Citation Nr: 1330466 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 08-12 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for kidney stones. 3. Entitlement to service connection for bilateral cataracts as secondary to service-connected hypertension. 4. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active duty service from May 2002 to September 2002 in the United States Air Force, in support of Operation Enduring Freedom. The Veteran also served in the Wyoming Army and Air National Guards, as well as the Army Reserve, with verified periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), from 1970 to 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2006 and September 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. The Board remanded this case in September 2011 for further development. After completion of this development by the RO, the case has been returned to the Board for further appellate consideration. In the same September 2011 decision, the Board reopened several new and material evidence issues and granted an increased rating for a cerebrovascular accident (CVA). Therefore, these issues are no longer on appeal before the Board. In November 2010, the Veteran presented testimony at a Board videoconference hearing before a Veterans Law Judge who has since retired from the Board. In a September 2012 letter, the Veteran was offered another hearing before a different Veterans Law Judge who would ultimately decide this appeal. In November 2012, the Veteran responded that he wanted a new hearing with a different Veterans Law Judge. See generally 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2013) (the Board member who conducts the hearing will participate in making the final determination of the claim). In June 2013, the Veteran presented testimony at a Board videoconference hearing before the undersigned Acting Veterans Law Judge. Transcripts of both hearings are associated with the claims folder. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has current degenerative disc disease of the lumbar spine with bilateral lower extremity radiculopathy stemming from a July 2002 injury during active duty service. 2. The Veteran has a current, chronic kidney stones disability that began during a June 1975 period of ACDUTRA. CONCLUSIONS OF LAW 1. Degenerative disc disease of the lumbar spine with bilateral lower extremity radiculopathy was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. A kidney stones disability was incurred in active service. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist Because the low back and kidney stones service connection claims are granted in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide these issues on appeal. See 38 U.S.C.A. §§ 5103, 5103A, 5107(West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2013). Governing Law and Regulations for Service Connection Veterans are entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. §§ 3.303, 3.306. Generally, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). See also 38 C.F.R. § 3.303(a). Service connection may 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). For "chronic diseases," including calculi of the kidney, 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); Groves v. Peake, 524 F.3d 1306, 1309 (2008). This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear cut clinical entity, at some later date. 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 of symptomatology. 38 C.F.R. § 3.303(b). In addition, a claimant may establish service connection for chronic diseases listed in § 3.309(a) by showing continuity of symptoms since service. See 38 C.F.R. § 3.303(b) (2012); see also Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed.Cir.2013) (continuity of symptoms provision in § 3.303(b) is "an alternative route to service connection for specific chronic diseases"). Application of the continuity of symptoms regulation requires, at a minimum, a demonstration that a chronic condition was "noted" during service or during the presumptive period and evidence of post-service continuity of symptoms. See 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1336 ("Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed."). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). If the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that evidence against other evidence of record in making its determination regarding the existence of service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). For instance, a layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). A layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony, however, is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (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). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Low Back Disorder The Veteran contends that in July 2002 during a period of active duty he twisted and broke his lumbar spine when dismounting from a truck. At the time he thought it was only a pulled muscle. He says the military did not properly treat or diagnose the low back injury for over a year as it was initially determined to not be incurred in the Line of Duty (LOD). The condition gradually worsened causing frequent low back pain with radiculopathy to the lower extremities. He maintains that another LOD investigation confirmed the incurrence of the low back injury during active duty. Eventually, in 2004, the Veteran says he was medically discharged due to his low back, among other problems. See July 2008, December 2009 Veteran's statements; April 2008 statement accompanying VA Form 9; November 2010 hearing testimony at pages 3, 20. The first and most fundamental requirement for any service-connection claim is the existence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the Veteran has been diagnosed with thoracic spondylosis, multi-level lumbar degenerative changes, degenerative disc disease of the lumbar spine, radiculopathy to the lower extremities, and a lumbar disc bulge. See April 2004 VA orthopedic consult; April 2006 VA X-ray; November 2009 SSA decision; July 2011 VA magnetic resonance imaging (MRI) report. Thus, the evidence clearly reveals a current lumbar spine disability with lower extremity radiculopathy for the Veteran. Second, the evidence demonstrates an in-service event. STRs dated in the Veteran's period of active duty from May 2002 to September 2002, do not explicitly describe an injury to the lumbar spine as later recounted by the Veteran. However, STRs and subsequent National Guard records contain circumstantial support for the Veteran's assertions. An August 2002 STR notes that the Veteran reported pain of 30 days. The Veteran began seeing a chiropractor for his low back and leg pain in July 2002. No specific trauma was noted, except that the Veteran reported an injury 4 years prior. Myositis or sciatica were suggested as possible diagnoses. An August 2002 Physical Profile Report noted the Veteran was placed on a profile for an accident. A September 2002 STR documented low back and leg pain; however, another STR noted no significant back symptoms. The Board accord probative weight to the Veteran's competent and credible testimony regarding a back injury and/or back pain during service. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Finally, the Board finds that the evidence of record demonstrates evidence of a chronic condition with a showing of continuity of symptomatology after discharge. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337-38 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions). Although no diagnosis was made during service, there were back and leg symptoms at that time. Post active duty, an October 2002 MRI of the lumbar spine revealed no abnormalities. An October 2002 LOD Determination noted hip and leg pain. A November 2002 electromyography (EMG) report noted an abnormal neurological study for the tibial and peroneal nerves. The Veteran's symptomatology for the low back and lower extremities was ongoing and continuous after the time of the initial, alleged in-service injury. The Veteran was treated for low back pain and radiculopathy in 2003 and 2004 according to National Guard and VA treatment records. National Guard records dated in 2003 document chronic pain radiating to the lower extremities. A January 2004 LOD determination and January 2004 National Guard surgeon letter assessed that the low back pain developed over time after the Veteran felt a pinched nerve of the lower back while on active duty. In January 2004, he was found unfit for any further National Guard duty, although no clear diagnosis was provided as to why. A February 2004 VA examination initially found there was insufficient information to render a low back diagnosis. However, an April 2004 VA spine x-ray report noted thoracolumbar spine compression and spondylosis. An April 2006 report noted degenerative changes. Subsequent VA treatment records and SSA records and X-rays assessed lumbar spine spondylosis and degenerative disc disease with radiculopathy to the lower extremities. These records discussed the Veteran's low back problems in the context of his alleged in-service injury in July 2002. Therefore, the probative lay and circumstantial medical evidence indicates a link between the Veteran's in-service injury to his current lumbar spine problems. Shedden, 381 F.3d at 1167. See also 38 C.F.R. § 3.303(a). In making this determination, the Board acknowledges that STR reports dated from August 2002 to November 2002 and a September 2003 National Guard report mention that the Veteran sustained an earlier non-military low back injury in 1998 while working as a construction contractor in the civilian world. However, there is no probative clinical evidence of record confirming the preexistence of an actual low back disorder. Significantly, no low back disorder was reported or observed at earlier National Guard examinations dated in October 1998, February 2000, and January 2001, upon objective examination. In this regard, prior to entry into active duty in May 2002, the presumption of soundness for the low back has not been rebutted by clear and unmistakable evidence. 38 U.S.C.A. §§ 1111, 1153 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.304, 3.306 (2013). See also Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-2003. Therefore, the Board finds that the evidence does not establish that a low back disorder clearly and unmistakably existed prior to the start of active duty service in May 2002, such that an aggravation analysis is not warranted here. Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for degenerative disc disease of the lumbar spine with bilateral lower extremity radiculopathy. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Kidney Stones A Veteran is "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes the following: active duty; any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA; or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred or aggravated in the line of duty while performing INACDUTRA, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during INACDUTRA. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1). INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1). Active service also includes authorized travel to or from such duty or service. 38 U.S.C.A. § 106(d); 38 C.F.R. § 3.6(e). In summary, when a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA. See 38 U.S.C.A. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "Veteran" for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101(2), (24); see Acciola, 22 Vet. App. at 324. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless "Veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The presumption of soundness under 38 U.S.C.A. § 1111 does not apply when a claimant, Veteran or otherwise, has not been examined upon entering a period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Likewise, the presumption of aggravation under 38 U.S.C.A. § 1153 does not apply to ACDUTRA or INACDUTRA service. Smith, 24 Vet. App. at 45. See also Acciola v. Peake, 22 Vet. App. 320 (2008); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Neither the presumption of soundness nor the presumption of aggravation is at issue here for the kidney stones issue. The Veteran contends that he developed a recurring chronic kidney stone disorder (nephrolithiasis) after initially experiencing them during periods of ACDUTRA service in the Wyoming Army National Guard in the 1970s. On one occasion the Veteran describes being medivacked to the Fitzsimmons Army Medical Center in Colorado in 1975. See July 2008 and January 2012 Veteran's statements; November 2010 hearing testimony at pages 4, 14, 19; June 2013 hearing testimony at pages 6-8. The first and most fundamental requirement for any service-connection claim is the existence of a current disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. Here, VA ER records dated in March 2013 on Virtual VA assessed calculi of the kidney and kidney failure. In 2009 VA treatment records show that the Veteran underwent a lithotripsy procedure (shock waves) to clear his kidney stones. An earlier July 2008 VA computed tomography (CT) scan revealed kidney stones. Thus, the evidence clearly reveals a current chronic, kidney stones disability. At the outset, in the September 2011 Board remand, the Board attempted to determine which periods of National Guard duty from 1970 to 2001 were federal or state in nature. National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States; at all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). "Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed 'full-time duty' under the provisions of 32 U.S.C. §§ 316 , 502, 503, 504, or 505." Id. at 58. In the instant case, the RO secured the Veteran's National Guard SPRs, which confirmed that the Veteran had various periods of qualifying federal service from 1970 to 2001, with relevant periods of ACDUTRA and INACDUTRA. See AF Form 526 Point Summary; NGB Form 23, Retirement Credits Record. Since the claimant has not been awarded service connection for any disability for the period of ACDUTRA or INACDUTRA in question from 1970 to 2001, he is presently not defined as a "Veteran" for purposes of benefits administered by VA for these particular periods of service. See 38 U.S.C. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a); Mercado-Martinez, 11 Vet. App. at 419. The remaining question here is whether service connection is warranted for his current chronic kidney stones disability from a disease or injury incurred or aggravated in the line of duty in the 1970s while performing ACDUTRA or INACDUTRA training. National Guard STRs from Fitzsimmons Army Medical Center dated in September 1975 confirm that the Veteran was hospitalized for a "ureteral calculus" in June 1975. Importantly, the Veteran's NGB Form 23, Retirement Credits Record verifies that he was on ACDUTRA from June 1, 1975 through June 15, 1975, at the time of the hospitalization for kidney stones. It was noted that he was on "duty" at that time. National Guard Reports of Medical History document kidney stones also occurring in 1972, 1973, and 1978, although there is no hospitalization record for these particular occurrences. National Guard records document further treatment for kidney stones in 1990 and 1991. A February 2001 National Guard report notes that the Veteran has "recurrent" kidney stones, the last episode being in 1990. In any event, in the present case, there was confirmed treatment for kidney stones during a period of ACDUTRA in June 1975. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). As to chronicity, based on the Veteran's recurring treatment for his kidney stones during his service with the National Guard, clearly the disease entity was identified, with sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Since the disease identity is established during his National Guard service, there is no requirement of evidentiary showing of continuity of symptomatology. 38 C.F.R. § 3.303(b). In fact, there is a presumption of service connection for a chronic disease such as calculi of the kidney, rebuttable only by clearly attributable intercurrent causes, which manifests during service and then again "at any later date, however remote." Groves, 524 F.3d at 1309. Here, the Veteran's kidney stones are an enumerated "chronic disease", diagnosed both in-service and post-service. See 38 U.S.C.A. §§ 1101; 38 C.F.R. § 3.309(a); Walker, 708 F.3d at 1336-37. The Board emphasizes that medical nexus evidence is not required to establish service connection when evidence, regardless of its date, shows that a Veteran had a chronic condition in service, and that he still has the same chronic condition. Groves, 524 F.3d at 1309-1310. Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for kidney stones by way of a disease incurred in the line of duty during a June 1975 period of ACDUTRA. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Resolving all reasonable doubt in favor of the Veteran, service connection for degenerative disc disease of the lumbar spine with bilateral lower extremity radiculopathy is granted, subject to the laws and regulations governing the payment of monetary benefits. Resolving all reasonable doubt in favor of the Veteran, service connection for kidney stones is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims of service connection for bilateral hearing loss and bilateral cataracts. First, additional evidence should be obtained. At the 2013 Board hearing, the Veteran and his representative noted that lay statements had been submitted in May 2013. Additionally, at the May 2013 Decision Review Officer Hearing, the Veteran noted he submitted lay statements. Neither the claims file nor the electronic claims file contain any such lay statements. Those statements must be associated with the claims file or the Veteran contacted to provide additional statements. Second, the Veteran must be scheduled for a VA audiology examination and opinion to determine the etiology of any current bilateral hearing loss on the basis of in-service incurrence or aggravation of preexisting condition. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). This is because there is evidence of current hearing loss and the Veteran's testimony regarding in-service acoustic noise trauma. Accordingly, the case is REMANDED for the following action: 1. Locate lay statements dated in May 2013 and associate with the claims file. If they are unavailable, contact the Veteran and notify him of such unavailability. Request that he, and his mother, provide additional lay statements and associate those statements with the claims file. 2. After any additional records are associated with the claims file, schedule the Veteran for a VA audiology examination by an appropriate clinician to determine whether current bilateral hearing loss is related to acoustic trauma from the Veteran's periods of ACDUTRA and INACDUTRA service from 1970 to 2001. The examination must include audiometric testing and speech recognition testing using the Maryland CNC Test. The Veteran must be advised that failure to report for a scheduled VA examination without good cause shown may have adverse consequences for his claim. The claims folder must be made available for review for the examination and the examination report must state whether such review was accomplished. The examiner must provide a clear rationale for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. THE VA EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRIES: (a) Is it at least as likely as not (i.e., 50 percent or more probable) this hearing loss is related to acoustic trauma during the Veteran's periods of ACDUTRA and INACDUTRA service in the National Guard dated from 1970 to 2001? In making this determination, the examiner must also address the likelihood that any current hearing loss is the result of acoustic trauma from the Veteran's civilian work in construction, or any other civilian recreational or work activity the Veteran reports. (b) Did the Veteran's bilateral hearing loss, first diagnosed in the National Guard in February 2000, permanently increase in severity beyond its natural progression during the Veteran's short period of active duty from May 2002 to September 2002? (c) In rendering this opinion, the examiner is advised that National Guard audiogram examinations dated in June 1973 and March 1989 are negative for any complaint, treatment, or diagnosis of hearing loss. In fact, at National Guard Report of Medical Histories dated in June 1973, January 1979, March 1989, and October 1998, the Veteran denied any history of hearing loss or trauma to the ears. However, the examiner should also consider the Department of Defense's Duty MOS Noise Exposure Listing indicating that the Veteran's military occupational specialties (MOS) as an armament/ mechanical maintenance officer and an electronics communication officer involved a "moderate" to "highly probable" probability of noise exposure. The Veteran reports that as part of his MOS duties he was exposed to hazardous noise from artillery, explosives, live detonations, guns, small arms, trucks, and military equipment and machinery. He says he first sustained acoustic trauma in 1971 in the National Guard and began experiencing slight hearing loss at that time. National Guard audiogram examinations dated in February 2000 and January 2001 reveal the first evidence of hearing loss by the standards of 38 C.F.R. § 3.385. Post-service, a February 2004 VA examiner assessed bilateral hearing loss by the standards of 38 C.F.R. § 3.385, noting both National Guard and civilian noise exposure factors. 3. Review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Thereafter, consider all of the evidence of record and readjudicate the claims for service connection for bilateral hearing loss and bilateral cataracts. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond. The Veteran 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). ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs