Citation Nr: 1312169 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 11-30 643 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to an increased disability rating greater than 0 percent for the service-connected allergic rhinitis disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from July 1954 to April 1958. He subsequently served in the Air Force Reserve from 1958 to 1965. The issues on appeal first came to the Board of Veterans' Appeals (Board) from an August 2011 rating decision issued by the RO. In March 2013, the Veteran presented testimony at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims folder. A review of the Virtual VA paperless claims processing system reveals additional, pertinent VA treatment records dated in 2011 and 2012. These records are not present in the claims folder. In any event, the Veteran submitted a waiver of RO consideration in February 2012. In addition, since the Board is granting in full the benefit sought on appeal for the new and material evidence and service connection issues, and remanding the increased issue for further development, the Veteran is not prejudiced by the Board's initial consideration of this evidence. See 38 C.F.R. § 20.1304(c) (2012). See also Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The matter of an increased rating for the service-connected allergic rhinitis disability is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The RO denied service connection for bilateral hearing loss in a June 2005 rating decision. This rating decision was confirmed by a June 2009 decision of the Board. The Veteran did not appeal the Board decision. 2. The evidence received since the last, final June 2009 Board decision is new, relevant, and raises a reasonable possibility of substantiating the bilateral hearing loss issue. 3. The Veteran is found to have presented credible lay assertions sufficient to establish a continuity of symptomatology referable to a bilateral hearing loss since service. 4. The currently demonstrated bilateral hearing loss disability for VA compensation purposes is shown as likely as not to be due to the exposure to hazardous and harmful noise levels during his period of active service. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim has been submitted since the last prior, final denial of service connection for bilateral hearing loss by the Board in June 2009. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1100, 20.1104 (2012). 2. In resolving all reasonable doubt in the Veteran's favor, his disability manifested by bilateral hearing loss is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist For both the new and material and service connection issues, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of a VCAA letter from the RO to the Veteran dated in June 2011. As to the new and material evidence issue, the June 2011 VCAA notice letter is compliant with the United States Court of Appeals for Veterans Claims (Court's) decision in Kent v. Nicholson, 20 Vet. App. 1 (2006), since it sufficiently explained the bases of the prior denial (i.e., the deficiencies in the evidence when the claim was previously considered). In any event, since the Board is reopening the new and material evidence issue and granting the underlying service connection issue for bilateral hearing loss, there is no need to discuss whether there has been compliance with the notice and duty to assist provisions of VCAA because even if, for the sake of argument, there has not been, this is inconsequential and, therefore, at most harmless error. See 38 C.F.R. § 20.1102; Bernard, 4 Vet. App. at 392-94. New and Material Evidence The RO denied service connection for bilateral hearing loss in a June 2005 rating decision. In a June 2009 Board decision, the Board confirmed the RO's denial. The Veteran did not initiate any appeal of the Board's decision. Therefore, the Board's June 2009 decision, which subsumes the prior RO decision, is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1100, 20.1104 (2012). The Board denied service connection for bilateral hearing loss in the final June 2009 Board decision because the evidence did not establish hearing loss during service or for years thereafter. In addition, there was an unfavorable January 2007 VA medical opinion indicating that current bilateral hearing loss was not due to hazardous noise exposure during the Veteran's military service. The RO did not reopen the new and material evidence petition and consider it on the merits. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). See also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen bilateral hearing loss claim before proceeding to readjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been offered, that is where the analysis must end. The Veteran filed his petition to reopen the claim of service connection for bilateral hearing loss in May 2011. Therefore, the amended regulation for new and material evidence applies. See 66 Fed. Reg. at 45,620 (applying the revised version of 38 C.F.R. § 3.156 to petitions to reopen filed on or after August 29, 2001). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. Under the revised standards, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2011). In determining whether evidence is new and material, the credibility of the evidence in question is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). In Shade v. Shinseki, 24 Vet. App. 110, 118-19 (2010), the Court held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim, for purposes of reopening the claim. Id. at 117. Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the last, final June 2009 Board decision. Specifically, at the March 2013 hearing, the Veteran provided additional credible lay evidence detailing his in-service noise exposure and symptoms of hearing loss first experienced in 1958 during service. See testimony at pages 5-7, 16-18, 20; October 2011 VA Form 9. Thus, applying the law with a broad and liberal interpretation, and presuming the credibility of the lay evidence for new and material evidence purposes, his testimony and statements constitutes new and material evidence to reopen the claim of service connection for bilateral hearing loss. So this evidence relates to an unestablished fact necessary to substantiate his bilateral hearing loss claim and raises a reasonable possibility of substantiating his claim; that is to say, this evidence is new and material and his claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Governing Laws and Regulations for Service Connection Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. The term service connection applies to entitlement to disability compensation, after a Veteran has satisfied either the three-element test under 38 C.F.R. § 3.303(a), or the test for chronic diseases under 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the three-element test under 38 C.F.R. § 3.303(a), service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For the test for chronic disease as set forth in 38 C.F.R. § 3.303(b), with chronic disease shown in service (or within the presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See also Groves v. Peake, 524 F.3d 1306, 1309 (2008). This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity of symptomatology. 38 C.F.R. § 3.303(b). The Federal Circuit recently held that the regulation creating a presumption of service connection for "chronic diseases" manifesting during service and then again at any later date (38 C.F.R. § 3.303(b)), is only available to establish service connection for the "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, service connection may also be demonstrated by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As to presumptive service connection, some diseases are chronic, per se, such as organic diseases of the nervous system such as sensorineural hearing loss, and therefore will be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year after service. The factual basis may be established by medical evidence, competent lay evidence, or both. The chronicity and continuity factors outlined in § 3.303(b) will be considered. Even this presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37. The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). For example, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316. See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In short, 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 on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). For instance, laypersons have been found to be not competent to provide evidence as to etiology in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). Lay evidence that is both competent and credible may establish the presence of a condition during service, post-service continuity of symptomatology, and a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307-09 (2007). But "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Id. at 308. In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Governing Laws and Regulations for Hearing Loss According to VA standards, impaired hearing will be considered 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 these frequencies 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. VA laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Analysis - Service Connection for Bilateral Hearing Loss The Veteran reports developing bilateral hearing loss as the result of elevated noise levels during service. Specifically, he asserts being exposed to hazardous noise as the result of his military occupational specialty (MOS) as an airborne radio operator in the U.S. Air Force from July 1954 to April 1958. Importantly, he also served in the same capacity in the Air Force Reserve from 1958 to 1965. Significantly, the Veteran reports being exposed to loud noise from radio equipment, from aircraft engines when flying over 300 hours in propeller-driven C-119 cargo planes, from firearms, and from flight line duties. He mentions that he was treated for ear discomfort during service. He states that he often did not wear any hearing protection when engaging in his duties. Moreover, the Veteran denies having any significant post-service recreational or occupational noise exposure. He recently was prescribed hearing aids by VA. See April 2009 videoconference hearing testimony at page 4; January 2007 VA audiology examination; March 2013 hearing at pages 5-7, 16-18, 20; May 2011 claim; October 2011 VA Form 9. In addition, at the March 2013 hearing, the Veteran emphasized that he first experienced symptoms of hearing loss during service and upon discharge in 1958. See testimony at page 20. The first - and perhaps most fundamental requirement for any service connection claim is the existence of a current disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. Concerning this, a January 2007 VA audiology examination revealed bilateral sensorineural hearing loss disability according to the clear, established requirements of 38 C.F.R. § 3.385. The audiogram showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 55 70 70 LEFT 25 30 40 55 65 Speech audiometry also revealed speech recognition ability of 76 percent in the right ear and 88 percent in the left ear. Thus, the Veteran has current bilateral hearing loss disability for VA compensation purposes. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. But the question remains whether this current bilateral hearing loss is related to acoustic trauma during his military service. With regard to service treatment records (STRs), prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison in this decision, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards. The STRs dated from 1954 to 1958 are negative for any specific complaints or findings of hearing loss. STRs show that the Veteran underwent an audiological examination in October 1956. The Veteran was reporting bilateral ear pain at that time. However, objectively, his October 1956, March 1957, and February 1958 STR audiograms did not demonstrate bilateral hearing loss disability by the standards of 38 C.F.R. § 3.385, even with conversion to ISO units, except at 250 Hertz. Also, during service, at his various Reports of Medical History, the Veteran denied having any ear, nose, and throat problems. However, for both the right and left ear, the above STR audiology examinations often revealed diminished hearing at certain frequencies, albeit not for VA disability purposes under 38 C.F.R. § 3.385. See Hensley, 5 Vet. App. at 157 (higher threshold levels above 20 decibels indicate some degree of hearing loss). As noted, a claimant may establish direct service connection for a hearing disability initially manifest several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service. Hensley, 5 Vet. App. at 164. See also 38 U.S.C.A. 1113(b); 38 C.F.R. 3.303(d). The lack of evidence of bilateral hearing loss per § 3.385 during active service is not fatal to the Veteran's claim; it is merely one factor to be considered. In this vein, only several years after active duty, an October 1962 Air Force Reserve audiology examination revealed pure tone thresholds in decibels (with conversion to ISO units shown in parentheses), as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30(45) 20(30) 15(25) --- --- LEFT 15(30) 10(20) 15(25) --- --- Thus, the October 1962 Air Force Reserve audiology examination reveals at least right hearing loss disability for VA compensation purposes under 38 C.F.R. § 3.385, only several years after discharge, and after confirmed exposure to hazardous noise during service and in the Reserve. This fact weighs heavily in support of the claim. And moreover, the Veteran's DD Form 214 and service personnel records (SPRs) confirm that the Veteran served as an airborne radio operator, both during active service and in the Air Force Reserve. The Department of Defense's Duty military occupational specialty (MOS) Noise Exposure Listing confirms that the Veteran's MOS specialty involved a "moderate" probability of noise exposure. In-service hazardous noise exposure and acoustic trauma is therefore confirmed. Furthermore, the Board can find no overt reason to doubt the credibility of his lay assertions that, during service, he sustained hazardous noise exposure with symptoms of hearing loss. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Veteran has also submitted credible lay statements dated in April 2009 from his brother and a friend stating that they noticed the Veteran exhibiting hearing loss when he returned from active duty. Overall, the Veteran's complaints of and treatment for hearing loss after confirmed hazardous noise exposure during service in the 1950s and in the Air Force Reserve in 1962 reflect more than "isolated" findings, thereby revealing a chronic hearing loss disability. 38 C.F.R. § 3.303(b). Post-service, again the Veteran is competent to report symptoms of hearing loss after his military service. Layno, 6 Vet. App. at 469. See also 38 C.F.R.§ 3.159(a)(2). After his 1962 treatment for hearing loss, there is no indication of further treatment for hearing loss until private employer audiograms dated from 1982 to 1989. Regardless, under the plain language of § 3.303(b), the Federal Circuit has held that there is a presumption of service connection for a chronic disease (rebuttable only by "clearly attributable intercurrent causes"), which manifests during service and then again "at any later date, however remote." Groves, 524 F.3d at 1309. In the present case, the Veteran's current bilateral hearing loss is a chronic disease. Also, there is no probative evidence of an intercurrent post-service injury. The Board has considered the unfavorable January 2007 VA audiological examiner's conclusions. The VA audiologist opined that the Veteran's current bilateral hearing loss hearing loss was "less likely as not" caused by military noise exposure. The examiner reasoned that at his STR discharge examination in 1958 hearing was within normal limits per § 3.385. The examiner added there were no specific complaints regarding hearing loss while the Veteran was on active duty in the 1950s. The January 2007 VA examiner's opinion is deficient in several respects. First, per the Ledford case, hearing loss disability by the standards of 38 C.F.R. § 3.385 is not required during service, only currently. Ledford, 3 Vet. App. at 89. As noted, the laws and regulations do not specifically require in-service complaints of or treatment for hearing loss during service in order to establish service connection. Id. Second, notwithstanding the holding of the Ledford case, the in-service audiograms dated in October 1956, March 1957, and February 1958 do in fact reveal some diminished hearing at certain frequencies. See again Hensley, 5 Vet. App. at 157 (higher threshold levels above 20 decibels indicate some degree of hearing loss). The VA examiner failed to address this fact. Third, the VA examiner provided no explanation as to what could have caused right ear hearing loss under § 3.385 as early as a 1962 Air Force Reserve examination, even after conceding significant noise exposure during service. A medical opinion based on an inaccurate factual premise has no probative value. See generally Reonal v. Brown, 5 Vet. App. 458 (1993). Furthermore, the Board is not required to accept a medical opinion that is unsupported by clinical findings. Godfrey v. Brown, 8 Vet. App. 113, 121 (1995). In any event, notwithstanding the negative VA medical opinion, medical nexus evidence is not required to establish service connection if the evidence, regardless of its date, shows that a Veteran had a chronic condition in service, and that he still has the same chronic condition. Groves, 524 F.3d at 1309-1310. Given the current diagnosis of bilateral sensorineural hearing loss, in addition to the history of confirmed in-service acoustic trauma and the credible assertions showing a continuity of hearing problems since service, the Board finds the evidence to be in relative equipoise in showing that the current bilateral hearing loss disability as likely as not had its clinical onset following the Veteran's exposure to hazardous and harmful noise levels during service. Hence, service connection for the bilateral hearing loss disability is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER As new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss, the appeal to this extent is allowed. Service connection for bilateral hearing loss disability is granted. REMAND However, before addressing the claim for an increased rating for the service-connected allergic rhinitis disability, the Board finds that additional development of the evidence is required. First, the Veteran must be scheduled for a VA examination to rate the current extent and severity of his service-connected allergic rhinitis disability. His last VA examination for his service-connected allergic rhinitis disability was in May 2011, which is fairly recent. Nonetheless, at the March 2013 hearing, the Veteran asserted that, in February 2012, a nasal polyp burst in his nose. He states he was treated by a nurse. See testimony at pages 9-10. In this instant case, the significance a finding of nasal polyps is that under Diagnostic Code 6522 for allergic rhinitis, a 30 percent rating can be warranted for a diagnosis of allergic or vasomotor rhinitis with polyps. See 38 C.F.R. § 4.97. Thus, a new VA examination is required in the aftermath of this alleged incident, to confirm whether the Veteran has, or has had, nasal polyps. The record is inadequate and the need for a contemporaneous examination occurs when the evidence indicates that the current rating may be incorrect. 38 C.F.R. § 3.327(a) (2011). See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). He continues to assert that his disability has worsened since the last VA examination. See e.g., October 2011 VA Form 9. Therefore, VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of his allergic rhinitis disability. Second, as noted, at the March 2013 hearing, the Veteran stated that in February 2012 a nasal polyp burst in his nose. He states he was treated by a nurse. It is unclear whether he was treated in a VA or private facility. See testimony at pages 9-10. VA is required to make reasonable efforts to obtain all "relevant" records, including private records like these, which the Veteran adequately identifies and authorizes VA to obtain. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(1). VA regulation clarifies that "reasonable efforts" will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from non-Federal agency or department custodians. The claimant must provide enough information to identify and locate the existing records, including the person, company, agency, or other custodian holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. 38 C.F.R. § 3.159(c)(1)(i). If necessary, the claimant must authorize the release of existing records in a form acceptable to the person, company, agency, or other custodian holding the records. 38 C.F.R. § 3.159(c)(1)(ii). Therefore, the RO must contact the Veteran and ask that he adequately identify any VA or private medical records from February 2012 reflecting that a nasal polyp burst in his nose. The Veteran should then complete and return the necessary authorization (VA Form 21-4142) for VA to obtain any private treatment records relevant to his claim. Third, the VA treatment records on file and on Virtual VA only date to February 2012. So if the Veteran has since received additional relevant treatment, these records should be obtained. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Accordingly, the remaining claim for increase is REMANDED for the following action: 1. The RO should take all indicated action to contact the Veteran and ask that he adequately identify any VA or private records from February 2012 reflecting that a nasal polyp burst in his nose. See hearing testimony at pages 9-10. In the event these records are from a private facility, ask the Veteran to complete and return the necessary authorization (VA Form 21-4142) for VA to obtain any such private records that he adequately identifies. The Veteran is required to cooperate fully with VA's efforts and, provide adequate information to authorize the release of existing records in an acceptable form. If the Veteran provides a completed release form (VA Form 21-4142) authorizing VA to obtain these records, then attempt to obtain them, and document such efforts in the claims folder. VA regulation clarifies that "reasonable efforts" will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). 2. The RO should take all indicated action to secure copies of complete records of relevant VA medical treatment dated after February 2012, including records from the VA Medical Center (VAMC) in Houston, Texas. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 3. After securing the above VA and private treatment records and any other additional evidence, the RO should take all indicated action to have the Veteran scheduled for the appropriate VA examination to ascertain the current severity of the service-connected allergic rhinitis disability. The purpose of this examination is to determine the current nature and extent of his allergic rhinitis disability, its effect on his occupational and social functioning, and its impact on his daily activities. The examination should include any diagnostic testing or evaluation deemed necessary, including X-rays. The Veteran must be advised that failure to report for a scheduled VA examination without good cause shown may have adverse consequences for his claim. The claims folder must be made available for review for the examination and the examination report must state whether such review was accomplished. 4. The RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing all indicated development to the extent possible, the RO should readjudicate the claim for an increased rating for the service-connected allergic rhinitis disability in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish a fully responsive SSOC to Veteran and his representative and they should afforded a reasonable opportunity for response. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs