Citation Nr: 1308655 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 07-07 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for right ear hearing loss disability. 2. Entitlement to service connection for left ear hearing loss disability, to include aggravation of a pre-existing disability. 3. Entitlement to a compensable rating for residuals of malaria. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to January 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In the above-mentioned February 2005 rating decision, the RO denied the Veteran's claims of entitlement to service connection for a stress condition, hypertension and a left knee condition. While the Veteran expressed disagreement with the RO's denial of those claims, his March 2007 substantive appeal reflects that he did not perfect an appeal as to those issues. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. As such, they are no longer in appellate status and will be discussed no further. Additionally, the Board notes that the Veteran raised the issue of entitlement to service connection for posttraumatic stress disorder (PTSD). This claim was denied by the RO in a March 2007 rating decision. After the Veteran expressed disagreement with the denial of his claim, the RO awarded service connection for PTSD in a February 2008 Decision Review Officer decision. Since service connection was granted, the Veteran's appeal as to that issue has become moot. The Veteran has not disagreed with the assigned disability rating or the effective date. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection]. Therefore, that matter has been resolved and is not in appellate status. This appeal was previously before the Board in December 2010. The Board remanded the claim so that the Veteran could be scheduled for VA examinations. The case has been returned to the Board for further appellate consideration. The issues of entitlement to service connection for right and left hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The probative evidence of record does not establish active malaria or residuals of active malaria such as liver or spleen damage CONCLUSION OF LAW The criteria for a compensable disability rating for malaria have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011; 38 C.F.R. §§ 4.7, 4.88, Diagnostic Code 6304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, 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 claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2009). Thus, any error related to this element is harmless. A VCAA letter dated in September 2004 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, April and November 2006 letters described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available personnel records and relevant VA and private medical records are in the file. All records identified by the Veteran as relating to the claim have been obtained, to the extent possible. The claims file contains the Veteran's service treatment records, service personnel records, VA treatment records and private treatment records. Additionally, the Board notes that the claims file reflects that the Veteran was awarded Social Security Administration (SSA) benefits. However, the Board notes that the Veteran has never indicated that he is in receipt of SSA disability benefits for his claimed residuals of malaria, nor has he indicated that SSA records relevant to these claims exist. The Veteran indicated his SSA benefits were provided due to a psychiatric disability. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that VA's duty to assist the Veteran extends only to obtaining relevant records, and there must be a reason to believe that records may give rise to pertinent information to conclude that they are relevant. See Golz v. Shinseki, 590 F.3d 1317 (2010). As there is no evidence of record reflecting that SSA records relevant to the Veteran's claimed residuals of malaria, and the Veteran has never asserted that such relevant records exist or that he would like VA to obtain such records, the Board finds that a remand to obtain such records is not necessary with regard to these claims. The Board finds that the record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. The Veteran was provided VA examinations in October 2004, June 2007 and December 2010. As noted in the December 2010 remand, the October 2004 and June 2007 examinations were not fully adequate as they did not include a review of the claims file and they failed to address whether the Veteran suffered from residuals of malaria. The December 2010 examiner reviewed the claims file, conducted the appropriate diagnostic tests and studies, and noted the Veteran's assertions. As such, the Board finds this examination report and opinion to be thorough, complete, and sufficient upon which to base a decision with regard to this claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently assigned a noncompensable evaluation for malaria under Diagnostic Code (DC) 6304, which provides for a 100 percent evaluation for active malaria. The accompanying "Note" states that the diagnosis of malaria depends on the identification of the malarial parasites in blood smears. If the veteran served in an endemic area and presents signs and symptoms compatible with malaria, the diagnosis may be based on clinical grounds alone. Relapses must be confirmed by the presence of malarial parasites in blood smears. A noncompensable rating is assigned for inactive malaria, but residual ratings may be assigned. Residuals, such as liver or spleen damage, are rated under the appropriate system. 38 C.F.R. § 4.88b, DC 6304. Service treatment records show that the Veteran was diagnosed with malaria in October 1967. He was treated in the Republic of Vietnam, and released in November 1967. His January 1969 separation evaluation noted that he did not suffer a recurrence of the disease during service. In November 1970, the Veteran filed a claim of entitlement to service connection for malaria. He stated "although I have not had medical attention, I have had several, repeated, small attacks since discharge." He was granted entitlement to service connection for malaria, with a noncompensable rating, effective November 9, 1970. VA treatment records reflect that the Veteran did not complain of ongoing residuals of malaria. In June 2004, he denied having fevers, nausea, abdominal pain and nocturia. He reported a history of malaria. Private treatment records from Harrison Internal Medicine include an initial visit in October 2001 when the Veteran complained of symptoms of headache, dizziness, and nausea. His abdomen was nontender, and he was assessed with hypertension and sinus arrhythmia. Ongoing treatment records from Harrison Internal Medicine do not include a diagnosis of residuals of malaria, or complaints/investigation of spleen or liver symptoms. The Veteran had private treatment visits at least every six months, but generally more frequently, from October 2001 to June 2004. During these visits he did not complain of fever, chills or weakness. In September 2004, the Veteran filed the current claim for an increased rating for malaria. In October 2004, the Veteran was provided a VA malaria evaluation. He complained of symptoms including fever, chills and weakness occurring once every four months for the past 20 years. He stated that his symptoms would last less than one day. He indicated he believed these symptoms were recurrences of malaria, but stated that no physician had ever confirmed his belief. He was not on medications for malaria, and he did not have symptoms at the time of the evaluation. The evaluation included a blood smear and complete blood count. The evaluator noted that the Veteran's malaria had resolved, and "at this time there does not appear to be any residuals of malaria." In February 2005, the Veteran described symptoms of fever, chills and general malaise "which began after discharge from the Army, while not as severe or often as they once were, still exist." He felt that the malaria he suffered in service weakened his "defense system" because he did not "experience these things before the Army." He feels that as a result of his malaria he is not more prone to develop colds, flu and feelings of weakness in general. He contends that because the malaria has made him more susceptible to illnesses, that he should be compensated to some degree. In March 2007, the Veteran felt that the VA examiner stating that there was "no evidence of active malaria is not conclusive proof of no active malaria," and he continued to argue that his immune system was "compromised by" the malaria. He requested a 10 percent rating for his residuals of malaria. In June 2007, the Veteran was afforded a second VA malaria evaluation. The Veteran stated he suffers from some fever and weakness "off and on" since service, but stated he has not been treated for malaria since discharge from service. He stated that his episodes occur once or twice monthly and last one to two days. On physical examination, he did not have a fever, and there was no evidence of malnutrition or vitamin deficiency. His abdomen was soft and nontender. The evaluator noted that the Veteran did not show evidence of malaria being present, and that a complete blood count completed in October 2007 was normal. As the June 2007 VA evaluation did not address residuals of malaria, the Veteran was afforded a third evaluation in December 2010. He noted that despite his recovery from malaria in service he continued to experience "off and on chills and fever." He reported that his fevers were likely associated with viral infections. He reported chills every other day, lasting about 30 minutes. He also stated he felt chills, but he did not have "shaking chills." The Veteran's weight was stable and the examiner noted he did not show signs of malnutrition or residuals of malnutrition or vitamin deficiency. He had normal head and neck, respiratory, cardiovascular, abdominal, and skin physical evaluations. The examiner noted a peripheral blood smear for malaria was used to diagnose a "history of malaria infection without any residuals found, specifically no liver or spleen involvement." A December 2010 general medical examination included that the Veteran had a history of hypothyroidism first diagnosed in 2008. He has also been assessed with allergic rhinitis, since the 1980s. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board acknowledges that the Veteran is competent to give evidence about what he experienced. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) The Board finds that the Veteran's statements are competent and generally credible. The Veteran contends that after his discharge from service he has continued to suffer from "off and on" fevers, chills and general malaise. He also contends that he now suffers from more colds, flus, and other illnesses than he did prior to service. Although he provided different descriptions of the frequency of his fevers, chills and general weakness at each VA evaluation, the Board does find the veteran is competent to report his symptoms and was credible in reporting the presence of these symptoms. The Board does not, however, find that the Veteran has the requisite medical knowledge to attribute his "off and on" fevers, chills, and malaise to an impaired immune system caused by malaria. The record does not suggest that the veteran has any medical training, and the VA and private treatment records do not include complaints of chills, fever or malaise. The claims file contains treatment records from 2001 to 2007. Notably, the December 2010 VA evaluator noted that the Veteran was diagnosed with hypothyroidism in 2008. Treatment records also show that the Veteran has complained of, and sought treatment for, depression. Diagnostic Code 6304 does not list potential residuals for malaria, but notes that common residuals may include liver or spleen damage. However, service connection for a residual of malaria is not limited to liver or spleen damage. The record, to include physical examinations and complete blood counts and treatment records do not reveal treatment for liver or spleen damage. Also, although the Veteran contends that his immune system has been damaged since service resulting in numerous colds and flus, treatment records from 2001 to 2007 included only one recorded complaint of a cough, chest pain and a sore throat. These symptoms, in December 2003, cleared up in a week. Moreover, the record does not show that any health care provider has linked the Veteran's complaints of cough, chest pain, and sore throat to his service connected malaria. In summary, blood testing has not revealed malaria, VA examiners and treating physicians have not treated or diagnosed liver or spleen damage, and VA evaluators have not found that the Veteran suffers from residuals of malaria. While the Veteran has argued his immune system has been compromised and he suffers from more colds, flus and illness as a result of his in-service malaria, treatment records do not include treatment for numerous colds and flus. The Veteran has also noted that he is generally more sickly and weak now than he was in service; however, the Board notes that the Veteran was in his early 20s in service and he is now in his 60s and suffers from various nonservice-connected conditions such as hypertension, hypothyroidism, Meniere's disease, dyslipidemia and allergic rhinitis. As the record shows the Veteran does not suffer from active malaria, and the preponderance of the evidence is against finding that he suffers from residuals of malaria, the Board finds that a compensable rating is not warranted. For the foregoing reasons, the claim for a compensable rating for residuals of malaria must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Entitlement to a compensable rating for residuals of malaria is denied. REMAND Unfortunately, additional remand is required in regards to the Veteran's hearing loss claims. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met. Initially, the Board notes that the veteran has stated he attempted to re-enlist in the U.S. Army in the late 1970s, but that he was denied due to a disability. He is unsure, but believes he was denied due to hearing loss. He indicated that he took his induction examination in the late 1970s in Little Rock, Arkansas. It does not appear that the VA has investigated the presence of an additional induction examination from the late 1970s. On remand, the RO/AMC should attempt to obtain any records from the Veteran's attempted reenlistment. Right ear hearing loss Disability 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, see also Palczewski v. Nicholson, 21 Vet. App. 174, 180 (2007) (holding that the Secretary's regulatory definition of hearing loss in § 3.385 is permissible and not "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law"). The threshold for normal hearing is 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). According to the Veteran's DD 214, his military occupational specialty (MOS) was a cook. He has additionally described noise exposure from his service in "South Vietnam" as including sleeping near "very loud" "Army guns." He could not recall the caliber, but noted it was the only single incident from Camp Radcliff that "may have caused or made worse a hearing problem." He indicated a second incident occurred at Camp Evans, and included that an ammunition storage area was hit by enemy rounds and exploded near his camp. While the January 2008 VA examination indicated the Veteran was exposed to excessive noise during service, in September 2010 VA issued a VA Fast Letter (FL) (FL10-035) which provided some instruction on noise exposure in service. The subject of the Fast Letter was: Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus. The letter introduced the Duty MOS Noise Exposure Listing, a rating job aid for determinations regarding service connection of hearing loss and/or tinnitus. The Duty MOS Noise Exposure Listing is a compilation of Department of Defense-verified lists of military occupational specialties (MOSs) and the corresponding probability of hazardous noise exposure. The Fast Letter indicated that when a claim for hearing loss and/or tinnitus is received, the decision maker must review the claim for: Sufficient evidence of a current disability (including lay evidence); and evidence of hearing loss and/or tinnitus in service; or records documenting an event, injury, disease, or symptoms of a disease potentially related to an audiological disability. If there is no documented evidence of an in-service illness, injury, or event with which the claimed conditions could be associated, the Duty MOS Noise Exposure Listing will be considered. Based on the Veteran's records, each duty MOS or duty assignment documented will be reviewed for a determination as to the probability of exposure to hazardous noise on the Duty MOS Noise Exposure Listing. If the duty position is shown to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event. According to the Duty MOS Noise Exposure listing, a "food service specialist" has a low probability of exposure to hazardous noise. Additionally, service treatment records do not include treatment for or complaints of hearing loss. Although the Veteran's induction evaluation included testing which revealed some left ear hearing loss, he denied sensing his hearing loss both at induction and separation. Thus, the VA does not concede that the Veteran was exposed to hazardous noise in service. Nevertheless, the Board does find his statements about his service in the Republic of Vietnam, including the two incidents described above, to be credible. Recently, in Walker v. Shinseki, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). While the issue addressed in Walker was entitlement to service connection for hearing loss, and the Federal Circuit denied the application of continuity of symptomatology as a method to support service connection for issues not recognized as "chronic" by 38 C.F.R. § 3.309(a), it has been the position of the VA that "sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)." M21-1MR III.iv.4.B.12.a. Thus, when chronicity of a condition noted in service is not adequately supported, the Veteran may support a service connection claim for sensorineural hearing loss by providing competent and credible evidence of continuity of symptomatology after discharge. Here, regarding the Veteran's right ear hearing, there is no treatment for or complaints of hearing loss in service. The Veteran has been afforded several VA audio examinations, and the evaluator has found that he is unable to address the etiology of the Veteran's right ear hearing loss without resorting to mere speculation because the record does not contain audio testing from the Veteran's discharge to 2002. Before the Board may rely on an examiner's conclusion that an etiological opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Jones v. Shinseki, 23 Vet. App. 382 (2010) (noting that while VA need not "proceed through multiple iterations of repetitive medical examinations until it obtains a conclusive opinion or formally declares that further examinations would be futile," it must be clear "that the examiner has not invoked the phrase 'without resort to mere speculation' as a substitute for the full consideration of all pertinent and available medical facts to which a claimant is entitled.") In the instant case, the examiner in December 2010 noted that in 2002 the Veteran was provided a hearing test but the results were misinterpreted. The examiner noted that due to "air-bone gaps" the Veteran should have been assessed with mixed hearing loss instead of sensorineural hearing loss. The December 2010 examiner does not indicate if both ears should have been diagnosed with mixed hearing loss or just one, and at the end of his examination he only diagnoses sensorineural hearing loss without an explanation of the change since 2002. The examiner cited a study, and included that "based on this one could assume that individuals that were not in the combat arms would be less likely to acquire a hearing impairment, significant threshold shift or aggravation of a pre-existing condition. However, the evidence is not sufficient to determine the probability of acquiring a noise-induced hearing loss associated with service in the military or in specific branches of the military, for a given individual." The examination included information regarding any pre-service or post-service noise exposure. The Veteran notes that his longest period of employment was as a bus driver and custodian. The examiner then noted both that "the etiology of the current hearing loss involves non-military factors such as age, civilian occupational exposures, genetic and health factors," and "the only way to end speculation about the onset of hearing impairment...would be to obtain the Hercules records and the 1978 physical examination records from when the Veteran attempted to re-enlist." The Veteran attempted to obtain records from Hercules but was told the records are not kept more than seven years. As the Board is remanding to attempt to obtain the re-enlistment records, and the December 2010 VA examination report and opinion is confusing, the claims file should be returned for an addendum nexus opinion. Left ear hearing loss The Veteran's January 1967 induction examination audiogram reflects that the Veteran demonstrated a high-frequency hearing loss disability in the left ear. In the December 2010 remand the Board noted that "the presumption of soundness is not applicable concerning the Veteran's left ear hearing loss disability and the only remaining question is whether the pre-existing left ear hearing loss disability was aggravated, i.e., underwent a permanent increase during active service". See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b)." A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that (1) the disability existed prior to service and (2) was not aggravated by service will rebut the presumption of soundness. See 38 U.S.C.A. § 1111; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003. To satisfy the second requirement for rebutting the presumption of soundness, the Government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. See Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear-and-unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. See Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). On the other hand, if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim of entitlement to service connection based on service incurrence, but the Veteran may bring a claim of entitlement to service-connected aggravation of that disorder. In that case, 38 U.S.C.A. § 1153 applies and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153, 38 C.F.R. § 3.306. While the remand initially noted that the presumption of soundness was not applicable to the Veteran's left ear hearing loss because the January 1967 induction examination reflected high-frequency hearing loss disability, the Board erroneously directed the RO to remand for a VA examiner to provide opinions under the clear and unmistakable standard. Notably, the December 2010 VA examination report does not include an opinion based upon the clear and unmistakable standard. Stegall v. West, 11 Vet. App. 268 (1998) (The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Veterans Appeals (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance.) The VA examinations indicate that it would be mere speculation to determine whether the Veteran's left ear hearing loss was aggravated by service because there is no separation audiogram. The examiner does not address whether the Veteran's description of his symptoms of hearing loss indicate that his left ear hearing loss was aggravated by service. Even though the burden of showing aggravation falls on the Veteran for disabilities noted at induction, as the VA has provided VA examinations, the opinions sought must be adequate. As such, after any additional records are associated with the claims file, the examiner should be requested to provide an addendum opinion which addresses whether the evidence of record shows that the Veteran's left ear hearing loss was aggravated by service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should attempt to obtain, through official sources, any additional service records for the Veteran, to include any induction evaluations from the late 1970s or any records which indicate the Veteran was medically unfit for reenlistment. The RO/AMC must complete all steps suggested by official sources to obtain such records. If the records are not available, the RO/AMC should inform the Veteran and his representative and should issue a formal finding of unavailability to be inserted in the record. 2. Thereafter, return the claims file to the December 2010 evaluator for addendum opinions. He should review the claims file, including any additional evidence, and be provided access to Virtual VA. The evaluator should be asked to answer the following questions: (a) Did the Veteran suffer from bilateral mixed hearing loss in 2002, as indicated in the December 2010 examination report? If so, does testing from prior VA examinations reveal that he continues to suffer from mixed hearing loss v. singularly sensorineural hearing loss? If he has undergone a change from mixed hearing loss to sensorineural hearing loss, then please explain how this occurs? (b) Is the Veteran's right ear hearing loss disability at least as likely as not (i.e. 50/50 probability or greater) related to his service? Note that according to the Duty MOS Noise Exposure listing the Veteran's MOS had a low probability of exposure to hazardous noise. (c) Is it as least as likely as not (i.e. 50/50 probability or greater) the Veteran's pre-existing left ear hearing loss was aggravated (beyond its natural progression) by the Veteran's service? The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. If the examiner is unable to provide the any of the requested opinions without resorting to speculation, the examiner must provide an explanation for the basis of that determination. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Please see discussion above as to the reasons and bases needed that an opinion is speculative. 3. The RO should then readjudicate the claims in light of all of the evidence of record on the merits. If the claims remain denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs