Citation Nr: 1329155 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 08-34 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a right eye disorder. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active military duty from March 1971 to March 1976. These issues come to the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the benefits sought on appeal. The Veteran presented testimony at a July 2012 Board hearing at the St. Petersburg, Florida, RO before the undersigned. A transcript of the hearing is in the claims file and has been reviewed. The Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal. The Board has considered the documents in both files while reviewing this appeal. The appeal was remanded to the RO in July 2010, September 2011, and January 2013 for additional development. The issues of entitlement to service connection for a lumbar spine and right eye disorders are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss did not have its clinical onset in active service, nor is it causally related to active service. 2. The Veteran's bilateral tinnitus did not have its clinical onset in active service, nor is it causally related to active service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in active service, nor may it be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307(a), 3.309(a) (2012). 2. Tinnitus was not incurred in active service, nor may it be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 3.303, 3.307(a), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The 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; Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Court Of Appeals For Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in January 2008, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule, told how effective dates are assigned, and given examples of the evidence he could submit. The Board finds the January 2008 letter was both time- and content-compliant. See 38 C.F.R. § 3.159(b); see also Dingess/Hartman, 19 Vet. App. 473. As earlier noted, The Veteran testified at a hearing before the undersigned at the RO in July 2012. The Court has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the hearing, the undersigned identified the issues on appeal and solicited information as to treatment and findings related to the claimed disabilities; and, ensured the Veteran was aware of the evidence needed to substantiate his claim. The undersigned also held the record of the hearing open for submission of suggested evidence to support the claims. As noted earlier, the Board then remanded the claim to obtain evidence expected to assist the Veteran in substantiating the claim. The Board thereby fulfilled its duty under Bryant. Further, neither the Veteran nor his representative has made any specific assertion of prejudice due to the manner in which the hearing was conducted. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (no presumption of prejudice for notice-type error). In light of all of the above, the Board finds VA complied with the VCAA notice requirements. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, private medical records, and VA outpatient records. Additionally, the Veteran was provided a VA examination in October 2008 for his hearing loss and tinnitus claims. Moreover, the Board remanded the case for additional examinations and nexus opinions. The examination reports are of record. While the case was on remand, the AMC asked the Veteran to provide sufficient information to seek additional private records he referenced at the 2013 hearing, to include any records related to his 1991Workmen Compensation claim. The Veteran did not respond to the request. The Board finds no further efforts are required. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Neither the Veteran nor his representative asserts that there are additional records to be obtained. For the reasons set forth above, the Board also finds VA has complied with the VCAA assistance requirements. 38 C.F.R. § 3.159(c). Hence, the Board finds appeal is ready to be considered on the merits without prejudice to the Veteran. Applicable Laws and Regulations Service connection will 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, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection requires evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and, a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b), however, only apply to chronic diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including sensorineural hearing loss as organic diseases of the central nervous system, to a degree of at least 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). VA deems a sensorineural hearing loss as an organic disease of the central nervous system. See VA Under Secretary for Health Memorandum (October 1995); see also 38 U.S.C.A. §§ 1101; 38 C.F.R. § 3.307(a) and 3.309(a). In light of the VA General Counsel's discussion of tinnitus, the Board deems the Veteran's claimed tinnitus to also constitute an organic disease of the central nervous system that is eligible for presumptive service connection. This means the Board must also consider any evidence of continued symptomatology of either disorder, if either is found to have manifested in service or within the applicable presumptive period. See 38 C.F.R. § 3.303(b); Walker, supra. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Analysis The Veteran contends that he has bilateral hearing loss and tinnitus as a result of noise exposure as a result of service on land based flight lines during service. The Veteran filed the current claim for service connection in January 2008, or almost 22 years after service. However, in July 2012, he testified at a hearing before the Board that while in service, he served as a naval flight line electrical assistant. He recalled being around running jet engines constantly. He also had mild constant ringing in his ears. The Veteran reported first noticing difficulty with hearing after service in 1983 when his wife would frequently ask him if he was deaf because he turned the TV up high. He testified that following service, he worked as a gas station attendant; on a truck assembly line; in maintenance; and, as a carpenter, but he indicated that he wore ear protection as part of his job when necessary. He also participated in shooting. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 4000 Hertz (Hz) is 40 decibels (db) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 db or greater; or, when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley , 5 Vet. App. at 159. The Veteran's February 1971 service entrance examination revealed normal bilateral hearing. The results of audiology testing were: HERTZ 500 1000 2000 3000 4000 RIGHT -5 0 -5 - 0 LEFT 5 -5 0 - -5 A May 1971 in-service examination revealed normal bilateral hearing. The results of audiology testing were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 0 10 10 LEFT 10 0 0 10 5 A March 1975 in-service examination revealed normal bilateral hearing. The results of audiology testing were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 10 LEFT 5 5 5 5 15 The Veteran's March 1976 separation examination revealed normal bilateral hearing. The results of audiology testing were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 15 10 LEFT 5 0 10 5 5 The service personnel and treatment records do not show any complaint, clinical finding, treatment, or diagnosis of hearing loss. After service, the Veteran filed a claim for disability compensation in reference to bilateral hearing loss in January 2008, or 32 years after service. On VA examination in March 2008, the results of audiology testing were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 50 55 LEFT 20 20 20 35 50 Average pure tone thresholds, in decibels (dB), were 35 dB for the right ear and 31.25 dB for the left ear. Speech audiometry revealed 92 percent speech discrimination skills for the right ear; and 96 percent speech discrimination skills for the left ear. The examiner noted that the Veteran reported hearing loss beginning in the 1980s and gradually getting worse. He reported serving in the Navy on the flight line and being exposed to jets constantly. Post-service he was a gas station attendant and a truck assembly line worker. He denied occupational noise exposure but did some shooting with hearing protection. The claims file was reviewed and revealed audiometric thresholds within normal limits at enlistment and discharge from service, as well on several in service examinations. The Veteran had no complaints of hearing pain, discharge, ear infection, otosurgery, or head trauma. He reported a two-year history of dizziness. He also reported tinnitus starting in 1985-1987. This was not constant but was recurrent. The examiner noted a significant history of occupational noise exposure after service. Subsequent to the April 2012 Travel Board hearing; the Board received a September 2012 letter from G.B., M.Ed., CCC-A. Ms. B opined that the Veteran had mild high frequency bilateral hearing loss. This loss was consistent with that of a noise induce hearing loss. Based on the Veteran's history and examination finding "a direct relationship between his hearing loss and tinnitus with the intense acoustic trauma he received while in the service cannot be ruled out." In light of the above, as already noted, the Board remanded for another examination. Prior to discussing that examination report, the Board notes at this juncture that the Veteran is currently diagnosed with a sensorineural hearing loss and tinnitus. Hence, the first requirement for service connection is shown, a currently diagnosed disorder. The issue that remains for resolution is whether the disorders are connected with active service. The May 2013 examination report reflects the examiner conducted a comprehensive review of the claims file, to include the service treatment records as part of the examination. The examiner set forth synopses of all of the reports of prior VA audio examinations of the Veteran. The examiner noted the audiometrics showed the Veteran had a sensorineural hearing loss in each year. The examiner then noted that, based on the Veteran's reported history, the review of the claims file, and the results of the May 2013 examination, the examiner opined there was not at least a 50-percent probability that the Veteran's hearing loss had its onset in active service, within one-year of separation from active service, nor was it causally related to active service. The examiner then set forth an extensive rationale for the opinion. The examiner noted the Veteran entered and exited military service with clinically normal hearing bilaterally. There were no significant shifts noted for either ear; and, there was no noise notch noted for either ear, which would have been indicative of temporary/permanent cochlear insult. The examiner also noted the service treatment records were silent as to any complaint of hearing loss of tinnitus. The examiner noted that research studies conducted on noise exposure and military noise exposure revealed that exposure to hazardous noise exposure causes permanent hearing loss of at least 40 db at 4000 Hz. The examiner then noted the Veteran denied having experienced any temporary/sudden hearing changes during military service, though he did report tinnitus onset after military service. The Veteran reported he worked 8 to12-hour shifts on the flight line but yet he denied any sudden changes in his hearing. The Veteran also reported that he had to operate auxiliary power units for the aircraft which typically were located on his right side. He wore ear muffs but not double hearing protection. The examiner noted the March 2008 examination where the examiner noted the Veteran's audiometrics reflects a noise-induced pattern, but the Veteran's military records showed normal hearing when he exited service, and that while the Veteran denied post-service occupation noise exposure, it may have been a contributing cause. The examiner also noted that an apparent positive nexus opinion noted in a 2008 entry of the outpatient records was based entirely on the Veteran's reported history, as the entry noted there were no previous test results to compare. The May 2013 report reflects the examiner again referenced the earlier noted research studies. Specifically, according to military research, and other studies, hazardous noise exposure causes immediate effects on hearing-usually temporary at first, and they may also include tinnitus, which the Veteran in fact denied. Further, the examiner noted, late-onset hearing loss is inconsistent with noise exposure; it does not have a delayed onset, nor is it progressive or cumulative. Late-onset hearing loss is consistent with familial late onset. The examiner noted he viewed the strongest weighted evidence of the case to be the fact that the objective hearing test administered to the Veteran showed he had clinically normal hearing in 1976; and, in 2008 he showed a mild to moderate noise-induced high frequency hearing loss 30+-years post-service. The examiner opined that, despite the Veteran's insistence that his post-service noise exposure was minimal, he still had 30-years exposure as an assembly line worker and self-employed carpenter as compared to five years of military noise exposure. The examiner then cited the Noise Manual, 5th Edition, Berger, et al (2000), that notes the degree of noise-induced hearing loss is highly correlated with noise intensity and length of exposure time to the noise. The examiner noted the Veteran's audiometrics of the May 2013 examination showed a bilateral high frequency hearing loss that was asymmetrically worse in the right ear, and it was not caused by military noise exposure. The current hearing loss, noted the examiner, can be determined only by the Veteran's reported history. In as much as the Veteran is right-handed, the examiner noted he would have operated his power tools with his right hand. As concerns the Veteran's report that the auxiliary power units he operated in service were on his right side, the examiner noted the 1976 hearing test did not reveal any asymmetries. On the other hand, operating power tools right-handed and other vocation noise exposure for 30 years could cause the asymmetric right ear hearing loss. As for the Veteran's assertion in his Notice of Disagreement that noise exposure was conceded, as noted in the 2008 examination report, so his hearing loss was caused by his military service, the examiner noted that noise exposure does not automatically equate to etiology. So, while the examiner conceded the high probability of in-service noise exposure, it did not cause the Veteran's currently diagnosed asymmetric hearing loss, as he did not complain of hearing loss in service, and his exit examination showed normal hearing. The examiner noted he could not locate Ms. B's October 2012 report and opinion in the claims file. Nonetheless, the examiner noted he reviewed the Veteran's entire claims file and rendered a clinical and expert judgment based on it. The examiner then noted he holds a doctorate degree in audiology, is credentialed for Compensation and Pension examinations, and has practiced audiology for over 26 years. 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 Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In applying this reasons or bases requirement to the Board's analysis of medical evidence, the Board's findings of fact must be supported by the medical evidence of record, rather than the Board's own judgment. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Further, the Board may favor the opinion of one competent medical expert over that of another, provided the reasons for doing so are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). The Board finds the opinion of the examiner who conducted the May 2013 VA examination garners the greater weight. The examiner provided a detailed rationale for the opinion rendered after conducting a comprehensive review of the claims file, and considering the Veteran's reported lay history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (medical opinion must fully discuss reasons and bases for opinion); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). Ms. B, contrarily, based her opinion solely on the examination she conducted in September 2013 and the Veteran's reported history. While her opinion may not be rejected solely because she relied on the Veteran's history, the credibility of the history impacts the weight to be accorded the opinion. See Coburn v. Nicholson, 19 Vet. App. 427, 432-33 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). There is no indication in Ms. B's report that the Veteran had reported the onset of his hearing loss as in the 1980s. Further, Ms. B does not note or indicate that she was aware that clinical hearing tests showed the Veteran to have normal hearing in 1976 when he exited active service, nor did she address the Veteran's post-service noise exposure. Thus, the Board accords her opinion minimal weight. As noted, the Veteran's lay reports of his hearing loss have been fully considered, as they are in fact competent evidence. See 38 C.F.R. § 3.159(a(1). Nonetheless, the majority of the evidence in the claims file shows the Veteran to have reported that his hearing loss had its onset in the 1980s. To any extent he asserts it started in service, the Board deems him incredible. Based on all of the above, the Board finds the preponderance of the evidence shows there was no diagnosed hearing loss at the point in time when the Veteran separated from active service, as the 1976 Report of Medical Examination and the medical examiner's opinion note. The Board finds further that the preponderance of the evidence shows the hearing loss did not manifest within one year of the Veteran's separation from active service. Thus, there is no factual basis for service connection on a presumptive basis. 38 C.F.R. §§ 3.307(a), 3.309(a). The Board has already discussed the reasons for according full weight to the opinion documented in the May 2013 examination report. The Board acknowledges the Veteran's assertions that his currently diagnosed bilateral hearing loss is due to his in-service noise exposure, and not his post-service noise exposure. While he is competent to identify a decrease in his hearing acuity, the Board finds opining on the etiology of a particular hearing loss is beyond the training and experience of the average lay person. See 38 C.F.R. § 3.159(a)(2); see also Jandreau, supra. There is no evidence the Veteran has any medical training. Hence, his opinion on direct causation is not probative on the issue. The May 2013 examination report reflects the examiner rendered a similar opinion on the Veteran's tinnitus: there is not at least a 50-percent probability it had its onset during active service. At the hearing, the Veteran testified that he had the ringing in his ears constantly; but it was mild, and he assumed it was normal-like floaters in the eyes. It didn't bother him very much except when in a room or in absolute quiet. Hearing Transcript, p. 27. The Veteran's representative endeavored to fix the date of the onset of the Veteran's tinnitus at a point earlier than the mid-1980s date the Veteran reported to VA examiners. The Board finds as fact, however, that the Veteran's answers kept the date in the 1980s. The Veteran noted that while he did not seek treatment until 1985 or so, his wife complained about his inability to hear properly in 1983. Id. At 28. The May 2013 examination report reflects the examiner again noted the Veteran did not complain in service of any temporary/sudden change in hearing or of tinnitus. He reported continuous noise exposure but no acute acoustic trauma. The examiner again noted the absence of a super threshold shift in either ear in active service. The examiner also noted inconsistent reports by the Veteran: he reported at the April 2008 examination that his tinnitus started in 1985, but he reported the day of the May 2013 examination that his tinnitus had been constant since active service. The examiner again referenced the Noise Manual and the impact of hazardous noise exposure on hearing, which are usually temporary and may include tinnitus. Thus, the examiner opined the Veteran's reported in-service tinnitus was inconsistent with the objective evidence in the claims file. The examiner opined the etiology of the Veteran's tinnitus was more likely related to the 1980s onset of hearing loss, as the Veteran reported at his earlier examinations. The examiner opined further that the Veteran's probable in-service noise exposure did not cause any permanent changes in his hearing or long suffering tinnitus. There is no objective clinical test for tinnitus. Hence, any diagnosis is based on the reported history of the claimant. As discussed above, the Board accords the greater credibility to the Veteran's report of onset in the 1980s. Thus, the Board is constrained to find the preponderance of the evidence is against the claim on both a presumptive and direct basis. 38 C.F.R. §§ 3.307(a), 3.309(a). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Accordingly, the case is REMANDED for the following action: 1. Please send the Veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes the requirements for service connection based on aggravation. See 38 C.F.R. §§ 3.304(a) and (b), 3.305, and 3.306. 2. The April 2013 examination report reflects the examiner noted the Veteran's right eye manifested hypertropia in 1971 and opined the disorder was congenital and it clearly and unmistakably existed prior to the Veteran's entry into active service. The examiner opined further that any increase in the disorder was due to its natural progression. The examiner noted the October 1971 Narrative Summary of the Veteran's eye surgery as part of his rationale for the negative nexus opinion but not the February 1976 Eye Consult that was conducted as part of the Veteran's physical examination at his separation. Send the claims file to the examiner who conducted the April 2013 eye examination. Ask the examiner to specifically reference the February 1976 Eye Consultation (please note the front and rear of the document). Ask the examiner to opine if, when the objective findings documented in the February 1976 consult are compared to those documented in the service treatment records of October 1971 and the pre-surgery findings noted in the October 1971 Narrative Summary: is there at least a 50-percent probability the Veteran's right eye disorder increased in severity? If the answer to the above is, Yes: was any increase in severity clearly and unmistakably (that is, to a medical certainty) due to the natural progression of the pre-existing congenital disorder?; or, was it likely due (that is, at least a 50-percent probability) to the in-service corrective surgery or otherwise due to the rigors of military service? The examiner is asked to provide a full explanation for any opinions rendered. If the requested opinions cannot be rendered, the examiner is asked to provide a full explanation for why it cannot be provided. 3. The March 2008 examination report reflects the examiner chronicled the Veteran's reported history related to his lumbar spine but did not render a nexus opinion as to etiology. After the above eye-related development is complete, the AMC/RO will send the claims file to the examiner who conducted the March 2008 spine examination or to an equally qualified examiner. Ask the spine examiner to opine if there is at least a 50-percent probability that the Veteran's currently diagnosed lumbar spine disorder had its onset in active service or within one year of separation from active service?; if the answer is, No, is there is at least a 50-percent probability it is causally related to the January 1974 treatment documented in the service treatment records, or otherwise causally related to active service? The examiner is asked to provide a full explanation for any opinions rendered. If the requested opinions cannot be rendered, the examiner is asked to provide a full explanation for why it cannot be provided. In the event the examiner who conducted the March 2008 examination is no longer available, refer the claims file to an equally qualified examiner. Should the examiner or substitute examiner advise the requested opinion cannot be rendered without an examination of the Veteran, the AMC/RO will arrange the examination. The claims file must be provided for review by the examiner as part of the examination. 4. After completion of all of the above, the AMC/RO should re-adjudicate the claims on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a Supplemental statement of the case (SSOC). The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs