Citation Nr: 1400280 Decision Date: 01/06/14 Archive Date: 01/23/14 DOCKET NO. 08-28 670 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected panic disorder with agoraphobia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his wife. ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from April 1971 to May 1993. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2006 rating decision in which the RO, inter alia, denied service connection for bilateral hearing loss and hypertension. In May 2006, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in June 2008, and the Veteran submitted a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2008. In March 2010, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In June 2010, the Board remanded the claims on appeal to the RO for further action. After accomplishing further action to the extent possible, the RO returned these matters to the Board. Notably, the right ear hearing loss issue was originally included in the issue of entitlement to service connection for bilateral hearing loss. However, by rating decision dated in January 2011 the RO granted service connection for left ear hearing loss. As such, only the right ear hearing loss issue was still before the Board. In February 2013, the Board, again, remanded the claims on appeal to the RO, via the AMC, for additional development. After accomplishing further action to the extent possible (as explained in more detail below), the RO continued the denials of service connection for right ear hearing loss and hypertension (as reflected in a May 2013 supplemental statement of the case (SSOC)), and returned these matters to the Board for further appellate consideration. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veteran's claims. A review of the documents in such folder reveals VA treatment records dated through March 2013 which were considered by the RO in the May 2013 SSOC as well as a November 2013 Informal Hearing Presentation. The remainder of the records 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 claim for service connection for hypertension, to include on a secondary basis, is addressed below. The claim for service connection for right ear hearing loss is addressed in the remand following the order; this matter is. Again, being remanded to RO via the AMC; 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 the claim herein decided has been accomplished. 2. Although the Veteran reported a history of high blood pressure in service, the available treatment records do not indicate that hypertension was shown or diagnosed during service; there is no credible, persuasive evidence of symptoms of hypertension in and continuing since service; the first documented diagnosis of hypertension is more than one year after the Veteran's discharge from active service; and the only medical opinions to address the etiology of any current hypertension weigh against a finding of direct or secondary service connection. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as secondary to service-connected panic disorder with agoraphobia, are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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, 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; (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, 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 has been 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, to include the AMC). 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 August 2005 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The April 2006 RO rating decision reflects the initial adjudication of the claim after issuance of the August 2005 letter. A June 2010 letter provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates-in the event service connection is granted, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the June 2010 letter, and opportunity for the Veteran to respond, the May 2013 SSOC reflects the most recent readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA, and private treatment records, and the reports of April 2011 and May 2013 VA examinations. The Board finds that the VA examinations and medical opinions obtained in connection with these claims are adequate for and pertinent to its determinations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In particular, the April 2011 and May 2013 VA examiner's opinions were based upon physical examination of the Veteran and complete review of the claims file, and were supported by fully explained medical and factual bases. Under these circumstances, the Board finds that no additional examination or opinion is needed to decide this claim. As noted above, the claim was previously remanded by the Board in February 2013. Significantly, the Board then noted that a medical opinion regarding the Veteran's claim for hypertension on a secondary basis was of record but that a medical opinion for the hypertension claim on a direct basis was needed. As such, such an opinion was obtained in May 2013. And, following the Board's February 2013 remand, recent VA treatment records were obtained and associated with the claims file. The Board finds that no further RO action on the claim, prior to appellate consideration, is required. As for the Veteran's March 2010 Board hearing, the Board notes that the Veteran was provided an opportunity to set forth his contentions during the 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 held that 38 C.F.R. § 3.103(c)(2) requires that the RO 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. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the March 2010 hearing, the undersigned Veterans Law Judge enumerated the issues on appeal. See Hearing Transcript (T.) at p. 2. Also, information was solicited regarding onset of the Veteran's claimed hypertension and any causal link between the claimed hypertension and the Veteran's active service. In addition, the hearing focused on the elements necessary to substantiate the Veteran's claim, to include the necessity of a causal connection between his hypertension and service. See T. at pgs. 3-10. 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. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the appellant's claim for service connection for hypertension. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that the hearing was legally sufficient. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any existing, pertinent evidence, apart from the unavailable records noted above, that has not been obtained. The record also otherwise presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claim, 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 this claim. 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 matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (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. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include hypertension, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (10 percent and one year, respectively, for a psychosis), even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(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 apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, arthritis is among the diseases listed in section 3.309(a). Under 38 C.F.R. § 3.310(a), service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2013). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744 - 47 (Sept. 7, 2006). Considering the pertinent evidence of record in light of the governing legal authority, the Board finds that service connection for hypertension, to include on a secondary basis, simply is not established. On enlistment examination in November 1970 the Veteran reportedly had a normal heart and had a blood pressure reading of 134/62. Upon Report of Medical History at enlistment the Veteran denied "high or low blood pressure." The Veteran's service treatment records document a noted history of elevated blood pressure in May 1984. However, the actual blood pressure readings reflected in those records were normal: 98/60 (October 1978); 112/70 (April 1980); 114/80 (April 1982); 120/90 (October 1982); 134/68 and 128/88 (March 1983); 104/70 (April 1984); 112/70 (March 1985); 114/72 (April 1985); 120/74 (May 1985); 120/78 (July 1985); 100/52 (August 1985); 100/76 (March 1986); 114/76 (August 1986); 118/74 (September 1986); 128/68 (March 1987); 128/78 (May 1987); 112/72 (June 1987); 104/64 and 104/82 (October 1987); 100/68 (November 1988); 112/82 and 114/80 (December 1988); 120/80 and 108/66 (March 1989); 84/54 and 108/76 (April 1989); 112/74 (August 1989); 94/69 (September 1989); 108/84 (December 1989); 94/68 (January 1990); 100/64 (June 1990); 100/64 (August 1990); 129/70 and 125/69 (August 1991); 124/81 (June 1992); 103/67 (July 1992); 116/63 (December 1992); and 123/73 and 117/67 (February 1993). The Veteran's March 1993 separation examination shows a blood pressure reading of 110/70 and also shows a normal heart. Notably, the Veteran's service treatment records document that he was taking Inderal (a medication which was first developed for use in the treatment of high blood pressure but is also used to treat anxiety) in March/April 1989. In June 1993, the Veteran filed an initial claim for VA benefits. A July 1993 VA general examination report reflects an assessment of low blood pressure by history but indicated that the Veteran's blood pressure was in the normal range: specifically, 90/60 (sitting right arm); 90/60 (supine); 100/60 (standing); 100/60 (supine left arm); and 105/60 (standing). In August 2005, the Veteran filed a claim for service connection for hypertension. In connection with this claim the Veteran submitted VA and private treatment records dated as early as October 1998. Significantly, an October 1998 private treatment record documents a blood pressure reading of 110/80 and is negative for any indication of hypertension despite listing, what appears to be, a complete list of all of the Veteran's disorders at that time. The earliest medical evidence of hypertension in the claims file is reflected in a May 2003 VA treatment record showing an impression of hypertension, stable. During the March 2010 Board hearing, the Veteran testified that he began taking hypertension medication in 1995, approximately two years after his military service The Veteran was afforded a VA hypertension examination in April 2011. At that tim,e the Veteran indicated that he was diagnosed with high blood pressure in 2003. It was his opinion that his hypertension was secondary to his service-connected panic disorder. The examiner reviewed the claims file and opined that the Veteran's hypertension was not in any way related to nor exacerbated by his service-connected panic disorder. The examiner noted that the Veteran's medical records clearly show that he was diagnosed with hypertension in 2003. The examiner further found no associations of the Veteran's blood pressure with his panic disorder, and indicated that there was no documentation that the Veteran's panic disorder aggravated or exacerbated the Veteran's hypertension. The examiner noted that the medical literature was remarkable to note that panic attacks and panic disorder are common problems in both primary care and psychiatric patients. It was further noted that a patient with panic attacks may present with classic discrete episodes of intense fear that begin abruptly and last for several minutes to an hour. Patients also present with autonomic symptoms of panic attack such as chest pain or shortness of breath, frequently precipitating an emergency room visit. The literature documented medical comorbidity with panic attacks from the Up-To-Date online article entitled, "Panic Disorder Epidemiology, Clinical Manifestations, and Diagnosis" by Dr. Wayne Katon and Dr. Paul Ciechanowski. It was note that6 Both community-based and clinic-based studies have shown that respondents with panic disorder may have a higher prevalence of other medical disorders compared to controls including asthma, hypertension, mitral valve prolapse, irritable bowel syndrome, and interstitial cystitis. However, there was no documented cause/effect relationship found between those medical conditions and panic disorder. It was remarkable to note that somatic symptoms of panic disorder often predominate in patients'clinical presentations. They had cardiac symptoms such as chest pain and tachycardia, which were common, as well as neurologic complaints of headaches and dizziness along with gastrointestinal complaints of gastric pain and stomach symptoms. In February 2013, the Board remanded the claim for an additional medical opinion. Specifically, it was noted that while the April 2011 VA examiner provided an opinion with regard to whether the Veteran's hypertension was secondary to the Veteran's service-connected panic disorder, she failed to opine whether the Veteran's hypertension is directly related to his military service. Such opinion was requested on remand. The Veteran was afforded a subsequent VA hypertension examination in May 2013. This examiner reviewed the claims file and opined that the Veteran's hypertension did not have its onset during military service, was not manifested within the first post service year, and was not otherwise related to the Veteran's military service. Specifically, the examiner wrote that there were no blood pressure readings diagnostic of hypertension in the Veteran's service treatment records. In fact, the examiner noted that the Veteran's blood pressure readings during service were in the low normal range. The examiner noted that, for a time the Veteran took Inderal during his service but that this was given to him for treatment of anxiety. Even when the Veteran was seen for painful Herpes Zoster in September 1986, his blood pressure was only 118/74. The examiner also noted that, as late as September 2002, the Veteran's VA medical records were negative for either a diagnosis or treatment of hypertension. While the Veteran's service treatment records include notations as to a history of elevated blood pressure, hypertension was not diagnosed and was not otherwise shown in service. Moreover, the fact that the Veteran's own reported history appears in his medical records does not, in and of itself, constitute competent evidence of the claimed disability. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Consistent with the findings of the VA examiners who reviewed the claims file, the Board notes that there is no evidence documenting that the Veteran was treated for hypertension in service. Indeed, although he initially suggested that the medication he was prescribed in 1995 was for the treatment of hypertension, notably, during the March 2010 Board hearing, the Veteran acknowledged that he was not diagnosed with hypertension in service, and that he began taking hypertension medication at least two years after service. Moreover, aside from the Veteran's seemingly inconsistent (and, hence, not credible) statements as to when he actually began taking medication for his hypertension, the fact remains that the first recorded diagnosis of hypertension or any cardiovascular disease is reflected in a May 2003 medical record, approximately ten years following his separation from active service. The Board points out that the passage of several or more years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection for the disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). [Parenthetically, the Board points out that, even if the Veteran's initial assertion that he began taking hypertension medication in 1995 was accepted as competent, credible evidence as to onset, such noted history would place the onset of hypertension to 1995, two years after the Veteran separated from service, and outside of the one-year period for establishing service connection for hypertension on a presumptive basis.] Furthermore, there is no competent evidence or opinion supporting the Veteran's contention that his currently diagnosed hypertension is in any way related to his service. In fact, in the only competent opinion of record to address the question such question, the May 2013 VA examiner determined that the currently diagnosed hypertension was less likely than not related to the Veteran's service. As indicated, this opinion was based on both examination of the Veteran and review of the claims file, and the examiner provided a rationale for her conclusion, No contrary, competent evidence on the question of direct relationship to service has been presented or identified. Although the Veteran suggests that he has had symptoms of hypertension since service, and he is competent to report his symptoms, like other matters within his personal knowledge (see, e.g., Charles v. Principi, 16 Vet. App. 370 (2002)), he simply does have the medical training or expertise to competently attribute symptoms to a specific diagnosis (see e.g., Jones v. Brown, 7 Vet. App. 134, 137-38 (1994)), and he has offered no medical evidence or opinion in support. Thus, the Board finds that the only competent, probative pinion to address the relationship, if any, between current hypertension and service weighs against this aspect of 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)) (holding that the weight to be attached to medical opinions is within the province of the Board). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). Significantly, in this case, the VA examiner considered the Veteran's assertions as to continuity of symptoms, and still rendered an opinion that weighs against a finding of direct service connection. Likewise, there is no competent evidence or opinion supporting the Veteran's contention that his currently diagnosed hypertension is medically related to his service-connected panic disorder. In fact, in the only competent opinion of record to address the question of etiology of the hypertension on a secondary basis, the April 2011 VA examiner determined that the Veteran's hypertension was not in any way related to or exacerbated by his service-connected panic disorder. As indicated, this opinion was based on both examination of the Veteran and review of the claims file, and the examiner provided a rationale for her conclusion. Again, there is no contrary, competent evidence or opinion even suggesting a secondary relationship-on the basis of causation or aggravation. Thus, the Board finds that the only competent, probative pinion on the question of secondary service connection also weighs against this aspect of the claim. Finally, to whatever extent the Veteran attempts to establish the etiology of his hypertensionon the basis of his own lay assertions, alone, such attempt must fail. Matters of diagnosis and etiology of the complex disability here issue is based on internal processes not observable to the human eye; hence, questions of diagnosis and etiology of such disabilities are only within the province of individuals with special knowledge, training, and experience. See Kahana v. Shinseki, 24 Vet. App. 428, 433, 438 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As the Veteran is simply not shown to have such special knowledge, training, and experience, his assertions as to matters of diagnosis or medical etiology in this appeal have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection hypertension must be denied. In reaching the conclusion to deny the claim, 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 hypertension ,to include as secondary to service-connected panic disorder with agoraphobia, is denied. REMAND Unfortunately, the Board finds that further action on the claim remaining on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. As was noted in the February 2013 Board remand, testing conducted on September 2005 audiological evaluation revealed that the Veteran had bilateral hearing loss for purposes of 38 C.F.R. § 3.385. In September 2010, the Veteran was afforded a new VA audiology examination in which yielded a positive nexus opinion for the left ear (upon which the award of service connection for left ear hearing loss was based) but showed that Veteran does not have right ear hearing loss pursuant to 38 C.F.R. § 3.385. The Board was troubled by the wide degree of variance when comparing the audiometric findings in the September 2005 VA examination report to the audiometric findings in the September 2010 VA examination report. Thus, on remand, the Board requested that the September 2010 VA audiologist explain the discrepancy between the audiometric findings in September 2005 and September 2010 and opine whether the Veteran currently has right ear hearing loss for the purposes of 38 C.F.R. § 3.385 or had right ear hearing loss for the purposes of 38 C.F.R. § 3.385 at any time during the course of this appeal pursuant to McClain v. Nicholson, 21 Vet. App. 319 (2007). The September 2010 VA audiologist was also asked to comment on whether his opinion that the Veteran's hearing loss is related to military service only pertains to the left ear or whether it pertains to the right ear as well and specifically note review of the service treatment records showing a diagnosis of neurosensory trauma to the right ear in March 1985 as well as the slight shift exhibited at 500, 1000, and 4000 Hz in the right ear when comparing the November 1970 enlistment examination audiometric results to the March 1993 separation examination audiometric results. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Barr, 21 Vet. App. at 303. Pursuant to the February 2013 Board remand, an addendum opinion was obtained in May 2013. In this opinion it was noted that the examiner was unable to locate any VA examination dated in September 2005 for purposes of comparison. The May 2013 VA examiner noted that the November 1970 enlistment examination revealed normal hearing acuity in the right ear. Likewise, a retirement examination dated in March 1993 also revealed normal hearing acuity in the right ear. Although an examination dated in April 1984 revealed a mild loss at 6khz, the retirement examination dated in March 1993 documented normal hearing acuity at 6khz which suggested that the Veteran may have experienced a temporary threshold shift in the April 1984 examination. The examiner noted that the Veteran's hearing acuity in the right ear also remained essentially unchanged upon comparison to the pure-tone thresholds for 500hz, 1khz, and 4khz upon further study of the enlistment and retirement examinations. The comparison of the enlistment and retirement examinations confirmed that the Veteran's hearing acuity in the right ear remained essentially unchanged and without the presence of a standard threshold shift at discharge. As a result, the examiner opinion that it was less likely as not that the claim of hearing loss in the right ear is related to military service. The examiner also noted that there was a significant threshold shift of the left ear when comparing the November 1970 enlistment examination to the March 1993, and thus, opined that the Veteran's left ear hearing loss was related to his military service. Unfortunately, the May 2013 VA addendum opinion still does not address the questions posed by the Board in the February 2013 remand. Specifically, the May 2013 VA addendum opinion did not explain the discrepancy between the audiometric testing results in September 2005 and September 2010. As above, the May 2013 VA examiner wrote that he was unable to locate any VA examination report dated in September 2005 for purposes of comparison. Furthermore, the May 2013 VA examiner did not specifically note review of the service treatment records showing a diagnosis of neurosensory trauma to the right ear in March 1985. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Where remand orders of the Board are not fully implemented, the Board itself errs in failing to ensure compliance. Id. Given the deficiencies noted above, the RO should obtain an additional addendum opinion that notes review of the September 2005 VA examination report and the March 1985 service treatment records showing a diagnosis of neurosensory trauma to the right ear. The RO should only arrange for further examination of the Veteran is the prior examiner is not available or further examination is deemed necessary. Prior to seeking further medical opinion in this case, to ensure that the record before the examiner(s) is complete, and that all due process requirements are met, the RO should undertake appropriate action to ensure that all outstanding, pertinent records are associated with the claims file. It appears that there may be outstanding VA treatment records not yet associated with the record. A review of the claims file shows that the Veteran consistently sought VA treatment from September 1996 through February 2013 but there are no treatment records dated after February 2013. Given the need to remand for other reasons, the RO should obtain any outstanding VA treatment records since February 2013. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim remaining on appeal. 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 also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the 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 claim remaining on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated from February 2013 to the present, following the procedures set forth is 38 C.F.R. § 3.159 as regards obtaining records from Federal facilities. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to obtain any additional evidence pertinent to the remaining claims remaining on appeal that is not currently of record. Specify what evidence VA will provide and what evidence the Veteran is to provide. 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). 3. 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. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, forward the Veteran entire claims file, to include a complete copy of this REMAND, and any relevant Virtual VA records, to the September 2010/May 2013 VA audiologist for an addendum opinion. Request that the examiner explain the discrepancy between the audiological findings in September 2005 and September 2010 and opine whether the Veteran currently has right ear hearing loss for the purposes of 38 C.F.R. § 3.385 or had right ear hearing loss for the purposes of 38 C.F.R. § 3.385 at any time during the course of this appeal . The September 2010 VA audiologist should also comment on whether his opinion that the Veteran's hearing loss is related to military service only pertains to the left ear or whether it pertains to the right ear as well, and specifically note review of the service treatment records showing a diagnosis of neurosensory trauma to the right ear in March 1985, as well as the slight shift exhibited at 500, 1000, and 4000 Hz in the right ear when comparing the November 1970 enlistment examination audiometric results to the March 1993 separation examination audiometric results. If the September 2010/May 2013 VA examiner is unavailable or another examination is deemed warranted, arrange for the Veteran to undergo further VA examination to obtain an opinion response to the question/ comments noted above. In such instance, the entire claims file, to include a complete copy of the REMAND, and copies of relevant Virtual VA records, must be made available to the physicians designated to provide the opinions, and the opinions should include discussion of the Veteran's documented medical history and assertions. The complete rationale for the conclusions reached should be set forth in a printed (typewritten) report. 5. 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). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim remaining on appeal in light of all pertinent evidence (to particularly include all evidence added to the record since the last adjudication of the claims) and legal authority. 7. If the 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). 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