Citation Nr: 1330575	
Decision Date: 09/24/13    Archive Date: 09/30/13

DOCKET NO.  13-00 968	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for chronic lung disease.

2.  Entitlement to service connection for bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Eli White, Associate Counsel



INTRODUCTION

The Veteran served on active duty from November 1968 to October 1970. 
 
This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2009 and September 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In an August 2010 rating decision, the Veteran was granted entitlement to service connection for tinnitus. 

The issue of entitlement to service connection for a chronic lung disease 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.  


FINDINGS OF FACT

1.  The Veteran has a current diagnosis of left ear hearing loss that meets the criteria of 38 C.F.R. § 3.385 (2013).

2.  The Veteran does not have a current diagnosis of right ear hearing loss that meets the criteria of 38 C.F.R. § 3.385. 

3.  The Veteran's left ear hearing loss disability did not manifest during active service or within one year of his separation from service.

4.  The Veteran's current left ear hearing loss disability is not related to service or any event therein. 

CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is warranted.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006).  The VCAA applies to the instant claim. 
 
The notice required by the VCAA can be divided into three elements.  Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain.  Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).  Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). 

In the instant case, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in April 2009 and April 2010.  The letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  The letters also informed the Veteran of how ratings and effective dates are assigned. 

VA also has a duty to assist a claimant in the development of a claim.  This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). 
 
The RO has obtained the Veteran's service and VA treatment records and associated them with his claims file.  In addition, VA afforded the Veteran an examination and obtained an expert opinion in July 2010 and September 2010.  

In his October 2010 Notice of Disagreement, the Veteran contends that the July 2010 VA audiology examination and September 2010 addendum opinion are inadequate because "the examiner failed to account for [the Veteran's] reported in service noise exposure" and "relied entirely on the lack of the showing of hearing loss in service medical records when rendering his or her opinion."  The Veteran additionally asserts that his current hearing loss was caused by the same noise exposure that caused his service-connected tinnitus, and that the medical opinion is inadequate because the VA examiner failed to discuss any possible relationship between the Veteran's service-connected tinnitus and his hearing loss disability. 

First, the Veteran cites Dalton v. Nicholson, 21 Vet. App. 23 (2007), in support of his argument that the VA examination and opinion is inadequate due to the examiner's failure to consider the Veteran's in service noise exposure.  Such reliance on Dalton, however, is misplaced, as the VA examiner detailed the Veteran's noise exposure to gunfire, explosives, generators, and heavy equipment in the July 2010 report, and clearly considered such exposure in formulating her opinion.  The examiner specifically acknowledged in her September 2010 addendum opinion that the Veteran incurred "in-service noise exposure from combat during military service," thus showing that she considered such exposure in reaching her opinion, and thus the opinion is not rendered inadequate on this basis.  

The Veteran next asserts that the VA examination and opinion is inadequate because the examiner relied "entirely on the lack of the showing of hearing loss" in the Veteran's service treatment records in rendering her opinion.  The Board notes that in the recent case of Monzingo v. Shinseki, 26 Vet. App. 97 (2012), the United States Court of Appeals for Veterans Claims (Court) held that "[t]here is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file," and held that "examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion."  Monzingo, 26 Vet. App. at 105 (citing Acevdo v. Shinseki, 25 Vet. App. 286, 293 (2012)).  In determining whether a medical examiner provided a reasoned medical explanation, "the medical report must be read as a whole" and a failure by the examiner to "explicitly lay out the examiner's journey from the facts to a conclusion" is not necessarily determinative.  Id., at 106.  

In the present case, the examination report notes that the examiner interviewed the Veteran, who affirmatively reported noise exposure during service in the form of gunfire, explosives, generators, engines, aircraft, and heavy equipment.  The examiner additionally reviewed the Veteran's service treatment records and claims file, and rendered the following September 2010 addendum opinion:

When enlistment and release from active duty physicals were compared, no significant threshold shifts were noted in either ear.  This indicates hearing shift did not occur during military service.  Therefore, it is my opinion that veteran's claimed bilateral hearing loss is LESS LIKELY AS NOT caused by or the result of his in-service noise exposure from combat during military service.  

To the extent that the examiner's opinion could have been expressed in more detail, the report must nevertheless be read as a whole.  Id., (citing Acevedo, 25 Vet. App. 286, 294 (2012)).  On review of the VA examination report and addendum opinion as a whole, it is clear that the examiner based her opinion on a review of the claims file, including the Veteran's service treatment records showing a notation of a bilateral decrease in acuity that was not considered disabling.  Nonetheless, the examiner found that based on the insignificance in that threshold shift, coupled with her evaluation of the Veteran's hearing sensitivity, it was as likely as not that the Veteran's hearing loss was related to his noise exposure in service.  Accordingly, the Board finds that the VA examiner's opinion sufficiently informed the Board of the examiner's judgment on the question of whether there is a causal link between the Veteran's hearing loss and his active service, as well as provided an analysis discussing the essential rationale for her opinion, and thus the examination is adequate.   Monzingo, 26 Vet. App. at 105-106 (citing D'Aries v. Peake, 22 Vet. App. 97, 104 (2008)); see Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure the examination is adequate).

Finally, the Veteran additionally claims that the VA examination is inadequate because the examiner failed to discuss a supposed "contradiction" in her opinions regarding whether the Veteran's tinnitus and hearing loss are related to his active service.  Specifically, though the VA examiner opined that the Veteran's tinnitus was as least as likely as not related to noise exposure during his military service, she went on to state that it is less likely than not that his hearing loss is causally related to that same noise exposure in service.  Tinnitus and hearing loss are recognized by VA as two distinct and separate disabilities, where different rating codes govern the evaluation of each disability.  Monzingo, 26 Vet. App. at 104.  Here, the VA examiner provided two distinct opinions and rationales in evaluating, based on her examination and review of the Veteran's medical history, whether there was a causal relationship between the Veteran's active service and his disabilities for which he sought service connection.  With respect to her opinion linking the Veteran's tinnitus to the noise exposure he experienced in service, the examiner specifically stated her opinion was "[b]ased on veteran's report of tinnitus onset during service and fact that acoustic trauma is conceded."  The Veteran additionally has failed to identify any competent record evidence supporting his assertion that his service-connected tinnitus is evidence that his hearing loss is also related to service.  See id., at 105 (internal citations omitted).  Accordingly, the Board finds that the examiner's omission of a discussion of the Veteran's tinnitus in her opinion as to whether his hearing loss is related to service does not render the VA examination inadequate.  

As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. §3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim.

II.  Analysis

The Veteran contends that exposure to loud noise as an electrician during active service caused his current hearing loss disability.  Specifically, he states that his military occupation as well as his service in Vietnam exposed him to acoustic trauma.  For this reason, he asserts that he is entitled to service connection for bilateral hearing loss.  

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013).  To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

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) (2013).  To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competency, credibility, and weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Board recognizes that lay evidence concerning onset and history of symptoms during or 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). 

For service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, or even within the one-year presumptive period following discharge, although a hearing loss disability by these standards of § 3.385 must be currently present to have a ratable disability.  
Service connection for hearing loss may be granted where there is credible evidence of significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes (i.e., 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes.  Hensley, 5 Vet. App. 155, 159-160 (1993).  

The Board will address the elements of service connection in turn. 

Regarding the first requirement for service connection, which is the need to have proof that the Veteran has the claimed disability, the evidence of record demonstrates that the Veteran has a current left ear hearing loss disability that comports with the VA's definition of disability resulting from hearing impairment, but does not have a right ear hearing loss disability for purposes of VA standards.  

The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley, 5 Vet. App. at 157 (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)).  But, according to the laws administered by the VA, impaired hearing will only be considered to be an actual ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of these frequencies 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.  Thus, a Veteran may have hearing loss; however, it may still be insufficient hearing loss to be considered an actual ratable disability by these prescribed VA standards. 

To this end, the Veteran submitted a private treatment record of an audiological examination dated March 2010.  The results of the audiological test are as follows, with pure tone thresholds recorded in decibels:





HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
15
20
25
LEFT
20
15
25
35
45

Speech audiometry testing results were not included in the examination report.  

In July 2010, the Veteran underwent a VA audiological examination.  The results of the audiological test are as follows, with pure tone thresholds recorded in decibels:





HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
30
35
LEFT
20
20
30
40
50

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 92 in the left ear.  

Based on the results of the VA examination, the July 2010 examiner determined there was normal to mild sensorineural hearing loss in the Veterans right ear and normal to moderate sensorineural hearing loss in the left ear.  As demonstrated by the March 2010 and July 2010 examination reports, though the Veteran has some bilateral hearing loss, he satisfies the threshold minimum requirements for hearing loss as set forth in § 3.385 for only the left ear.  Thus, the Board finds that for VA disability rating purposes, the Veteran has a current disability of left ear hearing loss, and has not met the requirements of showing he has right ear hearing loss according to VA standards at any point prior to or since filing this claim.  Because the threshold element of a current diagnosis for the right ear has not been met, service connection is not warranted for that ear.  Accordingly, the remainder of the decision will focus on the left ear only.

Next, the evidence of record demonstrates that the Veteran suffered an in-service injury in the form of noise exposure.  As noted above, the Veteran served as an electrician during active service.  In addition, his military personnel records show that he received the Combat Action Ribbon for his combat service in Vietnam from June 1969 to December 1969.  Accordingly, the Board finds there is credible evidence that the Veteran sustained significant noise exposure in service in combat and in the course of his duties in as an electrician.

Finally, resolution of the appeal turns on whether the current left ear hearing loss disability is attributable to the noise exposure the Veteran's experienced during his military service.  A relationship or "nexus" to service may in this case be established either on a presumptive or direct basis.  See C.F.R. §§ 3.303, 3.309 (2013).  Neither basis is availing in this case, for the reasons explained below.  

A.  Presumptive Service Connection

The Veteran is not entitled to service connection to left ear hearing loss on a presumptive basis because his hearing loss disability initially manifested several years after his separation from service.  Service connection for sensorineural hearing loss will rebuttably be presumed if it is manifest to a compensable degree within one year following active service.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013); Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (sensorineural hearing loss is an organic disease of the nervous system); see also M21-1MR III.iv.4.B.12.a ("Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.F.R. 3.309(a)").  Alternatively, a nexus to service will be presumed where there is continuity of symptomatology since service.  See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). 

The Veteran's service treatment records show that the Veteran did not have a hearing loss disability that comports with VA's definition of disability resulting from hearing impairment while in service.  An audiogram conducted upon the Veteran's entry into service in November 1968 shows no puretone threshold results greater than 20 decibels at any frequency.  In an accompanying report of medical history, completed in September 1968, the Veteran marked "no" to the question of whether he had now or ever previously had hearing loss.  His treatment records do not document any treatment or complaints of hearing loss or injury during service.  At his September 1970 separation examination, the Veteran was again given an audiogram, which showed no puretone threshold results higher than 15 decibels at any frequency.  Specifically, in comparison to the November 1968 entrance examination, the September 1970 examination shows that for the left ear, the pure tone thresholds remained the same at the 500Hz level, and decreased by 5dB at the 1000, 2000, 3000, and 4000Hz levels.  After consideration of the September 1970 examination, the examiner made the following notation: "[decreased] auditory acuity bilat[erally] - NCD."  The abbreviation "NCD" is commonly defined as "not considered disabling" or "not considered disqualifying."  See Medical Abbreviations: 32,000 Conveniences at the Expense of Communications and Safety (Neil M. Davis, 15th ed. 2011).  This evidence tends to show that the Veteran's left ear hearing loss disability did not have its onset during his active service.  

The record otherwise reflects that the Veteran was first shown to have sensorineural hearing loss in March 2010, approximately 40 years after his separation from service.  Private medical records dated from November 1996 to January 2006 and January 2008 until the March 2010 private audiogram are absent of any complaints or treatment of hearing difficulties or problems with the Veteran's ears.  The Veteran has not provided any statements or other indications that he had any problems hearing during active service or within one year of his separation from service.  As the Veteran's left ear hearing loss did not manifest within the year after his separation from service, and he does not assert that he had continuous difficulty hearing since service separation, he is not entitled to service connection on a presumptive basis, including on the basis of continuity of symptomatology. 

B.  Direct Service Connection

The Veteran is also not entitled to service connection for bilateral hearing loss on a direct basis.  

The Veteran correctly cites Hensley v Brown, 5 Vet. App. 155 (1993) and Godfrey v. Derwinski, 2 Vet. App. 352 (1992), in asserting that he is not required to show hearing loss was present during his active military service in order to establish entitlement to service connection for his left hear hearing loss disability.  Indeed, 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).  In Hensley, the Court held that "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  5 Vet. App. at 160.  To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). 

In this case, there is conflicting evidence on the issue of nexus that must be weighed.  As noted above, the VA examiner's September 2012 addendum opinion, issued after interview of the Veteran, review of the claims file, and audiological testing, stated that due to the lack of any significant threshold shift shown in service, it is at least as likely as not that the Veteran's hearing loss was not related to his in service noise exposure.  As discussed in the VCAA section, the Board finds that this specific rationale, coupled with the examiner's report read as a whole, makes the opinion sufficiently probative in relation to determining whether a nexus is present between current hearing loss and noise exposure in service.  See Monzingo, 26 Vet. App. 97 (2012).  Therefore, the VA examiner's opinion is entitled to great probative weight. 

Contradicting this opinion is the Veteran's lay statements that he believes there is a nexus between his hearing loss and his noise exposure during service.  Specifically, in his December 2010 VA Form 646, the Veteran stated that while in service, "he was surrounded by prolonged noise exposure . . . [and] the same noise exposure that caused his [service connected] tinnitus also caused his hearing loss."  

Initially, the Veteran has not demonstrated that he is an expert when it comes to diagnosis or etiology of audiologic conditions; he is therefore a layperson in this regard.  Nonetheless, the Board finds that it is within the realm of common medical knowledge that exposure to loud noises may cause hearing loss.  Therefore, the Veteran's lay opinion could be sufficient to serve as the required nexus for his claim.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (explaining that lay evidence may be sufficient to establish the nexus element).  

Ascertaining the etiology of hearing loss involves considering multiple factors and knowledge of how those factors interact with the mechanics of human hearing.  In this case, the evidence demonstrates that there was no significant threshold shift in hearing loss during active service, and there was no objective indication, report, or confirmation of hearing loss until March 2010, nearly forty years after separation.  These facts are complex enough that the Veteran's intuition about the cause of his hearing loss is not sufficient to outweigh the opinion of the expert that carefully considered the specific facts of this case.  See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis.").  Thus, the Board finds that the Veteran's assertion that his current left ear hearing loss is related to noise exposure in service is not entitled to significant probative weight.  

As the negative VA opinion on the question of nexus carries the most probative weight of both opinions for consideration, the evidence is not in relative equipoise on the question of whether the Veteran's current left ear hearing loss disability is related to the noise exposure sustained in service.  As such, service connection for left ear hearing loss is not warranted on a direct basis.  

Therefore, in the absence of evidence that the Veteran has a current right ear hearing disability and in light of the probative medical evidence finding an absence of any causal relationship between the Veteran's left ear hearing loss disability and his military service, the preponderance of the evidence is against the Veterans claim, there is no reasonable doubt to resolve in his favor, and the claim must be denied.  38 C.F.R. §3. 102, Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  
ORDER

Entitlement to service connection for bilateral hearing loss is denied. 


REMAND

The Veteran contends that exposure to asbestos as an electrician during active service caused his current chronic lung disease.  For this reason, he asserts that he is entitled to service connection for chronic lung disease.  

In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court of Appeals for Veterans Claims held that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.   In this case, the Veteran has contended that he has a lung disability generally.  The evidence of record includes diagnoses of asbestosis, chronic obstructive pulmonary disorder (COPD), and asthma.  Therefore, the Board will consider entitlement to service connection for these diagnoses.

A remand is necessary so that an addendum opinion may be obtained, addressing the likelihood that the Veteran's diagnosed asthma is causally related to his active service.  In the November 2012 VA examination, the examiner conducted a pulmonary function test (PFT) and chest x-ray and found that the results of the test were consistent with a diagnosis of COPD and asthma.  Specifically, the VA examiner noted that, the current "PFT performed today suggest air trapping in large amounts that seems to respond[] to use of bronchodilators- which is consistent with asthma diagnosis."  In the diagnosis and discussion section of the report, the examiner failed to provide an opinion as to whether it is at least as likely as not that the Veteran's asthma is related to his military service.  Thus, and addendum is necessary to ensure the proper opinion has been obtained in consideration of the Veteran's specific diagnosed disability. 


Accordingly, the case is REMANDED for the following action:

1.  Return the claims file and a copy of this REMAND to the November 2012 VA compensation examiner (or suitable substitute if that examiner is unavailable).  The examiner is asked to review the claims file and provide an opinion on whether it is at least as likely as not (a 50 percent or greater possibility) that the Veteran's asthma had onset during his active service or was caused by his active service, to include as a result of asbestos exposure.  

The examiner must provide a complete rationale for any and all conclusions reached.  The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question.  

2.  After ensuring that the requested action is completed, readjudicate the claim on appeal.  If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto.  The record should then be returned to the Board for appellate review.

The appellant 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).



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs