Citation Nr: 1340650 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 07-07 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for bilateral eye disorders, to include as secondary to service-connected diabetes mellitus. 4. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1970. He received various decorations evidencing combat including the Combat Infantryman Badge. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2006 of a Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO), as well as from March 2008 and September 2008 rating decisions of a VA Regional Office in Newark, New Jersey (RO). The November 2006 RO decision determined that new and material evidence had not been received to reopen a claim for entitlement to service connection for bilateral hearing loss (listed as bilateral hearing loss with a history of a mastoidectomy and tympanoplasty). The case was later transferred to the Newark, New Jersey Regional Office (R0). In November 2007, the Veteran appeared at a personal hearing at the RO. A transcript of the hearing is in the Veteran's claims file. A November 2007 RO decision, in pertinent part, reopened and granted the Veteran's claim for entitlement to service connection for right ear hearing loss. A noncompensable rating was assigned, effective May 18, 2006. Therefore, the issue of entitlement to service connection for right ear hearing loss is no longer on appeal. The March 2008 RO decision, in pertinent part, denied service connection for tinnitus. The September 2008 RO decision, in pertinent part, denied service connection for bilateral eye disorders (listed as cataracts) and for hypertension, both to include as secondary to service-connected diabetes mellitus. In August 2011, the Board, in pertinent part, reopened and remanded the Veteran's claim for entitlement to service connection for left ear hearing loss. The Board, also, in pertinent part, remanded the issue of entitlement to service connection for tinnitus, as well as the issues of entitlement to service connection for bilateral eye disorders and hypertension, both to include as secondary to service-connected diabetes mellitus, for further development. The issues of entitlement to service connection for left ear hearing loss; tinnitus; and bilateral eye disorders, to include as secondary to service-connected diabetes mellitus, as well as the issue of entitlement to a total disability rating based on individual unemployability (TDIU rating), are all addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's current hypertension began many years after service, was not caused by any incident of service, and was not caused by or permanently worsened by his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as secondary to service-connected diabetes mellitus, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A May 2008 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R § 3.159(b)(1). The May 2008 letter notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated, most recently in a November 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's available service treatment records, private treatment records, and VA treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in September 2009, October 2011, and January 2012. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for a "chronic disease," may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that effective October 10, 2006, 38 C.F.R. § 3.310 was amended to conform with Allen; however, based upon the facts in this case the regulatory change does not impact the outcome of the appeal. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. At 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d) (2011), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is service-connected for diabetes mellitus. He is also service-connected for post-traumatic stress disorder (PTSD); peripheral neuropathy of the right lower extremity; peripheral neuropathy of the left lower extremity; peripheral neuropathy of the right upper extremity; peripheral neuropathy of the left upper extremity; erectile dysfunction; a healed tuft fracture of the left ring finger; and for right ear hearing loss. The Veteran contends that he has hypertension that is related to service, or, more specifically, that is related to his service-connected diabetes mellitus. He specifically maintains that complications from diabetes mellitus may cause hypertension. The Veteran is not specifically alleging that he incurred hypertension during combat. See 38 U.S.C.A. § 1154(b) (West 2002). His service treatment records do not show complaints, findings, or diagnoses of hypertension, or any elevated blood pressure readings. There is no evidence of hypertension in the year after the Veteran's period of service, or for many years thereafter. The first post-service evidence of any possible hypertension, or elevated blood pressure readings, is in October 2001, many years after the Veteran's period of service. An October 2001 treatment entry from the Hackensack University Medical Center indicated that the Veteran had a medical history that included hypertension. The impression also included hypertension. A November 2001 treatment entry from the Hackensack University Medical Center also related a medical history that included hypertension. The impression, at that time, included hypertension. An April 2002 treatment report from M. Weinstock, M.D., noted, as to a past medical history, that the Veteran had a history of hypertension for an illegible number of years that was slight and untreated. The diagnoses were hypertension, an abnormal electrocardiogram, a past smoker, and decreased hearing. Subsequent private and VA treatment records, including VA examination reports, show treatment for disorders including hypertension. The Veteran was also treated for diabetes mellitus. For example, a February 2008 treatment entry from Dr. Weinstock related diagnoses including non-insulin dependent diabetes mellitus and hypertension. A May 2008 VA diabetes mellitus examination report noted that the Veteran's claims file was not available, but that his electronic medical records were reviewed. It was noted that the Veteran served in the Army from 1968 to 1970 and that he was exposed to Agent Orange. The Veteran reported that he was diagnosed with diabetes mellitus one year earlier and that he was started on medication in April 2008. He indicated that he was following a low-carbohydrate 1800 calorie American Diabetes Association diet. He denied any history of hospitalization for diabetic ketoacidosis or hypoglycemia. The Veteran also reported that he was diagnosed with essential hypertension three years earlier. He denied any history of a myocardial infarction or a cerebrovascular accident. The Veteran also denied having any chest pain or shortness of breath. It was noted that there was no history of atherosclerotic heart disease and that the Veteran denied that he had any headaches or epitaxis. As to diagnoses, the examiner reported that there was no evidence of diabetes mellitus. The examiner stated that the Veteran did not meet the criteria in terms of blood sugar values and that diabetes mellitus, type 2, was not diagnosed on the basis of hemoglobin A1c levels. A January 2009 statement from Dr. Weinstock noted that the Veteran had been a patient of his since 2002. Dr. Weinstock stated that the Veteran was diagnosed with diabetes mellitus in May 2007 based on a blood sugar of 118 and an HgA1c of 7.7. It was noted that the Veteran was currently taking Glyburide. A September 2009 VA diabetes mellitus examination report noted that the Veteran's claims file, as well as his electronic medical records, were reviewed. The examiner reported that the Veteran was diagnosed with diabetes mellitus, type 2, in May 2007 by his primary physician according to a letter submitted by that physician. It was noted that the Veteran's blood sugar was 118 and that his HgA1c was 7.7 at that time. The examiner stated that the Veteran did complain of polyuria and polydipsia. The examiner reported that the Veteran did not have anal pruritis or loss of strength and that there was no history of hospitalization for diabetic ketoacidosis or hypoglycemia. The examiner indicated that the Veteran was following a low-carbohydrate diet, with no hypoglycemic episodes, and that he did not have to restrict his activities to avoid hypoglycemia or because of his diabetes mellitus, type 2. The examiner reported that the Veteran was diagnosed with essential hypertension in 2002 and that he reported no headaches or epitaxis. It was noted that the Veteran had no history of a myocardial infarction, a cerebrovascular accident, or renal disease. The diagnoses were diabetes mellitus, type 2, and essential hypertension. The examiner indicated that the Veteran did qualify for a diagnosis of diabetes mellitus, type 2. It was noted that the Veteran had two elevated fasting blood glucose values above 126. The examiner also indicated that the Veteran had peripheral neuropathy, and that his diabetes mellitus, type 2, was under fair control. As to the Veteran's essential hypertension, the examiner indicated that it was well controlled with no functional impairment. The examiner stated that the cause of the Veteran's essentially hypertension was idiopathic. The examiner commented that diabetes mellitus, type 2, did not cause essential hypertension. An October 2011 VA hypertension examination report included a notation that the Veteran's claims file was reviewed. The examiner reported that the Veteran was diagnosed with essential hypertension in "2005." The examiner indicated that the Veteran denied any history of a myocardial infarction or a cerebrovascular accident. It was also noted that the Veteran denied any chest pain, shortness of breath, or history of atherosclerotic heart disease. The Veteran further denied that he had any headaches or epitaxis. The examiner reported that the Veteran denied that he had any kidney involvement from his diabetes mellitus. The diagnosis was hypertension, with a date of diagnosis of "2005." The examiner indicated that the Veteran's claimed hypertension was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner also maintained that the Veteran's hypertension was less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected diabetes mellitus. The examiner reported that the Veteran was currently service-connected for diabetes mellitus, but that he did not have any kidney involvement. The examiner commented that in the absence of kidney disease, it was less likely that the Veteran's hypertension was related to or aggravated by his service-connected diabetes mellitus. The examiner stated that the Veteran had essential hypertension and that the etiology of hypertension was idiopathic. A January 2012 VA diabetes mellitus examination report noted that the Veteran's Computerized Patient Record System (CPRS), but not his claims file, was reviewed. The diagnosis was diabetes mellitus, type II, with a date of diagnosis of "2005." The examiner indicated that the Veteran did not have disorders, such as a cardiac condition or hypertension (in the presence of diabetic renal disease), that were at least as likely as not (at least 50 percent probability) due to his service-connected diabetes mellitus. The examiner also indicated that the Veteran's diabetes mellitus had not at least as likely as not (at least a 50 percent probability) permanently aggravated (meaning that any worsening of the condition was not due to natural progress) conditions, including a cardiac condition and hypertension. In evaluating the probative value of competent medical evidence, the United States Court of Appeals for Veterans Claims (Court) has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As stated by the Court, the determination of credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board observes that there are several opinions of record that address the etiology of the Veteran's claimed hypertension. A September 2009 VA diabetes mellitus examination report noted that the Veteran's claims file, as well as his electronic medical records, were reviewed. The diagnoses were diabetes mellitus, type 2, and essential hypertension. As to the Veteran's essential hypertension, the examiner indicated that it was well controlled with no functional impairment. The examiner stated that the cause of the Veteran's essentially hypertension was idiopathic. The examiner commented that diabetes mellitus, type 2, did not cause essential hypertension. The Board observes that although the VA examiner indicated that the Veteran's diabetes mellitus did not cause his essential hypertension, the examiner did not provide much in the way of a rationale for his opinion, other than that essential hypertension was idiopathic. Additionally, the VA examiner did not address whether the Veteran's service-connected diabetes mellitus aggravated his hypertension. Consequently, the Board finds that the VA examiner's opinion is somewhat less probative in this matter. Additionally, the Board notes that a January 2012 VA diabetes mellitus examination report noted that the Veteran's Computerized Patient Record System (CPRS), but not his claims file, was reviewed. The diagnosis was diabetes mellitus, type II, with a date of diagnosis of "2005." The examiner indicated that the Veteran did not have disorders, such as hypertension (in the presence of diabetic renal disease), that were at least as likely as not (at least 50 percent probability) due to his service-connected diabetes mellitus. The examiner also indicated that the Veteran's diabetes mellitus had not at least as likely as not (at least a 50 percent probability) permanently aggravated (meaning that any worsening of the condition was not due to natural progress) conditions, including hypertension. The Board notes that the VA examiner did not review the Veteran's claims file in providing her opinions that the Veteran's hypertension was neither due to, nor aggravated by, his service-connected diabetes mellitus. Although claims folder review is not necessary, the probative value of a medical opinion is based on its reasoning and its predicate in the record so that the opinion is fully informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the Board observes that the VA examiner did not provide a rationale for her opinions. Therefore, the Board finds that the VA examiner's opinions have little probative value in this matter. Conversely, the VA examiner, pursuant to the October 2011 VA hypertension examination report, specifically noted that the Veteran's claims file had been reviewed. The diagnosis was hypertension, with a date of diagnosis of "2005." The examiner indicated that that the Veteran's claimed hypertension was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner also maintained that the Veteran's hypertension was less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected diabetes mellitus. The examiner stated that the Veteran was currently service-connected for diabetes mellitus, but that he did not have any kidney involvement. The examiner commented that in the absence of kidney disease, it was less likely that the Veteran's hypertension was related to or aggravated by his service-connected diabetes mellitus. The examiner further remarked that the Veteran had essential hypertension and that the etiology of hypertension was idiopathic. The Board observes that the VA examiner incorrectly reported that the Veteran was diagnosed with hypertension in 2005. The Board notes that the medical evidence of record indicates that the Veteran was actually diagnosed with hypertension in 2001. The Board observes, however, that the examiner otherwise provided rationales for his opinions and the opinions provided are corroborated by the other evidence of record. In fact, the Board notes that all the opinions of record (as noted above) are essentially negative as to the Veteran's claim. Therefore, in light of the above, the Board finds that the VA examiner's opinions, pursuant to the October 2011 VA hypertension examination report, are the most probative in this matter. See Wensch v. Principi, 15 Vet. App. 362 (2001). The probative medical evidence does not suggest that the Veteran's current hypertension is related to his period of service. In fact, the probative medical evidence provides negative evidence against this finding, indicating that his current hypertension began years after his period of service, without relationship to any incident of service. Additionally, the probative medical evidence fails to indicate that the Veteran's current hypertension was caused or worsened by his service-connected ischemic diabetes mellitus. Pursuant to the October 2011 VA hypertension examination report, the examiner specifically concluded that the Veteran's current hypertension was not related to his period of service and was not caused or aggravated by his service-connected diabetes mellitus. The Board further notes that all the medical opinions of record, to include even the less probative opinions, are negative in regard to the Veteran's claim. The Veteran has asserted that his claimed hypertension had its onset during his period of service, or, more specifically, that it is related to his service-connected diabetes mellitus. While the Veteran is competent to report that he had symptoms he felt were related to hypertension during his period of service, or since service, he is not competent to diagnose his claimed hypertension as related to service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Buchanan v. Nicholson, 451 F.3d. 1331 (Fed. Cir. 2006) (lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself). Similarly, the Veteran is not competent to provide either a diagnosis or the medical nexus, and a medical opinion from a medical professional has not related his hypertension to his period of service, or to his service-connected diabetes mellitus. Thus, the Veteran's lay assertions are not competent or sufficient. See Jandreau. The weight of the competent medical evidence demonstrates that the Veteran's hypertension began many years after his period of service, was not caused by any incident of service, and is not proximately due to or the result of his service-connected diabetes mellitus. The Board concludes that neither direct nor secondary service connection for hypertension is warranted. As the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension, to include as secondary to service-connected diabetes mellitus, is denied. REMAND The remaining issues on appeal are entitlement to service connection for left ear hearing loss; entitlement to service connection for tinnitus; entitlement to service connection for bilateral eye disorders, to include as secondary to service-connected diabetes mellitus; and entitlement to a TDIU rating. This case was remanded by the Board in August 2011, partly to schedule the Veteran for a VA examination to determine the nature and etiology of any left ear hearing loss and tinnitus that may be present. The examiner was to indicate whether the Veteran had current left ear hearing loss and/or tinnitus and provide an opinion as to the likelihood (likely, unlikely, at least as likely as not) that any such disorders were causally or etiologically related to his military service, including noise exposure. In the August 2011 remand, the Board specifically informed the examiner that the Veteran was competent to report events in service, including acoustic trauma, and that the Veteran was already service-connected for right ear hearing loss. Pursuant to the August 2011 remand, the Veteran was afforded a VA audiological examination in October 2011. There was a notation that the Veteran's claims file was reviewed. The examiner reported results that were indicative of left ear hearing loss as defined by 38 C.F.R. § 3.385. The diagnoses included mixed hearing loss in the Veteran's left ear and tinnitus. The examiner indicated that the Veteran's left ear hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. The examiner reported that the Veteran had a long standing history of middle ear problems. It was noted that the Veteran was also service-connected for right ear hearing loss. The examiner commented that the Veteran's current left ear hearing loss was less likely than not related to his time in the service since the Veteran's separation examination revealed normal hearing, bilaterally, with no significant change in thresholds and not report of tinnitus and no complaints of hearing loss or tinnitus within a year of discharge. The examiner also maintained that it was less likely as not (less than 50 percent probability) that the Veteran's tinnitus was caused by or the result of military noise exposure. The examiner stated that the Veteran only reported tinnitus within the previous three years, and, thus, his current tinnitus was less likely than not a symptom associated with the Veteran's hearing loss. The examiner reported that the Veteran's separation examination revealed normal hearing, bilaterally, with no reports of tinnitus at that time or reports of tinnitus within one year of discharge. The Board observes that the VA examiner did not discuss the Veteran's reports that he suffered from left ear hearing loss and tinnitus during and since his period of service. In fact, the examiner specifically stated that the Veteran did not report having tinnitus until within the previous three years of the October 2011 audiological examination. However, in a December 2007 statement, the Veteran specifically reported that since his period of service up to the present time, he had always had a degree of hearing loss and tinnitus. He stated that when he was injured in Vietnam, he had loud ringing in his ears. The Veteran is competent to report that he had hearing problems and ringing in the ears in service and hearing loss and ringing in the ears since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Additionally, a July 2002 private treatment report, apparently from M. Inouye, M.D., noted that the Veteran's tinnitus was much improved. Clearly, this report was more than three years prior to the October 2011 VA audiological examination. Further, the VA examiner essentially indicated that the Veteran's left ear hearing loss was not related to his period of service because his hearing was normal at the time of the (May 1970) separation examination. However, in regard to a claim of entitlement to service connection for hearing loss, the absence of documented hearing loss while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Additionally, when a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). Therefore, the Board finds that the Veteran has not been afforded a VA examination with the opportunity to obtain responsive etiological opinions, following a thorough review of the entire claims folder, as to his claims for service connection for a left ear hearing loss and for tinnitus. Such an examination should be accomplished on remand. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also Stegall v. West, 11 Vet. App. 268, 271 (1998). As to the Veteran's claim for entitlement to service connection for bilateral eye disorders, to include as secondary to service-connected diabetes mellitus, the August 2011 Board remand indicated that the Veteran should be afforded an eye disorders examination to determine the nature and etiology of the Veteran's claimed bilateral eye (listed as cataract) disorders. The Board indicated that the Veteran's claims folder must be made available to the examiner prior to the examination, and that the examiner should acknowledge such review of the pertinent evidence in the examination report. The examiner was to indicate whether the Veteran had any current, chronic, eye disorders. The examiner was also to opine whether it was at least as likely as not (i.e., at least a 50/50 probability) that any such disorders began in service or were the result of trauma sustained in service. The Board informed the examiner that the medical history of a left eye injury shown in April 1970 should be addressed in providing the above opinion. The Board indicated that if the examiner found that any eye disorders did not begin in, or were not caused by service, the examiner should provide an opinion whether it was at least as likely as not that any such disorders were caused by or aggravated beyond the natural progression by the Veteran's service-connected diabetes mellitus. Pursuant to the August 2011 Board remand, the Veteran was afforded a VA eye conditions examination in October 2011. The examiner reported that the Veteran stated that his vision was fine. It was noted that the Veteran had cataract surgery in both eyes seven to eight years ago. The examiner indicated that the Veteran reported that when he was twelve years old, he was hit in the eye with a snowball, which caused blurred vision and he was hospitalized. The Veteran maintained that he underwent a procedure, that he had to lay flat for two weeks, and that his vision cleared. The examiner stated that the Veteran related a history of scratched corneas from metal in both eyes over time, and that he also stated that he was poked in the right eye during service with no treatment needed. It was noted that the Veteran denied any pain or loss of vision. The diagnosis was pseudophakia, with a date of diagnosis in October 2011. The examiner reported that the Veteran's claims file was not available for review. The examiner commented that the Veteran did not have any eye disorders currently and that he didn't have an eye disorder secondary to diabetes mellitus. The Board observes that the VA examiner indicated that the Veteran's claims file was not available for review. The August 2011 Board remand specifically indicated that the Veteran's claims file must be reviewed. Additionally, the examiner's conclusions appear to be somewhat contradictory. The examiner diagnosed pseudophakia, but also indicated that the Veteran did not have any current eye disorders and that he didn't have a eye disorder secondary to diabetes mellitus. Subsequently, the RO obtained a November 2010 statement from a VA physician. The physician specifically indicated that the Veteran's claims file was reviewed. The physician discussed the Veteran's medical history in some detail. The physician indicated that it was his opinion that the Veteran's eye conditions of bilateral pseudophakia, status post bilateral chamber intraocular lens implants, were less likely as not (50 percent probability or less) incurred in or caused or aggravated by the claimed in-service injury, event, or illness. The physician also commented that the Veteran's eye conditions of bilateral pseudophakia, status post bilateral posterior chamber intraocular lens implants, were less likely as not proximately due to or the result of or aggravated by any of his service-connected disorders, including type 2 diabetes mellitus. The physician further maintained that the Veteran's eye conditions of bilateral pseudophakia, status post bilateral posterior chamber intraocular lens implants, were less likely as not related to or the result of permanent worsening or aggravation of the injury to the Veteran's left eye with a snow ball prior to service. The physician reported that the Veteran entered service with no identified abnormalities of the eyes and uncorrected 20/20 vision in both eyes, despite the history of his left eye being struck by a snowball as a child resulting in hyphema. The physician indicated that while blunt trauma could cause a cataract to develop in an injured eye, it would not explain the presence of a cataract in the contralateral eye. The physician maintained that if the pre-service eye injury caused a cataract to form in the Veteran's left eye, the Veteran's in-service "poke" in the left eye would not have permanently worsened the condition beyond its natural progression. The physician stated that the Veteran's left eye injury while on active duty was an acute self-limited minor injury that would have had no residual. The examiner commented that the Veteran's eye conditions of bilateral pseudophakia, status post bilateral posterior chamber intraocular lens implants, were the result of surgical extraction of cataracts performed approximately thirty-five years after his active service. The physician reported that the Veteran's cataract extractions preceded his diagnosis of type 2 diabetes mellitus, which made his service-connected diabetes mellitus an unlikely cause of his cataracts and an unlikely source of aggravation. The physician stated that the most likely cause of bilateral cataracts was the age related cumulative effect of environmental factors and referred to a medical treatise for such conclusion. The Board observes that the VA physician addressed whether any pre-service eye conditions were aggravated or permanently worsened by the Veteran's period of service and specifically referred to a pre-service snowball injury to the Veteran's left eye. The Board notes that on a medical history form at the time of the September 1967 pre-induction examination, the Veteran checked that he had eye trouble. The reviewing examiner indicated that the Veteran had a history of eye trauma that was not considered disabling. The September 2007 objective pre-induction examination report, to include a May 1968 physical inspection, specifically included a notation that the Veteran's eyes were normal. The Veteran had 20/20 near and distance vision in both eyes. The Board observes, therefore, that the Veteran did not have any pre-existing right or left eye problems at the time of his entrance into service. Additionally, the November 2012 statement from the VA physician did not include an examination, and, as noted above, the prior October 2011 VA eye conditions examination report had contradictory conclusions. Further, the VA physician did not specifically address any reports of eye problems by the Veteran since his period of service. The Veteran is competent to report that he eye problems during service and since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A remand by the Board confers upon a Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the development requested pursuant to the August 2011 remand has not been accomplished, the Board also finds that the Veteran must be afforded another VA examination with the opportunity to obtain responsive etiological opinions, following a thorough review of the entire claims folder, as to his claim for service connection for bilateral eye disorders, to include as secondary to service-connected diabetes mellitus. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Prior to the examinations, any outstanding records of pertinent treatment should be obtained and added to the record. Finally, the Board notes that a March 2012 RO decision denied a claim for a TDIU rating. In an April 2012 statement, the Veteran's representative expressed disagreement with the denial of his claim for a TDIU rating. The Board observes that the RO has not issued a statement of the case as to the issue of entitlement to a TDIU rating. Under the circumstances, the Board has no discretion and is obliged to remand this issue to the RO for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Accordingly, the case is REMANDED for the following: 1. Ask the Veteran to identify all medical providers who have treated him for bilateral hearing loss, tinnitus, and left or right eye problems since August 2012. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain records, inform him of such, and advise him he may obtain and submit those records. 2. Schedule the Veteran for a VA audiological examination to determine the nature and likely etiology of his claimed left ear hearing loss and tinnitus. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must conduct an audiological evaluation, including speech recognition testing, to determine whether the Veteran currently experiences left ear hearing loss and tinnitus. If current left ear hearing loss and tinnitus are identified, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current left ear hearing loss and tinnitus were incurred in service, or are the result of exposure to acoustic trauma during the Veteran's period of service. The examiner must specifically acknowledge and discuss the Veteran's reports that his left ear hearing loss and tinnitus were first manifested during his period of service, to include as a result of combat acoustic trauma during service, and have continued since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and likely etiology of his claimed bilateral eye disorders, to include as secondary to service-connected diabetes mellitus. The entire claim file (i.e., the paper claim file and any medical records contained in computer files) must be reviewed by the examiner. Any relevant treatment records contained in computer files that are not available to the examiner electronically must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must diagnose all current right and left eye disorders (to include cataracts). Based on a review of the claim file, examination of the Veteran, and generally accepted medical principles, the examiner must provide a medical opinion, with adequate rationale, as to whether it is as at least as likely as not (a 50 percent or greater probability) that any currently diagnosed left and right eye disorders, to include cataracts, are related to and/or had their onset during his period of service. The examiner must specifically acknowledge any reports by the Veteran of right and left eye problems during service, to specifically include a left eye injury in April 1970, and since his period of service. See Dalton, supra. The examiner must also opine as to whether the Veteran's service-connected diabetes mellitus caused or aggravated any diagnosed right and left eye disorders, to include cataracts. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. The RO must issue the Veteran a statement of the case as to the issue of entitlement to a TDIU rating, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on this issue. 5. Then readjudicate the appeal. If any benefit sought remains denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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