Citation Nr: 21067764 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 18-28 007 DATE: November 5, 2021 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for a right leg disability is granted. New and material evidence having been received, the petition to reopen the claim for service connection for hypertension is granted. Service connection for a left leg disability is denied. Service connection for a back disability, to include degenerative joint disease, is granted. REMANDED The claim for a right leg disability is remanded. The claim for service connection for hypertension is remanded. Service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Since the final December 19, 2005, decision, new and material evidence has been received that raises a reasonable possibility of substantiating the Veteran's claim for service connection for a right leg disability. 2. Since the final December 7, 2010, decision, new and material evidence has been received that raises a reasonable possibility of substantiating the Veteran's claim for service connection for hypertension. 3. The preponderance of the evidence of record is against finding that the Veteran has had a left leg disability at any time during or approximate to the pendency of the claim, or that he sustained an in-service injury to his left leg. 4. The Veteran's back disability is related to his active military service as a combat engineer. CONCLUSIONS OF LAW 1. The December 19, 2005, decision that denied service connection for a right leg disability is final; however, new and material evidence has been received and, thus, the claim is reopened. 38 U.S.C. §§ 5103A, 5108, 7105; 38 C.F.R. §§ 3.156, 19.52, 20.1103. 2. The December 7, 2010, decision that denied service connection for hypertension is final; however, new and material evidence has been received and, thus, the claim is reopened. 38 U.S.C. §§ 5103A, 5108, 7105; 38 C.F.R. §§ 3.156, 19.52, 20.1103. 3. The criteria for service connection for a left leg disability are not met. 38 U.S.C. §§ 1110, 1131, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1967 until his honorable discharge in September 1969. He served in Vietnam from February 1968 until February 1969, and received the Purple Heart for his service. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 decision by a Regional Office of the United States Department of Veterans Affairs (VA). In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 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. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. New and Material Evidence To appeal a rating decision, the appellant must file a "notice of disagreement" "within one year from the date of the mailing of notice of the decision of the agency of original jurisdiction." 38 U.S.C. § 7105(b)(1)(A); 38 C.F.R. § 19.2(c). A notice of disagreement must be submitted in writing and identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(b)(2)(A). If no notice of disagreement is filed within the prescribed period, the action or decision of the agency of original jurisdiction becomes final from the date notice was mailed. 38 U.S.C. § 7105(c). For the purposes of reopening claims decided by the agency of original jurisdiction (AOJ) before February 19, 2019 (the effective date of the Veterans Appeals Improvement and Modernization Act of 2017), such claims are still considered "legacy appeals" and are to be analyzed under VA's traditional "Legacy" process. See 38 C.F.R. § 3.156(a); 38 C.F.R. § 3.2400(b). Under the Legacy process, a veteran "may reopen a finally adjudicated legacy claim by submitting new and material evidence." 38 C.F.R. § 3.156(a). Here, the Veteran's claim for service connection for a right leg disability was adjudicated by a VA Regional Office on December 19, 2005, and he was provided notice of the decision on December 30, 2005. The Veteran's claim for service connection for hypertension was adjudicated by a VA Regional Office on December 7, 2010, and he was provided notice of the decision on December 9, 2010. Thus, the "new and material evidence" standard applies to each claim. Regardless of the VA Regional Office's determination as to whether new and material evidence was received, the Board must address the issue in the first instance because it ultimately affects the Board's jurisdiction to adjudicate the underlying claims. See Woehlaert v. Nicholson, 21 Vet. App. 456, 46061 (2007) (citation omitted). The Board must perform a two-step analysis when a veteran seeks to reopen a final decision based on new and material evidence. See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the last final disallowance is "new and material." Id. If it is, the Board must then reopen the claim and "evaluate the merits of the veteran's claim in light of all the evidence, both new and old." Id. "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 and must raise a reasonable possibility of substantiating the claim." 38 C.F.R. § 3.156(a). The language of section 3.156(a) "does not require new and material evidence as to each previously unproven element of a claim"; instead, it compels reopening whenever a claimant submits new and material evidence "as to an unestablished fact from the previously denied claim." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In Shade, the Court held that the language of section 3.156(a), requiring the new evidence raise a reasonable possibility of substantiating the claim, is an analytical guide that creates a low threshold rather than a separate element. Id. at 117. In determining whether the low threshold is met, however, VA should consider whether the new and material evidence could, if the claim were reopened, reasonably substantiate the claim, to include triggering VA's duty to assist or through consideration of an alternative theory of entitlement not previously established by the evidence, id. at 11719, but not including "presentation of new arguments based on evidence already of record at the time of the previous decision," Untalan v. Nicholson, 20 Vet. App. 467, 470 (2006) (emphasis added). "New evidence" "is evidence not previously part of the actual record before agency adjudicators." 38 C.F.R. § 3.156(a). VA is required to presume the credibility of newly submitted evidence for the purposes of determining whether that evidence is material and sufficient to reopen a previously denied claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). "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). Since the VA Regional Offices' respective decisions, VA has associated numerous medical records with the Veteran's claims file, including examinations specific to his right knee and leg. The Veteran has also provided testimony at his July 2021 Board hearing as to symptoms associated with his right leg. This evidence is new. As to his hypertension, the Board finds that new evidence exists in the form of a recognized change in position of the National Academy of Sciences, which has upgraded its association determination between hypertension and herbicide-exposure from "limited or suggestive" to "sufficient," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide-agent exposure. Veterans and Agent Orange: Update 11 (2018). The new evidence of record relates to unestablished facts with respect to each claim for service connection and raises a reasonable possibility of substantiating each claim. Therefore, the Board finds reopening of each claim for service connection is warranted. 38 C.F.R. § 3.156(a). Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that 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). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Applicable to this case is 38 U.S.C. § 1154(b), which "reduce[s] the evidentiary burden for combat veterans with respect to evidence of in-service incurrence or aggravation of an injury or disease" by mandating that VA "accept as sufficient proof of service[ ]connection . . . satisfactory lay or other evidence of service incurrence or aggravation" of an injury or disease "if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service." See Dalton v. Nicholson, 21 Vet. App. 23, 3637 (2007); 38 C.F.R. § 3.304(d). In other words, section 1154(b) relaxes the evidentiary requirements for establishing an in-service incurrence or aggravation of a disease or injury for combat-related compensation claims if the veteran meets the requirements set forth therein. Section 1154(b) "sets forth a three-step, sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute." Collette v. Brown, 82 F.3d 389, 39293 (Fed. Cir. 1996). 1) First, it must be determined whether the veteran has proffered satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease. Id. 2) Second, it must be determined whether the proffered evidence is consistent with the circumstances, conditions, or hardships of such service. Id. 3) Third, if these two inquiries are met, the Secretary "shall accept" the veteran's evidence as sufficient proof for purposes of service connection even if no official record of such incurrence exists. Id. But, service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b). As to evidence that may be considered at each stage of this three-step process, the Federal Circuit stated: [Section] 1154(b) contemplates a sequential analysis in which the first step is an inquiry as to whether the veteran has presented "satisfactory" evidence of service-connected injury or disease. That inquiry requires a determination as to the credibility of the veteran's evidence standing alone, not a weighing of the veteran's evidence with contrary evidence. Nor does the second inquiry require the weighing of the veteran's evidence with contrary evidence. It is only in the third step . . . that evidence contrary to the veteran's claim of service connection . . . comes into play. Id. at 394. "Satisfactory evidence" in step one of section 1154(b) means "credible evidence." Caluza v. Brown, 7 Vet. App. 498, 510 (1995). Section 1154(b) does not provide a substitute for proof of either a current diagnosed disability or medical-nexus evidence. See Brock v. Brown, 10 Vet. App. 155, 162 (1997) ("[T]he reduced evidentiary burden provided for combat veterans by 38 U.S.C. § 1154(b) relate[s] only to the question of service incurrence, "that is, what happened thennot the questions of either current disability or nexus to service, as to both of which competent medical evidence is generally required."). A combat veteran may invoke the section 1154(b) presumption to show both that an event that allegedly caused a disability occurred in service and that the claimed disability itself was incurred in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) ("[A]lthough the record contained evidence of the cause of [the veteran's] disabilityacoustic trauma mortar blasts... he still had the right to invoke the section 1154(b) presumption in order to show that he incurred the disability itself while in service.") (emphasis in original). In Reeves, the Federal Circuit reasoned that this distinction is useful because if a veteran is able to "use the section 1154(b) presumption to show that he incurred a permanent hearing disability in service, it presumably would [be] far easier for him to establish that there was a nexus between his military service and [a hearing disability]." Id. 1. Service connection for a left leg disability All theories of service connection require a veteran to have a "current disability." The requirement for a veteran to have a "current disability" is satisfied when he or she has a disability (1) at the time a claim for VA disability compensation is filed or (2) has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of a current disability, service connection cannot be granted. The Board concludes the evidence of record weighs against the conclusion that the Veteran has a current left leg disability. In all of the Veteran's VA and VA-contracted examinations, no examiner diagnosed the Veteran with a left leg disability, to include functional loss due to pain. The Board finds no credible evidence in the record that the Veteran has a left leg disability. The Board observes the Veteran is currently service connected for left knee degenerative joint disease, but his claim for a left leg disability is a separate and distinct claim from his left knee degenerative joint disease. Absent a current disability, the award of VA disability compensation is not permitted. Moreover, even if the Veteran had a current left leg disability, the Board would conclude that the evidence weighs against the conclusion that he suffered an in-service event or injury in relation to his left leg. The Veteran seeks service connection for a left leg disability based on the assertion that he received a shrapnel injury during a mortar attack while serving in Vietnam. July 2021 Board Hearing Transcript, at 23. The Board finds his testimony that he suffered a mortar attack resulting in a shrapnel injury credible, but not a shrapnel injury to his left leg, only to his right leg. In his 2005 application for disability benefits, he only asserted that he received a shrapnel injury to his right leg, never mentioning a shrapnel injury to his left leg. July 2005 Application for Disability Benefits. Likewise, he only described a right leg injury due to shrapnel during a November 2005 VA examination. During his December 2017 testimony before a VA Decision Review Officer, he confirmed that he only received an injury to his right leg due to shrapnel. December 2017 Decision Review Officer Hearing Transcript, at 17. During his July 2021 Board hearing, he testified he was not sure he actually sustained an injury to his left leg, only that the doctors placed Band-Aids on both legs. July 2021 Board Hearing Transcript, at 3. Applying section 1154(b), the Board would conclude that the Veteran offered sufficient lay evidence of a mortar attack because it is consistent with the circumstances, conditions, or hardships of his service in Vietnam. But the Board would conclude that clear and convincing evidence establishes that he did not sustain a shrapnel injury to his left leg, primarily based on his own testimony at the December 2017 Decision Review Officer Hearing and his own inability to recollect such an injury during his July 2021 Board Hearing Testimony. Accordingly, in the absence of a current disability and an in-service event or injury, service connection is not warranted for a left leg disability. The Board recognizes that following transfer of the case to the Board, VA associated VA medical records with the Veteran's claims file. On review of the records, the Board does not find any relevance to the Veteran's claim for service connection for a left leg disability, particularly as none of the evidence demonstrates a left leg disability. Thus, the application of 38 C.F.R. § 3.156(c) (requiring new records be relevant) is not applicable; therefore, remand is not required and the Board may adjudicate the claim. 2. Service connection for a back disability, to include degenerative joint disease. First element: A current disability During the pendency of his claim, the Veteran received multiple VA and VA-contracted examinations addressing his claim for service connection for a back disability. Most recently, a November 2017 VA-contracted examiner diagnosed the Veteran with degenerative arthritis of the spine. The Veteran's VA medical records recorded similar diagnoses and associated treatment. The Board finds this evidence credible and probative. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof The Veteran asserts that during his active military service he was required to carry heavy objects as a combat engineer, including 100-lb bags of cement and large boxes on a routine basis. July 2021 Board Hearing Transcript, at 78. He also asserted that due to the rough terrain, he sustained routine back injuries as a result of being thrown around and hitting his head on the top of the motor vehicles in which he was driving or was a passenger. December 2017 VA Form 21-4138, Statement in Support of Claim; December 2017 Decision Review Officer Hearing Transcript, at 89. The Board finds the Veteran's statements and testimony credible as they are consistent with his duties as a combat engineer. Therefore, the Board finds the second element, an in-service event, is satisfied. Third element: A causal link The November 2017 VA-contracted examiner who evaluated the Veteran's back disability opined that the Veteran's back disability had its onset in service. There was no evidence indicating a back condition prior to the Veteran's active service. His lay statements as to the onset in service and chronic symptoms following service made it more likely that not that his current back disability was due to his duties associated with his military occupational specialty as a combat engineer as he described them. The Board finds this opinion is credible and probative, despite the inaccurate statement that the Veteran had in-service documentation of his back disability. The core of the examiner's opinion was based on the Veteran's lay statements about his onset and continuity of symptoms. The Board finds that the examiner's misstatement that a back disability was documented within in-service treatment records is not dispositive of the ultimate issue and conclusion. Therefore, the third element is satisfied. Accordingly, service connection is warranted for a back disability. REASONS FOR REMAND 1. The claim for a right leg disability is remanded. During the Veteran's July 2021 Board hearing, he did not provide evidence of an existing disability, such as functional loss, associated with his right leg due to the shrapnel injury he sustained. But he did offer testimony that he felt some type of nerve issue in his right leg. July 2021 Board Hearing Transcript, at 67. Reading the Veteran's claim sympathetically, the Board finds his claim for a right leg disability includes associated potential nerve issues. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (the Board is required to read a veteran's filings sympathetically); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (finding that the scope of a claim may include any disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). By expanding his claim, the Board finds remand is required to assess any neurologic symptoms associated with the Veteran's right leg. The Board recognizes that he is service-connected for right knee degenerative joint disease, and as such, any nerve damage may be associated with his right knee rather than his right leg. A medical opinion, however, is necessary to determine this. 2. The claim for service connection for hypertension is remanded. The Veteran served in Vietnam between 1968 and 1969. A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to an herbicide agent unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The "Vietnam era" is the period beginning on February 28, 1961, and ending on May 7, 1975, for veterans who served in the Republic of Vietnam, and the period beginning on August 5, 1964, and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). If a veteran who was exposed to herbicide agents during service in the Republic of Vietnam during the Vietnam era develops certain diseases to a particular degree, as listed in 38 C.F.R. § 3.309(e), then such diseases are presumed to be due to the Veteran's herbicide agent exposure. 38 U.S.C. § 1116. Consequently, a direct medical nexus is not required. While hypertension is not one of the presumptive conditions listed in 38 C.F.R. § 3.309(e) that are associated with exposure to herbicide agents, service connection may be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Prior to 2018, the National Academy of Sciences (NAS) categorized the scientific evidence regarding an association between herbicide agents and hypertension as "limited or suggestive." See 79 Fed. Reg. 20,308 (Apr. 11, 2014). Most recently, NAS upgraded its association determination between hypertension and herbicide-exposure from "limited or suggestive" to "sufficient," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide-agent exposure. Veterans and Agent Orange: Update 11 (2018). No VA medical examiner has opined whether the Veteran's hypertension may be directly cause by his presumptive exposure to herbicide agents during his service in Vietnam. Therefore, remand is required to obtain a medical opinion on the issue. 3. Service connection for bilateral hearing loss is remanded. The Board finds that a remand for a new VA examination and opinion is necessary for the Veteran's claim of hearing loss for two reasons. First, the Veteran received audiologic examinations in January 2017 and November 2017. These examinations are approximately four years old. Since these examinations, there is some evidence in the record to suggest that the Veteran's hearing has worsened, yet it remains unclear. The Board finds new audiologic examinations are warranted in this instance. Moody v. Wilkie, 30 Vet. App. 329, 341 (2018) ("Generally speaking, VA must provide a new examination when the veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition."). Second, each examiner provided a negative nexus opinion. Each examiner relied on the Veteran's July 1967 pre-induction audiologic examination and August 1969 separation audiologic examination to conclude that he had no hearing loss prior to or at the end of service. Under VA's current regulations, hearing loss is defined using units from the International Standards Organization (ISO) and the American National Standards Institute (ANSI). 38 C.F.R. § 3.385. Prior to December 31, 1970, some, but not all, audiometry examinations still used units from the American Standards Association (ASA). Neither the Veteran's pre-induction nor separation examination recorded what unit of measurement was used, ISO-ANSI or ASA. Nor did either examiner address this potential issue in their respective opinions. As the units of measurement have a potential to impact an examiner's opinion, remand is required to obtain a new opinion addressing this issue. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain a VA examination from any appropriately qualified clinician to provide an opinion addressing the onset and etiology of the Veteran's claimed right leg disability. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion regarding: (a.) Does the Veteran have a neurologic disability associated with his right leg, apart from his service-connected right knee degenerative joint disease? The examiner must consider disabilities associated with the nerves in his right leg. (b.) For any identified disability, whether it is at least as likely as not (50 percent probability or more) that such disability had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include a shrapnel injury sustained by the Veteran while serving in Vietnam? (c.) For any identified disability, whether it is at least as likely as not (50 percent probability or more) that such disability was caused by (proximately due to or as the result of) his service-connected right knee degenerative joint disease? (d.) For any identified disability, whether it is at least as likely as not (a 50 percent probability or more) that such disability was aggravated by his service-connected right knee degenerative joint disease? The examiner is advised "aggravation" means an increase in the severity of the underlying disability beyond its natural progression. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his right leg disability, if any, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a right leg disability in service or the assertion that an in-service event, injury, or illness led to a right leg disability. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion 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). 3. After any additional records are associated with the claims file, obtain a VA examination from an appropriately qualified clinician to provide an opinion addressing the onset and etiology of the Veteran's hypertension. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include presumed exposure to herbicide agents while serving in Vietnam. The examiner is informed that the Veteran is presumed to have been exposed to herbicide agents due to his service in Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) The National Academy of Sciences' decision to upgrade its association determination between hypertension and herbicide-exposure from "limited or suggestive" to "sufficient," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide-agent exposure. Veterans and Agent Orange: Update 11 (2018). The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his hypertension disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of hypertension in service or the assertion that an in-service event, injury, or illness led to hypertension. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion 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). 4. After any additional records are associated with the claims file, obtain a VA audiologic examination from an appropriately qualified clinician to provide an opinion addressing the onset and etiology of the Veteran's hearing loss. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion regarding: (a.) Does the Veteran have hearing loss in his right or left ear for VA disability purposes? 38 C.F.R. § 3.385. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's identified hearing loss had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include acoustic trauma associated with his military occupational specialty as a combat engineer. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) The Veteran's military occupational specialty as a combat engineer, which is associated with a high probability of noise exposure. (b.) If the examiner relies on the 2006 Institute of Medicine's report on noise exposure in the military, the examiner must discuss the plausibility or non-plausibility of delayed onset hearing loss, to include how the IOM report indicates that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." See Noise and Military Service: Implications for Hearing Loss and Tinnitus, Institute of Medicine 2006, p. 11, BOX ES-1. This is to say, if studies are insufficient, how can the IOM report be fully relied upon as a basis to say delayed on-set hearing loss did not occur? (c.) If the examiner relies on the Veteran's pre-induction and separation examination audiologic results as found within his service treatment records, the examiner must assume audiograms were recorded in ASA units and consider the puretone thresholds as converted to ISO-ANSI units, unless the examiner finds otherwise. This means adding to the recorded findings 15 decibels at 500 Hertz; 10 decibels at 1000, 2000, and 3000 Hertz; and 5 decibels at 4000 Hertz. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his hearing disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a hearing disability in service or the assertion that an in-service event, injury, or illness led to a hearing disability. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. (Continued on the next page) If the examiner feels that a requested opinion 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). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.