Citation Nr: 1313015 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 09-42 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION 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 Veteran served on active duty from May 1943 to December 1945. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from April 2008 and August 2008 rating decisions of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2012, the Board issued a decision that denied service connection for PTSD. The basis of the denial was that there was inadequate evidence to support a diagnosis of PTSD. The issue of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, as well as the issues of service connection for bilateral hearing loss and tinnitus were Remanded for additional development. The claims for service connection for hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Dementia was not caused or aggravated by his active service or any service-connected disability. 2. A short-term adjustment disorder, which was identified during the pendency of this claim, was not caused or aggravated by his active service or any service-connected disability. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 5017(b) (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he has an acquired psychiatric disorder which was caused or aggravated by his service. Before assessing the merits of the appeal, VA's duties to the claimant must be examined. VA's duties to the claimant VA has specified duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify VA has a duty to inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The claimant is also entitled to notice of the criteria for assigning a disability rating and for assigning an effective date for an increased rating. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the criteria for service connection for an acquired psychiatric disorder by way of letters sent to the Veteran in June 2007 and March 2012. Numerous other communications, including the rating decision and statement of the Case (SOC) followed. The April 2007 letter included information complying with Dingess. The communications as a whole more than met the duty to notify requirements of the VCAA. The Veteran does not allege that he has been prejudiced by any lack of notice. No defect in notice is apparent from the record. In this case, the Veteran received both pre-adjudicative notice and post-adjudicative notices followed by readjudication of the claims. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). If any notice deficiency is present in this case, the Board finds that any prejudice due to an error in notice has been overcome in this case by the complete development conducted during the lengthy pendency of the appeal. The record demonstrates that the Veteran was sent all information required to substantiate the claim at issue. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Duty to Assist VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA and private clinical records have been obtained. SSA records were requested but were not located, and the Veteran was notified of the unavailability. No other records have been identified that have not otherwise been obtained. Multiple attempts were made to obtain the Veteran's service treatment records. The records were not located. Where a Veteran's STRs have been destroyed or lost, there is a duty to advise him to obtain other forms of evidence. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In this case, the Veteran was advised of the futility of attempting to obtain the records without further information and was requested to send any records in his possession. VA's heightened duty to assist has been satisfied. The Board also has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Id. at 367; Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The analysis herein has been undertaken with this heightened duty in mind. The Veteran has been afforded VA psychiatric examinations in 2008 and 2012. Here, as directed by the March 2012 Board remand, an opinion was requested to ascertain whether any currently-diagnosed psychiatric disorder was etiologically-related to service or a service related disability. The examination included the requested opinion, and the additional VA treatment records also requested in the remand have been associated with the claims folders. Accordingly, the Board finds that there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination report is adequate, as the examiner included a thorough review of the file and physical examination and provided findings relevant to the issue at hand following an examination. The Veteran's complaints and lay history were also considered and discussed. Rationale was provided with the opinion. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Entitlement to service-connected disease or injury is limited to cases where the disorder for which service connection is claimed has resulted in a disability. In the absence of a proof of present disability there can be no claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal; service connection may be awarded even though the disability resolves prior to adjudication of the claim). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence, generally medical, establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). A lay person is competent to provide testimony or statements relating to facts of events that the lay person observed or that is within the realm of his/her personal knowledge. Id. In weighing credibility, discounting of competent testimony or statements from a lay person may occur "in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Facts and analysis At the outset, the Board again notes that entitlement to service connection for PTSD was denied in March 3012. The Board determined that the competent and credible evidence of record failed to support a diagnosis of PTSD. There was never any question as to whether the Veteran experienced stressor events in service. Rather, as discussed in the March 2012 decision, the outcome of the Veteran's claim for service connection for PTSD turned on the finding that psychologists and psychiatrists had determined that the criteria to support a diagnosis of PTSD. However, as the record included references to anxiety, depression, and dementia, the Board concluded that an opinion was needed to determine whether there was a relationship between any of these diagnoses and the Veteran's active service. The Veteran's service treatment records are unavailable. The National Personnel Records Center has indicated that those records were destroyed in a fire at that facility. The only records of the Veteran's service are his DD Form 214, a certificate of discharge, and a Separation Qualification Record. Those records reveal that the Veteran was assigned to an infantry company as a section leader and platoon sergeant in the European theater of operations, and was responsible for the firing of 30 caliber machine guns. His DD214, which reflects that he was awarded a Combat Infantry Badge, shows that he was in the Rhineland and central Europe. The Veteran has stated that he was in France, Belgium, and Germany; he saw concentration camps and Allied prisoner of war camps. He is service connected for the residuals of gunshot wounds of the right lower extremity and left superior gluteal cleft. In his June 2007 application for VA benefits, the Veteran reported, in a statement attached to that claim, that he was very nervous after he returned from service. He said his family physician initially told him that the nervousness could be job stress. He not specifically identify when he was first treated for a psychiatric disorder, either by a private provider or by VA for a. No private psychiatric treatment records are associated with the claims files. The Veteran was admitted for inpatient VA treatment in April 2007 and for private medical care in May 2007. There is no indication that either hospitalization was for treatment of a psychiatric disorder. The Veteran and his spouse both reported that the hospitalization for an evaluation of cardiac problems. In August 2007, the Veteran underwent examination for purposes of determining whether the Veteran qualified for VA benefits for aid and attendance. The examiner noted that the Veteran's primary restrictions on his ability to feed himself or perform fine motor movements of the upper extremities were due to weakness and a coarse tremor due to dementia. The examiner noted that the Veteran had loss of memory due to dementia. The examiner assigned one diagnosis, dementia. In August 2007, medication was prescribed for the Veteran's tremor. The Veteran's problem list included tremor, mild Parkinsonism, dementia, PTSD, and depression. Medication was prescribed for anxiety as needed (lorazepam) and for "mood" (paroxetine). The physician recommended that the Veteran participate in some type of therapy related to his experiences in World War II, opining that despite his dementia, the Veteran might benefit from such treatment. Treatment records dated in November 2007 reflect continuation of the diagnoses of PTSD and dementia but fail to disclose that the Veteran entered any type of program for psychiatric care. Rather, the records establish that the Veteran required care because of dementia, Parkinsonism and tremors, and cardiovascular problems. January 2008 outpatient treatment notes reflect that the Veteran was hospitalized to rule out a myocardial infarction. He stated that he was experiencing anxiety at that time, and that he received medications for the same. He reported a belief that his war experiences left him with anxiety. Following a February 2008 VA examination, which included an interview, mental status evaluation, and memory testing, the Veteran was diagnosed as having dementia. Reference was made to the Veteran's combat experiences in service as well as a post-service stressor involving the suicide of his daughter. The examiner noted a history of anxiety and benzodiazepam dependence. Psychometric examination using the Clinician Administered PTSD Scale (CAPS) was conducted. In February 2008, the Veteran reported to his treating provider that he had memory problems and nightmares since service, and that that the nightmares scared his wife. He also recalled suffering concussions in service. The provider spoke with the Veteran's wife by phone. She said that she and the Veteran had been married for more than 30 years. The spouse stated that the Veteran had had memory problems and nervousness for the entire time she had known him. The examiner assigned diagnoses of PTSD, dementia or cognitive impairment due to TBI (traumatic brain injury), anxiety, and depression. Treatment records dated in 2008, 2009, 2010, 2011, and 2012 reflect that four diagnoses, dementia, PTSD, anxiety, and depression, were listed on the progress notes and discussed by providers. However, there is no record that the Veteran participated in a program for treatment of any type of psychiatric disorder. The Veteran was referred for full mental health evaluation. On evaluation in January 2011, the examiner noted that the Veteran had good eye contact, was confined to wheelchair, and answered questions with some difficulty. The examiner noted that the Veteran "either has hearing loss or some receptive problems. His answers were "for the most part" relevant, although at times he became distracted. The examiner described the Veteran as pleasant and appropriate. His thoughts were logical, coherent, and linear. His mood was mildly depressed and apprehensive, improving during the course of the session. His affect was tearful when he talked about his experiences in the war. His memory for recent and remote events was reasonably intact. The provider assigned the following diagnoses under Axis I: PTSD, chronic, secondary to combat; depressive disorder secondary to PTSD; and, dementia of Alzheimer's type. The examiner who conducted the February 2008 VA examination submitted an addendum report/opinion in March 2012. Following a review of the claims file, to include VA outpatient treatment records dated through 2012 as well as his prior examination findings, the examiner stated that "the distress [the Veteran] exhibits when cued about his past combat exposure is more likely than not related to his decline in cognitive resources that are needed to cope." He concluded that the VA outpatient treatment records demonstrated that, in addition to dementia, the Veteran manifested an adjustment disorder, having great difficulty adjusting to living in a nursing home when his wife's failing health and his own physical decline no longer permitted him to live at home. The examiner concluded that the only chronic acquired psychiatric disorder presented was dementia. The provider explained that the Veteran did not meet the diagnostic criteria for any other diagnosis. The examiner further determined that the Veteran's dementia was not due to or aggravated by the Veteran's service-connected disabilities (gunshot wound residuals, including nerve damage and a scar). The examiner noted that the Veteran exhibited distress when cued about past combat experiences. The examiner stated that the Veteran was emotionally labile, and that the Veteran's inability to contain the distress related to combat experiences was due to the decline in cognitive resources because of dementia. The Board notes that the term "labile," in psychiatry, denotes emotional instability or rapidly changing emotions. Dorland's Illustrated Medical Dictionary 1008 (31st ed. 2007). The fact that the Veteran's emotions change rapidly establishes that, although he is tearful when cued to discuss his combat experiences, such response is a temporary symptom. For purposes of claims for Veterans' benefits, aggravation is defined as permanent worsening beyond the natural progression expected for the disorder. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993). Temporary or intermittent flare-ups of a disease are not sufficient to be considered aggravation of a disorder unless the underlying condition, as contrasted to symptoms, is worsened. Verdon v. Brown, 8 Vet. App. 529, 536-7 (1996); Hunt v. Derwinski, 1 Vet. App. 292 (1991). The examiner's opinion makes it clear that the Veteran's emotions fluctuate, so the responses to cues regarding combat experiences are temporary and do not reflect an exacerbation in the pathology or a permanent increase in the symptoms of dementia. The most persuasive evidence regarding the appropriate diagnoses to be assigned for the Veteran's psychiatric symptoms are the VA examination reports from February 2008 and March 2012. The examiner who conducted those examinations concluded that the Veteran had one acquired psychiatric disorder, dementia. The examiner concluded, in essence, that the Veteran's dementia was increasing in severity, and, during the pendency of this claim (since 2007) was essentially the overwhelming cause of the Veteran's symptoms, obscuring any acquired psychiatric disorder present prior to the claim. The examiner noted the medical records reflecting other diagnoses that had been assigned prior to onset of dementia. He observed that the Veteran's reports of participation in combat were accepted as credible, even though some facts reported by the Veteran were inconsistent with historical fact, consistent with the Veteran's diagnosis of dementia. He added that the Veteran did not seek any psychiatric treatment until he required treatment for declining physical health, tremors, and dementia. The examiner acknowledged the Veteran's contention that his anxiety, nervousness, and nightmares were due to PTSD, but ultimately determined that the Veteran's tearfulness and emotional liability were connected to the Veteran's current dementia, resulting in inability to cope with emotions resulting from past experiences or perceptions. The examiner's conclusion that, during the pendency of this appeal, the Veteran did not meet the diagnostic criteria for any acquired psychiatric disorder other than dementia, aside from a period during which the Veteran also manifested a temporary adjustment disorder, is of great weight and persuasive value. This opinion is consistent with the August 2007 examination for aid and attendance, which was conducted less than three months after the Veteran submitted his claim for service connection for an acquired psychiatric disorder. As noted, that examiner found one diagnosis, dementia. Consideration has been given to the fact that diagnoses of anxiety, depression, and PTSD have been listed during the pendency of the appeal, and that the Court, in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), held that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. However, the facts of the present case are clearly distinguished from those of McClain. There is no evidence that the Veteran had a disability that resolved during the pendency of the appeal. Rather, as discussed above, the Board finds that the totality of the evidence fails to establish, nor has the Veteran had during the appeal period, a current diagnosis of an acquired psychiatric disorder other than dementia. The Veteran report that he has experienced symptoms of anxiety and nightmares since his active service has also been considered. His spouse provides a similar account. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an acquired psychiatric disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Dementia, anxiety, and depression (as chronic disabilities) are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that psychological testing and other specific findings is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran, as well as his spouse, is competent to report sleep disturbance and symptoms indicative of depression and anxiety, there is no indication that either of them are competent to render a psychiatric diagnosis (distinguish symptoms from an acquired psychiatric disability) let alone an opinion that etiologically links the Veteran's dementia to his active service or a service-connected disability. Neither the Veteran nor his spouse has been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran or his spouse received any special training or acquired any medical expertise in evaluating psychiatric disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. The preponderance of the probative and persuasive evidence establishes the only appropriate diagnosis for the Veteran's acquired psychiatric disorder during the pendency of this claim is dementia. No provider has indicated that dementia is related to the Veteran's service. The VA examiner specifically opined that the Veteran's dementia was unrelated to the Veteran's service and was not caused or aggravated by any service-connected disability. The examiner's opinion that the Veteran's adjustment disorder was due to inability to adjust to residing in a nursing home is, in effect, and opinion that the adjustment disorder is unrelated to the Veteran's service or a service-connected disability, since the Veteran's service-connected gunshot wound residuals were not implicated in the problems which required that the Veteran be cared for in a nursing home. The preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder. ORDER The appeal for service connection for an acquired psychiatric disorder other than PTSD is denied. REMAND In its March 2012 Remand, the Board directed that the records of the Veteran's VA audiologic evaluation be obtained, including the actual tonal thresholds record from an audiologic examination conducted in 2004. That examination report was obtained, but that report was not considered reliable for rating purposes. The reviewer who provided a December 2012 addendum to the 2008 VA examination report stated that, without a current, reliable audiologic examination, it was not possible to provide an opinion as to whether the Veteran's current hearing loss was related to his service. Among electronic (virtual) records attached to the appellate file obtained during the course of the Remand is the report of a January 2010 audiologic examination. The January 2010 audiologic examination indicates that an audiogram was conducted, and the report of the audiogram is available at "Tools, Audiogram Display." Unfortunately, that tool is unavailable to the Board on appellate review, and the report is not associated with the claims files. It also appears that the examiner who conducted the 2012 review was unaware of the 2010 audiogram. The Board notes that the Veteran's puretone thresholds were again examined in September 2012, and were found to be within 10 decibels of the thresholds from January 2010. No report of the specific acoustic thresholds is not associated with the claims files. Thus, it appears that the complete reports of the Veteran's audiologic VA treatment from 2010 to 2012 was not considered by the examiner who provided the December 2012 addendum, since no reference in the addendum reflects review of the 2010 or 2012 audiologic records. The Board notes that question on appeal is whether the Veteran's hearing loss and tinnitus are due to his service. The record establishes that the Veteran is no longer a reliable historian as a result of his dementia, and that the Veteran is likely unable to provide lay evidence to assist in substantiating his claim. However, it is possible that one of the Veteran's children may be able to provide lay statements or identify available private records. It also appears from the record that the Veteran may have worked at a Federal government agency. If so, his employment medical records may be available from the U.S. Office of Personnel Management. The Veteran's fiduciary for purposes of benefits administered by VA should be asked to assist VA to identify any evidence which may be relevant to the claims for service connection for hearing loss and tinnitus, to include identifying the employers by whom the Veteran was employed in his later years, and the providers who treated him prior to his VA treatment. Given that the Veteran's claim has been pending since he was in his early 80s, and he is now nearing 90, every avenue to obtain an adequate opinion should be explored. Accordingly, the case is REMANDED for the following action: (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.) 1. The agency of original jurisdiction should determine who serves as the Veteran's fiduciary for purposes of his VA benefits, find out whether he has a court-appointed guardian, and determine whether any family member is available to assist him with his appeal. The identified fiduciary, guardian, or other individual should be asked to assist the Veteran to respond to this Remand. 2. Request that the Veteran, with assistance as identified, authorize the release of records which might be relevant to assist him to substantiate his claim, to include employment records, private clinical records, hearing conservation records from any source, or other record which might show whether the Veteran manifested hearing loss disability or tinnitus during or proximate to or resulting from his service. 3. Afford the Veteran, with the assistance of identified individual, an opportunity to submit or identify any alternative records such as education records, insurance records, statements of other lay individuals, or other records which might substantiate his claim. Obtain any identified records, with the Veteran's consent or consent or the fiduciary or guardian, as appropriate, or advise the Veteran that it is his responsibility to submit them. 4. Return the claims file to the VA audiological examiner who provided a prior opinion or addendum or a reviewer with similar expertise. The reviewer must be asked to review pertinent records, including reports of VA audiologic examinations, including the reports of audiograms conducted during the period from 2004 through the present, including the complete reports of 2010 and 2012 examinations, and the 2102 addendum, and any other pertinent records in the Veteran's claims file, to include electronic files. The reviewer should e advised that exposure to hazardous noise in service must be assumed. Ask the reviewer to address the following: (a). If the Veteran has a current hearing loss disability as defined for VA purposes, the reviewer should provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent possibility or greater) that the Veteran's bilateral hearing loss was caused by or is attributable to active duty service. (b). If there is evidence that the Veteran manifested tinnitus at any time since he submitted these claim on appeal (2007), the reviewer should provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent possibility or greater) that the Veteran's tinnitus was caused by or is attributable to active duty service. Rationale should be provided for all requested opinions. If an opinion cannot be provided without resorting to mere speculation, such should be stated with a supporting explanation. If the examiner that conducted the February 2008 VA examination is no longer available, the Veteran should be afforded a new examination that addresses the above question. Rationale should be provided for all requested opinions. If an opinion cannot be provided without resorting to mere speculation, such should be stated with a supporting explanation. 5. After completion of the foregoing, readjudicate the claims on appeal. If any benefit sought remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs