Citation Nr: 1320386 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-39 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss. 2. Whether there is new and material evidence to reopen a previously denied claim of entitlement to service connection for a left foot disability. 3. Entitlement to service connection for a right hand disability. 4. Entitlement to service connection for Meniere's syndrome, claimed as vertigo and dizziness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from April 1972 to November 1976. He appealed to the Board of Veterans' Appeals (Board/BVA) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In a February 2003 rating decision, the RO denied, among other claims, entitlement to service connection for Meniere's syndrome, which the Veteran had claimed as vertigo, dizziness, hearing loss, and tinnitus. The RO also denied his petition to reopen his claim for service connection for a bilateral foot condition. He perfected an appeal of the claims to the Board. 38 C.F.R. § 20.200 (2012). When filing his substantive appeal, he also requested a hearing at the RO before a Veterans Law Judge of the Board (Travel Board hearing). He later withdrew his hearing request, however, also his claim of entitlement to service connection for a bilateral foot condition. 38 C.F.R. §§ 20.204, 20.704(e) (2012). In April 2005 the RO granted service connection for bilateral hearing loss, evaluated as 0-percent disabling, so noncompensable, and for tinnitus, evaluated as 10-percent disabling. The Veteran submitted a notice of disagreement with the initial rating for hearing loss. The RO provided a statement of the case in September 2006, but he did not submit a substantive appeal (VA Form 9 or equivalent statement) and the appeal was closed. In January 2009, the RO, in pertinent part, confirmed and continued the noncompensable rating for the hearing loss, denied the Veteran's petition to reopen his claim of entitlement to service connection for a left foot condition, previously claimed as a bilateral (left and right) foot condition, denied service connection for a right hand condition, and determined there was not new and material evidence concerning his claim for service connection for Meniere's syndrome. In his substantive appeal, he again requested a hearing at the RO before a Veterans Law Judge of the Board (Travel Board). But in November 2009, he again withdrew his hearing request. 38 C.F.R. § 20.704(e). In the September 2009, statement of the case, the RO noted the prior denials of service connection for bilateral foot disabilities, but found that there had not been an explicit denial of service connection for a left foot disability, and it proceeded to adjudicate the left foot claim on a de novo decision. The record; however, shows that in the February 2003, rating decision the RO discussed service connection for a left foot disability. The issue was framed as entitlement to service connection for disabilities of both feet, which would encompass the left foot. The Veteran did not submit a notice of disagreement or new and material evidence within one year of the 1988 decision and withdrew his appeal of the February 2003 decision. These decisions are therefore final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103 (2012). As such, the Board must first must determine whether there is new and material evidence since the earlier decisions regardless of the RO's actions. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). Consider also that, in addition to his physical claims file, the Veteran has an electronic ("Virtual VA") paperless claims file, which is a highly secured electronic repository used to store and review documents involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claims for benefits. VA also is in the process of transitioning to another, and hopefully even better, electronic medium - the Veterans Benefits Management System (VBMS). The Board is remanding the claims for an increased (compensable) rating for hearing loss and for service connection for Meniere's syndrome to the RO via the Appeals Management Center (AMC) in Washington, DC. Whereas the Board, instead, is going ahead and deciding whether there is the required new and material evidence to reopen the claim for service connection for a left foot disability and for service connection for a right hand disability. FINDINGS OF FACT 1. In a February 2003 decision, the RO considered and denied the Veteran's petition to reopen his claim of entitlement to service connection for a bilateral (i.e. left and right) foot disabilities. He did not file a notice of disagreement and no new and material evidence was received within one year of its issuance; as such, the decision became final. 2. The evidence received since the February 2003 RO decision, by itself or in connection with previously considered evidence, does not relate to an unestablished fact necessary to substantiate the claims or raise a reasonable possibility of substantiating the claim of entitlement to service connection for a left foot condition, previously claimed as a bilateral foot disability. 3. A right hand disability did not have had its onset in service, within one year of service, nor is such disability otherwise related to a disease or injury in military service. CONCLUSIONS OF LAW 1. A February 2003 rating decision, denying in pertinent part, the Veteran's application to reopen a claim of entitlement to service connection for a bilateral foot disability, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.1103 (2012). 2. The evidence received since the February 2003 RO decision is new but not material. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156 (2012). 3. A right hand disability was not incurred in or aggravated by the Veteran's active military service, nor is such disability presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance in order to aid them in substantiating their claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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 ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2005). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the Veteran's claims, letters dated in January, February, and April 2008, and March 2009 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b)(1). The letters notified the Veteran of the evidence and information necessary to substantiate his claims and informed him of his and VA's respective responsibilities in obtaining that evidence. In terms of the Veteran's new and material claim, the Board observes that the January 2008 letter specifically notified the Veteran that his left foot claim had previously been denied on the basis that there was no evidence to show that there was a chronic diagnosed disability of the left foot. As such, the letter stated that the Veteran needed to submit new and material evidence in support of his claim that related to this fact. The RO explained that new evidence was evidence submitted to the RO for the first time; and material evidence was existing evidence that pertained to the Veteran's previous denial of service connection. The RO also informed the Veteran that new and material evidence must raise a reasonable possibility to substantiate the claims. Kent v. Nicholson, 20 Vet. App. 1 (2006). 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). The Veteran has substantiated his status and the referenced letters from the RO contained notice as to the remaining elements of the claims. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Some of the notice was sent after the initial adjudication of the claims, but the timing deficiency was cured by the fact that his claims were readjudicated in a supplemental statement of the case explaining the readjudication of his claim. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007. In addition to the foregoing, the Board observes that the Veteran's service treatment records, and VA and private medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has also been provided with VA examinations in connection with his claims. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. The Board acknowledges that the Veteran has not been afforded a VA examination specifically in connection with his right foot claim. With respect to this claim, however, unless new and material evidence is submitted, the duty to assist does not require a VA examination. 38 C.F.R. § 3.159(c)(4)(iii). Since there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless and will proceed with the adjudication of the Veteran's claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005). II. New and material evidence In July 1988, the RO denied entitlement to service connection for a "foot condition." The rating decision did not specifically discuss the left foot. In the February 2003 decision, the RO construed the July 1988 decision as denying service connection for a bilateral foot disability. It noted that at the time of the July 1988 decision, a current left foot disability had not been demonstrated. It denied the Veteran's application to reopen a claim of entitlement to service connection for a bilateral foot disability. The RO found that the evidence submitted since the 1988 decision showed complaints of foot pain with tingling and burning and, on one occasion, the Veteran was shown with diabetic right foot. There was no evidence to show that the Veteran had a bilateral foot condition as a result of military service. The Veteran did not file a timely appeal with respect to this decision and no new and material evidence was received within a year of its issuance to preclude its finality under 38 C.F.R. § 3.156(b). Cf. Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The evidence that has been added to the claims file since the February 2003 RO decision consists of private and VA treatment records and the Veteran's statements in connection with his claims. The medical records indicate that the Veteran has been diagnosed with and treated for various disabilities including multi-site OA. A June 2004 diabetes mellitus examination indicated that the Veteran had decreased sensation to sharp on the plantar surface of the left foot and toes. No complications from diabetes mellitus were diagnosed. However, there is no indication that the Veteran has been diagnosed with or treated specifically for a left foot disability and there is no indication that any such disability had its onset in service. As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156(a), new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously and finally denied claim, there must be new and material evidence presented or secured since the claim was last denied on any basis, not just on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for the evidence to be sufficient to reopen a previously denied claim, the evidence must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The Board may then proceed to the merits of the claim on the basis of all of the evidence of record. In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). The evidence that has been added to the claims file since February 2003 is new in that it had not previously been submitted. However, the evidence is not material because it does not show a current left foot disability; much less indicate that such a disability may be related to service. The evidence therefore does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. See also Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence which merely documents continued diagnosis and treatment of disease, without addressing other crucial matters, such as medical nexus, does not constitute new and material evidence). In addition, the Board notes that the Veteran's contentions are also insufficient to reopen the claim. He has not reported any specific current left foot disability, or provided any additional information as to how a current left foot disability is related to service. Therefore, the Board finds that the evidence added to the record since February 2003 is cumulative of the evidence previously considered by the RO at that time and does not relate to an unestablished fact necessary to substantiate the claims and, therefore, does not raise a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156. For these reasons, the Board finds the new evidence of record is not material to the Veteran's claim of entitlement to service connection for left foot disability. As such, the Veteran's claims are not reopened; and the claim is denied. III. Service connection. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection will be presumed for certain chronic diseases, such as arthritis, when the disease is manifested to a compensable degree within one year of separation from service or in service and at any time thereafter. 38 U.S.C.A. §§ 1101, 1112(a), 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). Continuity of symptomatology may establish service connection where a chronic disease under 38 C.F.R. § 3.309(a) shown as such in service or within the presumptive period, manifests at a later date. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (vacating a decision that stated categorically that a valid medical opinion was required to establish nexus and that a lay person was not competent to provide testimony); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of the lay person is reporting a contemporaneous medical diagnosis); see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability proximate to the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) 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 Allen v. Brown, 7 Vet. App. 439 (1995). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he that he injured his right hand in service when he pulled a dog off a child in a school parking lot. The Veteran reports that he was treated in service and had always had trouble with the hand. The Veteran's wife also reported that the Veteran rescued a child from a vicious dog and was bitten on the right wrist and had been treated throughout the years for this. The Veteran's service treatment records indicate he sustained trauma to the right thumb when it was caught on a door in December 1974. X-ray was negative and assessment was sprain. Later in December 1974, it was noted that the Veteran had fallen and injured his right wrist. He was also noted to have sustained a dog bite in January 1975. VA examination dated in May 1988 indicated that the right wrist was normal. In October 2002, the Veteran was examined, but no right hand disability was shown. In addition, the Veteran's treatment records indicate hand pain, but a July 2008 X-ray indicated normal right hand. The Veteran was provided with a VA examination in connection with the claim in September 2009. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran's medical history was noted. On examination there was objective evidence of pain, but ranges of motion were normal. After examination, the Veteran was diagnosed as having a prior right hand puncture wound from dog bite, and prior strain of the right thumb. The examiner stated that there was insufficient clinical evidence to warrant a diagnosis of any acute or chronic disability caused by or related to the above injuries. The examiner opined that it was less likely as not (less than 50/50 probability) that the Veteran had a disability caused by or a result of the in-service right hand injuries. He explained that the reported symptoms were not what were usually seen with bite injuries or tendon/ligament injuries. The symptoms were more consistent with a nerve compression syndrome which the Veteran indicated had been diagnosed in his hands. The examiner stated that there was no evidence in the medical records that suggested a chronic disability of the right hand caused by the reported injuries to the right hand. The September 2009 VA examination report provides evidence of a current right hand disability, in the form of a nerve compression injury. The service treatment records and the Veteran's reports show that he sustained right hand injuries in service. The remaining question is whether the current disability is related to the injuries in service. The examiner who conducted the September 2009 examination has provided the only medical opinion as to the relationship between the current disability and service. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake , 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez v. Peake, 22 Vet. App. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. McLendon v. Nicholson, 20 Vet. App. . The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ('[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.'). The VA examiner appears to have considered an accurate history that took into account the Veteran's reports and even accepted the Veteran's reports of having a nerve compression injury. The examiner provided a clear opinion that the current right hand disability was less likely than not related to the injuries in service. The opinion was also supported by a rationale, namely that the current symptoms were not those that would be expected to result from the in-service injuries. This opinion is therefore, highly probative. The Veteran has at times made contentions that could be construed as reporting a continuity of symptomatology. His current right hand disability is not; however a listed chronic disease. As such, continuity of symptomatology could not serve to establish the nexus element of his claim. Walker. VA and private treatment reocrds, and claims filed with VA in the decades immediately following service make no mention of a right hand disability. Thus, even if continuity of symptomatology could serve to establish a nexus to service; the recent reports of continuity are not credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) (noting that while lay testimony may be competent its credibility may be assessed). The Board finds that the diagnosis and etiology of the Veteran's claimed right hand disability is a complex medical question, beyond the competency of a layperson. The Board further finds that the question regarding the relationship between such disability and military service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, as the Veteran has only provided his own conclusory statements regarding diagnosis and causation, the Board finds that the Veteran's statements to be of little probative value as he is not competent to opine on such a complex medical question. Because the most probative evidence is against finding a nexus to service, the preponderance of the evidence is against the claim, reasonable doubt does not arise and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence sufficient to reopen a claim of entitlement to service connection for a left foot condition has not been received, and the appeal is denied. Service connection for a right hand condition is denied REMAND In several of the Veteran's VA audiological examinations, including the February 2008 and September 2009 VA examination reports, the Veteran reported that he experienced frequent dizziness in service, which he attributed to an inner ear disability. He has been service-connected for both hearing loss and tinnitus. However, he has never been afforded a VA examination specifically in connection with his Meniere's claim. Based on the foregoing, the Board finds that a VA examination and opinion would be helpful in determining whether the Veteran has Meniere's syndrome and whether such disability had its onset in service. In this regard, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong of 38 C.F.R. § 3.159(c)(4)(I), which requires that the evidence of record 'indicate' that the claimed disability or symptoms may be associated with service, establishes a low threshold); see also Locklear v. Nicholson, 20 Vet. App. 410 (2006). With respect to the claim for an increased rating for hearing loss, the Board notes that the most recent examination for this condition took place in September 2009. The United States Court of Appeals for Veterans Claims (Court) held that VA audiological evaluations should include both objective test results and a full description of the functional effect of the Veteran's hearing loss disability. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The September 2009 examination did not address the functional effects of the Veteran's hearing loss. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Prior to affording the Veteran a VA examination, the RO should associate with the Veteran's claims file records of the Veteran's treatment for his claimed disability. This should specifically include updated treatment records from VA. The Veteran should also be afforded an opportunity to submit additional medical evidence relevant to his claim that may not be associated with the claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his claimed disability. This should specifically include updated treatment records from the VA. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 2. Arrange for an appropriate VA examination for the purpose of determining whether the Veteran has Meniere's syndrome and, if so, whether such disability is related to the Veteran's military service. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Based on his/her review of the case, the examiner is specifically requested to offer an opinion as to: (a) Does the Veteran have Meniere's syndrome? If so, state the diagnosis or diagnoses. (b) If the examiner finds that the Veteran has Meniere's syndrome, did such disability have its onset during active duty, within one year of active duty, or was such condition aggravated by the Veteran's military service? Was Meniere's syndrome caused by or secondary to a service-connected disability? In this regard, the examiner is asked to comment on the Veteran's service and post-service medical treatment records. The examiner is also asked to comment on the Veteran's statements that he had dizziness in service that he believed was the result of an inner ear disability. In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his claimed disorders and the continuity of symptomatology. The rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 3. Then schedule the Veteran for a VA examination for compensation purposes in order to determine the current nature and severity of his service-connected chronic bilateral hearing loss disability. All indicated tests and studies should be accomplished and the findings then reported in detail. Send the claims folder to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. The examiner must fully describe any functional effects associated with the Veteran's hearing disability and the impact of his hearing loss disability upon his vocational pursuits. 4. After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issues remaining on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs