of active duty service from September 1969 to September 1973 and from February 1991 to May 1991. See the VA treatment record dated June 2004; see also the March 2010 Board hearing transcript, pg. 4. For the reasons set forth below, the Board concludes that service connection is not warranted for hearing loss and tinnitus. In this case, bilateral hearing loss has been diagnosed for VA compensation purposes, which the Veteran attributes to noise exposure during service. See the October 2008 and October 2010 VA examination reports. A diagnosis of tinnitus has also been confirmed. Id. As has been explained above, the Veteran's service treatment records from his first period of active duty service (September 1969 to September 1973) are not available. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. The Board's analysis of the Veteran's claims has been undertaken with this heightened duty in mind. In any event, the partial loss of the Veteran's service records, although regrettable, is not crucial to the outcome of these claims. The Veteran has asserted that he was routinely exposed to loud noise in his duties on the flight line while he was stationed in Thailand from October 1971 to October 1972. See, e.g., the March 2010 Board hearing transcript. As indicated above, the Veteran's DD-214 shows that his MOS was as an aircraft operational specialist and, additionally, service records and lay statements confirm the Veteran's service in Thailand. Thus, acoustic trauma from flight line noise as contended by the Veteran is conceded based on the circumstances of his military service. 38 U.S.C.A. § 1154(a). Nevertheless, although the current disability and in-service incurrence elements needed to establish service connection have been satisfied, as will be discussed further below, service connection for hearing loss and tinnitus is not warranted. This is so because the greater weight of the competent nexus evidence is against a finding that the Veteran's current hearing loss and tinnitus had their onset as a result of his in-service noise exposure. In addition, there is no credible evidence that a sensorineural hearing loss manifested within one year of the Veteran's discharges from active service in September 1973 and May 1991. 38 C.F.R. § 3.307, 3.309. The Veteran was afforded a VA audiological examination in October 2008 at which time the examiner noted the Veteran's report of in-service noise exposure during his periods of active duty service to include his assertions of on-going hearing loss and tinnitus symptomatology. With respect to the question of medical nexus, the examiner opined that "[t]he etiology of the tinnitus is at least as likely as not due to the hearing loss. Review of this patient's [claims] file revealed an audiological examination dated August 1992, which shows his hearing to be within normal limits in both ears." The examiner thus concluded, "[t]herefore, this patient's hearing loss was not caused by nor due to noise exposure during either the active period from 1969 to 1973 nor the brief active period in 1991." A second VA audiological examination was conducted in October 2010 at which time the VA examiner concurred with the findings of the October 2008 examiner. Specifically, the examiner concluded, "[r]eview of the [claims] file revealed a hearing test dated August 1992 that showed normal hearing in both ears. Therefore, it is my opinion that the Veteran's hearing loss is not likely the result of military noise exposure. The etiology of the tinnitus is at least as likely as not due to the hearing loss." The October 2008 and October 2010 VA examination reports appear to have been based upon a review of the record and analyses of the Veteran's entire history, including his in-service experience as recounted by the Veteran himself. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Moreover, the October 2008 and October 2010 VA examination reports appear to be consistent with the Veteran's history, which initially documents high frequency sensorineural hearing loss in May 1998. See the periodic service examination dated May 1998. The Veteran has not submitted a medical opinion to contradict the conclusions of the October 2008 and October 2010 VA examiners. As was explained in the VCAA section above, the Veteran has been accorded ample opportunity to present competent medical evidence in support of his claims. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002) (it is the claimant's responsibility to support a claim for VA benefits). The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board is mindful of the finding in Hensley v. Brown, 5 Vet. App. 155 (1993), in which the Court stated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. However, as noted by the October 2008 and October 2010 VA examiners, there is no clinical evidence of hearing loss for several years after the Veteran's second active duty discharge in May 1991. The Board has carefully considered the Veteran's assertions that he has had hearing loss and tinnitus since his active service. Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board, however, finds that the reported history of continued symptoms dating from his initial period of active service from 1969 to 1973 is inconsistent with the clinical evidence of record, which shows an absence of complaint of or treatment for hearing loss and tinnitus for decades after this period of military service. More importantly, the October 2008 and October 2010 VA examiners' opinions, which were based in part on the Veteran's history, are more persuasive as to whether disability is attributable to military service than the Veteran's account of when it began. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the overall evidence, including the post-service medical evidence, the uncontradicted VA medical opinions, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the preponderance of the evidence is against the claims that current hearing loss and tinnitus are related to active military service. Thus, the benefit-of-the-doubt rule is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include MDD, anxiety disorder, and PTSD, is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMAND After having considered the matter, and for reasons expressed immediately below, the Board finds that the remaining claims on appeal-entitlement to service connection for disabilities of the lumbar and cervical spine-must be remanded for further development. In the September 2010 Remand, the Board noted that the October 2009 VA examination was inadequate with respect to the examiner's failure to thoroughly discuss pertinent treatment records including those documenting degeneration of the cervical spine. Specifically, the October 2008 examiner concluded that "whiplash injury can certainly cause disc rupture, there is no evidence of cervical disc or root lesion in the service medical records." Crucially, however, the October 2008 VA examiner failed to address the February 1991 cervical spine x-ray which documented "[m]inimal disc space narrowing . . . at the C5/6 level." Pursuant to the September 2010 Remand, the Veteran was afforded another VA orthopedic examination in October 2010 at which time the VA examiner simply concurred with the findings of medical nexus set forth in the previous VA examination reports. Crucially, however, a thorough review of the Veteran's service and post-service treatment records was not evidenced by the October 2010 examiner's conclusions and, moreover, he failed to address the February 1991 x-ray report as discussed in the Board's September 2010 Remand. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that compliance with remand instructions is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As the Board's remand instructions have not been complied with, the lumbar and cervical spine claims must be remanded so that this may be accomplished. On remand, ongoing medical records should be also obtained. 38 U.S.C.A. § 5103A(c) (West 2002). Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of any outstanding post-service lumbar and cervical spine treatment that the Veteran may have received. The Board is particularly interested in records of treatment that the Veteran may have received at the VA Medical Center in Jackson, Mississippi, since February 2010. All such available documents should be associated with the claims file. 2. VBA should arrange for the October 2010 VA examiner, if available, or another appropriately qualified medical professional to review the Veteran's VA claims file and render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's diagnosed lumbar and cervical spine disabilities had their clinical onset during his active duty or are otherwise related to such service. The examiner should specifically discuss any instances of the Veteran's in-service and post-service lumbar and cervical symptomatology, including the February 1991 cervical spine x-ray report. The examiner should also address the Veteran's assertions of continuity of symptomatology dating from his military service. The examiner should provide a complete rationale for any opinion given, including discussion of evidence contrary to the opinion rendered. If the examiner is unable to render an opinion without resorting to mere speculation, he/she must so state and provide reasoning as to why an opinion cannot be given and whether any additional evidence or testing would assist in providing such opinion. 3. Then, readjudicate the following service connection claims remaining on appeal: service connection for a lumbar spine disability and cervical spine disability. If the benefits sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the Court 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). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs