Citation Nr: 1339340 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 04-00 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for a neck disability. 3. Entitlement to service connection for a headache disability. 4. Entitlement to service connection for a disability manifested by numbness of the fingers of both hands. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The appellant is a veteran who had active service from September 1967 to November 1969. His military occupational specialty (MOS) as shown on his separation document, DD Form 214, was light weapons infantryman. Service documentation shows that he earned various awards and decorations, including the Vietnam Service Medal and the Vietnam Campaign Medal, and was an expert with the M-14 rifle. He was in the Republic of Vietnam for approximately six months, during which time he was with the Company C, 2nd Bn., 9th Cavalry, in the 1st Cavalry Div., in the field at Landing Zone (LZ) Carol and in 1968 in Quan Tri Province, Vietnam. His 201 personnel file shows that he was involved in the Vietnam Counteroffensive Phases IV and V. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Los Angeles Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony before a Veterans Law Judge at a videoconference hearing in April 2004; a transcript of the hearing is of record. In January 2005, the Board remanded the case for substantive development on the issues shown herein, as well as entitlement to service connection for tinnitus. The Board sent correspondence to the Veteran in March 2008 indicating that the Veterans Law Judge before whom he previously presented testimony was no longer with the Board, and asking if he wanted to have another hearing. At his request, the Veteran was scheduled for a hearing before a Veterans Law Judge via videoconference on August 12, 2008. He failed to report for that hearing. The Board promulgated a decision in this case in August 2008, which denied service connection for bilateral defective hearing, neck problems with headaches, and numbness of the fingers of both hands. In October 2009, the Board vacated the August 2008 decision because the Veteran's request for a hearing had not been appropriately acted upon (notice of the hearing was sent to an improper address). The case was then remanded in order to schedule the Veteran with a hearing before the Board. In July 2013, the Veteran provided testimony before the undersigned Veterans Law Judge at a travel Board hearing at the Los Angeles RO; a transcript is of record. At the hearing, the Veteran submitted additional evidence with a waiver of RO consideration. 38 C.F.R. § 20.1304 (2013). Therefore, the Board may properly consider such newly received evidence. In addition, at the hearing the Veteran was granted a 60-day abeyance period for the submission of additional evidence. That time period has lapsed and no additional evidence has been received. In part as a result of actions taken during the course of this appeal, service connection is now in effect for scarring, residuals of shell fragment wound to the medial aspect of the left thigh with retained metallic fragment, rated as 10 percent disabling; and tinnitus, rated as 10 percent disabling. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file are either duplicative of the evidence in the paper claims file or irrelevant to this appeal. The issue of entitlement to service connection for bilateral hearing loss disability 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. VA will notify the appellant if further action on his part is required. FINDINGS OF FACT 1. A chronic neck disability was not shown in service, arthritis of the neck was not diagnosed within one year of service discharge, and the preponderance of the evidence fails to establish that the Veteran's current neck disability is related to any event, injury, or disease during service. 2. A headache disability was not present during service and is not etiologically related thereto, or to service-connected disability. 3. A disability manifested by numbness of the fingers of both hands was not present during service and is not etiologically related thereto, or to service-connected disability, and an organic disease of the nervous system was not diagnosed within one year of service discharge. CONCLUSIONS OF LAW 1. A neck disability was not incurred in or aggravated by service and arthritis of the neck may not be presumed to have been incurred in service. 38 U.S.C.A §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 2. A headache disability was not incurred in or aggravated by service or by service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2013). 3. A disability manifested by numbness of the fingers of both hands was not incurred in or aggravated by service or by service-connected disability, and an organic disease of the nervous system may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.307, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was mailed letters in September 2002 and March 2006 advising him of what the evidence must show and the respective duties of VA and the claimant in obtaining evidence, as well as the appropriate notice with respect to the disability-rating and effective-date elements of the claims. Although the Veteran was not provided complete notice until after the initial adjudication of the claims, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claims. See August 2006 Supplemental Statement of the Case. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim. Service treatment records (STRs) and identified, available post-service treatment records were obtained. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran has also been afforded the appropriate VA examinations to determine the nature and etiology of his claimed disabilities. The examinations were adequate, as it was predicated on a full reading of the Veteran's medical records in the claims file, interview of the Veteran, and examination with appropriate testing. All of the pertinent evidence of record was considered, to include the statements of the Veteran, and the examiner provided a rationale for the opinion stated, relying on and citing to the records reviewed. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted above, this case was before the Board in October 2009 when it was remanded in order to schedule the Veteran for a hearing before the Board. Such hearing was held in July 2013. There has been substantial compliance with its remand instructions and additional remand is not required. D'Aries v. Peake, 22 Vet. App. 97 (2008) (noting that substantial rather than strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claim. Service Connection Law and Regulations Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, such as arthritis and organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); arthritis is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-98 (1997); see also Walker, supra. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection also may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza, supra. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim) Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The STRs note that the Veteran sustained a shell fragment wound in his left knee in August 1968. STRs are devoid of any complaints, findings or symptoms of a neck disorder, chronic headaches, or numbness in the fingers of either hand. VA clinical reports from February 1977 show complaints of cysts, including one on the Veteran's right forearm. In February 1981, the Veteran had a cyst behind his right ear on his neck. He later showed some signs of infection in some of the sebaceous cyst areas. He had excision of some of these, which were then and later variously described as sebaceous cysts, dermatitis, dermatofibromata, seborrheic keratosis, lichen planus, verucca vulgaris, follicular papules, condylomata acuminata, and psoriasis. In the 1980's he was also seen for a rash on various locations including both his hands and right wrist. In June 1989, the Veteran had cuts on his right forearm after an accidental fall, described as a small abrasion with cellulitis. The Veteran sustained another laceration to the right upper arm and elbow area from broken glass in August 1992. Follow-up showed full movement and pulsations in the arm, wrist, hand, and fingers. In January 1993 he had mildly scaly plaques on the left elbow, the buttock, and some fingers. In late 1993, he had a lesion removed from his forehead; there was another on his knee. In February 1994, he had verruca involving the left thumb, his forehead, the right web between the thumb and index finger, and the right arm. In December 1994, January and December 1995, and January 1996 he was seen for a wart or lesions on his chin, ear lobe, and lower lip. A pathology report from specimens taken from two of the areas in December 1995 identified trichilemmoma and acrochordon. In February 1996, the Veteran complained of two months of problems with mild, lichenified rash on the lateral surface of his finger, similar to what he had previously had on his elbow and knee areas. In August 1996, he had scaly lesions on both hands and fingers. Reports from March 1998 show that the Veteran had a vague sensation of intermittent generalized tingling, particularly in the left arm, for two months, as well as insomnia and anxiety and occasional palpitations. He had taken his own blood pressure and said it was high. He had taken Motrin with some relief. In June 1998, he again had scaly lesions over several digits of the right hand, posterior neck, and cheek. The Veteran filed his claim seeking service connection in 2002. Outpatient records from March 2003 show ongoing complaints of occasional numbness in both hands. The Veteran reported having had an injury to his neck and head due to an explosion in Vietnam. There was no pain on his arms, and no headache, vomiting, dizziness, etc. In October 2003 and on at least one later occasion, it was suggested that he might have signs of cervical radiculopathy, but this was not confirmed by any further studies at the time of the notations. During a March 2006 VA examination, the Veteran reported that he had sustained a neck injury in service at the time of the shrapnel blast, with headaches thereafter, and had been unable to wear his helmet due to the cervical spine pain. The examiner reviewed the entire file, and so stated. Since 2003, the Veteran had been noted to have had demonstrated signs of severe cervical arthritis (including severe degenerative changes at C-5/C-6, mild changes at C-4/C-5 and C-6/C-7 levels, and mild foraminal narrowing of the C-5/C-6 levels on both sides with similar findings on the right at C-6/C-7). He now has ongoing cervical spine pain, with radiation to the trapezius muscles bilaterally. There was numbness and tingling in his arms, hands, and fingers. He had had some relief with the use of various heat products and techniques. He also had headaches in the occipital region. The examiner described his current symptoms in detail, including X-ray findings. Diagnoses included degenerative arthritis of the cervical spine, mild radiculopathy of the upper extremities secondary to cervical spine disability, and non-pathologic headaches secondary to cervical spine disability. In sum, the examiner opined that although there were no service records to support it, given the history, it is highly possible that he also sustained a cervical spine injury at the same time, as he had stated. However, the examiner felt that he would have to engage in mere speculation to associate the current findings with anything in service, including that trauma. As for the headaches, he felt that they are most likely related to tight musculature and cervical spine pathology, rather than other causation. In that regard, there was no evidence of chronic headaches such as migraine or cluster headaches. The evidence of record also includes statements and hearing testimony from the Veteran, in which he asserts that his current neck disability, headaches and upper extremity numbness were caused by the same in-service explosion that injured his left knee. He stated that after the explosion he had headaches and was unable to wear his helmet because his neck hurt. The Veteran asserts a continuity of symptoms related to his neck disability since service. Analysis Neck The medical evidence of record shows that a neck disability has been diagnosed. However, while the Veteran's STRs confirm his claimed 1968 incident and left knee shell fragment wound, they are silent for any complaints of findings of any neck complaints or any diagnosis of chronic neck disability. The first medical evidence of such disability is decades after service, as noted above. Indeed, while not necessarily outcome determine, such a long interval of time between service separation and the earliest documentation of the disease is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Put another way, there is no evidence of a chronic neck disorder or the diagnosis of a degenerative process of the spine (perhaps arthritis) until many years post-service. Such fails to establish service connection on a direct basis under 3.303(a) or a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309. As to the etiology of current neck disability, the Board finds that the March 2006 VA opinion is the most probative and persuasive medical evidence in this case, as is based upon a complete review of the Veteran's entire claims file and examination of the Veteran and supports its conclusions with detailed rationale. The VA examiner considered the Veteran's report that he had sustained a neck injury in service at the time of 1968 shrapnel blast, and had been unable to wear his helmet due to the cervical spine pain. After considering evidence of record and examining the Veteran, the VA examiner essentially opined that, because of a lack of in-service findings, there was no way to relate the Veteran's current neck disability to his military service without resorting to mere speculation. There is no medical opinion to the contrary of record. The Board has not overlooked the Veteran's contentions provided in support of his claim. There is little question that the Veteran sustained an injury to his knee in 1968 due to a shell fragment wound. Such is documented in the STRs. Consideration has also been given to the Veteran's contentions that he has experienced a neck injury at that time and neck pain thereafter. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The fact that there is no diagnosis of neck disability until decades after service does not necessarily go against the Veteran's claim. However, and rather crucially, a VA examiner determined that the Veteran's history of chronic neck pain since service could not be related to his current diagnosis of degenerative arthritis of the cervical spine without mere speculation. Rationale was again provided. Element (3) of the Savage analysis has not been met. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis of a neck disability (here, degenerative arthritis of the cervical spine) falls outside the realm of common knowledge of a lay person. See Jandreau, supra (lay persons not competent to diagnose cancer). Identifying/diagnosing the presence of low back disability necessitates testing, to include X-ray studies, to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, supra; Woehlaert, supra. That is, although the Board readily acknowledges that Veteran is competent to report symptoms of neck pain, there is no indication that the Veteran is competent to etiologically to associate this pain to a diagnosable disability. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating orthopedic disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). This lay evidence does not constitute competent medical evidence and lacks probative value. Conversely, the 2006 VA examiner has the requisite medical training, expertise and credentials needed to render a medical opinion in this case. For the reasons noted above, the 2006 medical opinion is the most probative and persuasive medical evidence in this case. In sum, service connection for a neck disability is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine and in fact has resolved reasonable doubt in the Veteran's favor in this case. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Headaches and Numbness of the Fingers of Both Hands After reviewing the evidence of record, the Board finds that the preponderance of the evidence is against the claim. As noted above, the Veteran has a long history of various skin lesions and excisions, during symptomatic episodes of which he has seemingly had some sensory changes in one or the other arm. The Veteran is now diagnosed with mild radiculopathy of the upper extremities secondary to cervical spine disability, and non-pathologic headaches secondary to cervical spine disability. The record does not contain any competent evidence that headaches or numbness of the upper extremities was present in service or for many years thereafter. Consequently, service connection for headaches and disability manifested by numbness of the finger of both hands on the basis that they were manifested in service is not warranted. Likewise, service connection for an organic disease of the nervous system on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 is not warranted. The Veteran may still establish service connection for headaches and numbness of the fingers of both hands by competent and probative evidence showing that such disabilities are somehow related to service. However, the medical evidence of record does not show or suggest that currently present headache disability and/or disability manifested by numbness of the hands is etiologically related to service. See March 2006 VA examination report. The Veteran alleges that his current headache disability and disability manifested by numbness of the hands are related to his neck disability. The March 2006 VA examiner found this to be the case. With regard to a secondary service connection theory of entitlement, inasmuch as neck disability is not service connected, a threshold legal requirement for establishing service connection for headache disability and/or disability manifested by numbness of the fingers of both hands as secondary to such disability, as alleged, is not met. In other words, it is not shown that the primary disability (neck disability) alleged to have caused or aggravated the headache disability and disability manifested by numbness of the fingers of both hands for which secondary service connection is sought is service connected. Accordingly, the claims of service connection for headache disability and disability manifested by numbness of the hands as secondary to neck disability must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In sum, service connection for a headache disability and a disability manifested by numbness of the fingers of both hands is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine and in fact has resolved reasonable doubt in the Veteran's favor in this case. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a neck disability is denied. Service connection for a headache disability is denied. Service connection for a disability manifested by numbness of the fingers of both hands is denied. REMAND The Veteran claims that he has hearing loss disability related to noise trauma (to include from an explosion that injured his left knee) in service. His service personnel records show that he served as an infantryman and his STRs verify the shell fragment injury to his knee. The Veteran's STRs and post-service medical evidence does not reveal the presence of hearing loss disability as defined by VA regulation. A July 2006 rating decision awarded service connection for tinnitus as related to noise exposure in service. The Veteran has presented credible testimony that his hearing loss has worsened since his most recent (March 2006) VA examination. The Board finds that, given the length of time since the last VA examination, and given the fact that the March 2006 VA examiner related the Veteran's tinnitus to noise exposure in service, the Veteran should be scheduled for another VA examination. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should arrange for the Veteran to be examined by an audiologist or a physician with sufficient expertise to determine the existence and etiology of any current hearing loss disability. The Veteran should be properly notified of the examination and of the consequences of his failure to appear. His claims files must be reviewed by the examiner in conjunction with the examination. The Veteran should undergo an audiological evaluation (with audiometric studies) to determine whether he has a bilateral hearing loss disability by VA standards. The examiner should specifically note whether the Veteran indeed has a bilateral hearing loss disability as defined in 38 C.F.R. § 3.385, and based on examination of the Veteran and review of the record, should provide an opinion indicating whether any such hearing loss disability is at least as likely as not (a 50 percent or better probability), related to his service. The examiner must explain the rationale for all opinions expressed. The examiner must acknowledge and discuss the Veteran's lay statements and hearing testimony that he had hearing loss since service. All findings and conclusions should be set forth in a legible report. 2. Then, the RO or the AMC should readjudicate the issue of entitlement to service connection for bilateral hearing loss disability on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims files are returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. See 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 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. 2013). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs