Citation Nr: 1320134 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-49 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a low back disability with radiculopathy. 2. Entitlement to service connection for a neck disability with radiculopathy. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for a right knee disability. 6. Entitlement to service connection for a left knee disability. 7. Entitlement to service connection for a headache disability. 8. Entitlement to service connection for psychiatric disability. REPRESENTATION Appellant represented by: Jonathan Bruce, Attorney ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The veteran served on active duty from January 1980 to November 1988. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in San Juan, the Commonwealth of Puerto Rico (RO). This case was remanded by the Board in February 2012 for additional development. The claims for service connection for hearing loss and tinnitus are remanded to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The preponderance of the competent evidence of record is against a finding that the Veteran's currently diagnosed low back disability is related to service. 2. The competent evidence of record does not show that the Veteran has ever had a diagnosed neck disability during the pendency of the claim. 3. The competent evidence of record does not show that the Veteran has ever had a diagnosed right knee disability during the pendency of the claim. 4. The competent evidence of record does not show that the Veteran has ever had a diagnosed left knee disability during the pendency of the claim. 5. The competent evidence of record does not show that the Veteran has ever had a diagnosed headache disability during the pendency of the claim. 6. The competent evidence of record is against a finding that any currently diagnosed psychiatric disability is related to service. CONCLUSIONS OF LAW 1. A low back disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. A neck disability was not incurred in, or aggravated, by active service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 3. A right knee disability was not incurred in, or aggravated, by active service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 4. A left knee disability was not incurred in, or aggravated, by active service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 5. A headache disability was not incurred in, or aggravated, by active service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 6. A psychiatric disability was not incurred in, or aggravated, by active service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in December 2008. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the Veteran's low back disability claim. While the Veteran has not been provided with a VA examination with respect to his neck, right knee, left knee, and headache disability claims, examinations are not required as there is no competent evidence of record that the Veteran has had diagnosis of a neck, right knee, left knee, or headache disability at any point during the pendency of the claim. 38 C.F.R. § 3.159(c)(4) (2012); McClain v. Nicholson, 21 Vet. App. 319 (2007). In addition, while the Veteran also has not been provided with a VA medical examination with respect to the psychiatric disability claim, an examination is not required as there is no competent evidence of record that the Veteran had a psychiatric disability during service or that his currently diagnosed psychiatric disability is related to service. 38 C.F.R. § 3.159(c)(4) (2012). Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The determination as to whether the requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999). Alternatively, service connection may be awarded for a chronic condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the veteran's present condition. 38 C.F.R. § 3.303(b) (2012); Savage v. Gober, 10 Vet. App. 488 (1997). For certain chronic disorders, including sensorineural hearing loss, arthritis, and tinnitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Low Back Disability In a December 1980 service medical report, the Veteran complained of low back pain for the previous week. After physical examination, the assessment was strain, due to cold. In a June 1982 service report of medical history, the Veteran denied having, or ever having had, recurrent back pain. On physical examination, the Veteran's spine was normal. In a December 1986 service medical examination, the Veteran reported that he was in good health. On physical examination, the Veteran's spine was normal. In an August 1987 service medical report, the veteran complained of low back pain since the previous day. Following physical examination, the assessment was hematuria, rule out urinary tract infection versus retrocecal appendicitis. In a second August 1987 service medical report, the Veteran complained of right low back pain which began the previous morning and came on gradually. After physical examination, the impression was low back pain, muscular. In a third August 1987 service medical report, the Veteran complained of low back pain for the previous two days. He denied experiencing any direct trauma in the previous 72 hours. After physical examination, the assessment was low back pain with possible kidney problems. The Veteran was then referred to another examination, which gave an assessment or probable urinary tract infection. After separation from service, in an October 2001 private medical report, the Veteran complained of a history of right flank pain radiating to the groin. On physical examination, there was costovertebral angle tenderness, but no scoliosis or xyphosis, and the diagnosis was related to the Veteran's genitourinary system. In an October 2002 private medical report, the Veteran complained of bilateral low back pain and general discomfort. After physical examination, the diagnosis was related to the Veteran's genitourinary system. A May 2004 private computed tomography report stated that, after views of the Veteran's lumbar spine, the impression was degenerated disc, bulging annulus fibrosus, and central disc herniation with compression of the dural sac at L4-5; bulging annulus fibrosus at L5-S1; and degenerative joint disease in facet joints of L5-S1. The medical evidence of record shows that a low back disability has been consistently diagnosed since May 2004. In a December 2011 VA emergency department note, the Veteran complained of low back pain for the previous two weeks. He reported that the pain had improved until he reinjured his back earlier that day while walking his dog. A May 2012 VA back examination report gave a diagnosis of lumbar disc disease/degenerative disc disease at multiple levels. The Veteran reported that he had injured his low back due to heavy lifting during active service. The report included a review of the Veteran's reported history, a physical examination, diagnostic testing, and a thorough review of the relevant medical evidence. The examiner opined that the Veteran's low back disability was less likely than not incurred in or caused by service. The rationale was that the Veteran's in-service low back complaint was acute and transitory and improved with proper treatment. The examiner also noted that the Veteran's records were silent for low back pain for at least 10 years after separation from service. The Board finds that the preponderance of the competent evidence of record is against a finding that the Veteran's currently diagnosed low back disability is related to service. The Veteran's service medical records are negative for any diagnosis of a chronic low back disability. While the Veteran's service medical records include multiple reports of in-service back complaints, no chronic disability was demonstrated. The only in-service diagnosis of a low back disorder was made in December 1980, when the Veteran was found to have a strain. The Veteran subsequently did not report any back symptoms, nor were any back abnormalities found, on examination in June 1982 and December 1986. The Veteran once again reported back symptoms in August 1987, but those complaints were eventually associated with a genitourinary disorder, not a musculoskeletal disorder. Furthermore, while the medical evidence of record shows that the Veteran has a current diagnosis of a low back disability, there is no evidence of record that any musculoskeletal low back disability was diagnosed prior to May 2004, over 15 years after separation from service. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulted in any chronic or persistent disability. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354 (1991). In addition, the preponderance of the medical evidence of record demonstrates that the Veteran's currently diagnosed low back disability is not related to service. The only medical evidence of record which comments on the etiology of the Veteran's currently diagnosed low back disability is the May 2012 VA examination report. That report opined that the Veteran's low back disability was less likely than not incurred in or caused by service. Under certain circumstance, lay evidence can be competent and sufficient to establish the etiology or diagnosis of a condition. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313 (2009). However, such etiological evidence is only competent to the extent that it relies on observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Veteran claims that his low back disability is related to symptoms he experienced in service. However, the Veteran is not competent to state whether his currently diagnosed low back disability is related to any symptoms he experienced in service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, the Veteran's statements are not competent to demonstrate continuity of symptomatology of his currently diagnosed low back disability. To the extent that they may be competent, they are outweighed by the lack of any other evidence of complaint or treatment of a back disability for over 15 years after service and the competent medical opinion that the back disability is less likely related to service. 38 C.F.R. § 3.307, 3.309 (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, the Board finds that the preponderance of the competent evidence of record is against a finding that the Veteran's currently diagnosed low back disability is related to service. Therefore, the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neck, Right Knee, Left Knee, and Headache Disabilities The Veteran's service medical records are negative for any complaints or diagnosis of a neck disability or a left knee disability. In a September 1980 service medical report, the Veteran complained of right knee pain after banging his knee on a door. After physical examination, the assessment was bruise of the right kneecap. In a May 1981 service medical report, the Veteran complained of multiple symptoms, include headaches, for the previous one and a half weeks. After physical examination, the impression was serous otitis media, probably seasonal. In a June 1982 service report of medical history, the Veteran denied having, or ever having had, swollen or painful joints; frequent or severe headaches; joint deformity; and trick or locked knee. On physical examination, the Veteran's head, neck, lower extremities, and spine were normal. In a December 1986 service medical examination, the Veteran reported that he was in good health. On physical examination, the Veteran's head, neck, lower extremities, and spine were normal. The Veteran's service personnel records demonstrate that he was discharged in November 1988 due to a civilian conviction and there is no evidence of record that a discharge medical examination was conducted. After separation from service, in private medical reports dated in October 2001, February 2002, October 2002, September 2004, August 2006, April 2007, May 2007, and August 2007, the Veteran denied experiencing head and musculoskeletal problems. On physical examination in those reports, no head, neck, or extremity abnormalities were noted. In VA medical reports dated in July 2007, November 2007, March 2008, July 2008, January 2009, and December 2011 the Veteran denied experiencing headaches, arthritis, and myalgias. The Veteran also denied experiencing joint pain or swelling in all of those reports except for January 2009. In addition, in April 2012 the Veteran denied experiencing arthritis, myalgias, and joint pain or swelling, On physical examination in these reports, no head, neck, or extremity abnormalities were noted. The competent evidence of record does not show that the Veteran has ever had a diagnosed neck, right knee, left knee, or headache disability during the pendency of the claim. The Veteran's service medical records are negative for any complaints or diagnoses of neck, and left knee disabilities. While the Veteran's service medical records note a complaint of headaches, they were ascribed to a seasonal ear disorder and no headache disability was ever diagnosed. The Veteran received a diagnosis of a right knee disorder during service, but the diagnosis was of an acute injury and the Veteran subsequently denied experiencing any knee complaints and his knee was found to be normal on examination. There is no post-service medical evidence that the Veteran has ever received a diagnosis of a neck, right knee, left knee, or headache condition. 38 C.F.R. § 3.385 (2012). The medical evidence of record repeatedly states that the Veteran denied experiencing relevant complaints and no abnormalities were found on relevant examinations. The Veteran's statements alone are not sufficient to prove that he has ever had a diagnosed neck, bilateral hearing loss, tinnitus, right knee, left knee, or headache disability during the pendency of the claim. Under certain circumstance, lay evidence can be competent and sufficient to establish the etiology or diagnosis of a condition. Davidson v. Shinseki, 581 F.3d 1313 (2009). However, such etiological evidence is only competent to the extent that it relies on observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In this case, the Veteran does not claim that he has experienced neck, right knee, left knee, and headache symptoms on a continuous basis since separation from service, nor does he claim to have the medical expertise to diagnose an underlying disability. Accordingly, the Veteran's lay statements are not competent evidence that he has a current diagnosis of a neck, right knee, left knee, or headache disability for VA purposes which is related to service. Accordingly, the competent evidence of record does not show that the Veteran has ever had a diagnosed neck, right knee, left knee, or headache disability during the pendency of the claim. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Therefore, the Board finds that service connection for neck, right knee, left knee, and headache disabilities is not warranted. The Board finds that the preponderance of the evidence of record is against a finding that the Veteran currently has a neck, right knee, left knee, or headache disability or has had any of those disabilities during the pendency of the claims. Therefore, the claims are denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Psychiatric Disability Service connection for posttraumatic stress disorder (PTSD) requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). A diagnosis of a mental disorder, including PTSD, must conform to the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125 (2012). The Veteran's service medical records are negative for any complaints or diagnosis of any psychiatric disability. After separation from service, in VA medical reports dated in July 2007, November 2007, March 2008, July 2008, and January 2009, the Veteran denied experiencing memory changes and depression. February 2010 VA medical reports stated that the Veteran participated in a genetic study of schizophrenia in Puerto Rico as part of the healthy participants (control group). In a December 2011 VA medical report, the Veteran reported that he had been treated for symptoms of anxiety and depression related to a traumatic event. He brought with him a note from a private psychiatrist stating that he had PTSD. The assessment was anxiety/PTSD/depression. The Veteran was referred to the mental health clinic for further assessment and treatment. In a January 2012 VA psychiatric consultation report, the Veteran reported that he had not been working since December 2010. He reported that he had never served in a war zone, but had received a diagnosis of PTSD during treatment by a private psychiatrist from April 2011 to July 2011. The Veteran reported that he was incarcerated for five years during service for attempted sexual assault of an adult. The Veteran reported that he was arrested again in December 2010 and spent 66 days in a Federal jail, during which time he was unable to sleep due to thinking about his problems. He stated that the charges were dismissed in March 2011, but that the experience provoked him to feel insecure and like he needed to stay home. The Veteran reported that he felt like he was being followed by agents. He reported that he thought about his financial status, feared losing his home, worried about his future, and could not sleep at night. The Veteran reported experiencing depression and lying in bed with a lack of energy and motivation. After mental status examination, the examiner stated that the Veteran did not meet the diagnostic criteria for PTSD. The assessment stated that the Veteran had major depression. The examiner opined that it was the result of his legal situation, where he lost his job and social status. The medical evidence of record shows that a psychiatric disorder has been consistently diagnosed since January 2012. In a March 2012 VA psychiatric progress note, the Veteran reported that his psychiatric symptoms began after he spent 66 days in Federal jail following an arrest in December 2010. The Axis I diagnoses were depression, not otherwise specified, and anxiety, not otherwise specified. An April 2012 VA psychiatric progress note gave Axis I diagnoses of depression, not otherwise specified, and anxiety, not otherwise specified. The Veteran reported that his depressive symptoms began after he spent 66 days in Federal jail following an arrest in December 2010. The Board finds that the preponderance of the competent evidence of record is against a finding that the Veteran's currently diagnosed psychiatric disability is related to service. The Veteran's service medical records are negative for any complaints or diagnosis of a psychiatric disability. While the medical evidence of record shows that the Veteran has a current diagnosis of a psychiatric disability, there is no evidence of record that any psychiatric disability was diagnosed prior to April 2011, over 22 years after separation from service. The Veteran actively denied experiencing relevant psychiatric symptomatology on numerous occasions prior to his period of incarceration in December 2010. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354 (1991). In addition, the preponderance of the medical evidence of record demonstrates that the Veteran's currently diagnosed psychiatric disability is not related to service. The only medical evidence of record which comment on the etiology of the Veteran's currently diagnosed psychiatric disability are the January 2012, March 2012, and April 2012 VA psychiatric reports. Those reports all relate the Veteran's psychiatric symptoms to his period of incarceration which began in December 2010. Under certain circumstance, lay evidence can be competent and sufficient to establish the etiology or diagnosis of a condition. Davidson v. Shinseki, 581 F.3d 1313 (2009). However, the etiological evidence is only competent to the extent that it relies on observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In this case, the Veteran claims that his psychiatric disability is related to service. However, the Veteran is not competent to state whether his currently diagnosed psychiatric disability is related to service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, the Veteran's statements are not competent to demonstrate continuity of symptomatology of a non-psychotic psychiatric disorder, and there is no evidence of record that the Veteran has ever received a diagnosis of a psychosis. 38 C.F.R. §§ 3.307, 3.309 (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, the Board finds that the preponderance of the competent evidence of record is against a finding that the Veteran's currently diagnosed psychiatric disability is related to service. Therefore, the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) ORDER Service connection for a low back disability with radiculopathy is denied. Service connection for a neck disability with radiculopathy is denied. Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. Service connection for a headache disability is denied. Service connection for a psychiatric disability is denied. REMAND VA has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record currently before it is inadequate. 38 U.S.C.A. § 5103A (West Supp. 2010). The Board finds that a VA examination is need on the claim for service connection for hearing loss and tinnitus because the evidence of record shows that the Veteran may have had some hearing loss during service, and he is competent to report the current presence of tinnitus. 38 C.F.R. § 3.159(c)(4) (2012). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). In a June 1982 service report of medical history, an audiological examination was conducted and puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 10 10 LEFT 30 20 30 10 10 In a December 1986 service medical examination an audiological examination was conducted and puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 15 0 5 LEFT 25 25 25 10 10 An October 1987 service audiological examination was conducted and puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 0 0 LEFT 30 20 25 5 10 The Veteran's service personnel records demonstrate that he was discharged in November 1988 due to a civilian conviction and there is no evidence of record that a discharge medical examination was ever conducted. The Board finds that because the Veteran's audiograms during service may have demonstrated some hearing loss, that an examination is needed to determine whether he has any current hearing loss and if so, whether it is related to service. Accordingly, this case is REMANDED for the following: 1. Schedule the veteran for a VA audiology examination to determine the etiology of any hearing loss and tinnitus. The examiner should review the claims file and should note that review in the examination report. Specifically the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any bilateral hearing loss is due to service or first manifested during service, or is related to the finding of probable serous otitis media during service. The examiner should comment on the significance of the audiograms conducted during service. The examiner should also opine as to whether a diagnosis of tinnitus is warranted and, if so, whether any tinnitus is at least as likely as not (50 percent or greater probability) related to the Veteran's service, or is related to the finding of probable serous otitis media during service. 2. Then, readjudicate the issue on appeal. If any decision is adverse to the veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The Veteran is hereby informed that failure to report for a scheduled examination or failure to cooperate with any requested development may result in the denial of the claim. 38 C.F.R. § 3.655 (2012). 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 or the United States Court of Appeals for Veterans Claims for development or other action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs