Citation Nr: 1318200 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-11 507 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for an innocently acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to service connection for a disability manifested by sleep disturbances. 3. Entitlement to service connection for headaches. 4. Entitlement to service connection for a bilateral hearing loss. 5. Entitlement to a total disability rating based upon individual unemployability by reason of service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1960 to January 1962. These matters come before the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the RO in St. Petersburg, Florida. Jurisdiction was subsequently transferred to the RO in Indianapolis, Indiana. In her February 2009 VA Form 9, Appeal to the Board, the Veteran limited the appeal to the claims listed on the title page. In addition, the Board has recharacterized the claims for service connection for PTSD and for depression as a single claim for an innocently acquired psychiatric disorder, to include PTSD and depression. A review of the Veteran's Virtual VA electronic claims file reveals no additional records. The issues of service connection for a bilateral hearing loss and entitlement to a TDIU rating are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The currently demonstrated major depressive disorder with PTSD residual is shown as likely as not to be due to an in-service sexual assault during the Veteran's period of active service. 2. The Veteran is not shown to have manifested complaints or findings referable to sleep disorder or headaches during service or for many years thereafter. 3. The Veteran currently is not shown have a separately ratable disability manifested by sleep disturbances. 4. The currently demonstrated headaches are not shown to be due to an event or incident of the veteran's period of active service or to be due to her service-connected psychiatric disability. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, her disability manifested by major depressive disorder with residual PTSD is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125(a) (2012). 2. The Veteran does not have a disability manifested by sleep disturbances due to disease or injury that was incurred in or aggravated by active service; nor is any proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. The Veteran's disability manifested by headaches is not due to disease or injury that was incurred in or aggravated by active service; nor is any proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act 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, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). At the outset the Board notes that, given the favorable disposition of the claim for service connection for an acquired psychiatric disorder, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a January 2007 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claims for entitlement to service connection herein decided. Additionally, the January 2007 letter provided her with the general criteria for the assignment of an effective date and initial rating. Id. VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records and all of the identified post-service private and VA treatment records. The Board acknowledges that the Veteran has not been afforded VA examinations with respect to the claimed headaches and disability manifested by sleep disturbances. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent recurrent symptoms of a disability; (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, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See also Duenas v. Principi, 18 Vet. App. 512 (2004). The Board finds in this case that there is no is no reliable lay or medical foundation to support the claims of service connection other than lay assertions which are not deemed to be credible for reasons explained hereinbelow. There is no reliable evidence that satisfies the second or third criterion of the McLendon analysis to establish service connection for the claimed disorders. The Board thus finds that the evidence of record is adequate to render decisions on the claims of entitlement to service connection for headaches and for a disability manifested by sleep disturbances, and that an examination is unnecessary. For these reasons, the Board finds that VA has complied with the VCAA's notification and assistance requirements with respect to the claims of service connection considered on the merits hereinbelow. II. Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to the claims on appeal, this list includes psychoses. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including psychoses, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. A. Acquired Psychiatric Disorder The Veteran asserts that she is entitled to service connection for an acquired psychiatric disorder, to include PTSD and depression, that stems from in-service sexual harassment, rape and sexual assault by her superior officers. In addition to the above-noted legal authority, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). If a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(3). Here, the Veteran's service treatment records and personnel records do not reflect diagnosis of a psychiatric disorder or discuss any incidents of sexual trauma. While a July 1961 treatment records showed that she complained of nervousness for the past two months and worsening nerves, no diagnosis was noted. She was found to be psychiatrically normal on January 1962 discharge examination. Following her discharge from service, a November 2001 private treatment report notes a past medical history of depression. An April 2004 private treatment report from Dr. B. noted an impression of probable depression and anxiety with somatization disorder. An August 2004 private treatment report reflected that the Veteran had a history of depression and was on Zoloft. The VA outpatient treatment records reflected that the Veteran reported having past military sexual trauma in January 2005. A January 2005 PTSD screen was negative. In March 2005, the Veteran presented for VA treatment of depression. She reported having depression that began in 2002 after her husband died in 2002 and that looking back on her life, she felt that she had experienced a low level of depression for many years. She reported being sexually harassed in the military. A diagnosis of depressive disorder, not otherwise specified was indicated. An August 2006 PTSD screen was also negative, but a diagnosis of adjustment disorder with depression was noted. It was indicated that the Veteran had some sexual trauma in the service. The Veteran was afforded a VA examination in October 2007 to determine the nature and etiology of the claimed psychiatric disorder. She reported that while in service, her superior officer asked the Veteran out on a date. She indicated that she was only 19 at the time and was sexually inexperienced. She reported that, after the date, the officer drove her to a wooded area where he attempted to rape her. She reported trying to flee, but was caught and then forced to do various sexual acts and then she was sexually penetrated. Following service, the Veteran got married, but the relationship was somewhat strained due to sexual problems stemming from the in-service assault. She revealed that she was very afraid of sexual contact and had a great amount of guilt because she never revealed to her husband what happened. After mental status examination, the examiner determined that the Veteran experienced a definite and definable stressor in military sexual trauma. He indicated that the current symptoms were linked to the identified stressors. In so finding, he noted that, while PTSD was the most salient diagnosis for the Veteran in the past, the most viable feature of the Veteran's disorder at present was depression. He found that the Veteran's PTSD had been subsumed by a major depressive disorder and was mainly a function of having a difficult and constrained marriage and having to live with a great amount of guilt. Diagnoses of major depressive disorder and PTSD, residual were noted. In various written statements, the Veteran reported that she had experienced stress, anxiety, and depression since the military sexual trauma. She reported being too scared to report the incidents in service or tell anyone about the incident, including her husband, for many years until she started receiving treatment. The record reflects a current diagnosis of major depressive disorder with residual PTSD. Thus, the remaining questions are whether there exists a link between a claimed in- service stressor and the Veteran's symptoms, and whether there is credible evidence that the in-service stressor occurred. In this case, the October 2007 VA examiner provided a link between the Veteran's current psychiatric symptoms and her service, as he determined that the Veteran had PTSD, most likely subsumed by her current major depressive disorder, that was related to the in-service sexual assault and the guilt and constraint it place on her marriage following the incident. The Board notes that, while the alleged in-service assault is not corroborated in the Veteran's service treatment or personnel records, 38 C.F.R. § 3.304(f)(5) provides that VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether the evidence indicates that a personal assault occurred. Here, the October 2007 VA examiner determined that examiner determined that the Veteran experienced a definite and definable stressor in military sexual trauma. Moreover, the Board finds that the treatment in service for nervousness tends to corroborate the Veteran's account of experiencing problems after the reported in-service sexual assault. Given the totality of the evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for an acquired psychiatric disorder-currently diagnosed as major depressive disorder with residual PTSD-is warranted. B. Headaches The Veteran contends that she is entitled to service connection for headaches, as she believes that this disability is related to her service. Her service treatment records do not reflect treatment or diagnosis with respect to headaches. The Veteran's discharge examination was normal and she reported no problems with respect to headaches on her report of medical history at discharge. Following her discharge from service, a January 1997 private treatment report reflects that the Veteran complained of having an upset stomach, nausea and pain on the right side of the head radiating around to the back of the head. She noted that she experienced these headaches several times a year. An assessment of headache, possibly sinuses, possible a migraine-type that occurred several times yearly was noted. A March 2004 private treatment report reflects that the Veteran endorsed having headaches along with a syncopal episode. An April 2004 report from the St. James Hospital reflects that the Veteran was admitted for severe left temporal and occipital headaches. It was noted that she had called indicating that these headaches had been going on for a few days. Other complaints included weakness, palpitations, blurred vision, shortness of breath and gait disturbance. A history of seizure disorder and migraines in the past was noted. It was noted that, "way back" in the past, an electroencephalogram showed temporal sharp waves. She was put on Trileptal, but took herself off of this medication. A CT scan of the head was also performed, and an impression of normal noninfused CT of the brain was noted. The Veteran also underwent MRIs of the cervical spine and lumbar spine. These reports reflect that the Veteran was admitted with a diagnosis of bradycardia, dyspnea, back pain and headaches. After a neurological examination, the examiner noted an impression of severe left temporal and occipital headache with elevated sedimentation rate. Possible giant cell arteritis, rule out other causes, was also noted. An impression of seizure disorder was also noted. The post-service VA outpatient treatment records include an April 2006 report when the Veteran complained of increasing headaches and stomach aches since her Topirimate was increased in dosage. A few days later, she complained of blurred vision, severe headaches and stabbing pain in her eyes. She reported going to a local emergency room, where she was informed that she had cataracts and was advised to meet with an ophthalmologist. In various written statements, the Veteran alleges that the stress related to her service caused her headaches, or that her headaches might be related to her depression. The Board has carefully considered and evaluated the evidence of record. Here, there is no evidence that the current headaches are related to service or the service-connected psychiatric disability. The service treatment records are silent for headache-related complaints or diagnoses. The first evidence of a headache disorder is in 1997. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and any medical complaints or documentation of a claimed disability is a factor that weighs against a claim for service connection). Moreover, none of the private or VA treatment records report indicates a relationship between any current headache disorder and an event or incident of her service or her service-connected psychiatric disability. Based upon the cumulative record, the Board finds that a headache disorder was not manifested in service or for many years thereafter and that there is no identified nexus linking any current condition to service or service-connected disorder. The Board has also considered the Veteran's statements, and notes that the Veteran is competent to report symptoms, present and past. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Furthermore, the Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). However, in this case, the Board finds that the Veteran's assertions as to headache symptoms since service are not credible Although the Veteran suggests that she had continuous symptoms since service, such remote report is inconsistent with the normal separation examination. It is further inconsistent with her denial of a pertinent history of such problems in service and following service when otherwise seeking medical attention for her headache symptoms. Rather, the post-service treatment records mainly show that the Veteran complained of headaches related to other, non-service connected, medical problems. The Board is faced with more than a mere silent record. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson, 230 F.3d at 1333, (it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). Savage v. Gober, 10 Vet. App. 488, 498 (1997)(in a merits context, the lack of evidence of treatment may bear on the credibility of the evidence of continuity). The current assertions are inconsistent with the contemporaneous statements made by the Veteran at the time of her service discharge. The Veteran's assertions of having headaches since service is self-interested, and contradicted by other evidence. Caluza v. Brown, 7 Vet. App. 498 (1995) (In assessing credibility, the Board may consider interest, bias, inconsistent statements, bad character, internal inconsistencies, factual plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). Hence, the Board finds that to the extent that the Veteran's statements in regard to having had ongoing headache symptoms since service are inconsistent that are of limited probative value. The Board assigns greater probative value to the objective evidence of record, to include service treatment records. This evidence reflects normal evaluations and shows no indication that the Veteran had any symptoms with respect to headaches in service. Notably, the Veteran's post-service treatment records do not include a history of headache symptoms, or any other history of headache problems in service or related to a service-connected psychiatric disability. The service treatment records and VA and private medical records constitute evidence of significant probative value as they goes to the issue at hand and were prepared by skilled, neutral medical professionals. The medical evidence of record shows no indication that the Veteran has a headache disorder related to service or a service-connected psychiatric disorder. For all the foregoing reasons, service connection for headaches must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as no competent, persuasive evidence supports the claim, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). C. Disability Manifested by Sleep Disturbances The Veteran likewise asserts that she is entitled to service connection for disability manifested by sleep disturbances, as she believes that this disability is related to her service. The Veteran's service treatment records do not reflect treatment or diagnosis with respect to sleep disturbances or a sleep disorder. On treatment in July 1961, the Veteran reported that she was nervous and could not do her work properly, but added that she slept well at night. The Veteran's discharge examination was normal, and she reported no sleep problems on her report of medical history at discharge. Following service, a May 2004 private treatment report from the WellGroup Health Partners reflects that the Veteran slept well, although she used Ambien on occasion. On VA psychiatric examination in October 2007, the Veteran reported sleeping about 5 hours per night for quite some time. She reported being tired during the day. The VA and private treatment records otherwise do not indicate diagnosis or treatment of a disability manifested by sleep disturbances. The Board observes that the Court has held that a symptom, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability. Without a pathology to which the symptom of sleep disturbances can be attributed, there is no basis to find a disability or disease for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, where, as here, competent medical evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To the extent that any sleep-related symptomatology may be a manifestation of the service-connected psychiatric disorder, the rating for this underlying disability will be assigned with consideration of the symptoms such as sleep disturbances. As such, a separate grant of service connection based on sleep disturbances would not be indicated for the same symptoms considered under her evaluation for her psychiatric disorder because it would violate the rule against pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Finally, the Board has also considered the Veteran's statements to the effect that she has a disability manifested by sleep disturbances that is related to her military service. As a lay person, the Veteran is competent to report on that which she has personal knowledge. See Layno, 6 Vet. App. at 470. However, the record is devoid of any evidence showing a current disability, and she has not provided any lay evidence that would suggest the existence of a disability. For all the foregoing reasons, service connection for a disability manifested by sleep disturbances must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as no competent, persuasive evidence supports the claim, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53- 56. ORDER Service connection for major depressive disorder with residual PTSD is granted. Service connection for disability manifested by sleep disturbances is denied. Service connection for headaches is denied. REMAND The Board's review of the claims file reveals that additional development of the remaining claim of service connection for bilateral hearing loss disability is warranted. As noted, VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. The Veteran reports that she was exposed to loud noise in service during her basic training. The Veteran is competent to describe her exposure to loud sounds, and her reports are credible and consistent with her service. The question of whether the exposure to loud sounds constitutes acoustic trauma is one that requires medical knowledge. Moreover, while the Veteran's service treatment records document that her hearing was within normal limits at the time of discharge, it is not necessary for a hearing loss disability to be present at separation in order to establish service connection. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Rather, when there is evidence of noise exposure in service and a current hearing loss disability, the Veteran is entitled to a VA examination with a medical opinion addressing the question of causation. In this case, VA outpatient treatment records document complaints of hearing loss, and she underwent audiological evaluation in January 2007, which revealed mild to moderate sensorineural hearing loss in the right ear, and mild sensorineural hearing loss in the left ear. However, a VA examination to determine the etiology of her current hearing loss has not been performed. Given the foregoing, the Board believes that the Veteran should be afforded such an examination. In addition, the Board points out that, as any decision with respect to the claim for service connection may affect the Veteran's claim for a TDIU rating, this matter is inextricably intertwined with the remaining claim of service connection. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the claims should be considered together, it follows that, any Board action on the TDIU claim, at this juncture, would be premature. Hence, further action on this matter must be deferred, as well. Accordingly, these remaining matters are REMANDED for the following action: 1. The RO should take appropriate steps to send to the Veteran and her 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 for service connection for bilateral hearing loss and for a TDIU rating. If the Veteran identifies any other pertinent medical records that have not been obtained, the RO should undertake appropriate development to obtain a copy of those records. If the RO is unsuccessful in its efforts to obtain any such evidence, it should so inform the Veteran and his representative and request them to submit the outstanding evidence. 2. After the Veteran responds and all available records and/or responses from each contacted entity are associated with the claims file, the RO should arrange for the Veteran to undergo audiological examination by a qualified examiner. The entire claims file must be made available to the examiner designated to examine the Veteran. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should clearly identify whether the Veteran has a hearing loss disability for VA compensation purposes. Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a current a current hearing loss disability is due to excessive noise exposure or another event or incident of the Veteran's period of active service. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should clearly so state, and the reasons and bases for the inability to provide the opinion must be included in the examination report. 3. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefits sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs