Citation Nr: 1327329 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 06-35 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability, to include as secondary to service-connected Eustachian tube dysfunction. 2. Entitlement to service connection for dysphagia, to include as secondary to service-connected deviated septum or Eustachian tube dysfunction or bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to September 1979, with additional periods of service in the Army Reserve. These matters come before the Board of Veterans' Appeals (BVA or Board) from an August 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Reno, Nevada. By that rating action, the RO, in part, denied the Veteran's claims for service connection for a bilateral hearing loss disability and dysphagia (also claimed as depression). The Veteran testified before the undersigned Veterans Law Judge in February 2008. A transcript of the hearing is of record. The matters on appeal were most recently before the Board in November 2012. At that time, the Board remanded the issues on appeal to the RO for additional development. The appeal has returned to the Board for further appellate consideration. Also developed for appellate consideration was the issue of entitlement to an acquired psychiatric disorder. By a December 2012 rating action, the RO effectuated the Board's November 2012 decision to award service connection for an acquired psychiatric disorder and assigned an initial 30 percent disability rating was assigned. This represents a complete grant of the benefit of the above-cited claim. Thus, the Board does not have jurisdiction over this issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (Board cannot possess jurisdiction over an issue where a rating decision constituted a full award of the benefit sought on appeal). Thus, the only issues remaining for appellate consideration are those listed on the title page. The issue of entitlement to service connection for dysphasia, to include as secondary to service-connected deviated septum or Eustachian tube dysfunction is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT Bilateral hearing loss is not shown to have its onset in-service or within one year of service discharge and it not otherwise shown to be causally or etiologically related to an incident of service origin, to include the Veteran's in-service noise exposure, nor has it been caused or permanently aggravated by the service-connected Eustachian tube dysfunction. CONCLUSION OF LAW Bilateral hearing was not incurred or aggravated during service, sensorineural hearing loss may not be presumed to have been incurred in service, nor proximately due to or the result of service-connected Eustachian tube dysfunction. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5107, 5107A (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The RO notified the Veteran via an April 2005 letter of the criteria for establishing his claim for service connection for a bilateral hearing loss disability on a direct incurrence basis, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. Then, by a post-adjudication July 2011 letter, the RO informed the Veteran of the criteria for establishing his claim for service connection for a bilateral hearing loss disability, to include on a secondary basis as well as the Dingess elements with respect to this claim. As the issue decided herein was later readjudicated in a June 2013 Supplemental Statement of the Case, any initial errors of notification to the Veteran have been corrected with subsequent action and adjudication, and there is no prejudice to him from such errors. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). VA has also fulfilled its duty to assist. The RO/AMC has obtained the Veteran's service treatment records (STRs) and VA and private outpatient treatment and examination records. The Veteran has presented written arguments in various documents submitted to VA in support of the above-cited claim. In addition, and as will be discussed in more detail, he and his spouse provided testimony before the undersigned in February 2008. No outstanding evidence has been identified that has not otherwise been obtained. Next, as noted above, this appeal was remanded by the Board in November 2012 for further development. The Board instructed the RO, in part, to send the claims files to the VA audiologist who had examined the Veteran in August 2011 to have her provide a supplemental opinion that addressed the secondary service connection component of the Veteran's claim for service connection for a bilateral hearing loss disability. The VA audiologist provided the requested supplemental opinion in May 2013. The VA audiologist recorded the Veteran's subjective complaints and identified the nature and etiology of his current bilateral hearing loss disability. She provided extensive medical reasoning for her conclusions, to include citations to published medical research. The findings contained in the August 2011 and May 2013 VA examination report and supplemental opinion, respectively, are adequate for VA adjudication purposes of the service connection claim decided herein. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board is now satisfied there was substantial compliance with its November 2012 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Additionally, in February 2008, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the February 2008, the undersigned Veterans Law Judge identified one of the issue on appeal as entitlement to service connection for a bilateral hearing loss disability. (See Transcript (T.) at page (pg.) 2)). Parenthetically, the Board observes that at the time of the February 2008 hearing, the Veteran had not raised the issue of entitlement to secondary service connection. The secondary component of the Veteran's claim for service connection for a bilateral hearing loss disability was subsequently raised by his representative in a June 2011 written argument to VA. During the February 2008 hearing, the undersigned solicited information regarding the onset, and post-service history and treatment for his bilateral hearing disability. (T. at pages. 15, 16). It was also discussed whether any physician had related his hearing loss to his period of military service. (T. at pgs. 16, 17). Therefore, not only was the above-cited issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issue material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. The hearing discussion did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the appellant's claims for service connection for a bilateral hearing loss disability, to include on a secondary basis. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the above-cited claim in the decision below. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or has identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim for service connection for a bilateral hearing loss disability, to include on a secondary basis based on the current record. The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to the service connection issue decided herein. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001);see also Quartuccio v Principi, 16 Vet. App. 183 (2002). (CONTINUED NEXT PAGE) II. Service connection-general criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for certain chronic diseases, such as organic diseases of the nervous system (sensorineural hearing loss), when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. As the Veteran has sensorineural hearing loss disability, the tenets of 3.303(b) have been invoked with respect to the claim for service connection for a bilateral hearing loss disability, to include as due to the service-connected Eustachian tube dysfunction. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Secondary Service Connection Criteria Service connection may also be awarded for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (the language of § 3.310 requires consideration of whether service-connected disability has made the claimed disability chronically worse, even if the service-connected disability did not cause the claimed disability). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. In order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). Hearing Loss Criteria Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). The Court, citing Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) stated in Hensley v. Brown, 5 Vet. App. 155 (1993), that it has held the above regulation, although prohibiting an award of service connection where audiometric test scores are within established limits, does not prevent a Veteran from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. See Hensley, supra (noting that a loss of 20 decibels or more could indicate some hearing loss, albeit not meeting the thresholds of 38 C.F.R. § 3.385)). III. Merits Analysis The Veteran seeks service connection for a bilateral hearing loss disability, to include as secondary to his service-connected Eustachian tube dysfunction. He contends that his current bilateral hearing loss disability had its onset during active military service as a result of his duties as an operating room technician, a cardiac pulmonary specialist and in an ambulance. (T. at pg. 15). The Veteran concedes that he was exposed to post-service noise exposure during his employment as a warehouse attendant for an automotive company. Id. He also maintains, in the alternative, that his bilateral hearing loss disability is secondary to his service-connected Eustachian tube dysfunction. As an initial matter, the Board notes that because an August 2011 VA audiological examination report reflects that the auditory thresholds of the Veteran's right ear were 26 decibels or greater from 2000-4000 Hertz and that he had an auditory threshold of 40 at 4000 Hertz, he has bilateral hearing loss for VA purposes as defined by 38 C.F.R. § 3.385. Hickson and Wallin element (1) is therefore met. Regarding Hickson element (2), the Veteran's service treatment records from his period of active military and reserve service include numerous audiograms, to include those conducted during his August 1974 and April 1979 service enlistment and separation examinations from active military service. None of the audiograms show that the Veteran had hearing loss for VA purposes. However, these audiograms disclose fluctuations of hearing, bilaterally, at various thresholds that met the standards of impaired hearing under Hensley. Such is sufficient to suggest the presence of some level of hearing impairment in service. Further consideration is given to the Veteran's statements concerning in-service noise exposure. Specifically, he relates that his duties as an operating room specialist exposed him to operating room equipment and machinery, which describes as being loud. He also describes being exposed to the noise of as ambulance sirens. Giving due consideration to the places, types, and circumstances of his service, the Board will accept the Veteran's claim of being exposed to some level of noise in service. 38 U.S.C.A. § 1154(a). Hickson element (2) is satisfied. The Veteran is also service connected for Eustachian tube dysfunction. Such serves to meet the second element of the Wallin analysis. Thus, the question that remains is whether or not there is a nexus between the Veteran's current bilateral hearing loss disability and in-service noise exposure/acoustic trauma and/or his service-connected Eustachian tube dysfunction. The Board finds, for the reasons outlined below, that the preponderance of the evidence weighs against this aspect of the Veteran's appeal. The Board finds that there is one VA opinion that address the nexus requirement of the Veteran's appeal and it is against the claim. In August 2011 and May 2013, a VA audiologist examined the Veteran (August 2011) and reviewed his medical record, to include his service treatment records and post-service medical evidence. After an audiological examination in August 2011, the VA audiologist opined that it was not as least as likely as not (less than a 50 percent probability) that the Veteran's hearing loss was caused by military service. In reaching this conclusion, the VA audiologist reasoned that the Veteran's hearing test performed at service separation (from the Reserves) in May 1998 [from the Reserves] in 1998, which revealed mild hearing loss in the left ear at 2000 and 4000 Hertz but not impairment of hearing for VA compensation purposes and as defined by 38 C.F.R. § 3.385, accurately represented the effects of any hazardous noise exposure that he had sustained during active military service. The VA audiologist bolstered her opinion with studies performed by an October 2002 study, published by The American College of Occupational and Environmental Medicine, which stated that hearing loss due to noise did not progress (in excess of what would be expected from the addition of age-related threshold shifts) once the exposure to noise was discontinued. The VA audiologist further elaborated that according to other research studies, hazardous noise exposure had an immediate effect on hearing, and that it was usually temporary at first, and did not have a delayed onset nor was it progressive or cumulative. The VA audiologist addressed the secondary service connection component of the Veteran's claim in her May 2013 opinion. After a review of the above-cited service and post-service medical evidence, the VA audiologist concluded that the Veteran's current bilateral hearing loss disability had not been caused or aggravated by the service-connected Eustachian tube dysfunction. The VA audiologist concluded that there was no evidence of any worsening of the Veteran's underlying hearing loss due to the service-connected Eustachian tube dysfunction. The VA audiologist supported her conclusion by noting that the Veteran's hearing loss was sensorineural and occurred in the cochlea (sensory) or auditory nerve (neural), both of which were medial to the Eustachian tube (middle ear). She also noted that there was no evidence of middle ear dysfunction on the Veteran's most recent audiological examination (August 2011); the middle ear studies (acoustic immittance (typanometry)) were completely normal, bilaterally. In view of the foregoing, the VA audiologist unequivocally concluded that the Veteran's hearing disorder had not been caused or aggravated by his service-connected Eustachian tube dysfunction. (See August 2011 and May 2013 VA examination reports and opinion, respectively). The VA audiologist's August 2011 and May 2013 opinions with respect to the Veteran's claim for service connection for a bilateral hearing loss disability, to include as secondary to the service-connected Eustachian tube dysfunction are against the claim and are uncontroverted. They are also clearly based upon a comprehensive and factually accurate review of the record evidence from all sources and are therefore highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 -04 (2008); see also Gardin v. Shinseki, 613 F.3d 1374 Fed. Cir. July 2010) (affirming the holding in Nieves-Rodriguez, Id.) For these reasons the Board finds the VA audiologist's August 2011 and May 2013 opinions to be the most probative opinion of record with regards to the question of medical nexus of the Veteran's bilateral hearing loss disability. In addition, as there is no evidence of any sensorineural hearing loss manifested to a compensable degree within a year of the Veteran's discharge from active military service in September 1979, service connection is also not warranted for this disability on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. As discussed above, service connection may also be established by a continuity of symptomatology between a chronic disorder, such as sensorineural hearing loss, and service. Walker, supra. Evidence of record also includes the Veteran's and spouse's testimony before the undersigned and the Veteran's written statements asserting a continuity of bilateral hearing loss symptomatology since discharge. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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 testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). In this case, the Veteran is competent to report symptoms such as bilateral hearing loss because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. The Board finds that the Veteran's reported history of hearing loss symptomatology since active service, while competent, is nonetheless not credible, as it is inconsistent with the other evidence of record. While the Veteran stated that his hearing loss began in service, his April 1979 and May 1998 service discharge examination reports from active and reserve military service, respectively, reflect that the Veteran did not have hearing loss for VA compensation purposes. The Veteran also specifically denied having had hearing loss on Reports of Medical History, dated in April 1979 and May 1998. The Board's attention is also drawn to the fact that the Veteran made no reference to hearing loss when he filed his claim for VA compensation in 1991. Had he been experiencing hearing loss since service, as he now claims, and because he was obviously aware of the benefits system, one would think he would have initiated a claim for service connection at that time. He instead did not file his claim for service connection for hearing loss until 2005. Indeed, the initial post-service evidence of any subjective complaints of any decreased hearing was not until September 2000, decades after service discharge, when the Veteran presented to a VA outpatient clinic for cerumen impaction of both ears and complained of decreased hearing. See September 2000 VA outpatient treatment report. Coupled together, the Board finds the Veteran's assertion, as well as that of his wife, of continuity of symptomatology of hearing loss to lack credibility. Consideration is also given to the Veteran's assertion that his hearing loss is related to his active service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, sensorineural hearing loss falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Sensorineural hearing loss is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that audiological testing and other specific findings is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board readily acknowledges that Veteran is competent to report diminished or poor hearing. However, there is no indication that the Veteran is competent to etiologically link any in-service symptoms of hearing loss to his diagnosed bilateral sensorineural hearing loss, which was not diagnosed until several decades after service discharge, or to link his current diagnosis of bilateral sensorineural hearing loss to a service-connected disability. It is true that the Veteran worked in an operating room. However, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating hearing disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. For the foregoing reasons, the claim for service connection for bilateral hearing loss must be denied. In arriving at the decision to deny the claim, 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. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is denied. ORDER Service connection for a bilateral hearing loss disability, to include as secondary to the service-connected Eustachian tube dysfunction is denied. REMAND In May 2013 and pursuant to the Board's November 2012 remand directives, a VA physician provided a supplemental opinion to her August 2011 report. (See August 2011 VA hiatal hernia and esophagus examination report and May 2013 addendum opinion). In her May 2013 opinion, the VA physician referenced an August 28, 2102 VA ear nose and throat (ENT) consultation report, wherein it was noted that the Veteran's dysphagia was the result of a combination of Parkinson's and presbylarynges (age-related dysphonia). The claims file, as well as the Virtual VA electronic claims file contain treatment records from the VA Medical Center (VAMC) Las Vegas, Nevada, dated through July 23, 2012. The August 28, 2012 report is not of record. Therefore, the RO should attempt to obtain the Veteran's VA treatment records, dated from July 23, 2012 to the present, to specifically include the above-cited August 28, 2012 ENT consultation report. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, as noted above, in November 2012, the Board, in part, remanded the claim for service connection for dysphagia to obtain a supplemental opinion that addressed the following secondary service connection components of the Veteran's claim in accordance with 38 C.F.R. § 38 C.F.R. § 3.310 and Allen v. Brown, 7 Vet. App. 439 (1995). Specifically, (i) whether or not the service-connected Eustachian tube dysfunction had caused and/or aggravated (permanently worsened beyond natural progression) the Veteran's dysphagia; and, (ii) whether or not the Veteran's service-connected deviated septum had caused and/or aggravated (permanently worsened beyond natural progression) the Veteran's dysphagia. (See November 2012 Board remand, pgs. 9-11). The VA audiologist provided the requested supplemental opinion in May 2013. The May 2013 opinion does not fully address the secondary service connection component of the Veteran's claim for service connection for dysphagia as requested by the Board in its November 2012 remand directives. Id. In response to the Board's directive, the VA physician referenced an August 2012 ENT consultation report, wherein it was noted that the Veteran's swallowing issues had been described as "' some dysphagia, choking on foods, also sounds hoarse'" and were attributed to a combination of Parkinson's [disease] and presbylarynges (age-related dysphonia. The VA physician indicated that Parkinson's disease and age-related dysphonia were associated with swallowing problems and change in voice. Thus, she opined that neither Eustachian tube dysfunction or deviated nasal septum were known to cause (italics added for emphasis) problems with swallowing. She noted that swallowing sometimes alleviated the symptoms of Eustachian tube dysfunction. The VA examiner did not address whether the Veteran's service-connected deviated septum and Eustachian tube dysfunction had aggravated (italics added for emphasis) his dysphagia. Thus, the Board finds that a remand to address whether the Veteran's service-connected Eustachian tube dysfunction and/or deviated septum permanently aggravated (italics added for emphasis) the Veteran's dysphagia is warranted. This question is warranted in accordance with the Board's November 2012 remand directives. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The RO should attempt to obtain and associate with the claims files all VA treatment records from the VAMC in Las Vegas, Nevada of the Veteran, dated from July 23, 2012 to the present, to specifically include an August 28, 2012 ENT consultation report referenced by a VA audiologist in a May 29, 2013 opinion. All efforts to obtain these records must be documented in the claims file. 2. The RO/AMC must in accordance with 38 C.F.R. § 4.2, return the claims files to the August 2011 VA physician, who also provided a supplemental opinion in May 2013, (if the August 2011 VA physician is unavailable, the files should be provided to another examiner of suitable background and experience) to assist the Veteran with his claim of entitlement to service connection for dysphagia, to include as secondary to the service-connected deviated septum and Eustachian tube dysfunction and bilateral hearing loss disability. The claims files and a copy of this remand will be made available to the reviewer, who must specifically acknowledge receipt and review of these materials in any report generated. After reviewing the claims files, the August 2011 VA examiner or other reviewing clinician must provide a medical opinion that addresses the following question: Is it at least as likely as not (50 percent or greater likelihood) that the Veteran's dysphagia has been aggravated by (permanently increased in severity beyond the natural progress of the disorder) by the service-connected deviated septum and/or Eustachian tube dysfunction. If the August 2011 VA examiner or other reviewing clinician cannot provide his or her requested opinion without resort to speculation, he or she should state why that is the case and what, if any, additional evidence is necessary to decide the claim. 3. After undertaking any other development deemed appropriate, such as scheduling the Veteran for additional VA examinations, the RO should readjudicate the claim for service connection for dysphagia, to include as secondary to the service-connected deviated septum and Eustachian tube dysfunction and hearing loss disability. If any benefit sought is not granted, the Veteran and his attorney should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs