Citation Nr: 1309543	
Decision Date: 03/21/13    Archive Date: 04/01/13

DOCKET NO.  10-09 253	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to an initial compensable evaluation for deviated nasal septum with right side hypertrophy and partial block.  

2.  Entitlement to service connection for hearing loss.  

3.  Entitlement to service connection for tinnitus.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

S. Keyvan, Associate Counsel


INTRODUCTION

The Veteran had active military service from April 1961 to April 1964.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, granted service connection for deviated nasal septum with hypertrophy, evaluating it as noncompensably disabling, effective August 21, 2007; and denied service connection for bilateral hearing loss and tinnitus.  

The Veteran requested a personal hearing at the Houston RO before the Decision Review Officer (DRO), and was scheduled for a hearing on July 26, 2012.  However, it appears the Veteran, through his representative, cancelled his hearing request.  The Veteran also requested a hearing before a Veterans Law Judge at the RO.  A Board hearing was scheduled on February 13, 2013 at the Houston RO, but the Veteran failed to appear.  As such, his hearing request is considered withdrawn.  See 38 C.F.R. § 20.704(d) (if the appellant fails to appear for a scheduled hearing, the case will be processed as though the request for a hearing had been withdrawn).  

The Veteran has argued that he experiences constant drainage as a result of his nose fracture, but there is no indication that the RO has awarded service connection for any disability manifested by such a symptom, such as rhinitis or sinusitis.  (Service connection has been awarded only for the deviated septum and hypertrophy.)  Given the Veteran's argument on this point, it may be said that he has claimed service connection for a disability manifested by nasal drainage.  This question is referred to the agency of original jurisdiction (AOJ) for further action.  

(The issues of entitlement to service connection for hearing loss and tinnitus are addressed in the remand that follows the decision below.)



FINDING OF FACT

The Veteran has a deviated septum to the right with partial blocking of the right nasal passage, but not complete obstruction; there is no obstruction of the nasal passage on the left.  


CONCLUSION OF LAW

The criteria for an initial compensable rating for deviated septum with right side hypertrophy have not been met.  38 U.S.C.A. §§ 1155; 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.31, 4.97, Diagnostic Code (DC) 6502 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

At the outset, 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, and 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); 38 C.F.R. § 3.159(b).  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, during the pendency of the appeal.  See 73 Fed. Reg. 23353 -56 (Apr. 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 Veteran to provide any evidence in the Veteran's possession that pertains to the claim.  See 38 C.F.R. § 3.159(b)(1).)  

The Board finds that all notification and development action needed to render a decision on the claim on appeal has been accomplished. 

Through a December 2007 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his underlying service connection claim.  Thereafter, the Veteran was afforded the opportunity to respond.  In addition, the Veteran was provided notice concerning the assignment of rating criteria and effective dates via the December 2007 letter.  Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claim that is the subject of this decision, and has been afforded ample opportunity to submit such information and evidence.

The Board also finds that the December 2007 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  In the letter, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies.  The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence.  Thus, the Board finds that "the appellant [was] provided the content-complying notice to which he [was] entitled."  Pelegrini v. Principi, 18 Vet. App. 112, 122 (2004).  In addition, the Veteran was given the opportunity to respond following the December 2007 notice letter.  

In any event, as is the case here, once a veteran disagrees with an initial determination, other provisions apply to the remainder of the adjudication process, particularly those pertaining to the issuance of rating decisions and statements of the case.  See 38 U.S.C.A. §§ 5104(a), 7105(d) (West 2002); 38 C.F.R. §§ 3.103(b)(1), 19.29 (2010); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007).  Nothing about the evidence or any response to the RO's notification suggests that the rating issue must be re-adjudicated ab initio to satisfy the requirements of the VCAA.  

The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim decided herein.  The Veteran's service treatment records as well as all identified and available VA medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's rating claim.  Indeed, at no time has the Veteran referenced outstanding records that he wanted VA to obtain or that he felt were relevant to his claim.  

Moreover, in addition to obtaining all relevant records, the Veteran was also afforded a VA examination in connection with his claim in April 2008.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As noted below, the Board finds that the VA examination obtained in this case is adequate as it was predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran and reflects that the examiner conducted a full examination of the Veteran, including information necessary to apply the pertinent rating criteria.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the rating issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).  

Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required by 38 U.S.C.A. §§ 5103(a), 5103A and 38 C.F.R. § 3.159.

II.  Analysis

The Veteran contends that his service-connected nasal disorder is more disabling than reflected by the noncompensable disability rating initially assigned.  For the reasons that follow, the Board concludes that a compensable disability rating is not warranted.  

Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012).  

The veteran's entire history is reviewed when making disability evaluations.  See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1.  Where, as in the case of the Veteran's claim, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found.  Id.  Further, "[w]here 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 required for that rating.  Otherwise, the lower rating will be assigned."  38 C.F.R. § 4.7 (2012).

In the June 2008 rating decision, the RO granted service connection and assigned an initial noncompensable (0 percent) rating for deviated septum with right side hypertrophy and partial block, pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6502.  

Under this diagnostic code, deviation of nasal septum warrants a 10 percent rating when there is 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side.  38 C.F.R. § 4.97, Diagnostic Code 6502.  A 10 percent evaluation is the maximum schedular rating for deviation of the nasal septum under Diagnostic Code 6502.  

The rating schedule authorizes the assignment of a noncompensable evaluation in every instance in which the rating schedule does not provide such an evaluation and the requirement for a compensable evaluation has not been met.  38 C.F.R. § 4.31.  

Historically, the Veteran's service treatment records demonstrate that he hit and fractured his nose in October 1963.  Findings from an x-ray revealed a nasal fracture, and subsequent health records reflect that the Veteran presented at a ear, nose and throat (ENT) clinic with complaints of continued swelling in his nose.  It was also noted that the Veteran's nasal fracture resulted in a deviation to the left.  At the January 1964 examination pursuant to his separation from service, the Veteran reported a history of ear, nose and throat trouble, and noted that he had fractured his nose three months prior.  

The Veteran's post-service treatment records reflect that he first presented at the Galveston County Community Based Outpatient Clinic (CBOC) in December 2007 to establish VA care.  Upon reviewing the Veteran's medical history and conducting a general examination of the Veteran, a VA physician noted that the nose was in normal condition, and the respiratory system was negative for any signs of coughing, wheezing, dyspnea and/or dyspnea on exertion (DOE).  

In several lay statements, as well as the July 2008 notice of disagreement (NOD), the Veteran complained of difficulty breathing through his nose and further reported to have "blockage and constant drainage" in both nasal passages.  

The Veteran was afforded a VA nasal examination in April 2008, at which time he provided his medical history and described injuring his nose in service.  According to the Veteran, he continues to have sinus problems and significant difficulty breathing through his nose as a result of his in-service injury.  Specifically, the Veteran described experiencing "interference with breathing through the nose, purulent discharge from the nose, [and] hoarseness of the voice and pain."  Physical examination of the nose revealed a deviated septum on the right, but was negative for any signs of nasal obstruction, loss of part of the nose, loss of part of the ala, scarring, obvious disfigurement or nasal polyps.  The VA examiner did note the presence of rhinitis which he determined to be allergic in origin due to the nature of the discharge.  The examiner did not observe any signs of sinusitis upon examination.  The Veteran also underwent an x-ray of the nasal bone region, the results of which were shown to be abnormal.  Specifically, while the nasal bone itself was shown to be intact, the examiner detected evidence of "an old fracture in the mid to distal 1/3 of the bone," and further noted that the nasal septum was deviated to the right and the nasal turbinates appeared hypertrophied on the right.  Based on his examination of the Veteran, the VA physician diagnosed him with deviated nasal septum that was partially blocking the right side of the nose, which caused the Veteran to have problems breathing through the right side of the nose.  

Based on a review of the evidence of record, and considering the pertinent evidence of record in light of the above-noted legal criteria, the Board finds that assignment of an initial compensable rating for the Veteran's service-connected deviated septum with right side hypertrophy and partial block is not warranted.  The examiner initially noted that the physical examination results were negative for signs of nasal obstruction, and then found evidence of partial blocking on the right side of the nose as a result of the deviated septum.  Regardless of the somewhat contradictory findings, neither description establishes total obstruction on one side or 50-percent obstruction of the nasal passage on both sides as required for a compensable rating.  38 C.F.R. § 4.7, Diagnostic Code 6502.  Indeed, while the examiner did not provide an actual measurement with regard to the level of blockage experienced by the Veteran, the word "partial" is defined as "[r]elating to or affecting only part: incomplete."  See Webster's New College Dictionary, Third Edition (2008) 820.  As such, while the evidence reflects partial blocking on the right side of the nose as a result of the deviated septum, it does not reflect complete obstruction on one side or 50-percent obstruction of the nasal passage on both sides.  
Therefore, a 10 percent rating is not warranted under Diagnostic Code 6502.  

The Board notes that the Veteran is competent to provide lay evidence of symptoms he is capable of observing.  However, the Board finds the objective medical findings by skilled professionals to be more persuasive which, as indicated above, do not support a compensable rating for the deviated septum with hypertrophy.  While the Veteran has a deviated septum to the right, it does not result in 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side.  

With regard to a higher evaluation under other diagnostic codes, the Board has reviewed the remaining diagnostic codes relating to nasal disabilities and finds that they are not applicable.  The Veteran has been specifically service connected for a deviated nasal septum, which is specifically contemplated by the diagnostic code described above.  The Board acknowledges the Veteran's complaints of sinus problems/rhinitis, but, as noted, he is not now service connected for such.  

The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  The Board is unable to identify a reasonable basis for granting a higher rating for service-connected disability.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).  

Under these circumstances, the Board finds that the record presents no basis for assignment of an initial compensable rating.  Additionally, as the record contains no evidence showing that the Veteran is entitled to a higher rating for his service-connected disability at any point during the claim, no staged ratings are appropriate.  Thus, the Board finds that the current noncompensable disability rating is appropriate for the entirety of the rating period.  38 C.F.R. § 4.97, Diagnostic Code 6502.

The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulations, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2010); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).  

In Thun v. Peake, 22 Vet. App. 111, 115-116 (2008), the Unites States Court of Appeals for Veterans Claims (Court) set forth a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule.  If so, the rating schedule is adequate and an extraschedular referral is not necessary.  If, however, the Veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is, whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  These include marked interference with employment and frequent periods of hospitalization.  Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.  

With regard to the Veteran's service-connected deviated septum with hypertrophy, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule.  There is no unusual clinical picture presented; nor are there any other factors that take this disability outside the usual rating criteria.  The criteria contemplate the symptoms of the service-connected disability.  As such, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary.


ORDER

Entitlement to an initial compensable rating for deviated septum with right side hypertrophy and partial block is denied.  


REMAND

The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  

The Veteran contends that he has bilateral hearing loss and tinnitus as a result of his exposure to acoustic trauma while serving as a track vehicle mechanic in service.  According to the Veteran, he spent the majority of his period of active duty in the field servicing vehicles for "combat preparations and readiness operations."  In addition to his exposure to sounds produced from vehicles, tanks and armored personnel carriers (APCs), he also claims to have been exposed to loud noises and sounds associated with artillery and small arms gunfire.  The Veteran further contends to have experienced hearing problems and chronic ringing in his ears since service.  See February 2008 Statement of Veteran and July 2008 NOD.  

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Here, at the Veteran's April 1961 enlistment examination, the clinical evaluation of his ears and drums was shown to be normal, and the Veteran denied a history of ear, nose or throat trouble in his medical history report.  On audiological examination, the examiner found his pure tone thresholds, in decibels, to be as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10(25)
10(20)
5(15)
XXXX
5(10)
LEFT
10(25)
10(20)
10(20)
XXXX
5(10)

At the January 1964 examination conducted pursuant to the Veteran's separation from active service, the clinical evaluation of his ears and drums was shown to be normal, but he did report a history of ear, nose, or throat trouble on his report of medical history.  The examination reflected pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
-10(5)
-10(0)
-10(0)
-10(0)
-10(-5)
LEFT
-10(5)
-10(0)
-10(0)
-10(0)
-10(-5)

(The Board observes that service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units.  As these evaluations were conducted prior to October 1967, the Board has converted the ASA units (first threshold listed at each frequency) to ISO units (second threshold listed at each frequency) as shown below.)  

Significantly, at both the enlistment and separation examinations, the examiners found the Veteran's hearing acuity to be within normal limits.  (No hearing disability was acknowledged by either examiner at either evaluation.)  

Concerning the Veteran's contentions that noise exposure was the injury or event in service that resulted in his current hearing loss; his DD 214 form reflects that his military occupational specialty (MOS) was that of Track Vehicle Mechanic.  As previously noted above, the Veteran has reported a history of exposure to extreme noise levels during his period of active service.  

The Board notes that the Veteran is competent to describe what he experienced in service.  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.").  

The Veteran was afforded a VA audiological examination in May 2008, at which time he noted his military history and reported that he spent a great deal of time "in the field [during] many operations" where he was exposed to "tanks, artillery, combat exercises and gunfire."  The Veteran described his tinnitus as a persistent ringing sound in both ears and claimed to have experienced difficulty hearing and tinnitus since his period of service.  According to the Veteran, he not only worked as, and fulfilled the duties of, a truck mechanic and repairmen in service, but he also fired weapons with his right hand without the use of any hearing protection.  

He underwent an audiological evaluation, the results of which showed pure tone thresholds, in decibels as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
40
45
40
65
65
LEFT
50
40
45
55
65

Speech audiometry revealed speech recognition ability of 80 percent in both ears.  The examiner diagnosed the Veteran with sensorineural hearing loss and tinnitus in both ears.  According to the examiner, because the Veteran did not have a decrease in hearing at his separation examination, his hearing loss and tinnitus were not related to the noise exposure he experienced during his military service.  

While the May 2008 VA examiner provided an explanation as to why the Veteran's hearing loss and tinnitus were not related to his military service, the Board is left to question whether the examiner considered all the relevant evidence prior to reaching her conclusion.  In particular, it does not appear that the examiner addressed the Veteran's complaints of ongoing symptoms when issuing her opinion.  While the examiner reviewed the Veteran's medical history, and acknowledged his assertion that his hearing problems and tinnitus began in, and have existed since, service, she failed to address his complaints of ongoing hearing problems when providing the explanation for her medical conclusion.  In fact, the examiner appears to have based her conclusion solely on the audiometric findings at the Veteran's separation examination.  Although this may be the best explanation, further information is required to explain why this would be so in light of the Veteran's history of symptoms since service.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is what an examiner learns from the claims file for use in forming the expert opinion that matters; when the Board uses facts obtained from one opinion over another, it is incumbent upon the Board to point out those facts and explain why they were necessary or important in forming the appropriate medical judgment.)  Because the record remains unclear on this point, another remand is necessary for clarification.  

The Board further notes that the Veteran's service personnel records are not associated with the claims file.  These records may provide additional information concerning the Veteran's military duties, the areas where he served in service, and/or the type of noise exposure he may have had in service.  Therefore, the agency of original jurisdiction (AOJ) should attempt to obtain and associate with the Veteran's claims file a complete copy of his service personnel records.  See 38 C.F.R. § 3.159 (c)(2) (VA is required to obtain relevant records from a Federal department or agency, including records from the service department; VA may only end efforts to obtain such records if it is concluded that the records sought do not exist or that further attempts to obtain them would be futile).  

Accordingly, the case is REMANDED for the following action:

1.  Contact the National Personnel Records Center (NPRC) in St. Louis, Missouri, or other appropriate source, and request the Veteran's entire Military Personnel file, including basic and extended service personnel records, administrative remarks, evaluations and orders.  Efforts to locate these records should only end if the evidence, or information, does not exist or if further efforts to obtain them would be futile.  38 C.F.R. § 3.159(c)(2).  

2.  Once these records have been obtained and associated with the claims file, refer the file to the examiner who conducted the 2008 examination.  The claims folder and a copy of this remand must be made available to, and reviewed by, the examiner.  

Following a review of the record, the examiner should then express an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any hearing loss and/or tinnitus diagnosed anytime during the pendency of the appeal, had its clinical onset in service or is otherwise related to the Veteran's military service, to include the Veteran's reported noise exposure in service.  In answering these questions, the examiner should also address the Veteran's competent assertions that he has experienced hearing problems and a chronic ringing sound in his ears since military service, and should specifically set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since his military service.  (If the basis for rejecting the Veteran's statements is the separation audiogram, why this is so should be explained.)

If the examiner finds that the Veteran's disability(ies) is(are) not related to his service, then he or she must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion.  

If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.  Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).  (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.)  

(If the examiner who conducted the 2008 examination is no longer available, the file should be referred to a clinician with sufficient expertise to address the questions set out above.  If further examination of the Veteran is required, this should be scheduled.)

3.  After completing the above, readjudicate the issues remaining on appeal.  If any benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response before the case is returned to the Board.  

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the 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).  



_________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs