Citation Nr: 1315784 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 11-27 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder and generalized anxiety disorder. 2. Entitlement to service connection for a respiratory disability, to include as due to asbestos exposure. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for traumatic brain injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from April 1956 to January 1958. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied entitlement to service connection for PTSD, generalized anxiety disorder, a respiratory condition, bilateral hearing loss, and traumatic brain injury. The Veteran's claims folder is currently under the jurisdiction of the Cleveland, Ohio RO. The Board notes that a claim for service connection for a psychiatric disability such as PTSD and generalized anxiety disorder cannot be limited only to the diagnosis that the appellant references, but rather, must be considered a claim for service connection for any and all psychiatric disabilities clinically indicated. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the issues have been recharacterized as indicated above. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Although the Veteran requested a Board hearing and was scheduled for a videoconference hearing before a Veterans Law Judge on February 6, 2013, he failed to appear for the hearing without explanation. He has not requested that the hearing be rescheduled; therefore, the hearing request is considered withdrawn. The issues of entitlement to service connection for an acquired psychiatric disability to include PTSD and generalized anxiety disorder, bilateral hearing loss, and traumatic brain injury are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent medical, and competent and credible lay, evidence of record does not demonstrate that the Veteran is diagnosed with any respiratory disability. CONCLUSION OF LAW A respiratory disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. In correspondence dated in September 2009 and August 2010, VA informed the appellant of what evidence was required to substantiate his claim, and his and VA's respective duties for obtaining evidence. The September 2009 letter also notified him that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. In Pelegrini, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was completed prior to the initial AOJ adjudication denying the claim, the timing of the notice complies with the express requirements of the law as found by the Court in Pelegrini. In this regard, the content of the September 2009 notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. Moreover, the appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. Duty to Assist With regard to the duty to assist, the claim's file contains the Veteran's VA medical records, private treatment records, and a statement by a lay witness. The Board has carefully reviewed the evidence and concludes that there has been no identification of further available evidence pertinent to the claim being decided, which is not already of record. In this regard, a formal finding of unavailability of the Veteran's service treatment records was made in June 2010 and a formal finding of unavailability of the Veteran's service personnel records was made in August 2010. The Veteran was notified in the September 2009 and the August 2010 letters, that his service treatment records and his service personnel records were unavailable. Furthermore, he was informed in a November 2011 letter that his Social Security Administration (SSA) disability records had been destroyed. He was informed that all efforts to obtain his service treatment records have been exhausted. He was then informed of the documents that can substitute for service treatment records. He was also informed that all efforts to obtain his official military personnel file had been exhausted. The Veteran was given an opportunity to submit his personnel file, or any evidence he would like VA to consider in connection with the claim. Despite these letters being sent to the address of record, the Veteran has not responded with the requested information. Thus, the Board concludes that there is no further unidentified evidence, and the Board may proceed with the appeal. The Board observes that the Veteran was not afforded a VA examination in conjunction with his service connection claim. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred that would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Here, the Veteran has neither submitted nor identified any available medical evidence to establish that he currently has a respiratory disability whatsoever, and nothing suggests that any respiratory disability is due to disease or injury in service, to include any exposure to asbestos. Hence, the Board finds that an examination is not required for the claim. See also Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim"). In sum, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Other specifically enumerated chronic disorders, including bronchiectasis, will be presumed to have been incurred in, or aggravated by, service if manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As discussed more thoroughly below, the Veteran is not diagnosed with a respiratory disability, such as bronchiectasis, which is recognized as a chronic disability in 38 C.F.R. § 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1MR (M21- 1MR), Part IV, Subpart ii, Chapter 2, Section C. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). M21-1MR provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus, persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. The applicable section of M21-1MR also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). Id. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to the current version contained in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C) of M21-1, Part VI, did not create a presumption of exposure to asbestos, including due to mere service aboard naval vessels. Moreover, medical nexus evidence is required in claims for asbestos-related disease causally linked to alleged asbestos exposure in service. VAOPGCPREC 4-2000 (Apr. 13, 2000). In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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, 1 Vet. App. at 54. The Veteran contends that he suffers from a respiratory disability that he describes as shortness of breath, which is due to active service. He indicated in his VA Form 21-526 claim form that he was exposed to asbestos in service, and that his shortness of breath is a result of that exposure. He also stated that he was treated for shortness of breath in December 1957 in service. The Board notes that the Veteran's service treatment records and service personnel records are unavailable despite attempts to retrieve them. Nevertheless, the Board concedes that the Veteran was exposed to asbestos while on active duty. O'Hare v. Derwinski, 1 Vet. App. 365 (1991) (where service medical records are unavailable through no fault of the veteran, VA has a heightened obligation to carefully consider the benefit-of-the-doubt rule). The post-service private medical evidence reflects that in October 1991 and January 1992 the Veteran had complaints of dyspnea and shortness of breath. No respiratory disability was diagnosed. A September 1992 chest X-ray study revealed that the lung fields were clear. The impression was normal chest. A November 1994 letter from a private physician notes that the Veteran's chest was clear. A February 1995 private treatment record notes that the Veteran's lungs were clear to auscultation; there were no complaints of shortness of breath or other respiratory complaints. A June 1995 private treatment record indicates that lungs were clear to auscultation; there were no complaints of shortness of breath or other respiratory complaints. The VA treatment records reflect that a February 2006 chest X-ray showed stable chest. No acute parenchymal infiltrates were seen. A November 2006 VA treatment record notes that the Veteran's lungs were clear. Normal respiratory excursion was noted. A May 2008 VA treatment record notes that the Veteran's lungs were clear to auscultation bilaterally. A December 2008 VA treatment record notes a past medical history which does not include any respiratory disability. Notably, the past medical history includes hyperlipidemia, hypertension, generalized anxiety, diabetes mellitus, glaucoma, irregular heartbeat, constipation, chest pain with negative cardiac workup, and no history of stroke. A January 2011 VA treatment record reflects no respiratory complaints. On examination, the lungs were clear to auscultation bilaterally. A January 2011 active problems list does not contain any respiratory disability. Instead, it lists generalized anxiety, dermatophytosis of nail, hallux valgus, hyperplasia of prostate, constipation, diabetes mellitus, glaucoma, pain in limb, acquired keratoderma, memory loss, Vitamin B 12 deficiency, xerosis, and epilepsy. Even if the Board concedes that the Veteran was exposed to asbestos and was treated for shortness of breath during service, the Board notes that complaints of shortness of breath during service are not sufficient to establish the presence of a chronic respiratory disability, and there is no evidence of any complaints or findings of a chronic respiratory disability since service. In this regard, it is well established that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1131 (West 2002); see also Degmetich v. Brown, 104 F.3d 1328 (1997). This requirement "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." McLain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, No. 11-3272 (Vet. App. May 9, 2013). The Veteran has not submitted any evidence demonstrating a current diagnosis of any chronic respiratory disability, nor has he submitted any medical evidence describing his respiratory symptomatology. The current VA treatment records consistently show that examination of the lungs was normal, and that the Veteran had no respiratory complaints. As such, the evidentiary requirement of demonstrating a current diagnosis has not been satisfied. 38 U.S.C.A. § 1131; McLain, 21 Vet. App. at 321; Romanowsky, Id. In conclusion, the evidence does not show that the Veteran currently has any respiratory disability which is related to active service, to include exposure to asbestos. The current treatment records are absent for any indications of respiratory complaints, problems, findings, or diagnoses. The Board recognizes that the Veteran complained of shortness of breath in 1991 and 1992. However, these records also do not document any respiratory disability. The Board also recognizes that a July 2009 VA treatment record documents the Veteran's complaints of having panic attacks where he will smell a strange smell, hyperventilate, and have feelings that his feet are cold/shaking feet. However, no respiratory disability was diagnosed; instead, the Veteran's complaints were related to his anxiety. While it is clear, based upon his claim, that the Veteran feels that service connection for a respiratory disability is warranted, his lay opinion regarding the presence of any current respiratory or such a disability being related to active service is outweighed by the medical evidence, which reflects absolutely nothing during the pendency of the claim in terms of complaints or findings regarding the respiratory system. As previously noted, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). However, the Veteran as a lay person, not shown to have had any medical training, is not competent to testify that he has a complex medical condition such as diagnosis of a respiratory disability which is etiologically related to active service, to include asbestos exposure therein. Concerning this, the Board is mindful that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). However, in this case, the Veteran is not providing statements related to the diagnosis of a simple disorder or about symptomatology but is instead trying to state that he has a respiratory disability which is related to active service, to include due to asbestos exposure. Unlike the varicose veins in Barr or dislocated shoulder in Jandreau, a respiratory disability is not the type of condition that can be diagnosed without medical expertise. Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. Notably, the onset and diagnosis of a respiratory disability requires medical knowledge and testing and the cause of the disease is a matter of medical complexity. Therefore, the Veteran's statements that he experiences shortness of breath, as general and minimal as they are, do not constitute competent medical evidence on which the Board can make a service connection determination, and the current medical evidence is devoid of any mention of respiratory symptoms, complaints, problems, findings, or diagnoses. In sum, there has been no demonstration by competent, credible evidence of record that the Veteran's has a respiratory disability which is etiologically related to military service, to include exposure to asbestos therein. Because the preponderance of the evidence is against the appellant's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a respiratory disability is not warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a respiratory disability is denied. REMAND As previously noted, the Veteran's service treatment records and service personnel records are unavailable through no fault of his own. In cases such as this, where the veteran's service records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case. 38 U.S.C.A. §5103A (West 2002); 38 C.F.R. §3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran contends that he is entitled to service connection for an acquired psychiatric disability, to include PTSD and generalized anxiety disorder. A review of the record shows diagnoses of generalized anxiety disorder and depression, but no diagnosis of PTSD. The Veteran has indicated that he was a paratrooper in service. His claimed stressor involves a fellow soldier, also a paratrooper, whose parachute did not open on a jump. The Veteran claims to have witnessed this soldier, Private S., fall to his death in January 1957. Further, the Veteran indicated that he was part of the 502nd Airborne Battle Group Infantry, 101 screaming eagles. In response to the Veteran's contentions, the RO contacted the U.S. Army and Joint Services Records Research Center (JSRRC) (formerly Center for Unit Records Research (CURR)). The June 2010 response was that the National Archives and Records Administration (NARA) indicated that there were no records submitted in 1957 by Company B, 1st airborne battle group, 502nd Infantry, 101st Airborne Division which could be located. The response text also indicates that no casualty with the name of S. could be located in 1957 at Fort Campbell. However, the response text also indicates that CURR does not maintain morning reports, and that a morning report search was recommended to determine if the unit documented a fatality in 1957. Additionally, it was noted that due to the nature of the fatality, there may be a criminal investigation report filed on the incident, and that in order to request documentation pertaining to this incident, the Director, U.S. Army Crime Records Center, should be contacted. The claims file does not reflect that the RO/AMC has undertaken any effort to obtain the morning reports, nor does it appear that the RO/AMC has contacted the Director, U.S. Army Crime Records Center to determine if there is an investigation report. As such, a remand is required in order to undertake this development action. The VA treatment records from May and August 2011 note that the Veteran has a diagnosis of generalized anxiety disorder versus panic disorder in partial remission. It was specifically noted that the Veteran still had nightmares about being in service. As such, a VA examination should be scheduled in order to determine the nature and etiology of all currently diagnosed psychiatric disabilities, to include the currently diagnosed generalized anxiety disorder and depression. The Veteran also claims that service connection is warranted for traumatic brain injury. He stated that as a paratrooper he hit his head multiple times during jumps, and these incidents resulted in traumatic brain injury. In a November 2009 lay statement, E.S. indicated that the Veteran told her that on one occasion after a jump his nose started bleeding. He indicated that he was treated and then he got an early discharge. An August 2010 VA treatment record notes that the Veteran has significant cognitive impairment which affects his daily living. A November 2010 VA treatment record notes that the Veteran has epilepsy and dementia, possibly vascular, or in combination with underlying neurologic disease. A February 2011 VA treatment record notes that the Veteran has complex partial epilepsy with bilateral mesial temporal dementia. It was noted that the Veteran's memory is still poor and has no improved. A May 2011 VA treatment record notes that the Veteran has dementia of unknown etiology and complex partial epilepsy. An August 2011 VA treatment record notes a diagnosis of amnesic syndrome per neuropsych test. Therefore, a VA examination is necessary in order to determine the nature and etiology of any current traumatic brain injury, to include the currently diagnosed dementia, epilepsy, and amnesic disorder. Regarding the Veteran's claim for service connection for bilateral hearing loss, a VA examination was conducted in July 2010. The VA examiner noted that in-service noise exposure was conceded based upon the Veteran's participation in the airborne infantry and light weapons infantry. The examiner further noted that the Veteran reported occupational noise exposure working as a factory mechanic for 10 years without the use of hearing protection. The examiner opined that the Veteran's hearing loss is less likely than not the result of noise exposure in service. The examiner based the opinion on the Veteran's "current degree of hearing loss," the Veteran's report that the onset of his hearing loss was in the last 10 years, the Veteran's report of occupational noise exposure in a factory for about 10 years without the use of hearing protection, and the Veteran's military noise exposure for two years with intermittent use of hearing protection. A review of the record reflects that an October 2008 VA treatment record notes that the Veteran had occupational noise exposure as a mechanic; however, it was also noted that hearing protection was worn. Therefore, the Board finds that the July 2010 VA examiner's opinion is based, in part, on an inaccurate factual premise. Moreover, the Board notes that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board also observes that Training Letter 10-02 was issued in March 2010 regarding the adjudication of claims for hearing loss. In that letter, the Director of the VA Compensation and Pension Service indicated that the two most common causes of sensorineural hearing loss are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise). It was also noted that the presence of a notch (of decreased hearing) that may be seen on audiograms generally at frequencies of 3000, 4000, or 6000 Hertz with a return toward normal at 8000 Hertz may be indicative of noise-induced hearing loss. In this case, the July 2010 VA examiner found that the Veteran's hearing loss was not at least as likely as not related to noise exposure during service in part because the Veteran reported the onset of hearing loss less than 10 years earlier. As noted above, the law does not necessarily require that hearing loss manifest in service or at any specified time thereafter. It would have been helpful if the examiner brought her expertise to bear in this manner regarding medically known or theoretical causes of sensorineural hearing loss or described how hearing loss which results from acoustic trauma generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that any current bilateral hearing loss was caused by noise exposure or acoustic trauma in service as opposed to some other cause. The Board also finds that the examiner's other reasons cited to support the opinion against the Veteran's claim to be unclear. Notably, the examiner merely stated that the rationale for the opinion was "his current degree of hearing loss" and "military noise for 2 years with intermittent use of hearing protection." Without further explanation, the Board finds these additional reasons to be inadequate for adjudication purposes. As such, a remand is required in order to return the claims file to, to include a copy of this remand, to the July 2010 VA examiner for the purposes of determining whether in-service noise exposure could cause the Veteran to progressively lose his hearing over the years. Hensley v. Brown, 5 Vet. App. 155 (1993). Because the Veteran receives treatment through VA, ongoing VA treatment records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the appropriate agency or agencies and attempt to obtain any morning reports for Company B, 1st Airborne Battle Group, 502nd Infantry,101st Airborne Division, in 1957. If no records are available, a formal finding of unavailability should be prepared and associated with the claims file. The Veteran should be notified in this regard. 2. Contact the Director, U.S. Army Crime Records Center, in Fort Belvoir, VA, in order to determine whether there is a criminal investigation report filed pertaining to the Veteran's alleged stressor involving Private S., who fell to his death in approximately January 1957, when his parachute did not open during airborne training. 3. Obtain copies of the Veteran's VA treatment records dating from August 2011 to the present, and associate them with the claims file. 4. If, and only if, the Veteran's stressor is verified through the development actions above, schedule the Veteran for a VA psychiatric examination to determine the presence and etiology of all psychiatric disabilities, to include the currently diagnosed generalized anxiety disorder and depression. The examiner should indicate whether the Veteran meets the DSM-IV criteria for a diagnosis of PTSD. The claims folder must be made available to the examiner in conjunction with the examination. The examiner is requested to provide an opinion as to whether it is at least as likely as not (ie., a 50 percent or better probability) that the Veteran has an acquired psychiatric disability, to include PTSD, anxiety and depression, that is related to active service, to include the Veteran's alleged stressor involving him witnessing Private S., a fellow paratrooper, fall to his death in approximately January 1957 during a training exercise where his parachute did not open. A complete rationale should be provided for the opinion offered. If an opinion cannot be provided without resort to speculation, the basis for the inability to provide such an opinion should be set forth, to include identifying any additional information necessary to provide such an opinion. 5. An appropriate VA examination should be scheduled to determine the nature, extent, onset and etiology of any traumatic brain injury found to be present, to specifically include the Veteran's current diagnoses of epilepsy, dementia, and amnesic disorder. The claims folder should be made available to and reviewed by the examiner. All indicated studies and all findings should be reported in detail. The examiner should comment on the Veteran's report regarding the onset of his memory loss, the September 2010 MRI of the Veteran's brain, the diagnoses of epilepsy, dementia, and amnesic disorder, and the lay statement of record, and opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any traumatic brain injury found to be present, to include the current diagnoses of epilepsy, dementia, and amnesic disorder, is related to or had its onset during service. A complete rationale should be provided for the opinion offered. If an opinion cannot be provided without resort to speculation, the basis for the inability to provide such an opinion should be set forth, to include identifying any additional information necessary to provide such an opinion. 6. Return the claims file, to include a copy of this remand, to the examiner who conducted the July 2010 VA audio examination, if she is available. The examiner must review the claims file and provide an opinion on the following: Regardless of the date of onset of the Veteran's bilateral hearing loss, is any current hearing loss at least as likely as not (50 percent probability or greater) etiologically related to in-service noise exposure (i.e., did in-service noise exposure cause the Veteran to progressively lose his hearing over the years). In rendering the above opinion, the examiner should assume that the Veteran used hearing protection during his post-service occupational noise exposure as a mechanic, as noted in the October 2008 VA treatment record. The examiner should discuss the severity of the Veteran's current hearing loss, and describe how it pertains to the etiology of the hearing loss. The examiner should also describe how the Veteran's two years of in-service noise exposure with intermittent hearing protection factors into the opinion given. The examiner must provide a rationale for the opinions expressed. If the VA examiner is of the opinion that an opinion cannot be provided without resorting to speculation then he/she must provide a detailed medical explanation as to why this is so. In rendering the above opinions, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). If the July 2010 VA examiner is not available, another qualified examiner should be requested to provide the above opinions. Should another VA examination be necessary in order to accomplish that, one should be scheduled. 7. The Veteran is advised that failure to report for a VA examination, without good cause, may have adverse consequences on his claim. See 38 C.F.R. § 3.655 (2012). 8. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs