Citation Nr: 1605995 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 05-08 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss on a de novo basis. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for rhinitis. 5. Entitlement to service connection for sigmoid diverticulitis, including as due to an undiagnosed illness. 6. Entitlement to an increased rating for mechanical low back pain, currently evaluated as 10 percent disabling. 7. Entitlement to an increased (compensable) rating for sinusitis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran served on active duty from October 1977 to February 1980 and October 1982 to November 1996, with additional prior active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Montgomery, Alabama, regional office (RO) of the Department of Veterans Affairs (VA). Jurisdiction was subsequently transferred to the Waco, Texas, RO. This appeal was previously before the Board in June 2007 when it was remanded for further development. It has been returned for additional appellate consideration. The record demonstrates that the Veteran has initiated many additional claims during the course of this appeal. He has submitted notice of disagreements with many of the claims that were denied. Subsequently, a statement of the case was issued in August 2015 regarding 13 issues in addition to those listed on the first page of this decision. To date, the Veteran has not submitted a substantive appeal for any of these 13 issues. Therefore, they are not before the Board at this time. See 38 C.F.R. § 20.200 (2015). The issue of entitlement to service connection for rhinitis is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's claim for service connection for bilateral hearing loss was initially denied in a June 1997 rating decision on the basis that a current disability was not shown on VA examination; the Veteran did not submit a notice of disagreement with this decision or submit additional evidence prior to the end of the appeal period. 2. Evidence received since June 1997 includes an examination that was not previously considered and that purports to show a current hearing loss, which is an unestablished fact necessary to substantiate the claim. 3. Service treatment records indicate that the Veteran was exposed to acoustic trauma during service. 4. A February 2008 audiogram conducted during the pendency of the current appeal demonstrates a hearing loss disability as defined by VA regulation; a March 2015 VA examiner opined that the Veteran's hearing loss is due to acoustic trauma in service. 5. The Veteran reports a history of tinnitus from 1990 and indicates he continues to experience tinnitus at the March 2015 VA examination; this examiner opined that the Veteran's tinnitus is due to acoustic trauma in service. 6. The service treatment records are negative for diverticulitis, diverticulitis initially manifested many years after discharge from service and has not been related to service by a competent opinion. The Veteran does not have a diagnosis of irritable bowel syndrome, and diverticulitis is a known clinical diagnosis clearly established by examination and testing. 7. The Veteran's lumbar spine retains 70 degrees of flexion and a combined range of motion of 205 degrees which equates to no more than slight limitation even after repetitive motion; with no evidence of muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position, listing of the whole spine, a positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, narrowing or irregularity of joint space, abnormal mobility on forced motion, guarding, abnormal spinal contours or objective evidence of neurologic abnormalities. 8. The Veteran has not experienced any incapacitating or non-incapacitating episodes of sinusitis during the year prior to June 2015, and there is no evidence of any such episodes at any time during the appeal period. CONCLUSIONS OF LAW 1. The June 1997 rating decision that denied entitlement to service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.105(a), 3.156(b), (c) (2015). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for bilateral hearing loss. 38 C.F.R. § 3.156(a) (2015). 3. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2015). 4. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. 5. The criteria for entitlement to service connection for diverticulitis have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.317 (2015). 6. The criteria for entitlement to a rating in excess of 10 percent for mechanical low back pain have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 4.71a, Code 5292, 5295 (2002); 4.7, 4.21, 4.40, 4.45, 4.71a, Code 5242 (2015). 7. The criteria for a compensable rating for sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.21, 4.97, Code 6513 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). 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. 38 U.S.C.A. § 5103(a) (West 2014); C.F.R. § 3.159(b)(1) (2015). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with initial VCAA notification in a March 2003 letter that contained all the information required by Pelegrini. It was provided to the Veteran prior to the initial adjudication of his claims. The Veteran was not provided with notice that meets the additional requirements of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) or Kent v. Nicholson, 20 Vet. App. 1, (2006) until June 2007, which is after the initial adjudication of his claims. However, as his claims have been readjudicated after the receipt of the notice, they have not been prejudiced. Mayfield v. Nicholson, 444 F.3d 1328 (2006). The duty to notify has been met. The Board also finds that the duty to assist has been met. The Veteran's service treatment records have been obtained. He has been afforded VA examinations of his back, sinusitis, hearing loss and tinnitus. These examinations provide any necessary opinions and address all pertinent rating criteria. The Veteran was scheduled for an examination of his diverticulitis in which the examiner was to provide an opinion regarding the etiology of this disability to include consideration of possible exposure to depleted uranium and other environmental hazards of the Gulf War, but he failed to report. The treatment records identified by the Veteran and requested in the June 2007 remand have been requested and have either been obtained or determined to be unavailable. The Veteran's VA treatment records have also been obtained. He has not identified any additional pertinent private medical records, and he has declined his right to a hearing. There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the Veteran's appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); 38 C.F.R. § 3.303. Entitlement to service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385, which provides that service connection for impaired hearing shall not be established when hearing status meets pure tone and speech recognition criteria. Hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The United States Court of Veterans Appeals (Court) has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). If other organic disabilities of the nervous system to include sensorineural hearing loss become manifest to a degree of 10 percent within one year of separation from active service, it is presumed to have been incurred during active service, even though there is no evidence of hearing loss during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309, including sensorineural hearing loss. Rhinitis and diverticulitis are not listed. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997), overruled on other grounds by Walker v. Shinseki. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay 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, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Hearing Loss and Tinnitus The evidence shows that entitlement to service connection for hearing loss was previously denied in a June 1997 rating decision. The Veteran was notified of this decision in June 1997. He did not initiate an appeal by submitting a notice of disagreement. Furthermore, no additional pertinent evidence was received prior to the expiration of the appeal period, and no additional records were obtained from the service department. Therefore, the June 1997 rating decision is final, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.105(a), 3.156(b),(c). A veteran may reopen a finally adjudicated claim by submitting new and material evidence. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In this case, the RO reopened the claim for service connection for hearing loss and has considered it on a de novo basis. The Board, however, must nevertheless make an independent determination as to whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The evidence considered by the June 1997 rating decision included the Veteran's service treatment records from 1975 as well as from 1982 to 1996. VA examinations from March 1997 were also considered. The decision noted that the Veteran was found to have hearing loss during service in June 1995. The current VA examination, however, determined that the Veteran's hearing was within normal limits bilaterally, and his claim was denied on the basis that he did not have a current disability. The evidence received since June 1997 includes the findings of a February 2008 audiogram conducted by the Department of State. This found that the Veteran had auditory thresholds in the right ear of 40, 45, 45, 35 and 30 decibels at the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. The left ear had auditory thresholds of 40, 35, 30, 30, and 30 decibels at the same frequencies. The Board finds that the evidence received since June 1997 is both new and material. The evidence includes the February 2008 audiogram, which is new in that it contains information that was not available to the June 1997 decision makers. It is also material, in that it purports to show that the Veteran has a current hearing loss disability, the absence of which was the basis for the previous denial. As new and material has been submitted, the Veteran's claim for service connection for hearing loss is reopened. The Board will now consider this claim on a de novo basis. The service treatment records include a May 1995 Report of Medical Examination with an audiogram that shows the Veteran had auditory thresholds in the right ear of 55, 55, 60, 55 and 60 decibels at the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. The left ear had auditory thresholds of 50, 55, 60, 60, and 45 decibels at the same frequencies. The summary of defects and diagnoses included hearing loss. A June 1995 audiology consultation states that the Veteran had progressively worse hearing loss in both ears on his over 40 physical. He was noted to have an extensive history of noise exposure from helicopters and small arms fire. He did not have a history of ear pathology, vertigo, or tinnitus. The right ear had auditory thresholds of 40, 50, 55, 55, and 55 decibels at 500, 1000, 2000, 3000, and 4000 Hertz. The left ear had thresholds of 55, 55, 50, 50, and 50 decibels at the same frequencies. The examiner noted that the pure tone thresholds did not agree with the speech thresholds, which were 96 percent for each ear. The assessment was non-organic hearing loss for both ears. On a January 1996 Report of Medical History, the Veteran answered "yes" to a history of ear, nose, or throat trouble, and "yes" to a history of hearing loss. A February 1996 screening for a hearing aid includes an assessment of sensorineural hearing loss, left greater than right. A February 1996 audiogram showed auditory thresholds of 40, 50, 40, 40, and 45 decibels at 500, 1000, 2000, 3000, and 4000 Hertz for the right ear. The left ear had thresholds of 30, 25, 35, 25, and 15 decibels. The Veteran underwent another audiogram in March 1996. He had been referred for additional study after complaints of difficulty in hearing. On this occasion, the right ear had auditory thresholds of 10, 10, 10, 5, and 10 decibels at 500, 1000, 2000, 3000, and 4000 Hertz. The left ear had thresholds of 15, 10, 10, 5, and 10 decibels at the same frequencies. Speech recognition was 96 percent for the right ear and 100 percent for the left ear. The assessment was that hearing was within normal limits bilaterally with excellent word recognition. The June 1996 Report of Medical Examination for the Veteran's retirement shows auditory thresholds of 30, 25, 35, 25 and 15 decibels at 500, 1000, 2000, 3000, and 4000 Hertz for the right ear. The left ear had auditory thresholds of 40, 50, 40, 40, and 45 decibels. The Veteran also completed an August 1996 Report of Medical History in preparation for his retirement. He answered "yes" to a history of ear, nose, or throat trouble and "yes" to a history of hearing loss. The examiner's summary stated that the Veterans hearing was weaker in both ears due to loud training environments. The post service medical records include the report of a March 1997 VA examination. The Veteran reported decreased hearing since 1990. On examination, there were auditory thresholds of 10, 10, 10, 5, and 10 decibels at 500, 1000, 2000, 3000, and 4000 Hertz for the right ear. The left ear had 5, 5, 5, 5, and 10 decibels. Word recognition score using the Maryland CNC word list was 100 percent for each ear. The examiner remarked that the thresholds were felt to represent true organic acuity bilaterally. The Board notes that these findings do not meet the definition of a hearing disability under 38 C.F.R. § 3.385. A March 2001 private audiogram showed auditory thresholds of 20, 25, 20, 10, and 15 decibels at 500, 1000, 2000, 3000, and 4000 Hertz for the right ear. The left ear had auditory thresholds of 15, 5, 10, 0, and 5 decibels at the same frequencies. Once again, these findings do not show a hearing disability under 38 C.F.R. § 3.385. As noted above, a February 2008 examination for the Department of State found that the Veteran had auditory thresholds in the right ear of 40, 45, 45, 35 and 30 decibels at the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. The left ear had auditory thresholds of 40, 35, 30, 30, and 30 decibels at the same frequencies. The Veteran was afforded a VA examination for hearing loss and tinnitus in March 2015. Auditory thresholds of 25, 25, 25, 20, and 25 decibels at 500, 1000, 2000, 3000, and 4000 Hertz were noted for the right ear. The auditory thresholds for the left ear were 20, 25, 25, 20, and 25. Speech discrimination scores were 100 percent for both ears. The diagnosis for the right ear was sensorineural hearing loss at 6000 Hertz or higher, with normal hearing for the left ear. The Veteran was noted to have frequently been exposed to impulsive noises such as mortar fire, hand grenades, and guns without hearing protection. The examiner opined that it was at least as likely as not that the Veteran's hearing loss was caused by military service. The Veteran also reported a history of tinnitus at the March 2015 examination. The examiner opined that it was at least as likely as not that the tinnitus was due to active service. The rationale was that the Veteran had frequently been exposed to impulsive noise during service, with and without hearing protection, and that his tinnitus had begun in 1990. The examiner explained that the noise resulted in damage to the hair cells which initiated a physical process that resulted in tinnitus. After careful consideration, the Board finds that entitlement to service connection for bilateral hearing loss is warranted. The service treatment records state that the Veteran had noise exposure during service, as does the most recent VA examination. The Board concedes that noise exposure is consistent with the nature of the Veteran's service. Furthermore, the audiograms from the Veteran's final two years of service vary widely in their findings, with some revealing hearing loss and others showing normal hearing. The requirement for evidence of in-service incurrence or aggravation of a disease or injury has been met. The Board also finds that the evidence shows that the Veteran has a current diagnosis of bilateral hearing loss. The March 2015 VA examination failed to show current hearing loss to the extent required by 38 C.F.R. § 3.385, although the Board observes that both ears showed auditory thresholds of 25 decibels for at least three of the required frequencies, which is only a single decibel below the required 26. The February 2008 audiogram, however, conducted by the Department of State, meets the requirements of 38 C.F.R. § 3.385 for each ear. The requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007). As the February 2008 audiogram was conducted during the pendency of the claim, the required evidence of a current hearing loss disability has been demonstrated. The final requirement for service connection is that of a nexus between the current hearing loss and the noise exposure or hearing loss shown during service. The March 2015 examiner opined that it was at least as likely as not that the Veteran's hearing loss was the result of in-service noise exposure. There is no opinion to the contrary, and the Board concludes that service connection for bilateral hearing loss is warranted. Similarly, the Board finds that entitlement to service connection for tinnitus is also warranted. As conceded, the Veteran was exposed to traumatic noise during service. He has reported tinnitus for many years and continued to do so at the March 2015 examination. The March 2015 examiner opined that it was at least as likely as not that the current tinnitus was due to noise exposure in service, and supplied a very detailed rationale to support this opinion. There is no competent opinion to the contrary, and entitlement to service connection for tinnitus is warranted. Diverticulitis The Veteran contends that his diverticulitis was incurred due to active service. He argues that this disability developed as a result of his exposure to depleted uranium and other environmental hazards in the Persian Gulf. The Veteran has more recently contended that his diverticulitis is actually irritable bowel syndrome. Various legal provisions apply specifically to compensation claims from Persian Gulf War veterans. Except as provided in 38 C.F.R. § 3.317(c), VA shall pay compensation in accordance with Chapter 11 of Title 38, United States Code, to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in 38 C.F.R. § 3.317(b), provided that such disability: (i) became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(i) and (ii). For purposes of 38 C.F.R. § 3.317, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(2). For purposes of 38 C.F.R. § 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(3). A chronic disability resulting from an undiagnosed illness as referenced in 38 C.F.R. § 3.317 shall be rated using evaluation criteria from Part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. 38 C.F.R. § 3.317(a)(4). A disability referenced in 38 C.F.R. § 3.317 shall be considered service connected for purposes of all laws of the United States. 38 C.F.R. § 3.317(a)(5). For the purposes of 38 C.F.R. § 3.317(a)(1), signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Compensation shall not be paid under 38 C.F.R. § 3.317 (1) if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). In addition to certain chronic disabilities from undiagnosed illness, service connection may also be given for medically unexplained chronic multisymptom illness such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases) that is defined by a cluster of signs and symptoms, as well as for any diagnosed illness that the VA Secretary determines by regulation warrants a presumption of service connection. See 38 C.F.R. § 3.317(a)(1)(i). The service treatment records are negative for complaints or diagnosis of diverticulitis. A November 1975 hospital record shows that the Veteran was admitted for psychiatric observation. During this admission he was treated for an upset stomach. The diagnoses were adjustment reaction of adult life and gastritis. In February 1983, the Veteran was seen at sick call with an increased temperature, diarrhea, and vomiting. His abdomen was nontender on examination. The assessments were sinusitis and gastritis. The remainder of the Veteran's service treatment records dating from February 1983 to August 1996 is negative for any additional complaints, findings, or diagnoses relating to the digestive system. The June 1996 retirement examination found that the abdomen was normal, and does not include a diagnosis of diverticulitis or any other disability of the digestive system. The Veteran denied a history of stomach, liver, or intestinal trouble on the August 1996 Report of Medical History obtained at his retirement. The physician's summary included 24 different ailments, but did not include any reference to digestive disabilities. The initial evidence of diverticulitis is found in post service medical records dated May 2002 which show that the Veteran had been hospitalized two weeks previously for acute diverticulitis. This was now resolving; however, his symptoms apparently persisted, and a September 2002 colonoscopy identified multiple diverticula in the sigmoid colon. No rectal diverticula or descending colon diverticula were noted. In view of the Veteran's age and in light of a two percent chance of recurrence each year it was felt that preventive colon resection was indicated. Therefore, the Veteran underwent surgery in December 2002 at which time a sigmoid colectomy with primary anastomosis was performed. None of the 2002 records pertaining to the treatment of diverticulitis contain a discussion of the etiology of this disability or otherwise relates it to active service. A September 2003 letter from a private physician states that the Veteran underwent a colectomy due to his diverticulitis, which resulted in intraabdominal scar tissue. A September 2003 communication from a VAMC states that the Veteran failed to report for his scheduled VA examinations of the ear, nose, and throat; the spine; and the stomach and duodenum. The examination request form shows that the VA examiner was to have provided an opinion regarding the possibility of a relationship between the Veteran's reports of depleted uranium exposure and his diverticulitis. A June 2010 VA treatment record shows that the Veteran was visiting a new VAMC in order to obtain a refill of his prescriptions. A routine examination states that the Veteran was not experiencing diarrhea, constipation, or abdominal pain. His last colonscopy was in 2008 with a negative result. The Veteran underwent a VA Gulf War Medical Examination in April 2012. The examiner reviewed the Veteran's claims folder, and his history of intestinal surgery was noted. At the conclusion of the examination, however, the only condition identified for which no etiology was established was the Veteran's report of fatigue. The Veteran also reported headaches and joint pain as possible symptoms of a medically unexplained chronic multisymptom illness. However, the physical examination was normal. The Board finds that entitlement to service connection for diverticulitis is not demonstrated. The record shows that the Veteran was treated for diverticulitis in 2002 and eventually underwent surgery for this disability; however, there is no evidence of diverticulitis during service, and the initial manifestation of this disability was more than five years following discharge. Furthermore, there is no competent medical opinion that relates the diverticulitis to active service. At this juncture, the Board notes that the Veteran was scheduled to undergo a VA examination of his diverticulitis, and the examination report was to include an opinion as to the etiology of this disability that was to address the Veteran's contentions regarding environmental factors such as depleted uranium. He failed to report for this examination and did not ask for it to be rescheduled. No other evidence has been submitted that would relate the Veteran's diverticulitis to active service on any basis. The April 2012 Gulf War examination noted the Veteran's intestinal surgery but did not include this disability as one that did not have an established etiology or as part of an unexplained chronic multisymptom illness. The Veteran does not have a diagnosis of irritable bowel syndrome. In fact, the medical records show that the Veteran's disability has a clearly established diagnosis of diverticulitis, which was confirmed by colonoscopy and corrective surgery. The fact that the Veteran's disability has a known diagnosis precludes service connection as an undiagnosed illness. See 38 C.F.R. § 3.317(a)(1)(ii). As this disability was not shown in service and as there is no nexus between the current disability and service, service connection is not warranted. The Board has considered the Veteran's sincere belief that his diverticulitis developed due to events in service such as exposure to depleted uranium. Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as tinnitus, hand pain, and shortness of breath, the Veteran is not competent to provide evidence as to more complex medical questions, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). His diverticulitis is not a simple condition with symptoms that are easy to observe. In fact, it took a colonoscopy to confirm the diagnosis. In the absence of any competent opinion that relates the diverticulitis to active duty, service connection is not established. Increased Rating The Veteran contends that the evaluations assigned to his low back disability and sinusitis do not reflect the impairment they produce. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that a claimant may experience multiple degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Low Back Pain Entitlement to service connection for mechanical low back pain was established in a June 1997 rating decision. A 10 percent evaluation has been assigned from December 1996. The Veteran's claim for an increased rating was submitted in March 2003. During the pendency of his appeal, a revised rating schedule for disabilities of the spine became effective on September 26, 2003. See 68 Fed. Reg. 51454-51458 (August 27, 2003). In light of these changes, the Board has considered whether an increased evaluation may be warranted under either the old or new version of the schedule for rating disabilities of the spine. The Board notes, however, that application of the new regulation can be no earlier than the effective date of that change. See Rhodan v. West, 12 Vet. App. 55, 57 (1998), appeal dismissed, No. 99-7041 (Fed. Cir. Oct. 28, 1999) (unpublished opinion). In this case, the veteran's low back disability was evaluated by the RO as 10 percent disabling under 38 C.F.R. § 4.71, Code 5295 (2002), which was the rating code for lumbosacral strain. Under the old criteria, a 10 percent rating was warranted for characteristic pain on motion. A 20 percent evaluation was warranted for lumbosacral strain where there is muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. A 40 percent disability evaluation was warranted for severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. See 38 C.F.R. § 4.71a, DC 5295 (2002). Furthermore, severe limitation of motion of the lumbar spine was evaluated as 40 percent disabling. Moderate limitation of motion warranted a 20 percent evaluation. Slight limitation of motion was evaluated as 10 percent disabling. 38 C.F.R. § 4.71a, Code 5292 (2002). Effective on September 26, 2003, Code 5295 was renumbered and revised at 38 C.F.R. § 4.71a, Code 5237. Under that rating code, lumbosacral strain is to be evaluated under the new General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or the combined range of motion of the cervical spine is not greater than 170 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine is evaluated as 30 percent disabling. Unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. Unfavorable ankylosis is a condition with which the entire thoracolumbar spine is fixed in flexion or extension, resulting in several symptoms described in Note 5 of the General Rating Formula for Diseases and Injuries of the Spine. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are from zero to 45 degrees, and left and right lateral rotation are to 80 degrees. The combined range of motion refers to the sum of the forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, and the cervical spine is 340 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). Each range of motion measurement is to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). Any associated objective neurologic abnormalities, including but not limited to bowel and bladder impairment, are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). General Rating Formula for Diseases and Injuries of the Spine. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. As previously noted, the Veteran failed to report for VA examinations scheduled for August 2003 and September 2003. This was to include an examination of the Veteran's back disability. VA treatment records include the report of a March 2005 general medical examination. His chief complaints and history included chronic lower back pain, which was treated with Methocarbamol and Ibuprofen. On examination, the Veteran was ambulatory and in no distress. No findings pertinent to the back were noted, although the diagnoses included chronic lower back pain. A November 2005 examination conducted at the Redstone Arsenal states that the back did not have costovertebral angle tenderness. A November 2006 examination states that the back was normal. A March 2009 Report of Medical Examination conducted by the State Department found that the spine was normal. The Veteran reported a history of recurrent back pain on a Report of Medical History obtained at that time, and the physician's comments noted chronic low back pain. A June 2010 VA treatment record shows that the Veteran was making his first visit to that particular VAMC in order to obtain a refill of his medications. He was otherwise stable and had no complaints. A routine examination was positive for arthralgias of the neck and back, and his history of low back pain was noted. The Veteran was afforded a VA examination of his low back in June 2015. The claims folder was reviewed by the examiner. The Veteran reported a long history of low back pain with worsening in recent years. At times the pain was manageable, but it would flare-up at other times and make it difficult for him to function. The pain was located over the entire low back and described as dull and intermittent. It could radiate into the lower extremities, which had occurred two weeks earlier. The Veteran had not undergone physical therapy or epidural injections. He would notice loss of motion at times but denied paresthesias and numbness in the lower extremities. A review of the Veteran's records did not show any mention of low back pain on the problem list or most recent ambulatory care notes. On examination, the Veteran described unpredictable flare-ups. He could not state how often the flare-ups occurred but reported they would last for hours and not days. He described limitations in standing and bending due to his pain. Forward flexion was to 70 degrees, extension was to 20 degrees, right lateral flexion was to 25 degrees, left lateral flexion was to a normal 30 degrees, and right and left lateral rotation was both to a normal 30 degrees. The loss of motion did not contribute to functional loss. There was mild tenderness of the lumbar spine without spasm or guarding, and there was tenderness of the right sacroiliac joint. The Veteran was able to perform repetitive testing, after which there was no additional loss of function or range of motion. There was no muscle spasm or guarding, but the Veteran did have localized tenderness that did not result in an abnormal gait or spinal contour. Muscle strength testing was 5/5 in all ranges. Straight leg raising was positive. He had moderate intermittent radicular pain of both lower extremities due to radiculopathy without paresthesias or numbness; however, no nerve root involvement was identified. The examiner commented the Veteran had radicular pain, but there was no confirmatory evidence of a radiculopathy on examination or radiographic studies. He also had some urinary incontinence but the Veteran attributed this to a prostate problem. There was no arthritis or ankylosis, and the examiner found that the Veteran did not have intervertebral disc syndrome. The Board finds that the evidence does not support entitlement to an increased rating for the Veteran's back disability under either the old or new rating criteria for any portion of the appeal period. Consideration of the old rating criteria shows that there is no evidence of muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position, listing of the whole spine, a positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Thus, entitlement to a rating higher than 10 percent under the Code for lumbosacral strain is not supported. See 38 C.F.R. § 4.71a, DC 5295 (2002). Similarly, the Veteran retains 70 out of 90 degrees of his forward flexion and 20 out of 30 degrees of extension. He has normal or near normal lateral flexion and rotation, without additional limitation after repetitive motion. This equates to no more than slight limitation of motion, so an increased rating under the old criteria for limitation of motion of the lumbar spine is not possible. 38 C.F.R. § 4.71a, Code 5292 (2002); 38 C.F.R. §§ 4.40, 4.45. To receive a rating of at least 20 percent under the current rating criteria, there must be forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The June 2015 examination shows that forward flexion is to 70 degrees and that the combined range of motion is 205 degrees. There was no additional limitation of motion after repetitive testing. The Veteran did not have muscle spasm or guarding, and he did not have an abnormal spinal contour. Therefore, a rating higher than 10 percent is also precluded under the current rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.71a, Code 5242. In reaching this decision, the Board has considered whether or not separate evaluations are warranted for neurological impairments associated with the Veteran's low back disability. The June 2015 examination shows that the Veteran had subjective reports of radiating pain into his legs on an intermittent basis, with the most recent episode occurring two weeks prior to the examination. However, the examiner found that there was no confirmatory evidence of radiculopathy on examination or radiographic studies. Therefore, he did not identify the affected nerves. There were no other neurologic abnormalities shown on the examination. Furthermore, a review of more than 10 years of treatment records fails to demonstrate any additional complaints or findings regarding neurologic abnormalities to include radiculopathy. The rating criteria states that separate ratings are assignable for associated objective neurologic abnormalities. As objective neurologic abnormalities have not been demonstrated, separate ratings are not for assignment. Sinusitis Entitlement to service connection for sinusitis was established in a June 1997 rating decision. A zero percent evaluation was assigned, effective from December 1, 1996. The Veteran's sinusitis is evaluated under the rating code for chronic maxillary sinusitis, which states that this disability is rated under the General Rating Formula for Sinusitis. Under this formula, sinusitis following radical surgery with chronic osteomyelitis or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries is evaluated as 50 percent disabling. Three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non- incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting is evaluated as 30 percent disabling. One or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non- incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting is evaluated as 10 percent disabling. For sinusitis that is detected by X-ray only, a zero percent evaluation is merited. Note: An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Code 6513. The Veteran failed to report for a VA examination of his sinusitis August 2003 and September 2003. The March 2005 general medical examination notes that the Veteran has a history of chronic sinusitis since 1991, which was treated with medications. On examination, there was no discharge of the ears or nose, and the examination was negative. The diagnoses included chronic sinusitis. The March 2009 Report of Medical Examination conducted by the State Department says that the sinuses were normal. A November 2010 VA treatment record shows that the Veteran was seen for a follow-up visit after an episode of dizziness. A computed tomography scan found that the brain was normal but revealed ethmoidal sinusitis. There was a history of maxillary sinusitis and the Veteran reported chronic nasal congestion. On examination, there was no sinus tenderness but the nasal mucosa were hyperemic and swollen. The assessment was ethmoid sinusitis. The Veteran was afforded a VA examination of his sinusitis in June 2015. The claims folder was reviewed by the examiner. The Veteran reported having several years of nasal congestion with occasional sinus headaches. He said that his congestion had been worse over the past three to five years and that it required daily use of his prescription nasal spray. The Veteran denied needing antibiotic therapy or oral steroids for recurrent sinus infections and there had been no previous sinus procedures or surgeries. On examination, the currently affected sinus was the ethmoid. The only current finding, sign, or symptom attributable to the sinusitis was headaches. There were no non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. He had not experienced any incapacitating episodes requiring prolonged antibiotic treatment during the past 12 months either. The nasal mucosa and passages were unremarkable, with no sinus tenderness or drainage noted. The records included an October 2010 computed tomography scan which showed opacification of the ethmoidal sinuses consistent with ethmoidal sinusitis. There were no other significant findings, and the examiner opined that the Veteran's sinusitis did not impact his ability to work. The Board finds that entitlement to a compensable rating for sinusitis is not warranted for any portion of the period on appeal. In order to receive at least a 10 percent rating, the Veteran's sinusitis must be productive of one or two incapacitating episodes per year or three to six non- incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. The June 2015 examination shows that the Veteran had not experienced any incapacitating or non-incapacitating episodes during the previous year. There was also no evidence of pain, discharge, or crusting. The Veteran did report headaches, but at this juncture the Board points out that he is in receipt of a separate 30 percent rating for migraine headaches. A review of the treatment records dating from 2003 is also negative for any record of an incapacitating or non-incapacitating episode of sinusitis. As the criteria for at least a 10 percent rating have not been met, entitlement to a compensable rating for sinusitis is not demonstrated. 38 C.F.R. § 4.97, Code 6513. Other Considerations Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or to the Director, Compensation Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2015); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. The scheduler criteria adequately describe the Veteran's symptoms for his back pain and sinusitis. The objective symptoms for the back include limitation of motion and tenderness, and the symptoms for sinusitis include headaches and congestion, all of which are provided for in the rating criteria. Moreover, even if the scheduler criteria were to prove inadequate, there is no record of marked interference with employment due to these service connected disabilities. He has not been hospitalized for either disability. Accordingly, referral for consideration of an extra-schedular rating is not warranted. Finally, the Board notes that entitlement to a total rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) may be included in a claim for an increased rating if raised by the record or the Veteran. In this case, the Veteran does not contend that his disabilities combine to make him unemployable, and unemployability is not raised by the record. Therefore, entitlement to TDIU is not for consideration. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER New and material evidence has been received to reopen a claim for service connection for bilateral hearing loss; to this extent only the appeal is allowed. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for sigmoid diverticulitis, including as due to an undiagnosed illness, is denied. Entitlement to an increased rating for mechanical low back pain, currently evaluated as 10 percent disabling, is denied. Entitlement to an increased (compensable) rating for sinusitis is denied. REMAND The Veteran contends that he developed rhinitis during active service. He argues that this was exacerbated during his deployment in the Persian Gulf. The service treatment records are negative for a diagnosis of rhinitis; however, they do show treatment for sinusitis, which the Board observes may have symptoms that are similar to rhinitis. The post-service medical records were negative for a diagnosis of rhinitis at the time of his March 2003 claim for service connection. The Veteran failed to appear for the VA examinations that were initially scheduled in conjunction with these claims. He did not provide a reason for failing to appear. Medical records, however, now include treatment records from November 2005 and November 2006 that include allergic rhinitis on the Veteran's problem list. A February 2006 VA treatment record notes that the Veteran has a history of allergic rhinitis, which was treated with nasal steroids. These records do not comment on the etiology of this disability. These diagnoses were made during the pendency of the current appeal. Therefore, the requirement for a current diagnosis has been met. See McClain. The Veteran was afforded a new VA examination for sinusitis, rhinitis, and other conditions of the nose, throat, larynx and pharynx in June 2015. Although this examination includes a diagnosis of sinusitis and provides the information necessary to evaluate this disability under the rating criteria, it does not indicate whether or not the Veteran has a current diagnosis of rhinitis. Furthermore, it does not mention the 2005/2006 diagnoses or include an opinion as to whether or not the rhinitis noted then was incurred in or due to active service. If VA provides the Veteran with an examination, the examination must be adequate. 38 C.F.R. § 3.159(c)(4) (2015); Barr v. Nicholson, 21 Vet. App. 303 (2007). Given the failure of the June 2015 VA examination to address the Veteran's rhinitis, the Board finds that the Veteran should be scheduled for an additional examination. Accordingly, the case is REMANDED for the following action: 1. Return the report of the June 2015 VA examination for sinusitis and rhinitis to the examiner. The examiner should review the Veteran's entire record and the examination report. Afterwards, the examiner should state: a) Is it as likely as not that the Veteran has a current diagnosis of rhinitis? b) Regardless of whether there is a current diagnosis of rhinitis, is it as likely as not that any current diagnosis and/or the rhinitis diagnosed from November 2005 to November 2006 was incurred in or due to active service? It the June 2015 examiner is no longer available, the examination report should be forwarded to another examiner of at least equal qualifications. A new examination is not required unless deemed necessary by the examiner. The reasons for all opinions should be provided. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should state whether the inability is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. 2. Then, after conducting any additional indicated development, readjudicate the remaining issue on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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 2014). ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs