Citation Nr: 1647184 Decision Date: 12/19/16 Archive Date: 12/30/16 DOCKET NO. 12-17 966A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim for service connection for tinnitus. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for a right elbow disorder. 6. Entitlement to service connection for a right kidney cyst. 7. Entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 for a period of convalescence following surgery for a right kidney cyst. 8. Entitlement to an initial rating in excess of 10 percent for a traumatic brain injury (TBI). REPRESENTATION Veteran represented by: Bryan J. Held, Agent ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from February 1978 to September 1990 in the United States Army. He also served in the South Carolina Army National Guard from February 1993 to June 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2010, June 2011, June 2012, and October 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran also filed a Notice of Disagreement with the effective date assigned for the grant of service connection for TBI. A Statement of the Case (SOC) was issued in May 2015. In June 2015, the Veteran filed a Substantive Appeal (VA Form 9) indicating that he only wanted to appeal the evaluation assigned for TBI. Therefore, the effective date issue is not before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this Veteran's case must take into account the existence of these electronic records. The issues of service connection for hearing loss and tinnitus, and an increased rating for TBI are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a September 2004 rating decision, the RO denied the Veteran's claims of service connection for bilateral hearing loss and tinnitus. The Veteran was notified of the decision and did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the September 2004 rating decision relates to unestablished facts and raises a reasonable possibility of substantiating the claims of service connection for bilateral hearing loss and tinnitus. 3. The Veteran's right elbow disorder did not manifest during active service, nor is there any indication that his right elbow disorder is causally related to his active service. 4. The Veteran's right kidney cyst did not manifest during active service or to compensable degree within one year of active service, nor is there any indication that his right kidney cyst is causally related to his active service. 5. As service connection is not in effect for a right kidney cyst, there is no legal basis for the award of a temporary total evaluation for a period of convalescence following surgery for a right kidney cyst. CONCLUSIONS OF LAW 1. The September 2004 rating decision that denied service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2015). 2. The evidence received since the September 2004 rating decision is new and material, and the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The evidence received since the September 2004 rating decision is new and material, and the claim for service connection for tinnitus is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 4. A right elbow disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 5. A right kidney cyst was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 6. The criteria for a temporary total evaluation for convalescence following surgery for a right kidney cyst have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.30 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Claims to Reopen Once a decision becomes final, absent submission of new and material evidence, a claim may not thereafter be reopened or readjudicated by VA. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Moreover, if it is determined that new and material evidence has been submitted, the claim must be reopened and considered on the merits. See generally Elkins v. West, 12 Vet. App. 209 (1999). The Board has a jurisdictional responsibility to determine whether a claim should or should not be reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In other words, new and material evidence is jurisdictional and without it the Board has no jurisdiction to adjudicate the merits de novo. McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Therefore, the Board must conduct a new and material evidence analysis regardless of whether or not the AOJ has previously found in favor of reopening a claim. In determining whether evidence is new and material, the credibility of the new evidence is, preliminarily, to be presumed. If the additional evidence presents a reasonable possibility that the claim could be allowed, the claim is accordingly reopened and the ultimate credibility or weight that is accorded such evidence is ascertained as a question of fact. 38 C.F.R. § 3.156; Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In September 2004, the RO denied service connection for bilateral hearing loss and tinnitus, finding that the evidence did not indicate that the Veteran had hearing loss or tinnitus in service or since service. The Veteran was provided notice of this decision and his appellate rights, but he did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. At the time of the September 2004 rating decision, the Veteran's enlistment and separation examination reports, the reports of VA examinations in December 1990 and September 2004, and VA treatment records dated in 1996, were of record. The Veteran's April 1990 separation examination report noted that the Veteran's ears and hearing were normal. Post-service treatment records did not show any complaints, treatment, or diagnosis of hearing loss or tinnitus. The evidence received after the September 2004 rating decision includes the report of a September 2011 VA examination, which indicates that the Veteran has diagnoses of bilateral sensorineural hearing loss and tinnitus. The Board finds that this evidence is both new and material to the claims. See 38 C.F.R. § 3.156(a). This new evidence relates to previously unestablished facts. Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran's previously denied claims of service connection for bilateral hearing loss and tinnitus. II. Claims for Service Connection A. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. The notice requirements were met in this case by October 2010, September 2011, and October 2011 letters. The letters notified the Veteran of the information and evidence needed to substantiate and complete the claims for service connection and for a temporary total evaluation, to include notice of what part of the evidence he should provide, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. Furthermore, the requisite notice was provided prior to the initial adjudication of the claims in June 2011 and October 2012. Accordingly, the duty to notify has been satisfied. VA has also satisfied its duty to assist the Veteran. All available service treatment records as well as all identified and available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by the Board in connection with the claims. The Veteran has not identified any other outstanding records that are relevant to the claims decided herein. The Board notes that the Veteran's service treatment records are incomplete. When a Veteran's service records are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, are heightened. In addition, when VA is unable to produce records that were once in the government's custody, an explanation should be given a claimant as to how service treatment records are maintained, why the search that was conducted constitutes a reasonably exhaustive search, and why further efforts are not justified. 38 U.S.C.A. § 5103A (b)(2). In this case, the RO provided the Veteran with relevant information regarding his missing service records. The Board notes that the Veteran was not provided with VA examinations in conjunction with his claimed right elbow disorder and kidney cyst. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159 (c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As further explained below, although the Veteran contends that his right elbow disorder and kidney cyst are related to his military service, there is no indication that these disabilities might be associated with service. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed.Cir.2010) (rejecting that medical examinations are "virtually automatically" provided and concluding that a veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). As such, VA examinations are not warranted. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied and, thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). B. Law and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (a) (2015). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including calculi of the kidney, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. As calculi of the kidney is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With regard to lay evidence, medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Right Elbow Disorder The Veteran contends that he dislocated his right elbow during an accident in November or December 1982. See October 2010 claim. He states that he also sustained bruises to his head and a mild concussion and was treated at Womack Army Hospital at Fort Bragg. Id. In September 2012, he indicated that he was treated at Fort Bragg, but all they did was wrap his right elbow and give him pain relievers. See September 2012 VA Form 9. The Veteran's April 1990 discharge examination report indicates that his upper extremities were noted as normal. On the Report of Medical History, the Veteran denied having or having had any bone, joint or other deformity. The reporting physician indicated that the Veteran sustained a concussion in 1981 and that there were no residuals and that he fractured his left wrist in January 1990. There was no report of having dislocated or injured his right elbow. A January 1996 VA treatment record indicates that the Veteran's joints were normal with no edema, varicosities, cyanosis, deformity, or trauma. A July 2010 VA treatment record notes that the Veteran complained of numbness and tingling in his first and second fingers in both hands. He denied having any joint pain, swelling, or stiffness. On physical examination, there was no synovitis, no joint swelling or tenderness, and range of motion was normal. Electromyography (EMG) was ordered. Nerve Conduction Velocity (NCV) testing of both upper extremities fell within normal limits. A December 2010 VA treatment record notes that the Veteran had a history of ulnar impairment. His right elbow was nontender and he had full range of motion. A note was made to monitor the condition. A March 2011 VA treatment record indicates that the Veteran complained of shooting pain in his right elbow when he leaned on a table. The assessment was "ulna nerve." An October 2010 treatment record from Alan S. Glenn Detention Center indicates that he denied having any joint problems. His extremities were noted as normal. An August 2011 VA treatment record indicates that the Veteran had a prominent olecranon of the right elbow, but no swelling or effusion. He had tenderness over the medial epicondyle and the assessment was right medical epicondylitis. An X-ray showed a large spur on the olecranon process; there was no evidence of fracture or effusion. A September 2012 VA treatment record reflects that the Veteran reported that he had a history of injury to the right elbow in the military and that it flared up the day before. He stated that he had been keeping it wrapped, but it was still painful. The diagnosis was cellulitis of the right elbow. An X-ray of the right elbow showed olecranon spurring and some degenerative changes involving the medial humeral epicondyle. There also appeared to be some diffuse soft tissue swelling. A March 2015 VA treatment record reflects that the Veteran complained of a knot in his right elbow and chronic pain for years. It was noted that he had a long history of bursitis and an injury that occurred 20 years ago during a fall. The impression was right elbow bursitis. In this case, the Board finds the most probative evidence weighs against the claim. The evidence does not indicate that the Veteran's right elbow disorder was incurred in or aggravated in service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board notes that the Veteran's service treatment records are incomplete; however, even assuming the contemporaneous medical records noted a right elbow injury at Fort Bragg, the evidence does not indicate that the injury resulted in a chronic condition. This is not a case solely involving the absence of contemporaneous medical evidence, but rather involves affirmative evidence consisting of normal clinical findings at discharge followed by a time gap of many years. The Board has considered the lay assertions set forth by the Veteran and his representative, including the sincere belief that his right elbow is related to his service. In this case, however, the Board does not find that a lay person is competent to provide an opinion as to etiology. The etiology of his right elbow epicondylitis/bursitis involves complex medical matters beyond the ken of a layperson. Jandreau, 492 F.3d at 1376-77. The question of etiology for this issue goes beyond a simple and immediately observable cause-and-effect relationship. Based on the foregoing, the Board finds that the Veteran's right elbow disorder is not causally or etiologically related to his military service, to include his service-connected right elbow disability. Accordingly, the claim for service connection for a right elbow disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, on these facts, 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). 2. Kidney Cyst The Veteran contends that his kidney cyst resulted from a hard fall. See December 2011 statement. He also stated that VA doctors told him that the cyst resulted from a hard fall and that the only fall he had was in Korea in 1989 when he broke his left wrist. He indicated that he complained of pain in his right side, but was told to report to VA when he got out. See October 2012 Notice of Disagreement. At the Veteran's April 1990 discharge examination, his genitourinary system was noted to be normal. On the Report of Medical History, the Veteran did not report any injuries to his kidneys or right side during service. He indicated that he had recently broken his left wrist in January 1990, while participating in a unit morale support activity. It was noted that he was still undergoing therapy for this injury. A June 2011 VA treatment record notes that the Veteran had minimal microscopic hematuria with a benign cyst on the right kidney. In August 2011, he was referred for a urology consultation for an evaluation of microscopic hematuria in the presence of a CT scan that showed lesions on the right kidney. Magnetic resonance imaging (MRI) showed simple cysts, bilaterally. A March 2015 VA treatment record indicates that the Veteran had a history of a cyst of the right kidney that was discovered in 2011. It was noted that urology was going to do a cystoscopy, but that it was not done and the condition required further evaluation. In this case, the Board finds the most probative evidence weighs against the claim. The evidence does not indicate that the Veteran's kidney cyst was incurred in or aggravated in service. Rather, the first objective evidence of a kidney cyst was in 2011, approximately 21 years after service. At that time, it was discovered that he had microscopic hematuria and further testing revealed cysts on his kidneys. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson 230 F.3d at 1333. The Board emphasizes that this is not a case solely involving the absence of contemporaneous medical evidence, but rather involves affirmative evidence consisting of normal clinical findings at discharge followed by a time gap of many years. The Board has also considered the lay evidence of record. As noted above, the Veteran has contended that his right kidney cyst was caused by a fall during service in 1990. The Veteran is competent to describe what he has personally observed or experienced, including what a physician told him regarding the origin of his condition. However, he is not competent to provide an opinion relating his current kidney cyst to his military service that occurred over 26 years ago. This particular inquiry is within the province of trained medical professionals because it goes beyond a simple and immediately observable cause-and-effect relationship. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the etiology of a kidney cyst, falls outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d at 1376-77. The Board also finds that the Veteran's report of what a physician told him regarding the etiology of his kidney cyst is less probative than the April 1990 discharge examination. In this regard, the Board notes that there is no supporting rationale or explanation for the conclusion reached by the treating physician. On the other hand, the April 1990 discharge examination indicates that the Veteran's genitourinary system was normal and the Veteran did not report that he hurt his right side/kidney in his medical history. Based on the foregoing, the Board finds that the Veteran's right kidney cyst is not causally or etiologically related to his military service. Accordingly, the claim for service connection for a right kidney cyst must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, on these facts, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. III. Temporary Total Evaluation A temporary total disability rating for convalescence purposes (temporary total convalescent rating) - rated as 100 percent disabling - will be assigned, for up to three months, without regard to other provisions of the Schedule, when it is established that treatment of a service-connected disability resulted in the following: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incomplete healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight bearing prohibited); or (3) immobilization by a cast, without surgery, of one major joint or more. Furthermore, extensions of temporary convalescent ratings, for up to three months for item number (1) above, and up to six month for items (2) and (3) above, are available. 38 C.F.R. § 4.30. In this case, the Veteran contends he is entitled to a temporary total evaluation for a period of convalescence following surgery for his right kidney cyst. However, because service connection for a right kidney cyst is being denied, there is no legal basis upon which to award a temporary total evaluation. Under these circumstances, the Board has no alternative but to deny the claim for a temporary total evaluation as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER New and material evidence having been submitted, the claim for service connection for bilateral hearing loss is reopened. New and material evidence having been submitted, the claim for service connection for tinnitus is reopened. Service connection for a right elbow disorder is denied. Service connection for a right kidney cyst is denied. A temporary total evaluation for a period for convalescence following surgery for a right kidney cyst is denied. REMAND In conjunction with the claims for hearing loss and tinnitus, a remand is necessary to obtain outstanding VA audiograms. VA treatment records note that VA audiograms are available in the Computerized Patient Records System (CPRS) under the tools menu; however, these audiograms have not been associated with the claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See 38 C.F.R. § 3.159 (c)(2) (2015); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, a remand is required to obtain any outstanding VA audiograms. The Board also notes that a VA examination for hearing loss and tinnitus was conducted in September 2011. The examiner did not have access to the Veteran's claims file; however, he opined that it was at least as likely as not that tinnitus was caused by or a result of military noise exposure. The examiner noted that the Veteran served in the artillery and that his military occupation specialty was highly probable for acoustic trauma. He also noted that a relationship between noise exposure and tinnitus was well documented in the literature. The examiner did not provide an opinion regarding the Veteran's hearing loss. After reviewing the Veteran's claims file, the examiner provided an addendum opinion in January 2012. He noted that the Veteran's enlistment examination showed normal hearing in his right ear and hearing loss in his left ear. He also noted that the Veteran's discharge examination showed normal hearing bilaterally. Finally he indicated that the Veteran's claim had been denied in the latest rating decision due to the lack of evidence of hearing loss and tinnitus in his service treatment records and that there was no new evidence to support his claim. Therefore, he opined that it was less likely as not that the Veteran's present hearing loss and tinnitus were related to military service. As discussed above, the examiner based his January 2012 opinion on the absence of documented hearing loss and tinnitus during the Veteran's service; however, the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Therefore, a remand is necessary for another VA examination. In conjunction with the claim for an increased rating for TBI, a VA examination was last conducted in January 2012, almost five years ago. The Veteran argues that his condition is more severe than demonstrated on that examination and that a variety of symptoms were not taken into account. See July 2012 Notice of Disagreement. Given the Veteran's assertions, the Board finds that an additional VA examination is needed to ascertain the current severity and manifestations of his service-connected TBI. See VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his hearing loss, tinnitus, and TBI. After acquiring this information and obtaining any necessary authorizations, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA treatment records, including any outstanding audiograms located in CPRS. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any current hearing loss and tinnitus. Any studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, lay statements, the September 2011 VA examination report, and the January 2012 addendum. It should be noted that the absence of evidence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. It should also be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including noise exposure and observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that any current hearing loss and tinnitus manifested in or is otherwise related to the Veteran's military service, including noise exposure therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After obtaining all identified and outstanding records, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected TBI. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected TBI. The examiner should report all signs and symptoms necessary for rating the Veteran's TBI. The examiner should include evaluation for each of the aspects that are characteristic of a traumatic brain injury (cognitive, emotional/behavioral, and physical). The Veteran has claimed that he experiences headaches, memory loss, difficulty remaining focused, impaired judgment, social isolation, blurred vision, frequent dizziness, excessive fatigability, lack of motivation, verbal aggression, moodiness, irritability, lack of cooperation, difficulty managing anger, and difficulty expressing his thoughts and using the right words. See May 2010 claim, July 2012 statement. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. As it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or, in the alternative, the entire claims file, must be made available to the examiner for review. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs