Citation Nr: 1320713 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-22 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for ear infections with tinnitus. 4. Entitlement to service connection for ear infections with tinnitus. 5. Entitlement to service connection for a groin disorder, claimed as bilateral herniorrhaphy. 6. Entitlement to service connection for a surgical scar from a herniorrhaphy. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to January 1972. He also has confirmed service in the United States Army National Guard during various periods of inactive duty training (INACDUTRA) and active duty for training (ACDUTRA). These matters come before the Board of Veterans' Appeals (BVA or Board) from August 2007 (hearing loss, ear infections) and May 2009 (groin disorder, and scars) rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas. The Veteran later testified before the undersigned in October 2012. A copy of the transcript is of record. With respect to the Veteran's claim for a groin disorder, the Board notes that the Veteran was initially denied service connection for a herniorrhaphy in July 1992, July 1995 and August 1995 rating decisions. The Veteran appealed, after remanding his claim in May 1997 and March 1998, the Board denied his service connection claim in December 1999. The Veteran did not appeal this decision and it became final. See 38 C.F.R. § 20.1103 (2012). As such, the Veteran would typically be required to submit new and material evidence to reopen his claim for service connection. See 38 C.F.R. § 3.156(a) (2012). However, in March 2005, additional National Guard service records were associated with the claims file. In such an instance, where VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement of new and material evidence. See 38 C.F.R. § 3.156(c). The Board will therefore proceed with the claim for entitlement to a groin disorder on a merits consideration, as opposed to a petition to reopen the claim based on new and material evidence. New and material evidence is still required with respect to his hearing loss and ear infection claims as the Veteran's primary contention is that these began during active duty service. Additionally, with respect to the Veteran's claim for a groin disorder, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has generally characterized the issue as a claim for entitlement to service connection for a groin disorder, rather than limit the issue to service connection for a herniorrhaphy. The issues of entitlement to service connection for bilateral hearing loss and for ear infections with tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a decision dated in August 2002, the Board denied service connection for bilateral hearing loss essentially on the finding that the medical evidence did not demonstrate hearing loss for VA purposes and did not demonstrate that the Veteran's hearing loss was incurred in or aggravated by the Veteran's active duty. 2. The evidence received since the August 2002 Board decision is new and raises a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss. 3. In a decision dated in August 2002, the Board denied service connection for ear infections with tinnitus essentially on the finding that the medical evidence did not demonstrate that the Veteran's ear infections with tinnitus were incurred in or aggravated by the Veteran's active duty. 4. The evidence received since the August 2002 Board decision is new and raises a reasonable possibility of substantiating the claim for service connection for ear infections with tinnitus. 5. The Veteran has a recurrent right inguinal hernia related to a lifting injury incurred while on inactive duty for training (INACDUTRA). 6. The Veteran sustained a right inguinal hernia in service; post-service evidence reflects a residual surgical scar from a herniorrhaphy repairing this right inguinal hernia. CONCLUSIONS OF LAW 1. The August 2002 Board decision that denied service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7104 (West 2002), 38 C.F.R. § 20.1100 (2012). 2. New and material evidence has been received since the August 2002 Board decision that denied service connection for bilateral hearing loss and that service connection claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1100 (2012). 3. The August 2002 Board decision that denied service connection for ear infections with tinnitus is final. 38 U.S.C.A. § 7104 (West 2002), 38 C.F.R. § 20.1100 (2012). 4. New and material evidence has been received since the August 2002 Board decision that denied service connection for ear infections with tinnitus and that service connection claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1100 (2012). 5. A right groin disorder was incurred in or aggravated by service. 38 U.S.C.A. §§ 101(24), 1101, 1110, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.159, 3.303 (2012). 6. The criteria for service connection for a surgical scar from a right herniorrhaphy have been met. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision issued by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. With respect to claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Id. The Appellant's claims for entitlement to service connection for a groin disorder and for surgical scars are being granted. Additionally, his claims for hearing loss and ear infections with tinnitus are being reopened and remanded. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. II. New and Material Evidence Unappealed rating decisions are final with the exception that a claim may be reopened by submission of new and material evidence. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened, and VA must evaluate the merits of the Veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. Hearing Loss and Ear Infections with Tinnitus As noted above, the claims were last denied in an August 2002 Board decision. The Board denied service connection for bilateral hearing loss essentially on the finding that the medical evidence did not demonstrate hearing loss for VA purposes and did not demonstrate that the Veteran's hearing loss was incurred in or aggravated by the Veteran's active duty. The Board denied service connection for ear infections with tinnitus essentially on the finding that the medical evidence did not demonstrate that the Veteran's ear infections with tinnitus were incurred in or aggravated by the Veteran's active duty. The Veteran did not appeal and this decision became final. The Veteran most recently attempted to reopen his claims in August 2007, which were denied by the RO in August 2007. He timely appealed. The evidence added to the record since the last final denial includes medical records, lay statements and testimony. Significantly, the Veteran testified that he has experienced hearing problems and ear infections since service. See BVA Hearing Transcript (T.) at 9-11. These statements are "new" in that it was not associated with the claims folder prior to the August 2002 Board decision. These statements are also material as they support the Veteran's assertion of a relationship between his hearing loss and ear infections with tinnitus, and service. For purposes of determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi. The statements concerning the continuity of the Veteran's symptomatology are thereby found to be new and material. The claims will be reopened and remanded. III. Service Connection Right Groin Disorder The Veteran contends he has a right groin disorder due to an in-service lifting injury. VA treatment records reflect diagnoses of a recurrent right inguinal hernia. See February 1999 VA treatment record. The Veteran testified at his October 2012 BVA Hearing that in 1990, in preparation for ACDUTRA the Veteran was helping load trucks. He lifted a heavy item, loaded it in the truck, and felt a pain in his right side. See BVA Hearing T. at 4-5. Service personnel records reflect that this injury occurred on July 28, 1990. The Board notes this would date back to his service in the United States Army National Guard on a period of confirmed INACDUTRA. For the reasons set forth below, the Board finds that the evidence supports his claim. Under 38 U.S.C.A. § 101(24) 'active military, naval, or air service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty.' ACDUTRA means full-time training duty, where the service member is available for duty around-the-clock performed by the reserve components. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Annual two-week training is an example of ACDUTRA. Inactive duty training (INACDUTRA) is training duty, other than full time, performed by the reserve components. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, by active service, and from injury incurred or aggravated while performing INACDUTRA. See 38 U.S.C.A. §§ 101(24), 106, 1110 (West 2002). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word 'chronic.' Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2012). In adjudicating this claim, the Board has also considered the doctrine of reasonable doubt. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board acknowledges the Veteran presently has a chronic right inguinal hernia. See February 1999 VA treatment record. A December 2004 VA treatment record in the Veteran's Virtual VA file (VVA) reflects that his right inguinal hernia was bothering him. Statements throughout the record reflect that the Veteran continues to experience symptomatology associated with a right inguinal hernia. In February 1991 the Veteran underwent a right inguinal herniorrhaphy. Medical records reflect that the Veteran underwent another right inguinal hernia repair in April 1999 for a recurrent direct right inguinal hernia. As for the second requirement for service connection, that of a disease or injury was incurred or aggravated during service, the Board acknowledges that a review of the Veteran's National Guard records reflects an August 1990 sworn statement from the Veteran indicating that on July 28, 1990, his company had their annual PT Test and load-up drill for Annual Training on August 1, 1990. He noted that he had felt his right testicle was sore and was experiencing some pain. The Veteran stated that he had injured himself on July 28, 1990 when loading a Mess Truck. He indicated that he could not afford a regular doctor so on August 2, 1990 he had gone to the VA clinic in McAllen, Texas and the doctor indicated that he had a different injury on his testicle. Service personnel records confirm the Veteran's accounts of duties that would place him performing INACDUTRA service on July 28, 1990. See Unit Training Schedule July 28, 1990. VA treatment records reflect that on August 2, 1990, the Veteran sought treatment for a right sore testicle. He was diagnosed with right orchitis and prostatitis. An August 6, 1990, record reflects that the Veteran had complaints of right testicular pain. Thereafter, a sick slip issued that day reflected "complaints of right groin pain." A November 1990 treatment record reflects a positive right inguinal hernia. Surgery was completed to repair his right inguinal hernia in February 1991. Medical records reflect that the Veteran underwent another right inguinal hernia repair in April 1999 for recurrent direct right inguinal hernia. The Board has considered a Line of Duty Investigation most recently amended in March 1991 indicating that the Veteran had orchitis and that his injury preexisted active training and was not incurred in the line of duty. Although the evidence reflects that the Veteran experienced a preexisting testicular problem to his INACDUTRA period of service, a review of the evidence reflects that the Veteran did not have a preexisting right inguinal disorder prior to his July 1990 INACDUTRA injury. In fact, an August 1998 VA examiner specifically indicated that a left orchiectomy in 1970 has no relationship to the Veteran's repair of the right inguinal hernia in 1991 as there is no anatomical connection between these two locations. Evidence of a post service injury to this area is not of record. Consequently, the determinative issue is whether this current right inguinal disorder is related to his conceded right groin injury from lifting on July 28, 1990 while on INACDUTRA in the Army National Guard. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ('A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.'). The Board recognizes that there are no etiological opinions of record which relate the Veteran's current symptomatology to his INACDUTRA injury. Nevertheless, the Board finds that the record demonstrates that the Veteran has suffered from a chronic right groin disorder since his INACDUTRA injury. Here, the Veteran is competent to report symptoms of persistent right groin pain since his conceded right groin injury, during INACDUTRA service. This is because such symptoms require only personal knowledge as they come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination 'medical in nature' and is capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ('Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'). The Board also finds the Veteran's statements to be credible as there is internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Finally, the undersigned found the Appellant's personal testimony to genuine, credible, and consistent with the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("In the case of oral testimony, a hearing officer may properly consider the demeanor of the witness, the facial plausibility of the testimony, and the consistency of the witness' testimony with other testimony and affidavits submitted on behalf of the [V]eteran."); Jones v. Derwinski, 1 Vet. App. 210, 217 (1991) (finding that "the assessment of the credibility of the veteran's sworn testimony is a function for the BVA in the first instance"). These competent and credible lay statements are highly probative evidence of chronicity of the Veteran's right groin disorder since his July 1990 INACDUTRA injury. The Board resolves doubt in the Veteran's favor and finds that the evidence supports the Veteran's claim of entitlement to service connection for a right groin disorder. With respect to any claim the Veteran is making for a left groin disorder, a review of the post-service evidence reveals that the Veteran has not been diagnosed as having a left inguinal hernia. As set forth above, one of the elements necessary for service connection is medical evidence of a current disability. The Court has held that there can be no valid claim without proof of a present disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). The requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, however, there is no evidence of a diagnosis of any left inguinal disorder during the period under appellate review. Based on the foregoing, the weight of the evidence is against any claim for service connection of left groin disorder. As such, any claim relating to a left groin disorder must be denied. Surgical Scar from Herniorrhaphy The Board finds that the Veteran's current surgical scar from a right herniorrhaphy is related to his military service. See 38 U.S.C.A. § 5107(b). As noted above, the Board has determined that service connection is warranted for a right inguinal hernia disorder. VA treatment records located in the Veteran's Virtual VA claims file reflect that he has a right inguinal hernia scar. See VVA December 2004 VA. The evidence demonstrates that the Veteran underwent a right inguinal herniorrhaphy in February 1991 and a right inguinal hernia repair in April 1999 to repair his now service-connected right inguinal hernia. This evidence provides a plausible basis to conclude that the Veteran's current right inguinal hernia scar is related to surgery completed to treat a service-connected disability. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence supports service connection for a surgical scar from a right herniorrhaphy. 38 U.S.C.A. § 5107(b). ORDER New and material evidence sufficient to reopen a claim for service connection for bilateral hearing loss having been received, the claim is reopened. New and material evidence sufficient to reopen a claim for service connection for ear infections with tinnitus having been received, the claim is reopened. Service connection for a right inguinal hernia is granted. Service connection for a surgical scar from a right herniorrhaphy is granted. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. The Board finds that additional development is required to satisfy VA's obligations under the VCAA. Bilateral Hearing Loss and Ear Infections with Tinnitus Service treatment records reflect that the Veteran sought treatment in April 1970 for complaints of a left ear infection and in November 1971 for a draining abscess of the left middle ear. The Veteran testified at his October 2012 BVA Hearing that he has experienced tinnitus since basic training in 1970. See BVA Hearing T. at 10. He additionally attributes his current hearing loss to the same acoustic trauma experienced in basic training. See BVA Hearing T. at 11. The Veteran underwent an April 2009 VA Audiological Examination. The VA examiner opined that there was no nexus between the Veteran's bilateral hearing loss or ear infections with tinnitus and service. In providing these negative medical opinions and rationale, the examiner appeared to rely largely on the absence of documented medical treatment, both during service and also for many years in the post-service treatment records. These medical opinions appear to violate the principles of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Under Buchanan, the mere absence of documented treatment for pain during service and since, such as would be reflected in treatment records, cannot be the sole basis for concluding the Veteran has not continuously experienced these symptoms, as he is alleging, although this is evidence to be considered in making this ultimate determination. See Buchanan, 451 F.3d 1331 (Fed. Cir. 2006). Further, in Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court found an examination like this inadequate where, as here, the examiner did not comment on the Veteran's report of relevant injury in service and, instead, relied on the absence of evidence in his service treatment records to provide a negative opinion. For the foregoing reasons, the Board finds that the April 2009 VA examiner's opinions are inadequate, and the RO must obtain a new VA examination and opinions as to whether the Veteran's current hearing loss and ear infections with tinnitus are related to his service. The claims file further reflects that the Veteran has received VA medical treatment from the Harlingen Outpatient Center; however, as the claims file only includes treatment records from that provider dated up to November 2011, any additional records from that facility should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC should obtain and associate with the claims file all outstanding VA records. Accordingly, the case is REMANDED for the following actions: 1. The AMC should contact the Veteran and obtain the names, addresses, and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for hearing loss and ear infections with tinnitus. After obtaining the appropriate releases, those records not already associated with the claims folder should be obtained and associated with the claims folder. Regardless of whether or not the Veteran responds, the AMC must obtain the Veteran's VA treatment records from the Harlingen Outpatient Center for the time period dated from November 2011 to the present. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the file. All reasonable efforts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further efforts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing the development set forth above, schedule the Veteran for a VA examination by an ear, nose, and throat (ENT) specialist to determine the nature and etiology of any hearing loss and ear infections with tinnitus. An explanation should be provided if the examination cannot be conducted by an ENT specialist or if an appropriate medical specialist provides an adequate explanation as to why a specialist opinion is not necessary in this case. The claims file, including this remand, must be made available to the examiner for review, and the examination report must reflect that such review was accomplished. All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished. After reviewing the record and examining the Veteran, the examiner should address the following: a. Whether it is at least as likely as not (a 50 percent probability or greater), that any current hearing loss is etiologically related to the Veteran's active military service, to include any in-service noise exposure. b. Whether it is at least as likely as not (a 50 percent probability or greater), that any current ear infections/tinnitus are etiologically related to the Veteran's active military service, to include any in-service noise exposure or documented in-service ear problems. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Upon completion of the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, provided an opportunity to respond, and the case should thereafter be returned to the Board for further appellate consideration, as appropriate. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs