Citation Nr: 1801342 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 11-16 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether the Appellant is a Veteran for the purposes of a claim for entitlement to service connection for an aggravated kidney disability. 2. Whether the Appellant is a Veteran for the purposes of a claim for entitlement to service connection for a ruptured ear drum. 3. Whether the Appellant is a Veteran for the purposes of a claim for entitlement to service connection for tinnitus. 4. Whether the Appellant is a Veteran for the purposes of a claim for entitlement to service connection for a disability of the low back. 5. Whether the Appellant is a Veteran for the purposes of a claim for entitlement to service connection for a disability of the neck. (CONTINUED ON NEXT PAGE) REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD M. Nye, Associate Counsel INTRODUCTION The Appellant joined the Naval Reserves in April 1963. He was discharged in March 1966. His service included verified periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA). This case comes to the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In its decision, the RO denied service-connected disability compensation for an aggravated kidney disability, a ruptured ear drum, tinnitus, and for disabilities of the neck and lower back. For each claim, the RO decided that the Appellant was not eligible for benefits because he did not establish his status as a Veteran. In April 2010, the Appellant filed a timely notice of disagreement, appealing the RO's denial of all five claims. In November 2011, the Appellant and his spouse testified at a hearing before the undersigned Veterans Law Judge at the Board's Central Office in Washington, DC. A transcript of that hearing is of record. The Board remanded this appeal for further development in February 2014. The issues of the Appellant's status as a Veteran for the purposes of his claims for service connection for tinnitus and an aggravated kidney disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Appellant does not currently have a ruptured ear drum; nor has such a disability existed at any time during the relevant appeal period. 2. The Appellant's current disability of the thoracolumbar spine was not incurred or aggravated during authorized travel following a period of INACDUTRA. 3. The Appellant's current disability of the neck was not incurred or aggravated during authorized travel following a period of INACDUTRA. CONCLUSIONS OF LAW 1. The Appellant does not meet the criteria for Veteran status for the purposes of his claim for service connection for a ruptured ear drum. 38 U.S.C.A. §§ 101(22); 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.6; 3.303, 3.304 (2017). 2. The Appellant does not meet the criteria for Veteran status for the purposes of his claim for service connection for a disability of the lower back. 38 U.S.C.A. §§ 101(22); 1110, 1131, 5107; 38 C.F.R. §§ 3.6; 3.303, 3.304. 3. The Appellant does not meet the criteria for Veteran status for the purposes of his claim for service connection for a disability of the neck. 38 U.S.C.A. §§ 101(22); 1110, 1131, 5107; 38 C.F.R. §§ 3.6; 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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) (2017). Duty to Notify The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The notice VCAA requires depends on the general type of claim the Veteran has made. "As a result, generic notice provided in response to a request for service connection must differ from that provided in response to a request for an increased rating." Vasquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection. These are: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of disability. Id. at 486. In a letter dated October 2008, the RO notified the Appellant of all the elements necessary to establish his claims for service connection for a kidney disorder, ruptured ear drum, tinnitus, and disabilities of the neck and lower back. With respect to the specific requirement of establishing the Appellant's status as a Veteran, the RO mailed additional letters, in December 2008 and July 2009. These letters asked the Appellant to provide additional information concerning his specific claim that he sustained injuries causing each of his claimed disabilities during an automobile accident which occurred after he was travelling back to his home after a period of INACDUTRA. By mailing these letters, the RO satisfied its duty to notify. Duty to Assist VA has fulfilled its duty to assist the Appellant in obtaining identified and available evidence needed to substantiate his claim. Service treatment records, post-service treatment records, and lay statements have been associated with the record. The Board remanded this case in February 2014 because further medical evidence was needed to decide whether the Appellant met the legal criteria for Veteran status for the purposes of his claims. Specifically, the Board instructed the RO to arrange a series of examinations to help decide whether the claimed disabilities were the result of an automobile accident, which occurred in May 1963, when the Appellant was returning to his home after a period of INACDUTRA. On remand, the Veteran's ears and spine were examined by a VA physician in August 2016. The examiner then gave opinions concerning the probability that current disabilities of the ears, cervical, and thoracolumbar spine were related to that accident. The Board has carefully reviewed the examiner's opinions and finds that, together with the post-service medical records, the information in the examiner's report is adequate to decide the ruptured ear drum, neck and lower back claims. The Board will discuss the examiner's opinions concerning tinnitus and kidney disorder in the remand section below. The duty to assist also requires the Board to enforce compliance with its prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). By arranging examinations of the Appellant's ears, neck, and lower back, and obtaining adequate medical opinions on the relevant issues, the RO substantially complied with the Board's February 2014 remand instructions. As the Veteran has not identified additional evidence pertinent to the claims and as there are no additional records to obtain, no further assistance to the Veteran is required to comply with VA's duty to assist. II. Veteran Status for the Purposes of Service Connection for Claimed Disabilities of the Neck, Back and Ears Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). For VA compensation purposes, service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6. Active duty is full time duty in the Armed Forces other than ACDUTRA. Id. With regard to National Guard service, ACDUTRA is full time duty performed under 32 U.S.C. §§ 316, 502, 503, 504, or 505 or the prior corresponding provisions of law. Id. INACDUTRA is duty other than full-time duty performed under the same provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505 or the prior corresponding provisions of law. Id. Active service also includes authorized travel to or from such duty or service. 38 U.S.C.A. § 106(d); 38 C.F.R. § 3.6(e). Such travel will be considered active service when an injury or covered disease is incurred while proceeding directly to or returning directly from ACDUTRA or when an injury is incurred while proceeding directly to or returning directly from INACDUTRA. VA will determine whether such individual was so authorized or required to perform such duty, and whether the individual was disabled or died from an injury or covered disease so incurred. In making such determination, there shall be taken into consideration the hour on which the individual began to proceed or return; the hour on which the individual was scheduled to arrive for, or on which the individual ceased to perform, such duty; the method of travel performed; the itinerary; the manner in which the travel was performed; and the immediate cause of disability or death. Whenever any claim is filed alleging that the claimant is entitled to benefits by reason of this paragraph, the burden of proof shall be on the claimant. 38 C.F.R. § 3.6(e). Factual Background The Appellant contends that the Board should grant his claims for service connection because his current neck, back, and ear disabilities were the result of injuries he sustained during an automobile accident which occurred on May 16, 1963. According to the Appellant, the accident occurred when he was driving to his home after completing an INACDUTRA drill. In his hearing testimony, the Appellant said that he attended an INACDUTRA drill and received an inoculation in preparation for an upcoming period of ACDUTRA. He said that he lived about 45 miles from his drill center his habit was to leave drill and return directly home. He testified that while he was driving home from drill, he blacked out and woke up in the hospital. The emergency room records of a private hospital, dated May 16, 1963, identify the Appellant and describe injuries from an automobile accident. According to the records, the Appellant suffered a basal skull fracture with blood coming from the right ear, multiple areas of contusion and lacerations about the facial area, a probable fracture of the left maxilla and mandible, contusions and abrasions on the right lower leg, a possible fracture of the left shoulder, and cerebral concussion and contusion. Records from the Appellant's second day in the hospital confirmed the presence of "extensive fractures involving the left maxillary bone." A physician wrote that the Appellant had "obvious trauma about the head area" including lacerations on the left cheek and left side of the mouth. He also had "an area of contusion on the right lower leg with an area of abrasion, two or three areas of abrasion in this same locality." A subsequent treatment note, dated May 18, 1963, indicated a slightly comminuted oblique fracture of the vertebral segment of the left first rib. A physician recommended additional imaging studies "of this area when the clinical condition permits, including the lower cervical spine." The Appellant remained in the hospital for 10 days. His treatment included a closed reduction for his fractured mandible. After this surgery, "He was watched over a period of four days and with cessation of bleeding from his right ear with healing off of the fractured site and with improvement; he was taken to surgery where arch bars were applied to the upper and lower jaw areas and immobilization established." The discharge summary describes a gradual improvement in the Appellant's condition and a "benign post-operative course from fairly extensive facial trauma." The RO has obtained post-service medical treatment records which identify subsequent injuries to the Appellant's back. In October 1982, the Appellant was working beneath a mobile home "from which the supporting jack slipped, and the mobile home fell across basically his left shoulder and neck region and also strained his right groin." The diagnosis was probable compression fracture of the L1 vertebral body and fractures of the left clavicle and scapula. Treating medical personnel noted, "Medical History: None relevant. He works as a truck driver." A July 1986 progress note indicates: "He does have a history of having sustained a compression fracture when a house trailer fell upon him in 1982. He has had mid back discomfort intermittently since that time, more recently more consistently." There are more recent audiology records which comment on the condition of the Appellant's ears. According to an audiology clinic note, dated October 2003, the Appellant complained of a "constant 'sizzling' tinnitus which varies in intensity. He denies any hearing loss, dizziness, or ear pressure. He does report a history of a perforation in the right tympanic membrane in 1963 and various incidences of possible head injuries. . . . Tympanometry testing showed normal middle ear pressure values bilaterally, with abnormally high compliance values bilaterally. These results suggest possible ossicular discontinuity bilaterally versus very flaccid tympanic membranes bilaterally." October 2003 is also the date of a slightly more recent otorhinolaryngology report, apparently taken to investigate more closely the findings identified by the private audiologist earlier the same month. According to this note, "The external auditory canals, tympanic membranes, and middle ear spaces were examined under the operating microscope and appear entirely normal with good mobility on pneumatic otoscopy." The otorhinolaryngology report indicated the presence of noise induced hearing loss and resulting tinnitus. The Appellant told the physician, "He did have military service with minimal noise exposure. He does use chain saws and leaf blowers and similar equipment. He has been a heavy equipment operator. He does use firearms." The most recent private audiology note, dated November 2011, reflects complaints of constant tinnitus "for at least the past couple of years or longer. He denies any hearing loss." The audiologist report clear ear canals, mild high frequency hearing loss, and good speech discrimination. The claims file also includes personnel and service medical records which are consistent with the Appellant's description of the timing of the automobile accident. A report of medical history, dated April 1963, indicates that the Appellant experienced unusual reactions to injections - specifically, a vasovagal syncope. According to a clothing requisition form, the Appellant was issued clothing and supplies on May 16, 1963, which the hospital records identify as the date of the automobile accident. In explaining the reasons for the February 2014 remand, the Board found that, because the medical and personnel records supported his statements concerning the timing of the accident, the Appellant was involved in an automobile accident when returning home from an INACDUTRA drill on May 16, 1963. Because it was unclear whether his current disabilities were caused by that accident, the Board remanded this appeal with instructions to arranged examinations and obtain appropriate medical opinions. A VA physician examined the Appellant's back, neck, and ears in August 2016 and also reviewed the Appellant's claims file. The examination reports for the lower back and neck indicate a diagnosis of degenerative arthritis of the spine for both spinal segments (cervical and thoracolumbar). According to part two of the report ("Medical History"), the Appellant told the examiner that he had sustained a back injury during the May 1963 automobile accident. He told the examiner that he experienced back pain since then, along with neck stiffness and occasional neck pain. The examiner noted pain on examination of both the thoracolumbar and cervical spinal segments, but reported that the pain did not result in functional loss. Imaging studies revealed moderate to severe facet sclerosis of the lower lumbar spine and degenerative changes in the lower cervical spine, probably producing bilateral bony neural foraminal encroachment obliquity. In the examiner's opinion, it was less likely than not that the Appellant's low back and neck disorders were related to the May 1963 motor vehicle accident. To support this conclusion, the examiner emphasized that the extensive emergency room notes from May 1963 did not reflect treatment for a specific back or neck injury and that subsequent medical examination reports, dated July 1963, April 1964, and September 1964, likewise demonstrated no back or neck pathology. In the examiner's opinion, current degenerative changes in both spinal segments were most likely the result of the normal aging process. The same physician examined the Appellant's ears after reviewing the claims file. The ear conditions examination report acknowledges statements from the Appellant indicating "that he sustained right ear drum perforation during [motor vehicle accident] in [May 1963]. No specific treatment rendered. Today he complains [of] constant bilateral tinnitus. No treatment." After examining the Appellant's ears, the VA physician concluded that the Veteran did not now have, and had never been diagnosed with, any ear or peripheral vestibular condition. A physical examination of the right ear revealed a normal external ear, a normal ear canal, and a normal tympanic membrane. According to the examiner, there were no pertinent physical findings, complications, signs or symptoms relating to any ear or peripheral vestibular condition. The examiner opined that it was less likely than not that a current ear drum condition was related to the May 1963 motor vehicle accident. After reviewing the emergency room records reflecting treatment for the injuries sustained in that accident, the examiner wrote that the records demonstrated "no specific eardrum injury." In support of his claims, the Appellant submitted a letter from a chiropractor in private practice, dated August 2016. According to the chiropractor's letter, "[The Appellant] has been seen in my office since July 7, 1984, with neck pain, shoulders, arms and hands pain, mid back pain, chest, and low back pain for numerous appointments in the last 32 years. It is in my opinion, everything is directly related to his injury, during his service." Analysis - Neck and Back Claims It is less likely than not that the Appellant's current disabilities of the back and neck were incurred or aggravated while he was engaged in authorized travel following a period of INACDUTRA. Clearly, the Appellant was injured in an automobile accident on May 16, 1963 and relevant personnel records - specifically the clothing requisition form reflecting the date of the accident - corroborate his statement that, when his automobile crashed, he was returning from an INACDUTRA drill. All this notwithstanding, whether the Appellant is considered a Veteran for the purposes of these claims depends on a finding that the accident caused or aggravated his current neck and back disabilities. But such a finding would be inconsistent with the most persuasive medical evidence on these issues. The Board has considered the August 2016 letter from the Appellant's chiropractor, which indicates that, in his opinion, the Appellant's neck and low back pain were "directly related to his injury, during his service." Unlike the August 2016 VA examiner, the chiropractor's letter did not explain the reasons for his conclusion. It is unclear whether the chiropractor reviewed the May 1963 emergency room records which, as the VA examiner correctly stated, do not identify any specific injuries to the neck or back. Instead, the records describe injuries to the face, jaw, head, lower leg, and left shoulder. On the issue of whether it is at least as likely as not that the current back and neck disabilities were caused by the May 1963 accident, the most persuasive evidence is the unfavorable opinion of the August 2016 VA examiner. An examiner may not rely on the absence of treatment for the claimed condition in the service medical records, standing alone, to justify an unfavorable nexus opinion. See e.g. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Nevertheless, the August 2016 opinion is consistent with Buchanan, because the examiner did not rely exclusively on the absence of treatment for neck and back injuries in service and instead identified an alternative, more likely, cause for the current degenerative changes in the Appellant's cervical and lumbar spine - the natural aging process. Moreover, the VA examiner's opinion is more consistent with the other medical evidence than is the chiropractor's contrary opinion. It is significant that, in October 1982, many years after the May 1963 accident, the Appellant sustained a serious injury to his neck, shoulder and back when a mobile home fell on him. The records of treatment for these injuries indicate that, at that time, medical personnel attempted to obtain from the Appellant his prior relevant medical history and he did not mention back or neck injuries in service. The Board acknowledges that one treatment note, dated May 18, 1963, suggested the potential need for imaging studies of the cervical spine. But this finding was tentative and the subsequent discharge summary, dated May 27, reflects no injuries to the cervical spine. The burden of proof is on the claimant to establish his eligibility for benefits based on an injury incurred when returning from INACDUTRA. 38 C.F.R. § 3.6(e). Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim must be denied. Analysis - Ruptured Ear Drum Before considering whether the Appellant meets the requirements for Veteran status for the purposes of the claim for service connection for a disability of the right ear, it is necessary to clarify the scope of the claim. Specifically, the Board must consider whether the ruptured ear drum claim includes a claim for service connection for a hearing loss disability. In his initial claim for benefits, the Appellant specifically requested compensation for tinnitus and for a ruptured ear drum, but did not mention hearing loss. Under Clemons v. Shinseki, 23 Vet. App. 1 (2009), VA must liberally interpret a claimant's characterization of his or her disability when a broad interpretation is more favorable to the Veteran. For example, a claim for service connection for PTSD should be broadly construed to include claims for service connection for any psychiatric disorder related to service. See Id. at 5. The Court in Clemons reached this conclusion because "[t]he appellant generally is not competent to diagnose his mental condition; he is only competent to identify and explain the symptoms he observes and experiences." Id. In August 2016, the RO arranged for an audiologist to examine the Appellant in connection with his tinnitus claim and, in the audiologist's subsequent report, he wrote that he could not, without speculating, opine on the likelihood that the Appellant's hearing loss was the result of any event in service. The reason he could not provide the requested opinion, the report explains, was because the Appellant's service treatment records included only the results of an unreliable whisper test. The audiologist did not, however, indicate what additional information he would need before he could provide the requested opinion. And it is unclear whether the audiologist ever asked the Appellant about the timing of the onset of his subjective symptoms of hearing loss, if any. For these reasons, if a compensation claim for a hearing loss disability is within the scope of the ear drum rupture claim, it would be reasonable to remand the ear claim for a new medical opinion because the August 2016 hearing loss opinion likely would not be adequate to decide a claim for service connection for hearing loss. But the Appellant never specifically attributed his hearing loss to his claimed in-service ear drum rupture. In a November 2011 audiology note, the Appellant denied hearing loss. The otorhinolaryngology report, dated October 2003, indicates that that it was likely that the Appellant's hearing loss was noise induced, but the Appellant specifically indicated that he had "military service with minimal noise exposure" and further reported post-service exposure to loud noises from chain saws, leaf blowers, firearms and heavy equipment. Although VA uses technical criteria to decide whether a hearing loss disability exists for compensation purposes, see 38 C.F.R. § 3.385 (2017), the association between the ears and the ability to hear is well known to laypersons. There are no statements from the Appellant suggesting an association between hearing loss and his claimed ear injury, while the post-service records of his private audiologist attribute statements to the Appellant affirmatively suggesting that his hearing loss is the result noise exposure; that his exposure to noise during in the Naval Reserve was "minimal"; and that his most significant exposure to loud noise was unrelated to service in the Naval Reserve. Under these circumstances, the Board finds that it would not be reasonable to construe the Appellant's ear disorder claim as including a claim for service connection for a hearing loss disability. Clemons is consistent with this conclusion, because the Board's characterization of the issue is in harmony with the Appellant's own description of his symptoms. Having determined that the Appellant's ruptured ear drum claim does not include a hearing loss claim, the Board will now consider whether he is a Veteran for the purposes of this claim. Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328, 1329 (1997). The presence of a disability at the time of the filing of a claim or during its pendency is sufficient to meet the current disability requirement, even if the disability resolves before the Board's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In August 2016, a VA physician examined the Appellant's external ear, ear canal, and tympanic membrane. He found all of these to be normal. According to the examiner, the Appellant did not have, and, indeed, he never had, an ear or peripheral vestibular disorder. The Appellant claims that he ruptured his ear drum during the May 1963 accident and the emergency room records describing the medical treatment after that accident do indicate bleeding from his ear. Nevertheless, there is no competent evidence suggesting that he currently has a ruptured ear drum or that he has had a ruptured ear drum at any point since he filed his pending disability compensation claim in September 2008. An audiology note several years earlier - in October 2003 - suggests the possibility of "very flaccid tympanic membranes bilaterally." But a subsequent otorhinolaryngology report revealed that "the external auditory canals, tympanic membranes, and middle ear spaces were examined under the operating microscope and appear entirely normal with good mobility on pneumatic otoscopy." All of the relevant medical evidence is therefore consistent with the August 2016 VA examiner's finding that the Appellant did not have a ruptured ear drum at the time of the examination. For this reason, the August 2016 VA ear nose and throat conditions examination report is adequate and, on the issue of a whether an eardrum rupture has existed within the relevant appeal period, the Board finds the examiner's opinion is more persuasive than the contrary statements of the Appellant, who, as a layperson, is not qualified by education and experience to diagnose a ruptured ear drum. The Appellant did not provide any other medical opinion evidence relevant to the ear drum claim. The August 2016 letter from the Appellant's chiropractor did not mention his ears. Because the preponderance of the evidence weighs against the conclusion that the Appellant currently has a ruptured ear drum incurred during the May 16, 1963 automobile accident, which took place when he was returning from an INACDUTRA drill, the Board finds that he does not qualify for Veteran status for the purpose of that claim. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a ruptured ear drum is denied. Entitlement to service connection for a disability of the low back is denied. Entitlement to service connection for a disability of the neck is denied. REMAND After the Board remanded this appeal in February 2014, the AOJ arranged for the Appellant to receive a series of medical examinations. In addition to the back, neck, and ear examinations, described above, the August 2016 VA examiner conducted a kidney conditions (nephrology) examination. The examiner diagnosed a congenital kidney disorder. In his opinion, due to the congenital nature of this condition, it was unlikely that the Appellant's kidney condition was caused by the May 1963 automobile accident. Unfortunately, the August 2016 examiner's opinion is not adequate to decide the kidney disorder claim. As VA's general counsel has explained, a disease, even if it is of hereditary or congenital origin, can be incurred or aggravated in service if its symptomatology did not manifest until after entry on active duty. See VAOGCPREC 8-88 (Sept. 1988), reissued as VAOPGCPREC 67-90 (July 18, 1990). But congenital or developmental defects are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2017). Only congenital "defects", as opposed to congenital "diseases" are excluded from the types of disabilities that may be service connected, as congenital defects are not considered diseases or injuries. The test for distinguishing a congenital defect from a congenital disease is whether the disorder in question is subject to change. See VAOPGCPREC 67-90. "[C]ongenital or developmental defects are normally static conditions which are incapable of improvement or deterioration." Id. The opinion states further: "A disease, on the other hand, even one which is hereditary in origin, is usually capable of improvement or deterioration." Id. Congenital defects are potentially eligible for service connection only to the extent that the defect is subject to in-service superimposed disease or injury. See VAOPGCPREC 82-90; Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). When describing the Appellant's congenital kidney condition, the August 2016 VA examiner did not indicate whether the condition was a congenital disease or defect. Nor did he comment on the likelihood of aggravation or superimposed injury. For these reasons, the kidney condition claim will be remanded to obtain an appropriate medical opinion. As for the claim for service connection for tinnitus, the August 2016 VA audiology examination noted complaints of constant tinnitus - specifically he perceived a hissing sensation in both ears. The examiner opined that the Appellant "did not report tinnitus was caused by or a result of military noise exposure." The explanation for the examiner's opinion did not, however, address the Appellant's statement that he experienced the onset of tinnitus at the time of the May 16, 1963 automobile accident. When VA undertakes to provide a medical opinion, "[the Secretary] must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. The Board must ensure that the examination is adequate." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Under these circumstances, an adequate opinion on the etiology of the Appellant's tinnitus would address the Appellant's lay statement identifying May 1963 as the initial date of onset for the condition. The tinnitus claim must be remanded to obtain an appropriate addendum opinion. Accordingly, the case is REMANDED for the following action: 1. Send the claims file to the VA physician who completed the VA kidney conditions examination report in August 2016. If the August 2016 examiner is unavailable for any reason, the requested opinion should be obtained from another qualified person. If the requested opinion cannot be provided without a new examination, a new examination should be arranged. The examiner should review the claims file and then provide an addendum report which responds to the following questions: (a) Is the Appellant's kidney condition a defect or a disease, (generally, a congenital abnormality that is subject to improvement or deterioration is considered a disease)? (b) If a defect, then was there any superimposed disease or injury in connection with the congenital defect? If so, is it at least as likely as not that the identified superimposed disease or injury is related to the May 16, 1963 automobile accident? (c) If a disease, then is it at least as likely as not (at least a 50 percent probability) that it was aggravated by the May 16, 1963 automobile accident? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. A comprehensive medical rationale is requested in response to all opinions and findings entered. In explaining his or her responses to these questions, the examiner should specifically discuss the Appellant's claim that his discharge from the Naval Reserve on account of his congenital kidney condition became necessary because his condition had been aggravated during his periods of ACDUTRA and/or INACDUTRA. 2. Send the claims file to the VA audiologist who completed the VA audiology examination report in August 2016. If the August 2016 examiner is unavailable for any reason, the requested opinion should be obtained from another qualified person. If the requested opinion cannot be provided without a new examination, a new examination should be arranged. The examiner should review the claims file and then provide an addendum report which responds to the following question: Is it at least as likely as not (at least a 50 percent probability) that the Appellant's tinnitus was incurred during the automobile accident which took place on May 16, 1963 when he was returning from an INACDUTRA drill? The examiner must provide a thorough rationale for his or her opinion. If the examiner does not believe that the Appellant's tinnitus began as a result of the May 16, 1963 automobile accident, then he or she should address the Appellant's statements indicating that he began experiencing tinnitus at that time and specifically describe the medical reasons why he or she disagrees with the Appellant's version of events. 3. After the requested records review and opinions are complete, the reports should be reviewed to ensure compliance with the directives of this remand. If any report is deficient in any manner, it should be returned to the reviewing personnel. 4. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, the Appellant and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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 that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs