Citation Nr: 1312588 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 10-05 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for skin cancer. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The instant matter was previously before the Board in June 2011, at which time the Board denied the Veteran's claims of service connection for hearing loss, tinnitus, and skin cancer and granted the Veteran's claim of service connection for coronary artery disease. Thereafter, the appellant filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In his informal brief to the Court, the Veteran specifically stated that the only issue that he was appealing was the Board's denial of service connection for tinnitus. In an August 2012 memorandum decision, the Court noted that the Veteran was appealing the Board's denial of service connection for tinnitus. The Court then acknowledged that the Board had also denied claims of service connection for hearing loss and a skin disability and stated: "[B]ecause the appellant does not raise any argument on appeal with regard to those matters, the Court will consider them abandoned on appeal." Implicit in this statement is a finding by the Court that the Veteran indeed had appealed the Board's denials of service connection for hearing loss and skin cancer, despite the fact that the Veteran specifically stated that he was only appealing the Board's denial of service connection for tinnitus. With regard to the Board's grant of service connection for coronary artery disease, the Court stated that that issue was not before the Court, noting that the Court is not permitted to reverse favorable findings by the Board. Curiously, however, despite finding that the Veteran had abandoned his appeal to the Court as to the issues of service connection for hearing loss and skin cancer and acknowledging that the Board's decision regarding entitlement to service connection for coronary artery disease was favorable to the Veteran, the Court ultimately vacated the entirety of the Board's June 2011 decision. While the Court did not exclude from its vacatur that portion of the Board's June 2011 decision that had granted service connection for coronary artery disease, because the Court explicitly stated that that issue was not before it, the Board will now assume that the grant of service connection was not in fact vacated. As to the Board's June 2011 denials of service connection for hearing loss and a skin disability, however, because the Court indicated that the Veteran had appealed those denials and because the Court did not limit its decision vacating the Board's June 2011 decision to that portion that had denied service connection for tinnitus, despite finding that the Veteran had abandoned any appeal as to the denials of service connection for hearing loss and skin cancer, the Board concludes that the Court's vacatur reaches all issues denied by the Board in June 2011. But see Akers v. Nicholson, 409 F.3d 1356, 1357 (Fed.Cir.2005) (not addressing whether the Court can vacate without error); Akers v. Principi, 17 Vet.App. 561, 565 (2004) (Kasold, J., dissenting to denial of en banc hearing) (suggesting vacatur by Court requires finding of error). Thus, in light of the Court's order vacating the June 2011 Board decision, the Board has characterized the issues currently before it as set forth on the title page of this decision. (The decision below addresses the issues of entitlement to service connection hearing loss and skin cancer. The issue of entitlement to service connection for tinnitus is addressed in the remand that follows the Board's decision.) FINDINGS OF FACT 1. The Veteran does not have hearing loss that is attributable to his active military service. 2. The Veteran's diagnosed squamous cell carcinoma is not attributable to active military service; it was not manifested within a year of separation from service. CONCLUSIONS OF LAW 1. The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated by active military service; sensorineural hearing loss may not be presumed to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. The Veteran does not have skin cancer that is the result of disease or injury incurred in or aggravated by active military service; nor may it be presumed to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including malignant tumors or organic disease of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). The law further provides that there are certain diseases that are associated with exposure to "herbicide agents" during active military, naval, or air service, and are thus presumed to have been incurred in or aggravated during active military service if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.309(e) (2012). (In this context, the term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i).). A. Hearing Loss The Veteran asserts that he suffers from bilateral hearing loss as a result of his military service. The report of a June 1966 enlistment examination included the results of an audiogram that recorded the Veteran's pure tone auditory thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 (5) -10 (0) -10 (0) N/A -10 (-5) LEFT -10 (5) -10 (0) -5 (0) N/A -5 (0) (Service department audiometric testing conducted before November 1967 generally applied ASA standards. Thereafter, an ISO standard has been applied. The numbers in parentheses reflects a conversion to ISO standard for comparison purposes.) It does not appear that the Veteran was given a hearing test during his May 1968 separation examination as the report of such does not include the results of an audiogram or whispered/spoken voice test. The Veteran's service treatment records (STRs) are silent for complaints or treatment related to the Veteran's ears or hearing. Post-service medical records dated from July 2005 to March 2009 contain no reference to the Veteran's hearing. In August 2008, the Veteran submitted a claim for VA disability compensation, seeking service connection for, among other things, hearing loss. He did not indicate the date of onset of his hearing loss. In January 2009, the Veteran underwent a VA audiology examination. The Veteran reported noise exposure in service, but did not provide any specific details regarding that exposure. He denied occupational and recreational noise exposure. He stated that he had noticed a loss of hearing during the past 10 to 15 years. The results of audiometric testing were, in relevant part, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 5 40 60 LEFT 0 5 15 55 60 The Veteran's speech recognition scores were 96 percent bilaterally. His hearing was noted to be within normal limits at 250 to 2000 hertz. He was diagnosed as having moderate sensorineural hearing loss at 3000 and 4000 hertz. The VA audiologist noted that it was commonly accepted in audiology that when a person is removed from a noisy environment, hearing acuity should not change. The noted exceptions were recorded as: the aging process; further noise exposure; medications; and illnesses. The VA audiologist further stated that it was also commonly accepted that hearing loss and/or tinnitus will occur at the time of noise exposure, or soon thereafter, but not years later. He then opined that the Veteran's present hearing loss was not caused by, or the result of, the Veteran's active military service, as the Veteran had reported the onset of his hearing loss to be 10 to 15 years prior. At the outset, the Board notes that the evidence of record demonstrates that the Veteran has a current hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Further, as the Veteran's military occupational specialty was that of a mortarman, the Board concedes that he was exposed to noise in service. Thus, the question is one of nexus. In this case, the Veteran has stated his lay opinion as to why he believes that his hearing loss is related to service - his noise exposure during service. However, the VA audiologist, after weighing the evidence of record concluded that the Veteran's hearing loss was not related to service. The VA audiologist noted that the Veteran was not afforded a formal or informal hearing test at separation. He also acknowledged the Veteran's assertion that his only noise exposure was in service. The audiologist concluded, however, that the Veteran's hearing loss was not related to his military service. In so doing, the VA audiologist relied upon commonly accepted audiological principles regarding hearing loss and the fact that the Veteran's self-reported onset of hearing loss was more than 25 years after service. The Board notes that the Court has held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and a current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). Here, however, as the evidence fails to demonstrate a relationship between the Veteran's hearing loss and service, service connection is not warranted. In this regard, the Board finds probative the VA audiologist's negative nexus opinion. The Board also finds significant that the Veteran did not indicate the extent of his noise exposure in service. Further, the Veteran's post-service treatment records contain no complaints of hearing loss, despite the Veteran stating that he had noticed a decrease in hearing over the previous 10 to 15 years. Although the Veteran believes that his hearing loss is due to noise exposure in service, the Board notes that etiology of dysfunctions and disorders is generally a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Here, the Veteran, as a lay person without the appropriate medical training and expertise, is not competent to make such an etiological conclusion, especially in light of the Veteran's own admission that his hearing loss did not begin until more than 25 years after service. See Jandreau, supra; see also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability that still exists currently). Thus, although the Veteran believes his hearing loss to be related to his military service, the Board finds the medical evidence of record to be more probative on the issue of nexus. The VA examiner provided a medical explanation for why the Veteran's theory of the case should be rejected. The Board is persuaded by the examiner's explanation because of his expertise and because the record is consistent with the explanation. Accordingly, because the preponderance of the evidence is against the Veteran's claim, his claim of service connection for hearing loss must be denied. In reaching this conclusion, 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) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990); 38 C.F.R. § 3.102 (2012). B. Skin Cancer The Veteran asserts that he has skin cancer as a result of his exposure to Agent Orange in service. The Veteran's VA treatment records show that a skin biopsy of the left cheek done in June 2007 resulted in a diagnosis of squamous cell carcinoma. A biopsy performed in November 2008 showed a squamous cell carcinoma on the right forearm. A review of the Veteran's service personnel records shows that he served in the Republic of Vietnam from January 1967 to February 1968. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). As the Veteran's service personnel records show service in Vietnam during the requisite time period, the Veteran is presumed to have been exposed to an herbicide agent. In accordance with 38 C.F.R. § 3.309(e), presumptive service connection on the basis of herbicide exposure is available for the following diseases: AL amyloidosis, chloracne and other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and certain soft tissue sarcomas. 38 C.F.R. § 3.309(e). Initially, the Board notes that skin cancer is not one of the enumerated disabilities listed under 38 C.F.R. § 3.309(e). Further, under the authority granted by Congress in the Agent Orange Act of 1991 and the Veterans Education and Benefits Expansion Act of 2001, the Secretary has specifically determined that a presumption of service connection is not warranted based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era for skins cancers (melanoma, basal, and squamous cell). See 72 Fed. Reg. 32395, 32397- 32398 (June 12, 2007). Thus, although the Veteran served in the Republic of Vietnam during the requite time period, because he has not been diagnosed with a disability for which the Secretary has specifically determined that a presumption of service connection should apply based on herbicide exposure, the provisions of 38 C.F.R. §§ 3.307(a)(6) and 3.309(e) are not for application. Regardless of whether a claimed disability is recognized under 38 C.F.R. § 3.309(e), a veteran is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). On the issue of direct service connection, the Board notes that the Veteran's STRs are silent for complaints or treatment related to his skin. His May 1968 separation examination report documented that his skin was clinically evaluated as normal at that time. The Veteran's post-service medical records show that in June 2007 he presented at a VA dermatology clinic for a skin check. He reported no history of skin cancer at that time. The Veteran indicated that he spent a large amount of time outdoors, as his work involved swimming pools. He stated that he did wear sunscreen and a hat. As stated above, a cheek biopsy revealed a squamous cell carcinoma. Here, the Board finds that service connection for skin cancer must be denied. The record contains no nexus evidence linking squamous cell carcinoma to the Veteran's active military service, to include his presumed exposure to herbicides. Further, the Veteran has not asserted that he suffered from any skin-related disorder in service. Indeed, the first evidence of skin cancer was in 2007. In view of the evidence, only a current disability is shown. An in-service event, injury, or disease, has not been shown. Additionally, the Veteran's skin cancer was not diagnosed until 39 years after service and there is an absence of symptomatology during the intervening period. (The one-year presumption for malignant tumors under 38 C.F.R. §§ 3.307, 3.309 is therefore not helpful.) Moreover, medical nexus evidence linking the current disability to military service, or specifically to herbicide exposure, is not shown. Consequently, service connection is not warranted for skin cancer on a direct basis, including as a result of exposure to herbicides. See Davidson, supra (service connection requires evidence of in-service incurrence or aggravation of a disease or injury and a nexus between the claimed in-service disease or injury and the present disability); see also Maxson, supra. Further, although the Veteran believes that his skin cancer is due to herbicide exposure, the Board notes that etiology of dysfunctions and disorders is generally a medical determination. See Jandreau and Colantonio, both supra. Here, the Veteran, as a lay person without the appropriate medical training and expertise, is not competent to make such an etiological conclusion, especially in light of the fact that the evidence fails to demonstrate the onset of skin cancer disability in service. See Jandreau, supra. (The Veteran has not indicated that he experienced symptoms since service or that a medical practitioner has told him that skin cancer is traceable to his period of military service.) The Board notes that the Veteran was not afforded a VA examination for the purpose of determining whether there is a medical nexus between his military service and his currently diagnosed skin cancer. However, as will be discussed in further detail below, because there is no evidence that suggests a link between the Veteran's skin cancer and his military service or his in-service exposure to herbicides, VA's duty to provide him with a medical examination in this case was not triggered. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In finding that service connection for skin cancer is not warranted, the Board has considered the benefit-of-the-doubt doctrine, 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 basis for granting service connection. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra; 38 C.F.R. § 3.102. II. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. 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 VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO received the Veteran's claims for service connection in August 2008. In October 2008, the RO sent to him a letter notifying him of the evidence required to substantiate his claims for service connection. The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The RO further advised the Veteran on the types of evidence he could submit that would support his claims for service connection, such as the dates of medical treatment during service, evidence of medical treatment since service, employment physical examination reports, and statements by persons who knew of the Veteran's disability. The letter also notified him of the specific evidence necessary to substantiate a claim based on herbicide exposure. It further included the notice elements required by Dingess for how VA determines disability ratings and effective dates. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the October 2008 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claims. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board also finds that VA has fulfilled its obligation to assist the Veteran. All available evidence pertaining to the Veteran's claims has been obtained. The evidence includes his STRs, service personnel records, VA outpatient treatment records and examination reports, and private medical evidence. The Veteran elected to not have a hearing in his case. Further, in January 2009, the Veteran was afforded a VA audiology examination. The VA audiologist reviewed the Veteran's claims folder, conducted the appropriate hearing tests, and provided an opinion as to the etiology of the Veteran's hearing loss that is supported by an adequate rationale. Thus, the Board finds that the Veteran has been afforded an adequate examination. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The Board has considered whether VA examinations were required in connection with the Veteran's claims of service connection for tinnitus and skin cancer under the duty-to-assist provisions codified at 38 U.S.C.A § 5103A(d) and by regulation found at 38 C.F.R. § 3.159(c)(4). In accordance with those provisions, a medical opinion or examination is required if the information and evidence of record does not contain sufficiently competent medical evidence to decide the claim, but there is-- (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability. McLendon, supra. The evidence of record is such that the duty to obtain medical examinations was not triggered in this case. With regard to the Veteran's claim of service connection for skin cancer, although the record demonstrates that the Veteran has a current diagnosis of that condition and he is presumed to have been exposed to herbicides in service, there is no indication that that disability may be associated with service, to include his herbicide exposure. The first evidence of skin cancer was not until 2007. It was noted that the Veteran's job required him to spend prolonged periods of time outdoors. None of the evidence of record has related the Veteran's skin cancer to service. Thus, the Board finds that there is no requirement to obtain a VA medical examination in connection with the Veteran's claim of service connection for skin cancer. See McLendon, 20 Vet. App. at 85-86; see also Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (rejecting appellant's argument that his "conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination under the standard of [38 U.S.C.A. § 5103A(d)(2)(B).]"). The Board therefore finds that VA has complied, to the extent required, with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). ORDER Service connection for hearing loss is denied. Service connection for skin cancer is denied. REMAND As noted in the introduction, the Court vacated the Board's previous denial of service connection for tinnitus. Specifically, the Court found that the Board had erred in relying, in part, on a January 2009 examination report to conclude that the Veteran did not have a current diagnosis of tinnitus. On appeal to the Court, the Veteran stated that although the VA examiner asked him several questions regarding his hearing loss, he did not remember the examiner ever asking him whether he had tinnitus. He further indicated that he had had a "high pitch[ed] humming/buzzing/hissing/ringing sound[] in [his] ears" since service. Given the Veteran's assertions, the Secretary conceded that the January 2009 examination was inadequate. See Barr, 21 Vet. App. at 312 (holding that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); 38 C.F.R. § 3.159(c)(4) (2012). In accepting the Secretary's concession of error, the Court pointed out that the Board failed to note that the examination request and, consequently, the VA examiner's report, erroneously indicated that the only pending claim was one for hearing loss. The Court thus agreed with the Secretary that the RO's instruction to the examiner - "If the veteran complains or has tinnitus, please opine as to etiology" - was vague and that it was unclear whether the examiner was required to affirmatively ask the Veteran whether he had tinnitus or whether the examiner was not required to address tinnitus unless the Veteran raised the issue during the examination. In light of the Court's August 2012 memorandum decision, the Board finds that a remand of the matter is warranted because the January 2009 VA audiology examination report is inadequate for purposes of adjudicating the Veteran's claim of service connection for tinnitus. See Barr, supra; 38 C.F.R. § 3.159(c)(4); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that Board must consider whether medical opinion contains "such sufficient information that it does not require the Board to exercise independent medical judgment"). Accordingly, the case is REMANDED to the agency of original jurisdiction (AOJ) for the following action: 1. Schedule the Veteran for a VA examination in connection with his claim of service connection for tinnitus. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2012).) The examiner should take a detailed history from the Veteran regarding the onset and continuity of complained-of symptoms. The examiner should then indicate whether the Veteran has a current diagnosis of tinnitus. (In this regard, a current diagnosis means diagnosed tinnitus at any point since the Veteran filed his claim in August 2008.) If tinnitus is diagnosed, the examiner should provide an opinion as to whether the Veteran's tinnitus is at least as likely as not directly related to his period of military service. Regardless of whether the examiner's opinion as to any question is favorable or negative, the examiner must provide support for his/her opinion(s). This includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his/her opinion. As part of the opinion, the examiner must specifically discuss the Veteran's assertion that he has had a "high pitch[ed] humming/buzzing/hissing/ringing sound[] in [his] ears" since service. The medical reasons for accepting or rejecting such a statement should be set forth in detail. If the examiner determines that he/she cannot provide an opinion on the issue at hand 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 rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definitive opinion can be obtained.) 2. The AOJ must ensure that the examination report and opinion comply with this remand and the questions presented in the request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 3. After completing the requested actions and any additional notification and/or development deemed warranted, the issue on appeal must be readjudicated. If the benefit sought is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals