Citation Nr: 1325489 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 03-27 943 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to a compensable initial disability rating for right ear hearing loss. 3. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus. 4. Entitlement to service connection for a chronic disability manifested by short-term memory loss, dizziness, confusion, and low energy. REPRESENTATION Appellant (the Veteran) is represented by: Sean A. Ravin, attorney ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from February 1964 to January 1967, including combat service in the Republic of Vietnam. This appeal comes before the Board of Veterans Appeals (Board) from a March 2010 decision of the United States Court of Appeals for Veterans Claims (hereinafter the Veterans Court). The appeal originates from a January 2003 rating decision of the RO in North Little Rock, Arkansas, which denied service connection for left ear hearing loss, and from a June 2006 rating decision of the VA Appeals Management Center which granted service connection for right ear hearing loss and assigned an initial rating of 0 percent. In a decision dated in September 2007, the Board denied service connection for left ear hearing loss and denied a compensable initial rating for right ear hearing loss. The Veteran appealed that decision to the Veterans Court. In a Memorandum Decision dated in March 2010, the Veterans Court vacated the Board's September 2007 decision in part, and remanded those issues back to the Board for development consistent with the Joint Motion. In addition to remanding the issues of entitlement to service connection for left ear hearing loss, and entitlement to a compensable initial rating for right ear hearing loss, in November 2010, the Board also remanded the issue of entitlement to service connection for erectile dysfunction, claimed as secondary to service-connected diabetes mellitus, an issue on appeal at that time. The RO subsequently granted service connection for erectile dysfunction in an April 2013 rating decision, resolving the appeal as to that issue. In November 2010, the Board remanded to the RO, the issues which had been remanded by the Veterans' Court, in order to accomplish the additional evidentiary development directed by the Veterans' Court. As will be addressed in more detail below, there has been substantial compliance with the Board's remand instructions. The appeal has since been returned to the Board for further appellate action. The Board acknowledges that, in its March 2010 decision, the Veterans Court noted that it is unclear from the Board's statement of reasons or bases (September 2007 decision) whether the record and the Veteran's initial claim (August 2002) raised the issue of entitlement to benefits for tinnitus. In this regard, the Board simply notes that service connection has been in effect for tinnitus since August 2006. Service connection was granted in an August 2007 rating decision, prior to the Board's September 2007 decision. The claim arose from August 2006 correspondence in which the Veteran reported, "I wish to amend my claim to include (Tinnitus)." The Veterans' Court did not explicitly instruct the Board to consider an earlier effective date for the grant of service connection for tinnitus, and the Board believes that the Veterans' Court was actually unaware that service connection had already been granted at the time of the March 2010 decision (though this is not clear); however, to the extent the Veterans' Court's reference to the original claim implied that an earlier effective date should be considered (which it does not appear to), the Board notes that the Veteran did not appeal the effective date assigned in the August 2007 decision granting service connection for tinnitus. This issue is not before the Board, RO, or the Court. In this regard, any assertion that an earlier date of claim should now be recognized must be dismissed as a freestanding claim for an earlier effective date. See Leonard v. Nicholson, 405 F3d 1333 (Fed Cir 2005); Rudd v. Nicholson, 20 Vet. App. 296 (2006) (freestanding effective date claims must be dismissed as a matter of law). To hold otherwise would vitiate the rule of finality, which was expounded upon by the United States Court of Appeals for the Federal Circuit (hereinafter the Federal Circuit) in Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). In reviewing this case the Board has not only reviewed the physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. Finally, the Board must note that this case has a long procedural history with the Court and that the Judge who initially reviewed the case at the Board has long since retired. It is before the undersigned for the first time. The issues of entitlement to a disability rating in excess of 20 percent for diabetes mellitus, and entitlement to service connection for short-term memory loss, dizziness, confusion, and low energy are addressed in the REMAND below and are therein REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues herein decided has been accomplished. 2. Although the Veteran was exposed to loud sounds during service, symptoms of left-ear hearing loss were not chronic in service; an organic disease of the nervous system, to include sensorineural hearing loss, did not become manifest to a degree of 10 percent or more within 1 year of service separation; symptoms of an organic disease of the nervous system, to include sensorineural hearing loss, were not continuous after service; and the Veteran's current left-ear sensorineural hearing loss is not related to service. 3. For the entire period of this appeal, the Veteran's right-ear audiometric and speech recognition scores have been productive of hearing loss that is no greater than Level VI. CONCLUSIONS OF LAW 1. A left-ear hearing loss disability was not incurred in service; an organic disease of the nervous system, to include sensorineural hearing loss, is not presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(b), 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(d), 3.307, 3.309, 3.385 (2012). 2. The criteria for a compensable initial disability rating for right ear hearing loss have not been met for any portion of the period on appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In rendering a decision on any appealed issue, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372(Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336(Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veterans Court has emphasized that 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. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303(2007); Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. Sept. 14, 2009). Service Connection for Left Ear Hearing Loss The Veteran contends that he has a hearing loss disability in his left ear as a result of exposure to noise in the form of artillery, mortar, and rifles during service. He asserts that this left-ear hearing loss began at the same time as the service-connected problems related to his right ear. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. Certain specific conditions are considered chronic diseases under VA Law. These include organic diseases of the nervous system, to include sensorineural hearing loss. 38 C.F.R. § 3.309(a). Where such chronic diseases is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) 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(b). Where a veteran served 90 days or more during a period of war or after December 31, 1946, and an organic disease of the nervous system becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. As noted in the Introduction, this issue was decided by the Board in a previous decision, which was subsequently appealed to and vacated by the Veterans Court. In its March 2010 decision, the Veterans Court identified two essential matters that required further development on remand: The first involved the conclusions by multiple VA examiners that an opinion regarding whether a left ear hearing loss disability is related to service could not be reached without resort to "speculation". The second relates to whether there is a relationship between the onset of the Veteran's tinnitus and his left hear hearing loss. The Veterans Court noted that a May 2006 VA examiner had concluded that hearing loss and tinnitus are more likely than not related to one or more common factors. The Veterans Court also noted that during the examination, the Veteran reported that his tinnitus began in 1965 in Vietnam, and that other lay evidence also connects tinnitus to service. The Veterans Court directed the Board to make a finding of fact regarding the onset of tinnitus and to thereafter return the matter to the examiner for a medical etiology opinion on the tinnitus condition based on the Board's fact-finding. As previously noted, the Veterans Court was apparently under the misconception that tinnitus was not already a service-connected disability, as it noted that "it is unclear [...] whether the record and the appellant's initial claim raised the issue of entitlement to benefits for tinnitus." The last sentence of its discussion, focused almost exclusively on tinnitus, reads: "[b]ecause the examiner stated that the causal factors of the tinnitus and the hearing disability were as likely as not the same factors, the Court will also remand the left ear hearing disability claim." The Board, in-turn, remanded the left ear hearing disability claim in November 2010 so that additional evidentiary development could be accomplished related to the concerns expressed by the Veterans Court. In remanding the claim, the Board made a specific finding of fact regarding the onset of tinnitus, finding that the onset of a chronic disability was no earlier than 2004 (notwithstand the grant of service connection). This finding satisfies the instruction of the Veterans Court that such a finding should be made prior to obtaining a medical opinion. As the November 2010 remand is not an appealable decision, and this issue addresses the Veteran's overall credibility (in terms of his recollections as an accurate historian of his disabilities, not simply his tinnitus) the Board will reiterate the reasons and bases for this finding, as required by the Court: Factors weighing against any earlier onset include the fact that the Veteran's service treatment records contain no reference to tinnitus or to ringing in the ears, the fact that the Veteran did not mention tinnitus or any complaint that could be interpreted as referring to tinnitus in his initial claim for compensation in October 2002, although he referred to many other problems involving his ears, and most significant, the fact that during an evaluation of his right ear complaints on July 14, 2004, the Veteran denied any significant tinnitus. The Board acknowledges that the Veteran has asserted during the course of the appeal that his tinnitus had onset earlier than 2004. However, he has not provided a consistent account as to the date of onset. For reasons that will now be addressed, the Board finds these assertions to be inaccurate. In sum, the Veteran's accounts are imprecise, inconsistent, and contradicted by more reliable evidence, including some of the Veteran's own prior statements, which provide highly probative factual evidence against his own current claims. The May 2006 VA examiner specifically identified inconsistencies in the Veteran's accounts, noting that there are two different accounts of onset: At the time of the examination, the Veteran reported onset of tinnitus in 1965, while he was serving in Vietnam. However, the examiner's review of the record revealed that the Veteran had reported in a 2001 examination (which is not of record) that he had tinnitus for as long as he could remember, and that the Veteran did not relate the onset of tinnitus to acoustic trauma, ear injury, or ear disease, providing factual evidence against his own contention. A VA treatment note dated September 15, 2006 indicates that the Veteran was having a difficult time with "cricket sounds" in the right ear. It is around this time, in August 2006, that the Veteran first claimed service connection for tinnitus and reported having this problem "for years." In a statement in February 2007, which he submitted to support his service connection claim, the Veteran reported that he had "noise problems (tinnitus) from the v[e]ry beginning of all my other service connected ear problems." In contrast to the reports of a long-standing problem with tinnitus, a report of VA examination in April 2007 recorded the date and circumstances of tinnitus onset as being constant bilateral tinnitus described as crickets since initial ear surgery in 2001, which has seemed louder in the past year. However, the examiner separately noted that the Veteran recalled initial onset of recurrent ringing in his ears at the time his right eardrum was ruptured in Vietnam. A similar pattern of inconsistency and imprecision continues in the Veteran's discussion with the December 2010 VA examiner - the same clinician who conducted the May 2006 examination. The Veteran reported a cricket-type tinnitus "for a long time" and that it was present prior to his ear operation. Subsequently, the examiner noted that the Veteran did not report tinnitus secondary to acoustic events and exposures in service, but (contrary to his first assertion) asserted that he started noticing the tinnitus after the ear operation, providing more factual evidence against his own claim. However, elsewhere in the same report, the Veteran noted that tinnitus started when he "busted" his eardrum in service. The December 2010 examiner noted that, since the history shows that the Veteran sustained an injury to the right ear prior to service, he was asked his earliest memory of having either a cricket or ringing sound. He replied that he had the cricket sound since before he had the ear operation. The examiner specifically noted these inconsistencies and asked the Veteran about them. The Veteran explained his uncertainty about the onset of his head noises as because he forgets about it at times. When later asked by the examiner about the details of the onset of the ringing tinnitus, the Veteran replied that it has been since his ear operation. Still later, when asked if he had it at discharge from service, he replied that he had it at discharge and repeated that he had tinnitus since the injury to his right ear. While the Veteran is competent to report his symptoms, in assessing the credibility of various reports made at different times, the Board highlights not only the inconsistency in the Veteran's accounts, but also the fact that, even when asserting in-service onset, the Veteran has generally been non-specific as to the date. The Board acknowledges that the Veteran has on occasion related the onset of tinnitus to specific events, such as the right ear injury in service, or alternatively, the post-service right ear surgeries. However, most accounts are quite imprecise as to onset. For example, he reporting having the problem "for years" when he made his claim in August 2006, and "from the v[e]ry beginning" in February 2007. As previously discussed, when the Veteran reported having tinnitus since service to the VA examiners in May 2006 and April 2007, those examiners did not accept this reported history, but specifically noted the conflicting information (which is clear indicated above). The May 2006 examiner identified conflicting information in a 2001 statement that is not of record. The inconsistencies in the Veteran's accounts of onset were the stated basis for that examiner's inability to provide an opinion without resort to "speculation". In this regard, it is important to note that the difficulties all VA examiners confront in these situations are clear. Medical providers are generally not fact finders (and should not be). Repeated references in this case to the examiners' inability to provide an opinion without resort to "speculation" seem clearly associated with the conflicting information provided by the Veteran himself either within this record (which is clear) or during the examinations themselves (which is also clear) as cited above in detail. Medical providers generally do not wish to make the determination that their patients are not credible or have incorrect memories regarding the history of their disability and will use, therefore, imprecise "terms-of-art" such as this in order to avoid such factual determinations. The role of the medical provider in VA Law is to provide medical expertise based on their experience in medicine, not to judge the veracity of the Veteran's factual claims. While the examiner can comment on the Veteran's overall veracity, the final determination regarding this issue, regrettably, is left to the judge in this case, the Board. Requiring VA examiners to make credibility determinations places VA health care providers in highly ambiguous and uncertain terrain. In this regard, it is again important to note that the Board routinely grants such claims in copious numbers with little, if any, medical evidence in the record supporting the claim (and in many cases with medical evidence against the claim), based on veterans credible statements. However, the extensive factual evidence in this case cannot be disregarded. In making the factual determination in this case, the Board finds significant the fact that, on the occasions when the Veteran has related the onset of tinnitus to service, he has specifically related it to rupturing his right eardrum in service. As discussed at length in the Board's June 2004 decision which resulted in the grant of service connection for right ear hearing loss, the service treatment records do not support a ruptured right eardrum in service. They, and the written accounts of his sister and brother, show that the Veteran ruptured his right eardrum prior to service and that the Veteran reported having received a blow to the head in basic training; however, when he was treated for right ear complaints following that incident, there was no rupture; rather there was old scarring of the right tympanic membrane. The Board granted service connection for right ear hearing loss based on the Veteran's account of having experienced right ear symptoms subsequently, during combat service. In another account, the Veteran reported in April 2001 that he had sustained an injury to the right ear in Vietnam, but had received no treatment at that time. In direct conflict with the April 2001 statement that he received no treatment, the Veteran reported on the notice of disagreement in February 2003 that, following the ruptured right eardrum in service, he was evacuated to a staging area and treated for 3 days and "[t]here should be a record of this treatment." He then went on to affirm the earlier April 2001 report that he was not treated, noting, "[t]hat is correct." He then concluded. While the onset of right ear hearing loss is not at issue here, this discussion is included for the purpose of further demonstrating the pattern of imprecision and inconsistency with which the Veteran has recounted the details of his various ear disabilities. The fact that the Veteran has at times reported onset of tinnitus in service, and at other times reported post-surgical onset (after service) does not serve to bring the evidence for and against in-service incurrence of tinnitus or left ear hearing loss into approximate balance. Rather, it undermines the reliability of the Veteran's assertions regarding the onset of symptoms. With respect to the details of onset of tinnitus and left ear hearing loss, the Board finds that the Veteran has proven to be an unreliable historian of all his disabilities. Unfortunately, the earliest post-service treatment records in the claims folder date only from 2001, and the Veteran has reported that he cannot remember the names of earlier private treatment providers. The earliest reference to tinnitus in any document in the claims folder comes from a statement dated and received in September 2003, from a sibling of the Veteran, which noted that, for several days following the in-service injury to the right ear, he complained of ringing noises and infection. While this independently establishes an earlier complaint of symptoms, it does not endorse chronic symptoms in service, but by its terms, describes symptoms lasting several days immediately following a right ear injury. The Board finds that this interpretation is most consistent with the normal findings at service separation, the lack of mention of tinnitus in the earliest available treatment records, in 2001 and 2002, or in the earliest VA claim, and with the Veteran's specific assertion as late as 2004 that he had no significant tinnitus. In light of the inconsistencies and imprecision in the Veteran's accounts, which the Board finds to be unreliable, the Board finds that, to the extent symptoms of tinnitus were present at any time prior to the Veteran's 2004 denial of significant symptoms, such symptoms were not manifestations of a chronic disability. In discussing the relationship between the onset of tinnitus and hearing loss, the Board notes that there is a crucial distinction in this case regarding the type of hearing loss present in the right and left ears. Service connection is in effect for right ear hearing loss that is related to the Veteran's undocumented report that he ruptured his eardrum in combat in Vietnam. The Veteran reported in April 2001 that he had sustained an injury to the right ear in Vietnam. He reported a history of previous trauma to the right ear with a ruptured tympanic membrane in Vietnam during combat. The Veteran has been diagnosed with conductive hearing loss (among other things) in the right ear, but there is no diagnosis of conductive hearing loss in the left ear. Crucially, there is no history or assertion on the Veteran's part of any physical injury to the left ear. The Board found in its June 2004 decision that, even though the record did not substantiate the Veteran's account that he perforated his eardrum in service, with resolution of reasonable doubt in the Veteran's favor, hearing loss in the right ear was related to a combat injury of some type to the right ear. In contrast to the acknowledged right ear injury, the Veteran has never reported any specific physical injury to the left ear during service. Thus, the combat rule does not come into play in regard to substantiating a combat injury to the left ear in service, as no such injury is claimed. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). The Board has also considered whether the combat rule in any way supports the in-service onset of tinnitus by any cause other than the right ear injury in light of the Court's instructions. The Board notes that the provisions of 38 U.S.C.A. § 1154(b) do not of themselves establish service connection for a combat veteran; they aid him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). In addition to the combat injury to the right ear, the Board acknowledges that the Veteran was exposed to loud sounds during service. However, when the Veteran was examined in service in March 1964 for right ear complaints, his left ear was found to be normal, and he did not report tinnitus. In addition, the Veteran's hearing was found to be clinically normal at service separation. Moreover, as will next be addressed, the December 2010 examiner's opinion is against a delayed onset of tinnitus from acoustic trauma. The examiner explained that, for there to be a relationship between the onset of tinnitus and this type of hearing loss, one would expect an immediate onset of tinnitus following the acoustic trauma. According to the examiner, delayed onset of tinnitus from acoustic trauma is not supported by current medical knowledge and research. Here, the normal clinical findings at service separation are persuasive evidence against the onset of chronic tinnitus or left-ear hearing loss in conjunction with the acknowledged combat-related noise exposure and right ear injury. This evidence is significant regarding the question raised by the Veterans Court as to whether the Veteran's tinnitus may be related to his left ear hearing loss, and in interpreting the May 2006 VA examiner's conclusion that hearing loss and tinnitus are more likely than not related to one or more common factors. The December 2010 VA examiner (the same individual as conducted the May 2006 examination) opined that the Veteran's tinnitus was related a combination of middle ear disease, age, age related hearing loss, and surgical management of a cholesteatoma. In stating his rationale, the examiner noted that many factors can be involved in the onset of tinnitus. These include bilateral hearing impairment, surgical ear management, age, and age-related hearing loss. The examiner found that tinnitus is a common symptom of chronic ear disease and is often aggravated by or a result of surgical treatment of middle ear structures. The examiner found that, in this case, both of the service-connected conditions (ear disease and perforated tympanic membrane) can have tinnitus as a symptom. He noted that the onset of tinnitus in 2004 follows surgical management of the right ear. As noted above, tinnitus has been a service-connected disability since August 2006. Notwithstanding the Veterans Court's discussion of whether a claim of entitlement to service connection for tinnitus might have been raised by the record, service connection was already in effect for tinnitus at the time of the March 2010 Veterans Court decision. The opinion obtained in December 2010 was to address the concern of the Veterans Court that the onset of the Veteran's tinnitus may have coincided with the onset of left ear hearing loss. In this case, for the reasons discussed above, the Board finds that they do not coincide. Rather, the onset of chronic tinnitus appears to roughly coincide with multiple surgical procedures on the right ear from 2001 to 2003, although it was not shown to be a chronic disability until after 2004, providing evidence against the claim that service connection should have been granted (fortunately, this issue is not before the Board) Turning more directly to the question of the etiology of left ear sensorineural hearing loss, the December 2010 VA examiner concluded, as he had previously concluded in his May 2006 report, that "[t]he issue of onset of left ear hearing impairment as a consequence of acoustic trauma, ear disease, or other events or exposures during military service cannot be resolved except by mere speculation." However, unlike in previous reports, the December 2010 examiner provided a detailed explanation for this conclusion. The examiner reasoned that: The problem of determining if hearing loss was acquired when there are no records was addressed by a congressionally mandated study by the Institute of Medicine committee on "Noise-Induced Hearing Loss and Tinnitus Associated with Military Service." The results were published in a book titled, "Noise and Military Service: Implications for Hearing Loss and Tinnitus," Humes, Larry, Joellenbeck, Lois, and Durch, Jame, eds. National Academies Press, Washington D.C. 2005. Two of the Institute of Medicine's findings were "The evidence is sufficient to conclude that, in the absence of audiograms obtained at the beginning and end of military service, it is difficult or impossible to determine with certainty how much of a specific individual's hearing loss was acquired during military service" and, "The evidence is not sufficient to determine the probability of acquiring a noise induced hearing loss associated with service in the military or in specific branches of the military, for a given individual. " In other words, the studies conducted by the IOM committee reflect the limitations of the knowledge on the issue of determining the onset of hearing impairment when there are inadequate records. In addition to the IOM study, we have the Army's survey of hearing loss in members of the combat arms published as "The Extent of Hearing Loss in the Army, A Survey Report," McCurdy, H.W. Col USA, Walden, B.E., Capt. USA, and Worthington, D.W. Capt USA, December 21, 1971, US Army Medical Research and Development Command, Washington, DC, 20314. The 1971 Army survey of hearing loss among members of the combat arms found that the majority of personnel in the infantry, armored units, and artillery units with less than four years of service did not have group mean thresholds exceeding clinical normal limits. Please note that mean thresholds are group averages. Whether an individual within the group had any change in hearing cannot be determined. This study was done during the Vietnam War. The researchers make no statement that combat veterans were excluded or included in the study. Individuals with pre-existing hearing loss were included in the study. It should be noted that the under four years of service groups included individuals with advanced infantry, artillery, and other training. Changes in hearing were documented. The survey reported that an induction, 97% of the inductees had H-1 profiles. While 91% of the four years or less infantry and artillery members studies had H-1 profiles. Please note that the H-1 profile allowed for a mild degree of hearing loss. Individual response to acoustic trauma varies widely. Without individual test data before and after exposures, the issue of onset is one of mere speculation when faced with a determination of onset 30 years after the exposures. In this case there is no discharge hearing test results. Veteran denies having hearing tests prior to establishing care with the VHA. He denies treatment by ENT providers prior to establishing care with the VHA stating he sought treatment for his right ear condition on a walk in basis with various primary care providers in the greater Dallas area. There is no characteristic of the current left ear impairment that characterizes the impairment as a noise induced hearing loss or that distinguishes it from an age related loss. The December 2010 VA examiner also addressed the request discuss his May 2006 comment that that hearing loss and tinnitus (for which service connection is in effect) were more likely than not related to one or more common factors. The December 2010 examiner noted that: The examiner made this comment based on the fact that if the cholesteatoma that was treated 30 years after discharge was determined to be a result of injury in service then the cholesteatoma was a common factor of which tinnitus and hearing loss were symptoms or could be the symptom of surgical management of the disease. However, hearing loss or tinnitus can also be a symptom of other of the Veterans medical problems: hyperlipidemia and hypertension. Sataloff (Occupational Hearing loss, Third Edition) wrote, "...people with hypertension have a higher incidence of hearing loss (with our without noise exposure). The Board finds that the December 2010 VA examiner's explanation adequately addresses the concerns raised by the Veterans Court in its March 2010 decision in this case. The Veterans Court noted that it must be clear, from some combination of the examiner's opinion and the Board's analysis of the record, that the examiner has not invoked the phrase "without resort to mere speculation" as a substitute for the full consideration of all pertinent and available medical facts to which a claimant is entitled. In general, it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion. The Veterans Court also reasoned that a bald statement that it would be speculative for the examiner to render an opinion as to etiology or diagnosis is fraught with ambiguity. For example, it is not clear whether the examiner lacks the expertise to render such an opinion, or whether some additional testing or information is needed, and possibly available, that would permit such an opinion, either of which would render the opinion inadequate for resolving the claim. Thus, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. The examiner may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination. The phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. The Board finds that the December 2010 VA examiner's extensive discussion of the issue, with citation to pertinent medical and other treatise evidence, and with citation to the Veteran's examination reports and other medical evidence in this case, demonstrates that all pertinent and available medical facts were considered. Moreover, it is clear that the examiner's conclusion was arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion. The Veterans Court also instructed that the examiner should clearly identify precisely what facts cannot be determined. For example, it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes. In this case, the December 2010 examiner identified as the primary basis for his conclusion that, in light of "the absence of audiograms obtained at the beginning and end of military service, it is difficult or impossible to determine with certainty how much of a specific individual's hearing loss was acquired during military service." He further noted that "[t]here is no characteristic of the current left ear impairment that characterizes the impairment as a noise induced hearing loss or that distinguishes it from an age related loss." Regarding the instruction of the Veterans Court that the Secretary must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is based on sufficient facts or data; and, therefore, it must be clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered all procurable and assembled data, by obtaining all tests and records that might reasonably illuminate the medical analysis, the Board finds that there is no additional source of facts and/or data that is available. The examiner did not identify any additional testing or evaluation that would assist him in reaching a conclusive opinion, and the Veteran has not identified any source of records for the period intervening service separation and his initial VA treatment, but has reported that he cannot remember who treated him, and that he was treated at walk-in clinics. For these reasons, the Board finds that the concerns expressed by the Veterans Court in this case, which constitute the law of this case, have been adequately addressed by the December 2010 examiner. An opinion regarding the etiology of the Veteran's left ear sensorineural hearing loss is not possible without resort to speculation. As held by the Veterans Court in this matter, an examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion. Moreover, the Veterans Court was not persuaded by the argument that VA must proceed through multiple iterations of repetitive medical examinations until it obtains a conclusive opinion or formally declares that further examinations would be futile. In this case, the Board finds that, after 3 attempts at obtaining a non-speculative medical opinion, and in light of a persuasive, well-reasoned, and well-supported explanation from the December 2010 VA examiner, no additional development is necessary to obtain an etiology opinion. The medical evidence in this case establishes that the etiology of the Veteran's left ear hearing loss cannot be determined. The Veteran asserts that this brings the evidence for and against service connection into approximate balance. The Board finds that this is not so, and that the weight of the evidence is against service connection for left ear hearing loss. In so finding, the Board notes initially that there is no medical opinion that purports to relate the Veteran's left ear hearing loss directly to service or to any service-connected disability. Prior to the December 2010 examination, the Veteran underwent two VA examinations, both of which resulted in reports that were inconclusive as to etiology. While treatment providers have repeated his assertions as to onset of tinnitus in service, as discussed in detail above, the Board finds these assertions to be inaccurate. A recitation of inaccurate assertions by a medical provider does not constitute a credible opinion. While a lay person may in some circumstances be competent to provide nexus evidence, such as when the onset of the disability is identifiable by an observable event, or when the lay person is reporting a contemporaneous medical diagnosis, in this case, the Veteran's opinion is inextricably linked to his assertion as to onset of symptoms in the left ear during service. The Board has found this assertion to be inaccurate. The Board finds that the lack of conclusive medical opinion evidence either for or against a nexus to service does not place the evidence overall in approximate balance where, as here, all the evidence, including that pertinent to service, establishes that left ear hearing loss was not incurred in service. Significant evidence against in-service incurrence comes from the service treatment records. Service treatment records include a service entrance examination, which noted that both ears (including auditory acuity) were normal. An audiogram showed that, while the Veteran's hearing in the right ear was decreased, as compared to the left, the hearing in both ears was normal for VA purposes. The separation examination did not include an audiogram; however, hearing was tested by whispered and spoken voice testing. The Veteran's score was 15/15 for both ears. The Veteran's ears (internal and external canals and auditory acuity) were found to be clinically normal. There is no report of hearing difficulties on the notes portion of the separation examination. While the Veteran is competent to report his perception of decreased auditory acuity in the left ear, it is a particularly persuasive fact that he did not do so during the separation examination, providing highly probative factual evidence against this own claim at this time. While the Veteran now asserts that he was not even afforded a separation examination, the existence of the completed examination report is more persuasive to the Board than the Veteran's recent assertion to the contrary. The Board finds that, while the form of auditory testing used at service separation is not the same as used at entrance, and thus it is difficult to make direct comparisons, the score of 15/15 on the whispered and spoken voice test is affirmative evidence that, to the extent of acknowledged noise exposure in service, the Veteran did not have a hearing loss disability of any kind when he left the service. Indeed an April 2005 VA audiology examiner interpreted these scores as normal. The Board review of this case does not end at this point. Service connection may also 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). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The first post-service treatment record is in April 2001, 34 years after service separation. At that time, the Veteran was treated for otitis media in the right ear only. It was noted that his hearing had significantly decreased since the infection began. The Board finds this history significant in that the Veteran does not cite a long history of hearing loss that became worse since a recent infection, but simply a problem (hearing loss) associated with a recent infection, providing some evidence against his own claim once again. It was noted that left ear hearing was better than the right, but still decreased. A July 2001 audiogram showed bilateral high frequency hearing loss. An August 2, 2001 primary care note indicates that the Veteran had surgery on his right ear 10 days prior. He underwent a planned second operation in or prior to June 2002. A December 2002 audiogram showed mild, sloping to severe sensorineural hearing loss in the left ear with excellent word recognition. The Veteran underwent exploratory tympanotomy procedures on the right ear in September and November 2003. In October 2002 the Veteran filed an application for service connection on which he listed multiple medical problems, including bilateral hearing loss and a "busted ear drum" in the right ear. Regarding manifestation of an organic disease of the nervous system to a compensable degree within a year of service separation and continuity of symptomatology after service, the Board emphasizes the multi-year gap between discharge from active duty service (1967) and initial reported symptoms related to left ear hearing loss, in approximately 2001 (more than a 34-year gap). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, the Veteran's current assertion as to continuous symptoms cannot be disassociated from his assertion that he received continuous or ongoing treatment after service for many decades well before he sought help with the VA. In this regard, it is important to note that the Board frequently grants hearing loss claims without continuity of any medical evidence when the Veteran provides credible statements (problems with hearing of a long nature that are consistent). In this case, based on these unique facts, the Board finds that his assertions are not accurate. The Veteran reported to an April 2005 VA audiometry examiner that he was treated for 30 years after service for hearing loss and tinnitus. However, the Veteran reported to a May 2006 VA examiner that he cannot remember any of the names of the doctors who treated him prior to coming to VA. The Board finds that the assertion of 30 years of ongoing treatment is inconsistent with the Veteran's inability to identify even a single provider. In any event, even if the Board assumes he cannot recall the names of any of his doctors who treated him for 30 years, his statement regarding 30 years of treatment (which would have had to have included private treatment as the Veteran did not use VA until fairly recently) appears to have been directly contradicted by his report in a January 2007 VCAA notice response on which he reported "[a]ll my treatment has been at V.A. facilities." The Board finds the Veteran's recent assertion that he was treated for 30 years after service for hearing loss to be totally inaccurate. Again, his assertion is not that he experienced continuous "symptoms", but did not seek treatment; his assertion is that he was treated continuously after service, and the Board finds this to be not correct. Thus, regarding manifestation of an organic disease of the nervous system to a compensable degree within a year of service separation and continuity of symptomatology after service, the Board finds that the evidence weighs against both elements. Finally, the Board acknowledges the statement of the December 2010 VA examiner that hearing loss or tinnitus can also be a symptom of other of the Veteran's medical problems: hyperlipidemia and hypertension. This is an inconclusive statement and carries no probative weight as a medical opinion. Moreover, service connection is not in effect for hyperlipidemia or hypertension, nor has either been claimed. In sum, the weight of the evidence demonstrates that, although the Veteran was exposed to loud sounds during service, symptoms of left-ear hearing loss were not chronic in service; an organic disease of the nervous system, to include sensorineural hearing loss, did not become manifest to a degree of 10 percent or more within 1 year of service separation; symptoms of an organic disease of the nervous system, to include sensorineural hearing loss, were not continuous after service; and the Veteran's current left-ear sensorineural hearing loss is not related to service. The best evidence in this case, some coming from the Veteran himself, provides evidence against this claim, making it less likely than not that the current problem is related to service nearly 50 years ago. Accordingly, service connection for left ear hearing loss is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Evaluation of Right Ear Hearing Loss Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. When the schedule does not provide a zero percent evaluation for in a Diagnostic Code, a zero percent evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When a claimant is awarded service connection and assigned an initial rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of sensorineural hearing loss range from noncompensable (zero percent) to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hz). See 38 C.F.R. § 4.85. To evaluate the degree of disability for service-connected hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from Level I for essentially normal acuity through Level XI for profound deafness. See 38 C.F.R. § 4.85 and Tables VI, VIA, and VII (Diagnostic Code 6100). If impaired hearing is service-connected in only one ear, as in this case, the non-service-connected ear will be assigned a Level I designation for hearing impairment in order to determine the percentage evaluation from Table VII. See 38 C.F.R. § 4.85(f). In the June 2006 rating decision, service connection for right ear hearing loss was granted with a noncompensable evaluation pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6100. An effective date of October 8, 2002 was assigned for the noncompensable evaluation. The report of VA examination in May 2006 reveals that pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 50 65 100 66.25 The speech discrimination score was 88 percent. The Veteran did not exhibit the exceptional patterns of hearing impairment described in 38 C.F.R. § 4.86. Applying these values to the rating criteria results in a numeric designation of level III in the right ear. See 38 C.F.R. §§ 4.85, Table VI (2012). As the Veteran's left ear is not service-connected, a Level I designation has been assigned to determine the percentage evaluation from Table VII. See 38 C.F.R. § 4.85(f). Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 0 percent rating. That is, the combination of level I in the nonservice-connected left ear with level III in the right ear results in a 0 percent rating. The report of VA examination in April 2007 reveals that pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 50 60 90 61.25 The Veteran did not exhibit the exceptional patterns of hearing impairment described in 38 C.F.R. § 4.86. The speech discrimination score was 90 percent. Applying these values to the rating criteria results in a numeric designation of level I in the left ear and level IIII in the right ear. Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 0 percent rating. That is, the combination of level I in the left ear with level III in the right ear results in a 0 percent rating. An audiogram dated in August 2007 reveals that pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 50 65 90 62.5 There are no speech recognition scores provided. Rounding up to 63 and applying this value to Table VIA results in a numeric designation of level V. Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 0 percent rating. That is, the combination of level I in the left ear with level V in the right ear results in a 0 percent rating. The report of VA examination in December 2010 reveals that pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 55 55 75 100 71.25 The Veteran exhibited the exceptional patterns of hearing impairment described in 38 C.F.R. § 4.86. Although the December 2010 examiner listed the pure tone average as 58, the Board finds that this is incorrect. The method for calculating the average is set out under the rating schedule. This is not a medical finding, but simple math. Moreover, the Board's calculation of 71.25 results in a more favorable value to the Veteran, so there is no prejudice to him, and no need to seek a supplemental finding from the examiner. The speech discrimination score in December 2010 was 90 percent. Applying these values to the rating criteria results in a numeric designation of level III in the right ear and level I in the left ear. See 38 C.F.R. §§ 4.85, Table VI (2012). Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 0 percent rating. That is, the combination of level I in the left ear with level III in the right ear results in a 0 percent rating. Alternatively, applying the pure tone average value to Table VIA results in a numeric designation of level VI. Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 0 percent rating. That is, the combination of level I in the left ear with level VI in the right ear results in a 0 percent rating. Thus, in no instance do the audiometric findings produce a compensable rating. The Board acknowledges the Veteran's contention that he is receiving benefits from the Social Security Administration (SSA) in large part due to his right ear disabilities. See December 2006 statement in support of claim. While the records obtained from SSA do include statements from the Veteran regarding the difficulties he faces due to these disabilities, it appears that SSA found the Veteran was entitled to disability benefits due to a primary diagnosis of osteoarthritis and a secondary diagnosis of diabetes mellitus. See Form SSA-831-C3. Overall, the SSA records provide evidence against the claim that it was his hearing loss that allowed him to get SSA benefits. Although, as noted above, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Veterans Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. In this regard, the December 2010 VA examiner specifically addressed the functional effects caused by the Veteran's hearing loss disability. The Veteran described his functional impairment to the examiner as not being able to hear a lot of words when there is background noise, missing a lot of words in any conversation, inability to hear a lot of words, and needing to have words repeated. The examiner found that the Veteran will experience functional difficulties in daily life and work due to the hearing impairment. He will have greater difficulty understanding verbal communications in background noise and other environments not conducive to verbal communication. The loss will have an effect on face to face communication in quiet environments especially if lighting is poor. Use of hearing aids and work place accommodations can reduce or eliminate some of these difficulties. While the hearing impairment does present challenges and difficulties in employment and daily life that may require accommodation, a hearing impairment does not preclude employment in a variety of vocations. The deaf community rapidly adopted smart phones and audio-video smart phone and computer applications to overcome profound hearing loss (i.e. legally deaf). This has greatly improved the deaf communities' communication with health care providers, family, friends, and employers. Beyond this, the Board must note the findings above that the Veteran is not always an acute historian of his disabilities. The Board notes that the rationale of the Veterans Court in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extra- schedular rating is warranted. Specifically, the Veterans Court noted that, "[u]nlike the rating schedule for hearing loss, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra[-]schedular rating is warranted. The Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application." Martinak, 21 Vet. App. at 455. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Only if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, so is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Thun v. Peake, 22 Vet. App 111, 115-16 (2008). In this Veteran's case, the Board recognizes and has considered the complaints of decreased auditory acuity and difficulty distinguishing speech from background noises. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns, and as measured by both audiological testing and speech recognition testing. Speech recognition testing is a schedular rating criterion that recognizes such an inability to understand certain words in conversation. For these reasons, the Board finds that the schedular rating criteria in this case are adequate to rate the Veteran's right ear hearing loss. In the absence of evidence that the schedular rating criteria are inadequate to rate the Veteran's disability, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In sum, the criteria for a 10 percent or higher disability rating for right ear hearing loss are not met, and are not more nearly approximated than those for a 0 percent rating. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The Veterans Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Concerning the appeal for a higher initial rating for right ear hearing loss, because it is an appeal that arises from the Veteran's disagreement with the initial evaluation following the grant of service connection, no additional notice is required. The Federal Circuit and the Veterans Court have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for 'downstream' issues following a service connection grant, such as initial rating and effective date claims). The Veteran submitted his initial claim for service connection in October 2002. In compliance with the Board's October 2005 remand instruction, he was sent a letter in April 2006 which advised him of the information and evidence necessary to substantiate his claim of service connection. That letter also advised him as to how disability ratings and effective dates were assigned in the event of a successful claim seeking service connection. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Since the April 2006 letter was followed by a readjudication of the claim, to the extent of any error in the timing of this notice, such error was not prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007). In short, VA has complied with its duty to notify the Veteran in this case. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, records held by the SSA and the written assertions of the Veteran and family members. In addition, the Veteran was afforded several VA examinations to address the etiology of left ear hearing loss and to assess the manifestations and severity of service-connected right ear hearing loss. VCAA compliance regarding the right ear hearing loss has been addressed in detail above. The Board finds that the December 2010 VA examination is adequate to evaluate the claim of entitlement to service connection for left ear hearing loss for reasons that are also set out in detail above. Moreover, the examination was performed by a medical professional based on a review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The resulting opinion was accompanied by a detailed rationale that is consistent with the record. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The VA examinations addressing the rating for the Veteran's service-connected right ear hearing loss have also been adequate. The examinations each addressed the pertinent rating criteria for evaluating hearing loss disabilities, and, as discussed above, fully described the functional effects caused by a hearing disability. As the Veteran has been provided adequate examinations, and as all identified and available evidence has been obtained, the Board finds that the duty to assist has been satisfied. ORDER Service connection for left ear hearing loss is denied. A compensable initial disability rating for right ear hearing loss is denied. REMAND In a January 2012 rating decision, the RO denied a disability rating in excess of 20 percent for diabetes mellitus and denied service connection for short-term memory loss, dizziness, confusion, and low energy. The Veteran filed a notice of disagreement in February 2012. To date, a statement of the case has not been issued. Where a notice of disagreement is filed, but a statement of the case has not been issued, the Board must remand the claim to the agency of original jurisdiction (AOJ) to direct that a statement of the case be issued. See 38 C.F.R. §19.9(c)(2012); Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the issues of entitlement to a disability rating in excess of 20 percent for diabetes mellitus and entitlement to service connection for short-term memory loss, dizziness, confusion, and low energy are REMANDED for the following action: Issue a statement of the case pertaining to the issues of entitlement to a disability rating in excess of 20 percent for diabetes mellitus and entitlement to service connection for short-term memory loss, dizziness, confusion, and low energy, and in connection therewith, provide the Veteran with appropriate notice of his appellate rights. The Veteran is reminded that, to vest the Board with jurisdiction over these issues, a timely substantive appeal must be filed after receiving the statement of the case. See 38 C.F.R. § 20.202 (2012). If, and only if, the Veteran perfects the appeal to any issues, the case must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The remanded issues must be afforded expeditious treatment. The law requires that all issues 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs