Citation Nr: 1340282 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 08-23 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for sleep apnea to include as secondary to service-connected disability. 3. Entitlement to service connection for hypertension to include as secondary to service-connected disability. 4. Entitlement to service connection for a respiratory to include as secondary to service-connected disability or as due to exposure to chemical hazards to include Agent Orange. 5. Entitlement to a compensable evaluation for bilateral defective hearing. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from June 1967 to May 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The case has subsequently been transferred to the Regional Office in Manila, Philippines. The issues of entitlement to service connection for a low back disorder; entitlement to service connection for sleep apnea to include as secondary to service-connected disability; entitlement to service connection for hypertension to include as secondary to service-connected disability; and entitlement to service connection for a respiratory disorder to include as secondary to service-connected disability or as due to exposure to chemical hazards to include Agent Orange are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. In July 2013, the Veteran appeared before the undersigned Veterans Law Judge and gave testimony in support of his claim. A complete transcript is of record. FINDING OF FACT The appellant's bilateral hearing loss disability has been manifested by hearing acuity that results in a noncompensable evaluation during the entire appeal period. CONCLUSION OF LAW The criteria for a compensable evaluation for the service-connected bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, Table VI and Table VII, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duty to notify and assist claimants in substantiating their claims for VA benefits has been codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the United States Court of Appeals for Veterans Claims (Court), in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. In a claim for increase, the requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Proper notice was sent to the Veteran in March 2008. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Here, VA treatment records have been associated with the claims file and the Veteran was afforded VA audiometric examinations. A medical examination is adequate when it is based upon consideration of a Veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Each one of the VA audiometric examinations was conducted by a medical professional, and the associated reports reflect review of the Veteran's hearing loss history. The examinations included reports of the symptoms for the claimed disability and demonstrated objective evaluations. The VA examiners were able to assess and record the condition of the hearing loss disability in each ear. The Board finds that the audiometric examination reports are sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings. In addition, it is not shown that the examinations were in any way incorrectly prepared or that the VA examiners failed to address the clinical significance of the Veteran's claimed hearing loss. Further, the VA examination reports addressed the applicable criteria. As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. § 3.326 and 38 C.F.R. § 3.327 and Green v. Derwinski, supra. Therefore, the Board concludes that the appellant was afforded adequate examinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder since he was last examined. See 38 C.F.R. § 3.327(a) (2013). The examinations in this case are adequate upon which to base a decision. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. See 38 C.F.R. § 3.159 (c)(4) (2013). All relevant facts with respect to the claim addressed in the decision below have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). Laws and Regulations The law provides that disability evaluations are determined by the application of a schedule of ratings that is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether they were raised by the appellant or not, as well as the entire history of the Veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In the evaluation of service-connected disabilities, the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The schedular evaluations are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86. The severity of a hearing loss disability is determined by comparison of audiometric test results with specific criteria set forth at 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85(a), an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 hertz, or Hz (cycles per second). The Schedule allows for such audiometric test results to be translated into a numeric designation ranging from level I, for essentially normal acuity, to level XI, for profound deafness, in order to evaluate the degree of disability from bilateral service-connected defective hearing. The Evidence The Veteran was examined by VA in August 2007. On the audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 35 40 60 LEFT 40 35 35 50 60 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 88 percent in the left ear. The examiner diagnosed sensorineural hearing loss in the right ear, mixed loss in the left ear. This translates to Level II hearing in the right ear and Level II hearing in the left ear. Using Tables VI and VII pursuant to 38 C.F.R. § 4.85, such findings result in a noncompensable disability evaluation. The Veteran was examined by VA in February 2010. On audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 50 55 70 LEFT 45 45 50 55 65 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and the left ear. This translates to Level II hearing in the right ear and Level II hearing in the left ear. Using Tables VI and VII pursuant to 38 C.F.R. § 4.85, such findings result in a noncompensable disability evaluation. The Veteran underwent a VA audiometric examination in July 2012. On audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 45 60 80 LEFT 65 60 60 75 75 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 in the left ear. This translates to Level I hearing in the right ear and Level II hearing in the left ear. Using Tables VI and VII pursuant to 38 C.F.R. § 4.85, such findings result in a noncompensable disability evaluation. The examiner noted that the hearing loss caused difficulty in casual communication especially in the left ear. Discussion Under Diagnostic Code 6100, a zero percent evaluation is assigned where hearing is at Level I for one ear and Level I for the other or where the hearing is Level I for one ear and Level II for the other. Under the pertinent regulations, a zero percent rating is yielded by the VA audiometric examination results noted above. The requirements of 38 C.F.R. § 4.85 set out the numeric levels of impairment required for each disability rating, and those requirements are mandatory. The Board must accordingly find that the preponderance of the evidence is against the appellant's claim for a compensable evaluation for his bilateral hearing loss disability. In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of a Veteran's hearing impairment disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Apr. 24, 2007); see also 38 C.F.R. § 4.10. The Court also noted, however, that even if an audiologist's description of the functional effects of a Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, the VA examiner of July 2012 noted that the Veteran's hearing loss caused difficulty in casual communication especially in the left ear. Thus, the VA audiology examination report did include information concerning how the appellant's hearing impairment affects his daily functioning. Further, the appellant was given the opportunity to provide additional evidence through his lay statements and those of third parties. The Board is aware of the appellant's contentions concerning his difficulty with hearing, and has considered those contentions. However, the objective clinical evidence of record does not support a compensable evaluation for his bilateral hearing loss at any time during the appeal period. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The schedular evaluations are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86. Notwithstanding the above discussion, increased evaluations for the bilateral hearing loss disability could be granted if it were demonstrated that that particular disability presented such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Given the appellant's complaints, the Board has considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). See Barringer v. Peake, 22 Vet. App. 242 (2008). The record reflects that the appellant has not required any hospitalization for his service-connected hearing loss disability at issue, and that the manifestations of the hearing loss are not in excess of those contemplated by the currently assigned ratings. Furthermore, there is no indication in the record that the average industrial impairment from the hearing loss disability would be in excess of that contemplated by the assigned ratings. The Veteran's hearing loss is manifested by difficulty hearing speech, and problems understanding conversations. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. In addition, the appellant has not offered any objective evidence of any symptoms due to the bilateral hearing loss that would render impractical the application of the regular schedular standards. Consequently, the Board concludes that referral of this case for consideration of an extraschedular rating is not warranted in this case. See Floyd v. Brown, 8 Vet. App. 88, 96 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996) (when evaluating an increased rating claim, it is well established that the Board may affirm an RO's conclusion that a claim does not meet the criteria for submission for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1), or may reach such a conclusion on its own). Hence, the rating criteria contemplate the Veteran's disability picture. No further discussion of extraschedular entitlement is required. Referral for consideration of an extraschedular rating is therefore not warranted. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board acknowledges that the appellant, in advancing this appeal, believes that his hearing loss deficits have been more severe than the assigned disability ratings reflect. Medical evidence is generally required to probatively address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. However, the Court has repeatedly indicated that lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, supra. See also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). The Board has carefully considered the Veteran's contentions. In this case, however, the competent medical evidence offering the specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the hearing loss. The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the bilateral hearing loss. The clinical assessments of record are considered persuasive as to the appellant's degree of impairment due to hearing loss, since they consider the overall industrial impairment due to this service-connected condition. The preponderance of the most probative evidence is against the assignment of any higher rating for the bilateral hearing loss. The findings needed for the next higher evaluation for are not currently demonstrated. Since the preponderance of the evidence is against an allowance of a compensable evaluation for the bilateral hearing loss under the schedular criteria, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b). See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). A total rating based on individual unemployability (TDIU) claim is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, the Veteran has already been granted a TDIU. Therefore, the matter of entitlement to a total disability rating based on individual unemployability due to the hearing loss disability is not for consideration. Finally, in light of the holding of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether the appellant is entitled to a "staged" rating for his hearing loss. As reflected in the decision above, the Board has not found variation in his symptomatology or clinical findings that would warrant the assignment of any staged rating for the bilateral hearing loss. Based upon the record, the Board finds that at no time during the claim period has hearing loss been more disabling than as currently rated. ORDER A compensable evaluation for bilateral hearing loss is denied. REMAND Reason for Remand: to obtain examinations and opinions and to provide proper VCAA notice. The Veteran seeks service connection for a low back disorder, entitlement to service connection for sleep apnea to include as secondary to service-connected disability, entitlement to service connection for hypertension to include as secondary to service-connected disability, and entitlement to service connection for a respiratory to include as secondary to service-connected disability. During the course of this appeal, the Veteran has contended that service connection is warranted for sleep apnea, hypertension and a respiratory disorder on a secondary basis as well as on a direct basis. While he was provided with VCAA notice regarding secondary service connection for hypertension in October 2012, he has not been provided with VCAA notice regarding secondary service connection for sleep apnea or a respiratory disorder. He has also claimed that his respiratory disorder is due to exposure to hazardous chemicals to include Agent Orange. VCAA notice regarding this theory of entitlement has not been provided to him. As such proper VCAA notice must be sent to the Veteran. The service treatment records include private records which reflect that the Veteran was treated in March 1966 for back problems prior to his induction into service. He has currently been diagnosed with L4/5 spinal stenosis per an MRI in May 2008 in VA treatment records. (See, e.g. record of June 2008). He has also been noted to have degenerative disc disease of the lumbar spine in July 2008. The Veteran has not been examined to determine the etiology of his current back complaints. The Veteran has claimed that his currently diagnosed sleep apnea is related to service or in the alternative related to his service-connected post-traumatic stress disorder or to his service-connected sinusitis. Private records reflect a diagnosis of obstructive sleep apnea, and VA records indicate that he has a diagnosis of obstructive sleep apnea. See, private sleep study dated in August 2005, and VA record of January 2009. The Veteran has not been examined to determine the etiology of his sleep apnea. The Veteran has claimed that he has a lower respiratory disorder related to service on in the alternative related to his service connected sinusitis. He has also claimed the lung disorder is related to his PTSD or to exposure to hazardous chemicals, including Agent Orange while he served in Vietnam. The Social Security Administration (SSA) determined in October 2009 that the Veteran had pulmonary asbestosis. He has not been examined by VA to determine the nature and etiology of any current lower respiratory disorder. The Veteran has claimed that his hypertension is related to service or in the alternative, is due to his service-connected PTSD or his service-connected sinusitis. The record reflects diagnoses of hypertension. See, e.g. private record of March 2006 diagnosing hypertension). The Veteran has not been examined by VA to determine etiology of his hypertension. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board finds remand is required to provide such examinations. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Provide the Veteran with VCAA notice regarding secondary service connection for sleep apnea and a respiratory disorder, as well as entitlement to service connection for exposure to hazardous chemicals including Agent Orange. Allow the Veteran the appropriate amount of time to respond. 3. Schedule the Veteran for a VA orthopedic examination to determine the nature and etiology of his low back disorder. The claims file and all pertinent electronic medical records must be reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Based on a review of the evidence of record, including the Veteran's service and post-service treatment records, and with consideration of the Veteran's statements regarding a preexisting condition, events in active duty, and his symptomatology since service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent likelihood or higher) that any back disorder is causally or etiologically related to the Veteran's active service. In this regard, the clinician should provide an opinion on whether any preexisting back disorder permanently increased in severity during service. Please provide a complete explanation for the opinion. If the clinician determines that a preexisting back disability did increase in severity during service, the clinician must state whether it is clear and unmistakable (i.e., undebatable) that any increase in disability was due to the natural progress of the disease. The clinician should provide a complete explanation for the opinion. 3. Schedule the Veteran for a VA examination to determine the etiology of his sleep apnea. The claims file and all pertinent electronic medical records must be reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner must offer an opinion, with complete rationale as to whether it is at least as likely as not that the current sleep apnea is related to service, or is due to or aggravated by the service-connected PTSD or by his service connected sinusitis. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of any lower respiratory disorder. The claims file and all pertinent electronic medical records must be reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner must offer an opinion, with complete rationale as to whether it is at least as likely as not that any current lower respiratory disorder is related to service, or is due to or aggravated by the service-connected PTSD or by his service connected sinusitis. The examiner must also state whether any lower respiratory disorder is due to exposure to hazardous chemicals including Agent Orange. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. 5. Schedule the Veteran for a VA examination to determine the etiology of his hypertension. The claims file and all pertinent electronic medical records must be reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner must offer an opinion, with complete rationale as to whether it is at least as likely as not that his current hypertension is related to service, or is due to or aggravated by the service-connected PTSD or by his service connected sinusitis. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. 6. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examinations, documentation must be obtained which shows that notice scheduling the examinations was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 7. After the development requested has been completed, the RO must review the examination reports to ensure that they are in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 8. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. The appellant 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs