Citation Nr: 1341709 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 08-24 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2 Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease and spondylolisthesis at L5-S1. 4. Entitlement to service connection for lower extremity numbness, claimed as secondary to lumbar spine disability, to include degenerative disc disease and spondylolisthesis at L5-S1. WITNESSES AT HEARING ON APPEAL Appellant, his spouse and his friend ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to November 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2007 rating decision in which the RO, inter alia, denied the Veteran's claims for service connection for right and left ear hearing loss, spondylolisthesis, and numbness and loss of feeling to both legs. In August 2007, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in July 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2008. In February 2010, the Veteran and his wife testified during a hearing before a Veterans Law Judge; a transcript of that hearing is of record. In June 2012, the Veteran was advised that the Veterans Law Judge who presided over the February 2010 Board hearing was no longer employed by the Board, and the Veteran was offered the opportunity to testify at another hearing before a Veterans Law Judge who would render a determination on the issues on appeal. case. In correspondence received by the Board in July 2012, the Veteran indicated that he wished to testify at another Board video-conference hearing. On October 10, 2012, the Veteran, his wife, and his friend testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is also of record. Subsequently, the appeal came before the Board in February 2013, at which time the claims on appeal were remanded for further development. As will be explained in more detail below, there has been substantial compliance with the actions requested in the remand relating to the claims for service connection for hearing loss in each and those claims are ready for appellate consideration. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). As will be explained herein, further development of the service connection claims for a low back disability and lower extremity numbness is required; in this regard, the Board points out that the appealed issue appears to involve both lower extremities, not just the left leg, as previously characterized by the Board. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the appellant's claims. A December 2013 review of the documents in such folder reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board's decision on the claims for service connection hearing loss of the right and left ears is set forth below. The remaining claims are addressed in the remand following the order; these matters are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. Competent, credible, and probative evidence does not show that the Veteran's currently manifested right ear hearing loss has been chronic and continuous since service, or that it is etiologically related to his period of active military service. 3. Audiometric test results on the Veteran's entrance examination report revealed left ear hearing impairment; however, the evidence fails to demonstrate worsening of the underlying disability in, or as a result of, service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are not met. 38 C.F.R. §§ 1110, 1111, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2013). 2. The criteria for service connection for pre-existing left ear hearing loss are not met. 38 C.F.R. §§ 1110, 1111, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 was revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in an April 2007 pre-rating letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate his service connection claims. This letter also informed the Veteran of what information and evidence must be submitted by the appellant and what information yyyand evidence would be obtained by VA. The 2007 letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The July 2007 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the April 2007 letter-which meets Pelegrini's and Dingess/Hartman's content of notice requirements-also meets the VCAA's timing of notice requirement. With respect to the Veteran's STRs, the Board notes that these are substantially complete. However, records from the Balboa U.S. Naval Hospital dated from August to November 1971 were sought in March 2013. In April 2013, that facility indicated that the requested records were no longer available from that facility. Subsequent requests were records were made to the NPRC (May 2013) and the Veteran (August 2013), both of which yielded negative results. A formal finding to this effect was made for the record in September 2013. In such situations, VA has a heightened duty to assist the Veteran in development of his claim. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board further notes that this case was remanded in February 2013 for the RO to assist the Veteran with development of his claims, to include the solicitation of additional evidence and for him to undergo a VA examination. All requested development relating to the service connection claims for hearing loss was accomplished on remand; to that extent there was compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation under Stegall v. West, 11 Vet. App. 268, 271 (1998) when the examiner made the ultimate determination required by the Board's remand). As will be discussed herein, further development is still required in conjunction with the Veteran's other two claims. In October 2012, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Here, during the October 2012 hearing, the undersigned noted the issues on appeal. Information was solicited regarding the Veteran's history of acoustic trauma and hearing deficit in and since service. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Although the submission of specific evidence was not suggested, the hearing discussion revealed the need for further development as directed in a February 2013 remand. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the hearing is legally sufficient. VA's duty to assist includes obtaining an examination and medical opinion when necessary to make an adequate determination. See Duenas v. Principi, 18 Vet. App. 512 (2004). A VA audio examination with supporting opinions was conducted in July 2013. The Veteran has not maintained that this examination report or opinions provided for the record are inadequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), (in the absence of a challenge to the adequacy of the examination, the Board is not required to explicitly explain why each medical opinion is adequate). In summary, the duties imposed by the VCAA have been considered and satisfied. Through notice of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Background The Veteran's initial claim for hearing loss/ear trouble was filed in April 2007. On a VA Form 21-4142, received in June 2010, the Veteran indicated that hearing tests dated from 1991 could be obtained from his employer and the name and address of the employer was provided. There was no report of private or VA treatment for hearing loss. The file does not contain the Veteran's complete STRs. In this regard records from the Balboa U.S. Naval Hospital dated from August to November 1971 were sought in March 2013. In April 2013, that facility indicated that the requested records were no longer available from that facility. Subsequent requests were records were made to the NPRC (May 2013) and the Veteran (August 2013), both of which yielded negative results. A formal finding to this effect was made for the record in September 2013. Available STRs reflect that on audiological evaluation conducted in conjunction with the January 1971 pre-induction examination, testing revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 0 0 0 LEFT 30 15 15 XX 30 Ultimately, after the Veteran's discharge in August 1971, the Veteran was medically discharged for a back disability in November 1971. There was no separation examination conducted. During the February 2010 Board hearing, the Veteran indicated that he had hearing loss in both ears, worse on the left side. His representative stated that the Veteran had pre-existing bilateral hearing loss prior to service, which was aggravated by service and had worsened since discharge. The Veteran indicated that he was unable to recall sustaining any significant acoustic trauma during service. The Veteran's friend noted that the Veteran's boot camp was located right next to boot camp and that the Veteran sustained acoustic trauma from being in close proximity to jet aircraft. The Veteran indicated that he had never been told that he needed hearing aids and had been hearing tested by his employed since 1990, resulting in findings of no diminished hearing acuity. The Veteran attributed this to wearing hearing protection. In 2011, audiograms dated from 1995 to 2011, reflecting the results of testing conducted for employment purposes were associated with the file. The records show that since 1995, bilateral hearing loss meeting the threshold requirements of 38 C.F.R. § 3.385 has been demonstrated. A downward shift in the Veteran's hearing acuity was noted in a July 2009 records and was shown subsequently. In November 2011, a VA audiology examination was conducted and the claims file was reviewed. On audiometric testing, pure tone thresholds, in decibels, were as follows HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 45 55 65 LEFT 15 15 20 45 60 The average pure tone air conduction threshold for the 1000, 2000, 3000, and 4000 hertz frequencies was 46 in the right ear and 35 in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear, and 96 percent in the left ear. Bilateral sensorineural hearing loss was diagnosed. The examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or the result of military service. The examiner explained that the Veteran was only on active duty for 9 days in August 1971, before he was treated for low back pain for which he was ultimately discharged from service in November 1991. The examiner acknowledged the Veteran's reports of working in a saw mill for 8 months prior to service with no hearing protection used. It was further noted that post-service, the Veteran worked in logging for 15 years and at a mill for 21 years, with hearing protection not used until the mid-1970's. The examiner also reviewed the Veteran's post service occupational hearing tests and explained that they showed a down ward shift of 25 decibels over 16 years of testing. In conclusion, the examiner noted that the Veteran's 1971 entrance examination revealed normal right hearing loss, and mild hearing loss at 500 and 4000 hertz in the left year. It was noted that he reported having sustained noise exposure from jet engines during his 9 days of basic training, with extensive occupational noise exposure post-service from 1971 forward, without the use of hearing protection until the mid-1970's. The examiner opined that it was unlikely that 9 days of limited noise exposure in service created or aggravated hearing loss. It was noted that his current hearing loss was likely due to occupational noise exposure and age. During the October 2012 Board hearing, the Veteran stated that he did not having hearing problems in service, but these developed during service because his base was directly on a flight path for jets day in and day out. He reported that no medical professional had linked his hearing loss to in-service noise exposure. The Veteran's wife mentioned an evaluation that took place in 2011, at which time she recalls the Veteran being told that he needed hearing aids. A VA audiology examination was conducted in July 2013 and the claims file was reviewed. On audiometric testing, pure tone thresholds in decibels were as follows HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 45 60 65 LEFT 15 20 20 50 60 The average pure tone air conduction threshold for the 1000, 2000, 3000, and 4000 hertz frequencies was 49 in the right ear and 38 in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear, and 96 percent in the left ear. Bilateral sensorineural hearing loss was diagnosed. The examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or the result of military service. The examiner explained that the Veteran was only on active duty for 9 days in August 1971, before he was treated for low back pain for which he was ultimately discharged from service in November 1991. The examiner noted the Veteran's reported of sustaining significant acoustic trauma during service as a result of his barracks being located near the flight line. The examiner also acknowledged the Veteran's reports of working in a saw mill for 8 months prior to service with no hearing protection used. It was further noted that post-service, the Veteran worked in logging for 15 years and at a mill for 21 years, with hearing protection not used until the mid-1970's. The examiner also reviewed the Veteran's post service occupational hearing tests and explained that they showed a downward shift of 25 to 30 decibels at 6,000 hertz over 18 years of testing, based on review of the most recent occupational test report of March 2013. The examiner concluded that left ear hearing loss clearly and unmistakably existed prior to service as shown by the enlistment examination report, and opined that no lay evidence or current research support a finding if aggravation of left ear hearing loss beyond the normal progression, during or as a result of service. She observed that it was extremely unlikely that the Veteran's reported noise exposure was loud enough to have created damage to the cochlea during service. She also referenced a 2008 report of the Institute of Medicine which found no sufficient scientific basis for the existence of delayed onset hearing loss. In conclusion, it was opined that it was extremely unlikely that the Veteran's hearing loss was created and/or aggravated by military noise exposure. In conclusion, the examiner noted that the Veteran's 1971 entrance examination revealed normal right hearing loss, and mild hearing loss at 500 and 4000 hertz in the left year. It was noted that he reported having sustained noise exposure from jet engines during his 9 days of basic training, with extensive occupational noise exposure post-service from 1971 forward, without the use of hearing protection until the mid-1970's. The examiner opined that it was unlikely that 9 days of limited noise exposure in service created or aggravated hearing loss. It was noted that his current hearing loss was likely due to occupational noise exposure and age. III. Applicable Legal Authority Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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 that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases, such as organic disease of the nervous system (to include sensorineural hearing loss), shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (one year for organic disease of the nervous system and arthritis, even where 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. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. VA's Veterans Benefits Administration Adjudication Manual states that "sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)." M21-1MR III.iv.4.B.12.a. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology (in lieu of a medical opinion) is limited to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304 (b). In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. Analysis The Veteran has claimed that he has hearing loss in both ears for which service connection is warranted. He maintains that this condition is related to acoustic trauma sustained during his period of active service. Considering the pertinent evidence in light of the above-noted legal authority, the Board finds that the claims for service connection for right ear hearing loss and for left ear hearing loss must be denied. At the outset, it appears that the Veteran's STRs in this case are largely complete, except for records from the Balboa U.S. Naval Hospital dated from August to November 1971, which appear to be unrelated to treatment for hearing loss. A. Right Ear The Board finds that evidence of currently manifested right ear hearing loss has been presented. Specifically, VA audiological evaluations of 2011 and 2013 revealed right ear hearing loss as defined under 38 C.F.R. § 3.385, has been shown. With regard to Shedden element (2), the Veteran has reported experiencing acoustic trauma as a result of proximity to a flight line in conjunction with his service in the United States Navy, totaling 9 days. As such, the duration and extent of any acoustic trauma sustained during service appears to be limited and minimal. Even acknowledging and establishing for purposes of this decision that the Veteran sustained acoustic trauma in service, the Board points out that acoustic trauma and noise exposure sustained in service are not, in and of themselves, disabilities subject to service connection under VA regulations. The Board notes that absolutely no hearing deficit was demonstrated in the right ear as shown by the January 1971 enlistment examination report. In this regard, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In fact, a hearing disability as defined under 38 C.F.R. § 3.385, was not initially shown until by audiological testing until 1995. A chronic disease need not be diagnosed during the presumptive period under 38 C.F.R. § 3.307(c), but if not, there must then be shown by acceptable medical or lay evidence, characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). In this case, since right ear hearing loss meeting the threshold requirements of 38 C.F.R. § 3.385 was not initially shown until approximately 1995, more than 20 years after the Veteran's separation from service; service connection on a presumptive basis is not warranted. When audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a disability at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). In this case, the Veteran has reported having a long history of hearing loss. However, nowhere in the file has there been either credible lay or clinical presented revealing chronicity and continuity of right ear hearing loss since 1971, when the Veteran was discharged from service. With regard to the decades-long evidentiary gap between active service and the earliest post-service findings of bilateral hearing loss, the lack of any evidence of continuing complaints, symptoms, or findings for many years between the period of active duty and the first evidence of bilateral hearing loss is itself evidence which tends to show that right ear hearing loss has not been chronic and continuous since service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim on a direct basis). In addition, the Veteran's assertions of long-term hearing loss were not presented until decades after his discharge from service and only after he filed a service connection claim in 2007. As such, there is reason in this case to question the credibility of the lay information provided by the Veteran as to the onset, chronicity and continuity of his claimed hearing loss. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Based on the total absence of any indications of hearing loss meeting the threshold disability requirements of 38 C.F.R. § 3.385 until over 20 years after the Veteran's discharge from service, coupled with the absence of credible lay evidence or any clinical evidence revealing evidence of hearing loss between 1971 and approximately 1995, chronicity and continuity of hearing loss since service is not established. 38 C.F.R. § 3.303(b) (2012). The critical issue in this case is whether the Veteran's currently manifested right ear hearing loss is related to noise exposure sustained during service. The requirement of an evidentiary showing of an etiological relationship has been repeatedly reaffirmed by the U.S. Court of Appeals for the Federal Circuit, which has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between a veteran's service and the disability claimed. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Essentially, this is the third Shedden element. Although the Veteran was not treated for or diagnosed with right ear hearing loss during service or for many years after his discharge, the Board notes that the question is whether this condition is nevertheless at least as likely as not etiologically related to service or any incident therein, to specifically include acoustic trauma sustained in service. 38 C.F.R. § 3.303(d). The record contains two medical opinions addressing this matter. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In opinions issued in November 2011 and July 2013, a VA examiner consistently concluded that it was less likely as not (less than 50 percent probability) that the Veteran's right ear hearing loss was related to military noise exposure. The type and (short) duration of his military noise exposure, as well as evidence of significant and long-term occupational noise exposure after 1971, as well as the Veteran's age were all implicated as factors supporting the opinions. After carefully reviewing this evidence, the Board finds no adequate basis to reject these competent medical opinions which are unfavorable to the Veteran, based on a rational lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Moreover, the file does not contain any competent medical evidence which rebuts the 2012 and 2013 VA opinions or otherwise diminishes their probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). Moreover, the lay assertions from the Veteran as to the etiology of his right ear hearing loss (service related due to acoustic trauma sustained therein) are beyond his competence as a lay person to make and are not consistent with the objective evidence of record, which does not establish continuity and chronicity of hearing loss since service or a nexus between currently manifested hearing loss and acoustic trauma sustained in service. See Davidson v. Shinseki, 581 F.3d 1313, (Fed Cir. Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d 1372 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Overall, the evidence is not in relative equipoise, as there is evidence of normal right ear hearing acuity upon enlistment in January 1971, the Veteran had only 9 days of active duty service and associated noise exposure, he has significant indications of post service occupational noise exposure, and post service evidence of right ear hearing loss is not shown until 1995, more than 20 years after the Veteran's discharge from service. Moreover, the most probative evidence of record addressing the etiology and onset of the Veteran's hearing loss-VA medical opinions of 2011 and 2013-weigh against service incurrence. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The benefit sought on appeal must, therefore, be denied. B. Left Ear As regards the left ear, audiometric testing results noted on the January 1971 enlistment examination report indicate that the Veteran had impaired hearing of the left ear-even though those results do not establish left ear hearing loss meeting the threshold requirements for a hearing disability for VA purposes at enlistment. See 38 C.F.R. § 3.385. The threshold for normal hearing is between 0 and 20 decibels, and a higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Accordingly, left ear hearing loss was demonstrated and noted on the Veteran's service enlistment examination report and as such, the presumption of soundness with respect to left ear hearing loss does not attach. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304 (b). The remaining question, however, is whether the pre-existing bilateral hearing loss was aggravated during, or as a result of, service. Under 38 U.S.C.A. § 1153, aggravation is presumed where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. However, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The Veteran asserts that his exposure to loud noise as a result of proximity to a flight path while in service aggravated his left ear hearing loss. Even if the Veteran's account is found to be both competent and credible, objective facts reflect that the Veteran served on active duty for only 9 days and was never assigned an MOS. Hence any acoustic trauma sustained in service, must be viewed in this context and considered to be extremely limited in duration. The Veteran's STRs do not support a finding that there was an increase in left ear hearing loss during his 9 days of active service. They do not document any complaints of noise exposure or left ear hearing deficit. Post-service, the earliest indication of left ear hearing loss meeting the threshold requirements of 38 C.F.R. § 3.385 was shown in February 1995. Thus, the presumption of aggravation does not attach. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). Moreover, the most persuasive medical evidence addressing the question of aggravation of pre-existing left ear hearing loss weighs against the claim. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)) (the credibility and weight to be attached to medical opinions are within the province of the Board). In this regard, a November 2011 audio examination report reflects that the examiner noted that the Veteran's 1971 entrance examination revealed mild hearing loss at 500 and 4000 hertz in the left year. It was noted that he reported having sustained noise exposure from jet engines during his 9 days of basic training, with extensive occupational noise exposure post-service from 1971 forward, without the use of hearing protection until the mid-1970's. The examiner opined that it was unlikely that 9 days of limited noise exposure in service created or aggravated hearing loss. It was noted that his current hearing loss was likely due to occupational noise exposure and age. In July 2013, a second VA audiological examination was conducted. The examiner concluded that left ear hearing loss clearly and unmistakably existed prior to service as shown by the enlistment examination report, and opined that no lay evidence or current research support a finding if aggravation of left ear hearing loss beyond the normal progression, during or as a result of service. She observed that it was extremely unlikely that the Veteran's reported noise exposure was loud enough to have created damage to the cochlea during service. She also referenced a 2008 report of the Institute of Medicine was also referenced which found no sufficient scientific basis for the existence of delayed onset hearing loss. In conclusion, it was opined that it was extremely unlikely that the Veteran's hearing loss was created and/or aggravated by military noise exposure. In summary, the examiner noted that the Veteran's 1971 entrance examination revealed normal right hearing loss, and mild hearing loss at 500 and 4000 hertz in the left year. It was noted that he reported having sustained noise exposure from jet engines during his 9 days of basic training, with extensive occupational noise exposure post-service from 1971 forward, without the use of hearing protection until the mid-1970's. The examiner opined that it was unlikely that 9 days of limited noise exposure in service created or aggravated hearing loss. It was noted that his current hearing loss was likely due to occupational noise exposure and age. The file contains no competent evidence or opinion to the contrary. As the VA 2011 and 2013 opinions were based on a review of the Veteran's service and post-service history of noise exposure, the examiner had access to the claims file, and both opinions were thorough and detailed, the Board has afforded the VA examiner's opinions significant probative weight on the question of in-service aggravation of the Veteran's pre-existing left ear hearing loss. See Nieves-Rodriguez, 22 Vet. App. 295, 300-01 (2009). To the extent the Veteran, his spouse, and friend have attempted to establish aggravation of the Veteran's pre-existing left ear hearing loss disability during, as a result of, service, on the basis of lay assertions, alone, such attempts must fail. The question of whether there has been aggravation of a disability is a complex medical matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As none of the above-referenced individuals is shown to be other than a layperson without the appropriate medical training and expertise, none is competent to render a probative (persuasive) opinion on such a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for left ear hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for right ear hearing loss is denied. Service connection for left ear hearing loss is denied. REMAND The Board's review of the claims file reveals that additional RO action on the claims remaining on appeal is warranted. The Veteran claims that he developed mild degenerative disc disease of the lumbar spine as a result of an injury to the low back in service. Alternatively, he claims that pre-existing spondylolisthesis was aggravated by service. He also claims that he has left lower extremity symptoms including numbness and loss of sensation due to the lumbar spine disability. In the prior, February 2013 remand, the Board determined that, as regards the claims for service connection of a lumbar spine disability and left lower extremity disability, a medical opinion was needed to address whether any lumbar spine and/or left lower extremity disability clearly and unmistakably existed prior to service entrance, and, if so, whether any such pre-existing disability was clearly and unmistakably not aggravated by service. If the examiner found that there is not clear and unmistakable evidence of a preexisting lumbar spine and/or left lower extremity disorder, the examiner was requested to opine as to whether it is at least as likely as not that such disability wad incurred during service. Additionally, if the examiner determined that a lumbar spine disorder was caused or aggravated by service, and that a left lower extremity disorder was not caused or aggravated by service, it was requested that the examiner consider and discuss whether the Veteran's current left lower extremity symptoms are related to any current lumbar spine disorder. If the examiner determined that a left lower extremity disability was aggravated by the lumbar spine disability, it was requested that the examiner should attempt to quantify the degree of additional disability resulting from aggravation. If the examiner determined that the Veteran does not have a current left lower extremity disability, it was requested that the examiner explain the nature and etiology of the Veteran's left lower extremity symptoms including loss of feeling. It was requested that in rendering any opinion regarding the claimed lumbar spine disability and left lower extremity disability, that the examiner consider and discuss the Veteran's medical records-including the following: the January 1971 Report of Medical History which reflects the Veteran's report that prior to service, in November 1970, he had a cramp while lifting a heavy load and that he had localized sharp pain with radiation to the leg; the August 1971 service treatment report which noted an impression of a back strain for an injury incurred after 9 days of active duty service; X-ray results noted in a November 1971 service treatment record that noted Grade I spondylolisthesis at L5 - S1; and the June 2010 VA examiner's diagnosis of degenerative disc disease. It was also requested that the examiner consider the lay evidence of record, to include the Veteran's own statements submitted in support of his claim and sworn testimony. A VA examination of the spine was conducted in July 2013 and the claims file was reviewed. The following diagnoses were made: grade 1 spondylolisthesis L5-S1; lumbar sprain; and scoliosis. Testing also revealed left L4-5 radiculopathy, and right S1 radiculopathy, which were diagnosed. The examiner indicated that post service, the Veteran has worked in lumbar mills, a ladder factory, and in road construction. As reflected in the examination report, the examiner characterized the pertinent inquiries as follows (1) Has the current lumbar spine degenerative disc disease and degenerative arthritis, which is a pre-existing condition, been permanently aggravated by service?; (2) Is the current bilateral radiculopathy due to the pre-existing degenerative disc disease and degenerative arthritis lumbar spine?; and (3) What is the etiology of the left and right lower extremity condition? In response to the question (1) the VA examiner opined that the claimed condition (not specifically mentioned), which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service injury, event, or illness. In response to question (1) the examiner explained that the Veteran's lumbar spine condition, even as late as the 2010 June exam, did not show any progression of this condition. It was further noted that the Veteran continued in an active employment and that the CT scanogram done for this exam in July 2013 still only demonstrated mild degenerative changes. The examiner indicated that she could not find any aggravation of this congenital condition to include the grade one spondylolithesis, scoliosis thoracolumbar, and pars defects to have been permanently aggravated by service in 1971 when no progression or changes of this condition have occurred. With respect to questions (2) and (3), the examiner noted that the current diagnosis of the bilateral lower extremities is lumbar radiculopathy, described as caused by the congenital and pre-existing pars defects and spondylolisthesis (degenerative disc disease and degenerative arthritis). It was observed that he had a diagnosis by EMG study of a right S1 radiculopathy and chronic left L4-5 radiculopathy, all consistent with his congenital conditions. The examiner opined that the Veteran's symptoms have not changed since 1971 and could not be considered aggravated by service. Initially, the Board finds that an explanation relating to pre-existing conditions, defects, is necessary to understand the framework of the analysis of this claim. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance, VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). If a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In that case, 38 U.S.C.A. § 1153 applies and the burden falls on him, not VA to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990). Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9. Service connection is generally precluded by regulation for such "defects", because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; accord Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). VA's Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. See VAOPGCPREC 82-90, VAOPGCPREC 67-90. The VA General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that a defect is "more or less stationary in nature", while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at para. 2. In this regard, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C.A. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c); see also Quirin, 22 Vet. App. at 397; Terry, 340 F.3d at 1385-86 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease-or injury-related defect to which the presumption of soundness can apply"). However, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. However, if it is determined during service that a Veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Since the presumption of soundness at entrance attaches, VA must show by clear and unmistakable evidence that the congenital disease preexisted service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA's Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43,253 (1990). In short, service connection is available for congenital diseases, but not defects, that are aggravated in service. Quirin, 22 Vet. App. at 394; Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In cases where the appellant seeks service connection for a congenital condition, VA must indicate whether the condition is a disease or defect and discuss the applicability of, and if appropriate, rebuttal of, the presumption of soundness. Quirin, 22 Vet. App. at 394-397. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted, and if so whether there was aggravation during service. Id. at 395. The Board believes that some clarification is required in conjunction with the 2013 opinion and that an addendum to that opinion is required. Initially, it is necessary to obtain clarification as to whether spondylolisthesis diagnosed in service and for which the Veteran was ultimately discharged is a congenital defect. If so, there arises the related matter of whether any disease or injury was superimposed on that condition during service. Also requiring additional action is identification of all currently manifested conditions of the lumbar spine and a discussion of the clarification of the June 2010 VA examiner's diagnosis of degenerative disc disease, in terms of etiology and onset, as was essentially previously requested in the February 2013 remand. A remand by the Board confers upon on an appellant, as a matter of law, the right to compliance with the terms of the remand order and imposes upon VA a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, remand is required to ensure compliance with the Board's February 2013 remand. See Stegall, 11 Vet. App. at 271. Prior to arranging for the requested addendum, to ensure that all due process requirements are met and that the record before the VA examiner is complete, the RO should undertake efforts to obtain all outstanding, pertinent records of treatment for his lumbar spine and left lower extremity. The Veteran still has not indicated that he is treated at a VA facility for any of these disorders. Hence, the RO should give the Veteran another opportunity to present information and/or evidence pertinent to the claims for service connection. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the appellant provide, or provide appropriate authorization for the RO to obtain, any outstanding private medical records. The RO should request that the Veteran identify the provider who advised him of the need for hearing aids as a VA or private audiologist, and that he furnish any necessary authorizations to obtain those records, as well. Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Send to the Veteran a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims for service connection for a lumbar spine disorder and lower extremity disorder, that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent, private medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all available records and/or responses from each contacted entity are associated with the claims file, or, a reasonable time period for the Veteran's response has expired, undertake appropriate action to obtain an addendum medical opinion, by the prior examiner or another appropriate physician, relating to the claims for service connection for disabilities of the lumbar spine and lower extremities. The entire claims file, to include a complete copy of the REMAND, and copies of any relevant Virtual VA records, must be made available to the physician, and the report should include discussion of the Veteran's documented medical history and assertions as appropriate. (a) The physician should clearly indicate all diagnoses pertinent to the lumbar spine and each lower extremity. In this regard, the physician should specifically address the validity of the diagnoses of degenerative disc disease and degenerative joint disease of the lumbar spine (from the 2010 VA examination) as well as the diagnoses of grade 1 spondylolisthesis L5-S1, lumbar sprain, and scoliosis of the lumbar spine, and lower extremity radiculopathy (from the 2013 VA examination). (b) For each diagnosis, the examiner should indicate whether the diagnosis represents a congenital defect or disease; and, if a defect, whether the condition was subject to superimposed disease or injury, resulting in a current disability. (c) For each diagnosis that is not considered a congenital defect, the physician should indicate (1) whether the disability clearly and unmistakably existed prior service entrance, and, if so (2) whether the disability was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service. (d) For each disorder determined not to have clearly and unmistakably existed prior to service, the physician should opine as to whether it is at least as likely as not (i.e., there is a 50 percent probability or greater probability) that the disability was incurred during service. (e) If the physician determines that a lumbar spine disorder is directly related to service and that a lower extremity disorder is not directly related to service, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the lower extremity disability (1) is a manifestation of lumbar spine disability; or , if not (2( was caused or is aggravated (worsened beyond natural progression) by the lumbar spine disability. If the physician determines that a lower extremity disability is or has been aggravated by lumbar spine disability, the physician should attempt to quantify the degree of additional disability resulting from aggravation. In rendering the requested opinions, the physician must consider and discuss all pertinent medical and lay evidence or record, to include the service treatment records, the findings of the June 2010 VA physician, and the assertions reflected in the statements and sworn testimony of the Veteran. The physician should set forth all examination findings (if any), along with complete rationale for the conclusions reached, in a printed (typewritten) report. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims remaining on appeal in light of all pertinent evidence (to particularly include all that added to the record since the last adjudication of the claims), and legal authority (to include that summarized above). 6. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1/995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2013). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs