Citation Nr: 18151305 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 18-44 885 DATE: November 16, 2018 ORDER As new and material evidence has not been received, the petition to reopen the claim of entitlement to service connection for hypertension is denied. Entitlement to service connection for tinnitus is denied. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus is denied. REMANDED Entitlement to service connection for a left ear hearing loss disability is remanded. Entitlement to a compensable initial disability rating for a right ear hearing loss disability is remanded. Entitlement to an initial disability rating in excess of 40 percent for prostate cancer is remanded. FINDINGS OF FACT 1. A March 2009 rating decision denied service connection for hypertension, due to the lack of a current disability. 2. In a November 2013 decision, the Board of Veterans’ Appeals (Board), upheld the March 2009 rating decision, and denied entitlement to service connection for hypertension due to the lack of current disability. The Veteran did not appeal the November 2013 Board decision. 3. The evidence received since the November 2013 Board decision is cumulative or redundant of the evidence of record, does not relate to an unestablished fact, and does not raise a reasonable possibility of substantiating that the Veteran has a current diagnosis of hypertension. 4. The preponderance of the evidence indicates that Veteran has not had tinnitus during the pendency of the claim. 5. The preponderance of the evidence indicates that Veteran’s diabetes mellitus does not require regulation of activities. CONCLUSIONS OF LAW 1. The November 2013 Board Decision denying the claim of entitlement to service connection for hypertension, based upon lack of a current disability, is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1100 (2018). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 4. The criteria for a disability rating in excess of 20 percent for diabetes mellitus are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from December 1967 to October 1969. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. VA has a duty to notify and assist the Veteran in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (a) (2018). However, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection is warranted where the evidence of record established that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting, such service, was aggravated thereby. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). “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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2018). Presumptive service connection can be established based upon continuity of symptomatology for those chronic diseases set forth in 38 C.F.R. § 3.309(a). 38 C.F.R. §§ 3.307(a)(2)-(3), 3.309(a) (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January1, 1947, and a chronic disorder, such as sensorineural hearing loss and tinnitus, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018). In order to show a 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 distinguished from merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303 (2018). A Veteran can receive compensation via secondary service connection. Service connection may be secondarily established when a disability is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2018). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) That a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). With all claims for service connection, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be 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. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for hypertension Under 38 U.S.C. § 5108, VA may reopen a previously and finally disallowed claim when “new and material” evidence is presented or secured with respect to that claim. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-283 (1996). “New evidence” means evidence not previously submitted to agency decision makers, and “material evidence” means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a)(ii) (2018). To warrant reopening, the new evidence must not be cumulative or 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. Id. In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) held that the phrase “raise a reasonable possibility of substantiating the claim” does not create a third element for new and material evidence; rather, it provides guidance as to whether submitted evidence meets the new and material requirements. Id. By way of example, the Court explained that if the newly submitted evidence would likely trigger entitlement to a VA medical nexus examination were the claim to be reopened, the new evidence would raise a reasonable possibility of substantiating the claim. Id. The Court has elaborated on what constitutes “new and material evidence.” New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans, 9 Vet. App. at 283; see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In July 2008, the Veteran filed an original claim for entitlement to service connection for hypertension, specifically asserting that his claimed hypertension was caused by his service-connected diabetes mellitus. See Statement in Support of Claim, dated July 2008. A March 2009 rating decision denied the Veteran’s claim for entitlement to service connection for hypertension on the basis that the evidenced failed to establish a current diagnosis of hypertension, or symptomatology of hypertension consistent with 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2018). The Veteran appealed the decision to the Board. In November 2013, the Board upheld the March 2009 rating decision and denied the Veteran’s claim for service connection for hypertension, similarly finding that the Veteran did not have a current diagnosis of hypertension. The Veteran did not appeal the Board’s November 2013 decision to the United States Court of Appeals for Veterans Claims (Court), and the November 2013 Board decision became final. 38 U.S.C. 7104(b) (2012); 38 C.F.R. 20.1100 (2018). As noted above, in order to reopen the claim for entitlement to service connection for hypertension, there must be new and material evidence that is 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, i.e., the November 2013 Board decision, and that evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). As noted above, to receive service connection for a disability under any theory of entitlement, the Veteran must show a current disability. Brammer, 3 Vet. App. at 225. The November 2013 Board decision affirmed the March 2009 rating decision that the Veteran is not entitled to service connection for hypertension, as he did not have a current diagnosis of hypertension, nor symptomatology consistent with 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Since the November 2013 Board decision, additional medical evidence has been received concerning the Veteran’s medical treatment and history. The evidence, however, indicates that the Veteran does not have hypertension and consistently documents blood pressure measurements below the threshold for hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2018); see also, VA Treatment Records, dated August 2017, June 2017, October 2016, May 2016, November 2015, and August 2015. As such, the newly received evidence fails to establish a current diagnosis of hypertension. The Board finds that the post-November 2013 records in the claims file regarding the Veteran’s blood pressure, while new, are cumulative or redundant of the evidence at the time of the last prior final decisions. They do not relate to an unestablished fact and do not raise a reasonable possibility of substantiating the claim. Consequently, the Veteran’s claim for entitlement to service connection for hypertension may not be reopened, as no new and material evidence has been received suggesting that the Veteran has a current diagnosis of hypertension pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. As the Veteran has not fulfilled the threshold burden of submitted new and material evidence to reopen the finally disallowed claim for entitlement to service connection for hypertension, the benefit of the doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 2. Entitlement to service connection for tinnitus The Veteran claims entitlement to service connection for tinnitus. The Board acknowledges that the Veteran is competent to report the presence of observable symptoms, such as ringing in his ears. 38 C.F.R. § 3.159(a)(2) (2018); Charles v. Principi, 16 Vet. App. 370 (2002) (finding lay person competent to identify tinnitus). Therefore, his lay reports may be sufficient to prove his claim if they are credible and consistent with the other evidence of record. Here, however, the Board finds that the Veteran’s lay statements regarding the presence of tinnitus offered in support of his current claim are not credible. The medical evidence of record is silent for any reports, treatment, or diagnosis of tinnitus. Additionally, VA medical records from March 2007, November 2007, October 2009, August 2010, and August 2011 specifically indicate that the Veteran did not have tinnitus. In February 2016, the Veteran received a VA audiological examination to determine the nature and etiology of his asserted tinnitus. The VA examiner reported that the Veteran expressly denied having tinnitus. As the Veteran’s routine denials of tinnitus were made in furtherance of treatment, they are accorded more probative value than the Veteran’s statements regarding tinnitus offered in support of his current claim. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Absent competent and credible evidence of a current disability, the claim for service connection must be denied. Brammer v. Derwinski, 3 Vet. App. at 225 (1992). Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 284 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-57; 38 C.F.R. § 3.102 (2018). For these reasons, the claim is denied. Increased Rating Claims 3. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4 (2018). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2018). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2018); Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2018). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); Gilbert, 1 Vet. App. at 56. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2018). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2018). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Here, the Veteran’s service-connected hypertension has been rated under the provisions of 38 C.F.R. § 4.119, Diagnostic Code 7913 (2018), which establishes the following criteria: A 20 percent disability rating is warranted if the Veteran’s diabetes requires one or more daily injection of insulin and a restricted diet, or; oral hypoglycemic agent and a restricted diet. 38 C.F.R. § 4.11, Diagnostic Code 7913 (2018). A 40 percent disability rating is warranted if the Veteran’s diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). Id. A 60 percent disability rating is warranted if the Veteran’s diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. Id. A maximum 100 percent disability rating is warranted if the Veteran’s diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Id. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes mellitus are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Id. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Id. The Board notes the Veteran is separately service-connected and rated for complications of diabetes consisting of peripheral neuropathy of the upper and lower extremities. See Rating Decision Codesheet, dated April 2018. The ratings assigned for these disabilities are not at issue in this appeal. The Veteran claims entitlement to a disability rating in excess of 20 percent for his service-connected diabetes mellitus. However, as outlined below, the preponderance of the evidence is against the claim. In March 2015, the Veteran was seen by a VA treatment provider for evaluation of his diabetes. There was no evidence of incidents of ketoacidosis, hypoglycemic episodes, or hyperglycemic episodes. No hospitalizations were documented. In February 2016, the Veteran received a VA examination to determine the nature and severity of his diabetes mellitus. The examiner noted that the Veteran was prescribed an oral hypoglycemic and he required more than one insulin injection per day. His visits to his provider for both ketoacidosis and hypoglycemia were reported to be less than twice per month. He had no hospitalizations due to his diabetes mellitus. The Veteran was not found to require regulation of activities for management of his diabetes. He was noted to have diabetic peripheral neuropathy. The examiner, however, opined that his diabetes mellitus did not impact his ability to work. In 2017, the Veteran denied hypoglycemia or hyperglycemia, but endorsed polyuria on one visit. See VA Medical Records, dated June 2017, May 2017. In May 2017, the Veteran’s medical records indicated that he was required to take Metformin twice daily, but he omitted the second dose. Moreover, he was prescribed insulin twice daily, but he stated he had not started regular insulin because he was unaware of how to mix the insulin. In reviewing the evidence, the Board finds that the Veteran’s symptomatology more closely approximates a 20 percent disability rating than a 40 percent disability rating. Notably, the February 2016 VA examiner found that, while the Veteran required one or more daily injections of insulin and an oral hypoglycemic agent, the Veteran’s activities did not require regulation to control his diabetes, as required for a 40 percent disability rating. VA treatment records throughout the pendency of the appeal corroborate the VA examiner’s finding as they consistently indicate that the Veteran was counseled about the benefits of daily exercise. As such, a preponderance of the evidence is against finding that the Veteran’s symptoms more closely approximate the criteria for a 40 percent rating. The Board recognizes that the Veteran believes he is entitled to a higher evaluation for his service-connected diabetes mellitus. However, the record fails to demonstrate that the Veteran has the requisite training or expertise to offer a medical opinion regarding the severity of his diabetes mellitus, to include whether his treatment requires regulation of activities. As such, the Veteran’s lay assertions fail to demonstrate that he meets the schedular criteria for a higher rating. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b) (2012); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57; 38 C.F.R. § 3.102 (2017). For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for left ear hearing loss disability is remanded. 2. Entitlement to an initial compensable disability rating for a right ear hearing loss disability is remanded. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of severity of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). The Board notes that the Veteran was last afforded a VA examination to assess the severity of his bilateral hearing loss in February 2016. The Board finds that a new VA examination is appropriate to determine the current severity of the Veteran’s right ear hearing loss as well as whether he currently has left ear hearing loss disability. Therefore, the Veteran should be afforded another audiological examination on remand. See 38 C.F.R. § 3.159 (2018); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). 3. Entitlement to an initial disability rating in excess of 40 percent for prostate cancer is remanded. The Veteran’s prostate cancer is rated under 38 C.F.R. § 4115b, Diagnostic Code 7528. 38 C.F.R. § 4.115b, Diagnostic Code 7528 (2018). Under Diagnostic Code 7528, a 100 percent disability rating is warranted until six months after the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure. Id. If no recurrence or metastasis is found, the Veteran’s prostate cancer is rated under the residuals of voiding dysfunction or renal dysfunction, whichever is predominant. Id. The Veteran was last afforded a VA examination in May 2016. The May 2016 VA examiner, upon review of the record, noted that the Veteran completed radiation therapy in 2015, but stated that it was unknown when androgen deprivation therapy was completed or was anticipated to be completed. Accordingly, the Board finds that the examination report of record is insufficient to adjudicate the claim. On remand, the Veteran should be provided a VA examination to determine the current nature and severity of his prostate cancer. The matters are REMANDED for the following actions: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and all outstanding private treatment records, with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. After the above is completed to the extent possible schedule the Veteran for an examination to determine the nature and etiology of any left ear hearing loss as well as the current severity of his service-connected right ear hearing loss disability. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should address the following: (a.) Whether it is at least as likely as not (50 percent probability or greater) that any current left ear hearing loss disability is causally or etiologically related to the Veteran’s military service, including asserted noise exposure therein (i.e., did in-service noise exposure cause the Veteran to progressively lose his hearing over the years). (b.) Whether it is at least as likely as not (a 50 percent probability or more) that any current left ear hearing loss disability is either caused by or permanently aggravated by the Veteran’s service-connected disabilities. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of his claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation In rendering the above opinions, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Schedule the Veteran for a VA examination to determine the current nature and severity of all manifestations associated with his service-connected prostate cancer. The Veteran's claims file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be performed. After a review of the evidence, to include the private treatment records, VA examination report, and with consideration of the Veteran's lay statements regarding his symptoms, the examiner should address the extent of the Veteran's prostate cancer in accordance with VA rating criteria. The examiner should specify the exact date of termination of both radiation treatment and androgen inhibition therapy. If a specific date cannot be provided, the closest approximation should be afforded, along with an explanation of the reason that an exact date may not be afforded. The examiner should address to whether androgen inhibition therapy is a “therapeutic procedure” for the Veteran’s prostate cancer. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel