Citation Nr: 1317800 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 06-06 599 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hearing loss in the left ear, to include as secondary to service-connected hearing loss in the right ear. 2. Entitlement to service connection for actinic keratoses. 3. Entitlement to service connection for squamous cell carcinoma of the left cheek. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2005 decision in which the RO, in pertinent part, denied service connection for actinic keratoses and hearing loss in the left ear. A statement of the case (SOC) addressing these issues was completed in January 2006 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later in that month. In July 2008, the Veteran testified during a Board hearing before a Veterans Law Judge at the RO. Thereafter, in September 2008, the Board, inter alia, denied the Veteran's claims for service connection for actinic keratoses and hearing loss in the left ear. The Veteran appealed the Board's February September 2008 decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated in September 2009, the Court granted a Joint Motion for Remand (Joint Motion) filed by counsel for the appellant and counsel for the VA Secretary, vacating the Board's decision, and remanding the claims for service connection for actinic keratoses and hearing loss in the left ear for further proceedings consistent with the Joint Motion. The claims for service connection for actinic keratoses and hearing loss in the left ear were remanded by the Board in November 2009 for development consistent with the Joint Motion. Further argument, and accompanying evidence, with respect to these claims has been received since this remand, and a supplemental SOC (SSOC) addressing the issues of entitlement to service connection for actinic keratoses and hearing loss in the left ear was completed in July 2010. Also as requested in the November 2009 remand, an SOC with respect to the issue of entitlement to an increased initial rating for post-traumatic stress disorder was completed in March 2012 as mandated by Manlincon v. West, 12 Vet. App. 119 (1998). Another issue currently before the Board, entitlement to service connection for squamous cell carcinoma of the left cheek, is on appeal from an August 2007 rating decision by the RO that denied service connection for this disability. An SOC addressing this was issue was completed in January 2010 and the Veteran filed a substantive appeal via a VA Form 9 with respect to the issue of entitlement to service connection for squamous cell carcinoma of the left cheek in March 2010. Following the submission of additional evidence, an SSOC addressing the issue of entitlement to service connection for squamous cell carcinoma of the left cheek was completed in July 2010. The Veteran's Law Judge who presided at the July 2008 hearing has since retired. Accordingly, in a March 2013 letter, the Board informed the Veteran of his right to present testimony at another hearing, as provided by 38 U.S.C.A. § 7107(c) (West 2002) and 38 C.F.R. § 20.707 (2012). This letter informed the Veteran that if he did not respond in 30 days, it would be presumed that he did not desire another hearing. To date, the Veteran has not responded to the March 2013 letter. The Board's decision on the claim for service connection for left ear hearing loss is set forth below. The claims for service connection for actinic keratoses and squamous cell carcinoma of the left cheek are addressed in the remand follow the being remanded to the RO, via the AMC. VA will notify the appellant when further action, on his part, is required. As a final preliminary matter, the Board notes that a claim for service connection for sleep apnea-a matter not addressed by the RO and, hence, not properly before the Board-was referred to the RO for appropriate action by the November 2009 remand. As there still is no indication that the RO has not taken any action on, or addressed, this matter, the claim for service connection for sleep apnea is, again, referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim for service connection for left ear hearing loss has been accomplished. 2. The Veteran's assertions of in-service noise exposure are credible and consistent with the circumstances of his service. 3. There is no credible evidence of hearing loss or diminished hearing in the left ear during, and continuing since; left ear hearing loss to an extent recognized as a disability for VA purposes was not shown for many years after service discharge; and uncontradicted, competent, probative opinions directly addressing the medical relationship, if any, between current left ear hearing loss and service or service connected hearing loss in the right ear weigh against the claim. CONCLUSION OF LAW The criteria for service connection for hearing loss in the left ear are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id. Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. The VA's notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this appeal, in a January 2005 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection for hearing loss, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. A letter dated in March 2006 provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. A July 2010 SSOC reflects readjudication of the claim after issuance of the March 2006 letter. Hence, the Veteran is not shown to be prejudiced by the timing of the March 2006 notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of the service treatment reports (STRs) and reports of VA examinations, to include opinion as to the etiology of left ear hearing loss. Also of record and considered in connection with the appeal are various oral and written statements provided by the Veteran, and by his representative, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied with respect to the claim for service connection for hearing loss in the left ear. Through notice of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein adjudicated. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal with respect to the claim for service connection for hearing loss in the left ear. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc ., 59 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed, for certain chronic diseases, such organic diseases of the nervous system (interpreted to include sensorineural hearing loss), which develop to a compensable degree (10 percent for sensorineural hearing loss as an organic disease of the nervous system) within a prescribed period after discharge from service (one year for sensorineural hearing loss), although there is no evidence of such disease during the period of service. This presumption 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. Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to chronic" diseases, such as sensorineural hearing loss) listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires: (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439(1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service- connected disability. See 71 Fed. Reg. 52744 (2006). The amendment sets forth language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation, specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation. Because the new law appears more restrictive than the old, and because the Veteran's appeal was already pending when the new provisions were promulgated, the Board will consider this appeal under the law in effect prior to October 10, 2006. See, e.g., Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (new regulations cannot be applied to pending claims if they have impermissibly retroactive effects). The Board notes that the Veteran's service records indicate that he was awarded the Combat Infantryman Badge (CIB), thus denoting combat service. As such, the provisions of 38 U.S.C.A. § 1154(b), which provide a relaxed evidentiary standard of proof to determine service connection, are applicable in this case. See Collette v. Brown, 82 F.3d 389 (1996). For Veterans such as the claimant in the instant case who have engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of service, even though there is no official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d); see generally Peters v. Brown, 6 Vet. App. 540, 543 (1994). However, the reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). Hearing loss is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Board notes, at the outset, that it has reviewed all of the evidence of record, to include in the Veteran's paper claims file and the paperless, electronic (Virtual VA) file. (The Virtual VA file contains no pertinent information that is not physically of record.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim for service connection for hearing loss in the left ear. Summarizing the contentions and evidence with the applicable legal authority in mind, the Veteran contends that his left ear hearing loss was caused as a result of exposure to excessive noise during his active duty service, including gunfire, explosions, and military tanks. He reported he was in combat, in the armored division, and that in April 1969 he sustained acoustic trauma from the backblast of a 106 recoilless. The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was "Armor Intel Sp," and, as indicated above, that he received the CIB. Service connection has been in effect for right ear hearing loss since 1969, essentially based upon his STRs which showed the Veteran had high frequency hearing loss and ringing in his ears after firing a recoilless rifle. The Veteran's representative contended at a March 2006 hearing before a Decision Review Officer (DRO at the RO that service connection for hearing loss in the left ear is warranted as secondary to the service connected right ear hearing loss on the basis of aggravation due to "ear strain." (See March 2006 DRO hearing transcript, page 6). STRs show no left ear hearing loss disability during the Veteran's active military service. The August 1969 examination for separation shows the Veteran's ears were clinically evaluated, and he had partial deafness in the right ear, while the left ear was normal. Results of audiometric testing showed hearing thresholds in decibels of 5, 10, 5, and 10, in the left ear, at 500, 1000, 2000, and 4000 Hz, respectively. In March 1970, VA audiological testing did not show left ear hearing loss to an extended defined as a disability pursuant to VA standards. 38 C.F.R. § 3.385. An audiogram from the Veteran's employer reflects results from audiometric testing from October 1972 to January 1980, none of which reflected hearing loss disability in the left ear as contemplated by 38 C.F.R. § 3.385. These reports also denoted exposure to occupational noise and the use of ear protection. The first documented medical evidence of left ear hearing loss was in July 2005, at which time VA audiometric testing revealed left ear hearing loss disability, as defined under 38 C.F.R. § 3.385. During this audiological evaluation, the Veteran reported sudden hearing loss in April 1969. He reported acoustic trauma from the backblast of a 106 recoilless in April 1969. The Veteran also described a history of excessive noise exposure in service; in recreation (motorcycles), and in his occupation (factory noise at General Motors [GM ]). He reported that for half of his career at GM he worked on the assembly line and the other half he had an office job. He indicated they were required to wear hearing protection at all times when working on the line. The diagnoses included mild to moderate high frequency sensorineural hearing loss in the left ear. The VA audiologist opined that the Veteran's left ear hearing loss was not due to military noise exposure, "as S[T]Rs indicate normal hearing in that ear until April 23, 1981 (this is the last-dated evaluation found within the c-file)." [In point of fact, the last dated audiometric reading is, as set forth in the audiogram record from the Veteran's employer discussed above, January 1980]. The audiologist further opined that the Veteran's left ear hearing loss was most likely due to non-military noise exposure and that any further decrease in hearing in either ear could not be attributed to military service. During VA audiological evaluation in June 2006, the Veteran reported essentially the same history as in July 2005, but added that his occupational noise exposure included mowing for a cemetery, for which he wore hearing protection. The diagnosis was bilateral sensorineural hearing loss, worse on the right, from 3000 to 8000 Hertz. It was noted that there had been no changes in the Veteran's hearing since the last VA examination. In the Joint Motion, the parties noted the contention of the Veteran's representative, advanced during a March 2006 DRO hearing, that service connection for left ear hearing loss was warranted on the basis of aggravation by his service connected right ear hearing loss, found fault with the fact that the Board's September 2008 adjudication of the claim for service connection for left hearing loss failed to consider this theory of secondary service connection. As such, in the November 2009 remand, the Board directed that the Veteran be afforded a VA audiological examination that included an opinion as to whether the Veteran's left ear loss was related to his right ear hearing loss, to include by way of aggravation. The examination requested in the November 2009 remand was afforded the Veteran in April 2010, at which time audiometric testing showed hearing thresholds in decibels of 10, 15, 15, 20, and 55 in the left ear at 500, 1000, 2000, 3000, and 4000 Hz, respectively, thereby demonstrating hearing loss disability pursuant to VA standards. 38 C.F.R. § 3.385. Following the examination and a review of the pertinent clinical history, the examiner's opinion was that the hearing loss in the left ear was not caused by or a result of noise exposure in service. The rationale for the opinion was that the hearing loss in the left ear was normal at separation and that once removed from the excessive noise he experienced in the military, his hearing would not have gotten worse from such in-service noise exposure. The examiner also stated that the hearing loss in the left ear was not caused by or aggravated by his service connected right ear hearing loss, and the rationale for this opinion was as follows: Both ears work independently of one another. Whatever the cause of the hearing loss (e.g., noise exposure, age, medication), causes hearing loss to each ear independently of the other. There is no possible way that a hearing loss in one ear can affect the hearing in the other. The loss in each ear is typically caused by the same etiology, but independent of the other. And typically the losses are symmetric, but not always, such as in [the Veteran's] case. Applying the pertinent criteria to the facts as set forth above, based on the audiological evidence of record, it is clear that the Veteran has a current disability due to left ear hearing loss under 38 C.F.R. § 3.385. With regard to noise exposure, VA has conceded that the Veteran was exposed to acoustic trauma in service, noting the Veteran's combat service, his receipt of the CIB, and his grant of service connection for right hearing loss and tinnitus due to noise exposure. The Veteran is certainly capable of providing history of exposure to excessive noise in service, and the Board, noting his combat service, accepts his account. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991); 38 U.S.C.A. § 1154(b). Although the likely significant noise exposure involving the left ear during combat in service is acknowledged, there still must be evidence linking the Veteran's current left ear hearing loss to service or the service connected right ear hearing loss in order for the claim to be granted. See Brock, Libertine, Beausoleil, supra. Addressing first the matter of direct service connection, the STRs show that the Veteran had essentially normal hearing in his left ear upon discharge from service. Although the Veteran filed a claim in August 1969 for hearing loss, he only mentioned his right ear problems at that time. The first medical evidence of any left ear hearing loss was in July 2005. In Hensley v. Brown, 5 Vet. App. 155 (1993), the Court noted 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." Id. at 159. The Court explained that: [W]hen audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. With regard to a medical link between the current left ear hearing loss disability and his exposure to noise in service, the opinions following the July 2005 and April 2010 VA audiometric examinations (which were rendered by the same audiologist) set forth above were that the Veteran's left ear hearing loss was not due to military noise exposure. Significantly, there is no contrary medical opinion of record, and neither the Veteran nor his representative has identified or even alluded to the existence of any medical opinion that, in fact, supports the claim for direct service connection. As indicated, these opinions were based on both examination of the Veteran and review of the pertinent history. Therefore, the Board finds that the VA examiner adequately addressed the issue, and that these opinions constitute the only probative opinions on the question as to a medical nexus to service. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) ("It is the responsibility of the BVA to assess the credibility and weight to be given the evidence") (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Similarly, with respect to the issue of whether service connection for hearing loss in the left ear may be granted as secondary to the service connected right ear hearing loss, the only medical opinion addressing this question is the negative opinion following the April 2010 VA examination. There is no competent evidence to the contrary, and neither the Veteran nor his representative has identified or even alluded to the existence of any medical opinion that, in fact, supports the claim for service connection on a secondary basis. Moreover, this opinion was also based on both examination of the Veteran and review of the penitent history. As such, the Board finds that the VA examiner adequately addressed the issue of secondary service connection, and that his opinion constitutes the only probative opinion on this theory of entitlement to secondary service connection. See Hayes, supra. The Board acknowledges any assertions by the Veteran as to the occurrence of, and continuity of, symptoms of diminished hearing in the left ear during service and up to the present time. The Veteran is certainly competent to report such symptoms. See e.g., Washington v. Nicholson, 19 Vet. App. 362 (2005); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here, however, the Board finds the Veteran's statements attempting to show continuity of symptomatology are not credible and, thus, cannot serve to controvert the VA examiner's opinions and provide a basis for a finding of service connection for left ear hearing loss on the basis of lay assertions, alone. As support for the finding that the Veteran has not credibly demonstrated continuity of left ear hearing loss since service, the Board notes that hearing loss disability was not shown until July 2005, over 35 years after separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). As the Board has the benefit of the results of audiometric testing of the left ear demonstrating normal hearing in the left ear through at least January 1980, the Board finds any assertions of continuity of hearing loss in the left ear from service to be not supported by, or simply inconsistent with, the documented evidence of record. The Board also questions the veracity of any continuity contentions given the fact that, as previously noted, when the Veteran filed his initial claim for VA benefits in 1969, he referred to problems with the right ear but not the left. The Board notes that silence in this initial application, when the Veteran is otherwise affirmatively speaking, is not supportive of the Veteran's current assertions of continuous problems with hearing in the left ear since service. See White v. Illinois, 502 U.S. 346, 355-56 (1991) (noting that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. See also Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that a pecuniary interest is recognized as a factor which may affect the credibility of a claimant's statements). Accordingly, the Board finds that any assertions by the Veteran that he has had problems with hearing loss in the left ear since service are not credible. Furthermore, as for any assertions of the Veteran and/or his representative that there exists a medical nexus between current left hearing loss and service or service connected right hear hearing loss-the matters upon which this claim turns-the Board finds that such assertions do not provide persuasive support for the claim. In this regard, the Board emphasizes that the matter of medical etiology of the Veteran's left ear hearing loss is one within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative is shown to have appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion as to the etiology of the currently diagnosed left ear hearing loss. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) and Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). As such, in this appeal, lay assertions of medical etiology have no probative value. For all the foregoing reasons, the Board concludes that the claim for service connection for left ear hearing loss, to include as secondary to right ear 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); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for hearing loss in the left ear, to include as secondary to service-connected hearing loss in the right ear, is denied. REMAND As indicated, the claims for service connection for actinic keratoses and squamous cell carcinoma of the left cheek must be remanded for further development. The November 2009 remand directed that the Veteran be afforded a VA examination that included an opinion as to whether it was at least as likely as not that the Veteran's actinic keratoses was related to service, to include exposure to the sun during the Veteran's Vietnam service. An opinion in such a manner was necessary because the Joint Motion found that a July 2005 VA medical opinion addressing this matter, which concluded that the issue of whether the Veteran's actinic keratoses was related to service could not be resolved without resort to mere speculation, did no include a rationale or explanation for this conclusion. The VA skin disease examination afforded the Veteran pursuant to the November 2009 remand in May 2010 resulted in an opinion that was not in the format requested in the November 2009 remand; instead, it was again the conclusion following this examination that the issue as to whether the Veteran's actinic keratoses was related to service could not be resolved without resort to mere speculation. In addition, the Veteran found fault with certain aspects of the November 2009 VA examination in a statement received in May 2011, and, in his December 2012 presentation, the Veteran's representative found fault with the fact this opinion was drafted by a physician's assistant [although the reports from this examination document a consultation with a VA physician] rather than a physician and that no indication was provided as to "why speculation is necessary in this case." The Board is required to ensure compliance with the instructions of it remands. Stegall v. West, 11 Vet. App. 268 (1998). Thus, as the opinion following the May 2010 VA examination was not in the manner requested by the Board in its November 2009 remand, and given the concerns with the May 2010 VA examination raised by and on behalf of the Veteran, the Board concludes that the evidence currently of record is inadequate, and that another VA examination responsive to the Joint Motion, the prior remand instructions, and the entirety of the contentions of record is needed to resolve the claims for service connection for the skin disabilities at issue. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). A remand is also necessary to afford the RO, and the examiner who conducts the examination requested below, the initial opportunity to consider the medical extract referenced by the Veteran's representative in his December 2012 presentation to the Board. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993); 38 C.F.R. § 20.1304(c) (2012). With respect to the claim for service connection for squamous cell carcinoma, the Veteran claims that service connection for such disability is warranted as secondary to actinic keratoses. As such, the resolution of the claim for service connection for actinic keratoses necessarily impacts the claim for service connection for squamous cell carcinoma, and the adjudication of this claim must therefore be deferred. Harris v Derwinski, 1 Vet. App. 80 (1991). Moreover, as the record includes a January 2007 private pathology report finding that the Veteran had squamous cell carcinoma "in-situ arising in hypertrophic actinic keratosis" and a private November 2009 medical opinion that it was "highly likely' that the actinic damage due to exposure to the sun in Vietnam placed the Veteran at an increased risk of developing squamous cell carcinoma, the examiner who conducts the examination requested by this remand will be asked to give consideration to this positive pertinent evidence. While these matters are on remand, to ensure that all due process requirements are met, and that the record before the physician is complete, the RO should give the Veteran another opportunity to present information and/or evidence pertinent to the claims remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish appropriate current authorization for the RO to obtain records from any pertinent private treatment. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the remaining claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish current, appropriate authorization to obtain records of any pertinent private treatment. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained or do not exist, notify the Veteran of the records that were not obtained or that do not exist, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or response(s) from each contacted entity have been associated with the claims file, or an appropriate time period for the Veteran's response has expired, arrange for the Veteran to undergo a VA examination, by an appropriate physician, preferably one who has not previously examined the Veteran. The entire claims file, to include complete copy of this REMAND (as well as copies of any pertinent records from the Veteran's Virtual VA, electronic file, if the examiner does not have access) must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions All appropriate tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report) and all clinical findings should be reported in detail. For each squamous cell carcinoma and actinic keratosis, the physician should offer an opinion, consistent with sound medical judgment, addressing whether the disability is at least as likely as not (a 50 percent or higher degree of probability) causally related to in-service disease or injury-particularly, in-service exposure to the sun, to include in Vietnam. If actinic keratoses is deemed casually related to service, the physician should also opine whether it is at least as likely as not (a 50 percent or higher degree of probability) that squamous cell carcinoma was caused or is aggravated (worsened beyond natural progression) by actinic keratosis. In rendering the requested opinions, the examiner must consider and discuss all pertinent medical and lay evidence of record, to include the Internet extract referenced by the Veteran's representative in his December 2012 presentation ["Epidemiology, natural history, and diagnosis of actinic keratosis" found within the website "UpToDate"] and the positive opinions rendered by K.V.B., D.O in December 2004 and November 2009. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached in a printed (typewritten) report. 4. To help avoid another remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall, supra. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims remaining on appeal in light of pertinent evidence and legal authority. 6. If any benefit sought remaining on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs