Citation Nr: 1308017 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-42 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for renal cancer of the left kidney, status post nephrectomy, to include as due to exposure to herbicides. 4. Entitlement to service connection for right ear hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from January 1971 to July 1973. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. After reviewing the contentions and evidence of record, the Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision. The issue of entitlement to service connection for right ear hearing loss is addressed in the REMAND portion of the decision below and it is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Left ear hearing loss as defined by VA regulations is not shown. 2. The Veteran's tinnitus is causally or etiologically due to service. 3. The Veteran did not have service in the Republic of Vietnam. 4. The Veteran's renal cancer of the left kidney, status post nephrectomy is not causally or etiologically due to service. CONCLUSIONS OF LAW 1. Service connection for left ear hearing loss is not established. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. Service connection for tinnitus is established. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 3. Service connection for renal cancer of the left kidney, status post nephrectomy, to include as due to exposure to herbicides, is not established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 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). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In the present case, the VCAA duty to notify was satisfied by letters sent to the Veteran in August 2009 and October 2009 that fully addressed the entire notice element and were sent prior to the initial regional office decision in this matter. The letters informed him of what evidence was required to substantiate his claims and of his and the VA's respective duties for obtaining evidence. In any event, in his statements the Veteran demonstrated his actual knowledge of the elements necessary to substantiate his claims. See Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims, and the Board finds that the notification requirements of the VCAA have been satisfied as to timing and content. To fulfill Dingess requirements, in August 2009 and October 2009, the regional office provided the Veteran with notice as to what type of information and evidence was needed to establish a disability rating and the possible effective date of the benefits. The regional office successfully completed the notice requirements with respect to the issues on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Additionally, VA has a duty to assist the Veteran in claim development. This includes assisting in the procurement of service treatment and hospitalization records and pertinent medical records, as well as providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The regional office has obtained service treatment records, VA outpatient medical records, private medical records, and the Veteran has been afforded VA examinations for his hearing loss and tinnitus. The Board notes that the Veteran was not afforded a VA examination for his renal cancer, and the evidence of record does not warrant one. See 38 C.F.R. § 3.159(c)(4). The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In the present case, there is no competent evidence of record to indicate that the Veteran's renal cancer may be related to service. The Veteran himself has provided statements that his renal cancer is related to service; however, as he is not competent to provide evidence of a diagnosis or etiology of a condition such as cancer, the record is silent for a nexus between the Veteran's renal cancer and his active service. See Waters v. Shinseki, 601 F.3d 1274, 1279 (Fed. Cir. 2010) (the Veteran's conclusory lay statement is insufficient to trigger VA's duty to provide an examination with an opinion). The Veteran has not satisfied all the elements of McLendon; therefore, VA is not required to provide him with a VA examination in conjunction with his claim for renal cancer. Virtual VA records have also been reviewed. Therefore, the available medical evidence and records have been obtained in order to make an adequate determination. Neither the Veteran nor his representative has identified any additional existing evidence that has not been obtained or is necessary for a fair adjudication of the claims. The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Service Connection Claims The Veteran seeks entitlement to service connection for left ear hearing loss, tinnitus, and renal cancer. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). A. Entitlement to Service Connection for Left Ear Hearing Loss The Veteran seeks entitlement to service connection for left ear hearing loss. He asserts he was exposed to acoustic trauma during service and continues to experience hearing loss. Acoustic trauma has been conceded. See April 2010 rating decision. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995 opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and, therefore, a presumptive disability. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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 Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss that first met VA's definition of disability after service. Hensley, supra, at 159. The Veteran's entrance examination from October 1970 showed normal hearing of 0 to 20 decibels (dB) in the range of 500 Hertz to 4000 Hertz. See Hensley, supra. There were no complaints, treatments, or diagnosis of hearing loss during service. The Veteran's separation examination in June 1973 did not note any hearing abnormalities. The Veteran was afforded a VA examination in March 2010. On the authorized audiological evaluation in March 2010, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 25 20 20 25 35 Speech audiometry revealed speech recognition ability of 96 percent in the left ear. VA outpatient records and private treatment records were also reviewed. There was no noted treatment or complaints of hearing loss. For the left ear, the medical evidence does not show that the current auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or that the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statues governing Veterans' benefits. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). There is no current diagnosis of left ear hearing loss, as defined by 38 C.F.R. § 3.385. In the absence of medical evidence of current left ear hearing loss, the claim for service connection for left ear hearing loss must be denied. Although the Veteran is certainly competent to state that he has noticed a difficulty in left ear hearing since discharge from service, the degree of hearing loss is not severe enough to be considered a "disability" for VA compensation purposes. In light of the foregoing, the preponderance of the evidence is against the claim of service connection for left earhearing loss, there is no doubt to be resolved; and service connection for left ear hearing loss is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Entitlement to Service Connection for Tinnitus The Veteran seeks entitlement to service connection for tinnitus. He asserts he was exposed to acoustic trauma during service and currently suffers from tinnitus. As stated previously, exposure to acoustic trauma has been conceded. For the following reasons, the Board finds that service connection is warranted. Under the first Shedden element, the competent evidence must show that the Veteran has a current disability. In this regard, tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1956 (31st ed. 2007). Because tinnitus is subjective, for VA purposes, tinnitus is a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Here, the Veteran submitted a statement in October 2009 indicating that he has had ringing of the ears ever since he was in the military. See October 2009 statement. He also described constant bilateral tinnitus during the March 2010 VA examination. Accordingly, the Board finds that the Veteran has tinnitus. The Board finds that the Veteran's tinnitus was incurred in active service as the evidence shows that he was exposed to hazardous noise during that time and that the ringing in his ears began while he was serving on active duty. In this regard, where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by the Veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Here, in a September 2009 statement, he asserted he was exposed to acoustic trauma while on a ship during service. Additionally, in October 2009 statement, he asserted he has had ringing in the ears ever since he was in the military. The Veteran's personnel records indicate he served aboard the U.S.S. England and was a seaman and stock clerk. The Board notes that during the March 2010 VA examination, the Veteran stated his tinnitus began six or seven years prior. As a result, the examiner concluded that given the late onset of tinnitus, it was less likely as not due to noise exposure in the military. The Board notes that VA is not bound to accept any opinion from a VA examiner, private physician, or other source concerning the merits of a claim. Hayes v. Brown, 5 Vet App 60 (1993). Here, the Veteran has asserted on multiple occasions that he has experienced tinnitus since his time in service. Additionally, in October 2010, the Veteran clarified his statement from the March 2010 examination, indicating that his tinnitus became more relevant six or seven years ago, when he found out what it was and what could have caused it. Resolving all doubt in favor of the Veteran, based on the foregoing, the Board finds that the Veteran's tinnitus began during active service. Accordingly, the Board finds that the evidence is at least in equipoise with respect to the Veteran's claim. Consequently, the benefit-of-the-doubt rule applies, and service connection for tinnitus is granted. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. C. Entitlement to Service Connection for Renal Cancer of the Left Kidney, Status Post Nephrectomy, to Include as Due to Exposure to Herbicides The Veteran asserts that service connection is warranted for renal cancer of the left kidney, status post nephrectomy. Specifically, he asserts that his renal cancer was due to exposure to herbicides. The Board will first address the Veteran's claim of service in Vietnam. The statutory provision specifically covering Agent Orange is 38 U.S.C.A. § 1116. Under 38 U.S.C.A. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). Importantly, renal cancer is not a presumptive condition. Service in the Republic of Vietnam for the purpose of the application of the presumption includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). An opinion of the General Counsel for VA states that service on a deep-water naval vessel off the shores of Vietnam may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C. § 101(29)(A), which defines the Vietnam era as the period beginning on February 28, 1961, and ending on May 7, 1975, and that this was not inconsistent with the definition of service in the Republic of Vietnam found in 38 C.F.R. § 3.307(a)(6)(iii). VAOPGCPREC 27-97, 62 Fed. Reg. 63604 (1997). In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), the Federal Circuit upheld VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) to require a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. In his claim (VA Form 21-526), received in July 2009, the Veteran indicated that he had service in Vietnam, during four extended direct combat support operations in the gulf of Tonkin during which England conducted search and rescue missions and functioned as a strike support operations control ship. The Veteran's discharge (DD Form 2214) shows that he was awarded the Republic of Vietnam Campaign Medal and Vietnam Service Medal with one bronze star, and that he had two years and 2 months for foreign and/or sea service. The Veteran's personnel file has been obtained. His personnel file indicates the following: he served aboard the U.S.S. England. In September 2009, the National Personnel Records Center (NPRC) stated that it was unable to verify whether the Veteran had in-country service in the Republican of Vietnam. The NPRC stated that the Veteran was shown to have served aboard the U.S.S. England when it was in the official waters of the Republic of Vietnam from June 20, 1972 to July 7, 1972, July 19, 1972 to July 30, 1972, August 1, 1972 to August 24, 1972, September 9, 1972 to October 7, 1972, October 11, 1972 to October 12, 1972 and October 20, 1972 to November 24, 1972. The Board finds that service in Vietnam is not shown. The Veteran is shown to have served aboard a ship that was in the official waters of the Republic of Vietnam, at various times in 1972. However, the Veteran's service records contain nothing to show that the conditions of his service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Given the foregoing, and when considered with the other evidence of record, the Board finds that the evidence is insufficient to show duty or visitation in the Republic of Vietnam, and that such service is not shown for the purposes of the regulation governing the presumption of service connection for certain diseases due to herbicide exposure. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Veteran is not shown to have service involving duty or visitation in the Republic of Vietnam. See VAOPGCPREC 27-97. In summary, the Veteran is not shown to have had qualifying service in the Republic of Vietnam, nor is he shown to have been exposed to Agent Orange. Accordingly, the laws pertaining to Veterans who have been exposed to Agent Orange are not applicable, and service connection may not be granted on this basis. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6). 3.309(e); VAOPGCPREC 27-97, 62 Fed. Reg. 63604 (1997); VAOPGCPREC 7-93, 59 Fed. Reg. 4752 (1994). Importantly, even if service in Vietnam and exposure to herbicides had been found, renal cancer is not a disease subject to the regulations governing the presumption of diseases due to herbicide exposure. As noted previously, service connection may also be granted to a Veteran for a disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be presumed for certain chronic diseases that are manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). The Veteran's service treatment records do not show treatment for, or a diagnosis of renal cancer. The Veteran's separation examination report does not indicate any kidney abnormalities. As for the post-service medical evidence, it consists of VA and private treatment records. This evidence shows that the Veteran was diagnosed with renal cell carcinoma is July 2007. The Board finds that the claim must be denied. The Veteran was not treated for renal cancer during service, nor was this condition noted upon separation from service. Therefore, renal cancer is not shown during service. See 38 C.F.R. § 3.303(a). Post service, the earliest medical evidence of renal cancer is dated in 2007. This is approximately 34 years after separation from service, and this period without symptoms, treatment, or diagnosis, weighs against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Therefore, continuity cannot be established. The Veteran's lay statements in support of his claim have been considered. The Board notes that the Veteran is competent to comment on any symptoms, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds that while the Veteran clearly believes he contracted renal cancer as a result of his time in service, as a layperson without any medical training and expertise, he is simply not qualified to render a medical opinion about the etiology of renal cancer. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board does not dispute the fact that the Veteran was diagnosed with renal cancer. However, because of the absence of a medical nexus between his diagnosis and his time in service, the Board finds that the evidence is against a grant of service connection. In summary, the weight of the evidence reflects that the Veteran developed his renal cancer years after his discharge from service. As such, service connection may not be granted on a presumptive basis for chronic disability. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Similarly, there is no continuity of symptomatology, so service connection may not be granted on that basis. See 38 C.F.R. § 3.303(b); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Consequently, the Board finds that the preponderance of the evidence is against entitlement to service connection for renal cancer of the left kidney, status post nephrectomy. As the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the appeal is denied. ORDER Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for renal cancer of the left kidney, status post nephrectomy, to include as due to exposure to herbicides, is denied. REMAND The Veteran seeks entitlement to service connection for right ear hearing loss. As stated previously, hearing loss is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater. The Board notes that during the March 2010 VA examination, the Veteran had an auditory threshold of 50 decibels at 3000 Hertz, thereby meeting the requirement for a current diagnosis of a hearing loss disability in the right ear. However, the Board finds that additional clarification is necessary. During the March 2010 VA examination, the examiner opined that the Veteran's right ear hearing loss was less likely as not caused by or a result of acoustic trauma during service. The examiner stated that the Veteran's entrance and separation evaluations were normal, and that one could not rule out contributions from his occupational and recreational noise, as well as aging effects. The examiner stated they could not be more than 50 percent certain that the Veteran's right sided hearing loss was attributed only to his three years of military service. The Board finds this opinion to be inadequate. First, the Board notes that the standards are as follows: more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent). As such, the Board finds that a remand is necessary to obtain an addendum opinion from the examiner to clarify whether the examiner opines the Veteran's right ear hearing loss is less likely than not (probability less than 50 percent) or at least as likely as not (probability of 50 percent) due to service. Second, the absence of documented hearing loss in service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In rendering the new opinion, the examiner should consider the Veteran's statements regarding the occurrence of the disorder, in addition to his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service treatment records to provide a negative opinion). The VA may not simply disregard lay evidence because it is unaccompanied by contemporaneous medical evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Any updated treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. First, obtain and associate with the claims file all updated VA and private treatment records. 2. Obtain an addendum opinion to the March 2010 VA examination. If deemed necessary by the examiner, afford the Veteran a new VA audiological examination. After a review of the record, to include all medical records and lay statements contained therein, the examiner should offer an opinion regarding the following: Based on a full review of the record, to include the Veteran's lay statements regarding the incurrence and continuity of symptomatology of his right ear hearing loss, is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's right ear hearing loss had its onset during service, or is in any other way causally related to his active service? All indicated evaluations and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file. If the examiner determines it is not possible to provide a requested opinion without resort to speculation, the examiner should state the reason why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If the examiner is unable to reach an opinion because there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 3. The RO should then readjudicate the claim. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs