Citation Nr: 0811522 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 06-18 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether the reduction from 100 percent to 20 percent for service-connected prostate cancer was appropriate. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected tinnitus. 3. Entitlement to a compensable disability rating for service-connected hearing loss. 4. Entitlement to a compensable disability rating for service-connected cardiac arrhythmias. 5. Entitlement to service connection for vertigo. 6. Entitlement to service connection for a sleep disorder. 7. Entitlement to service connection for gastroesophageal reflux disease. 8. Entitlement to service connection for left eye blindness. 9. Whether new and material evidence has been received to reopen a claim for service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Kreitlow, Associate Counsel INTRODUCTION The veteran retired from active military service in September 1982, after serving in excess of 21 years. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The veteran appeared and testified at a videoconference hearing held before the undersigned Veterans Law Judge in December 2006. By letter sent in December 2007, the veteran was advised that the Board was unable to obtain a recording of that proceeding due to several inaudibles. He was offered the opportunity to have another hearing, but he declined. Issues numbered 3, 4, 5, 6, 7 and 8 above as well as the issue of service connection for a lumbar spine disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The RO complied with 38 C.F.R. § 3.105 in executing the reduction of the disability rating for the service-connected prostate cancer from 100 percent to 20 percent. 2. The veteran completed radiation beam therapy for his prostate cancer on March 19, 2003. 3. The medical evidence of record as of April 1, 2005, showed that the veteran was free from malignancy. 4. The residuals of the veteran's prostate cancer are not productive of the need to wear absorbent materials which must be changed two to four times per day, daytime voiding interval of less than one hour, or awakening to void five or more times per night. 5. The veteran's bilateral tinnitus is assigned a 10 percent rating, the maximum rating available under Diagnostic Code 6260, and there are no exceptional circumstances. 6. The RO last denied service connection for a lumbar spine disorder in a March 1984 rating decision. The veteran did not appeal that decision, and it is final. 7. Some of the new evidence submitted subsequent to March 1984 in support of the veteran's claim for service connection for a lumbar spine disorder is material. CONCLUSIONS OF LAW 1. The reduction in the rating for prostate cancer to 20 percent, effective April 1, 2005, was proper. 38 U.S.C.A. § 1155, 5112 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344, 4.115a and 4.115b, Diagnostic Code 7528 (2007). 2. The criteria for an evaluation in excess of 10 percent for bilateral tinnitus have not been met. 38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code 6260 (2002, 2007); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 3. The March 1984 RO rating decision that denied service connection for a lumbar spine disorder is final. 38 U.S.C.A. § 7105(b), (c) (West 2002); 38 C.F.R. § 3.160(d), 20.201, 20.302 (2007). 4. New and material evidence has been received, and the veteran's claim for service connection for a lumbar spine disorder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Requirements 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006) describe VA's duties to notify and assist claimants in substantiating a claim for VA benefits. Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Sufficient notice must inform the claimant (1) of any information and evidence not of record that is necessary to substantiate the claim; (2) of the information and evidence that VA will seek to provide; (3) of the information and evidence that the claimant is expected to provide; and (4) that he or she should provide any evidence in his or her possession that pertains to the claim. Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1) (2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the present case, notice was provided to the veteran in October 2004, prior to the initial AOJ decision on his claims for service connection. This notice advised the veteran of all of the above-listed notice elements. The Board notes that service connection for bilateral tinnitus was granted in February 2005 rating decision and was evaluated as 10 percent disabling. The veteran disagreed with the 10 percent evaluation of this now service-connected disability in March 2005. Thereafter the RO provided notice to the veteran in March 2005 of the Pelegrini II elements of how to establish an increased rating for this disability. However, since the veteran's claim was initially one for service connection, which has been granted, the Board finds that VA's obligation to notify the veteran was met as the claim for service connection was obviously substantiated. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Therefore, any deficiency in the March 2005 notice relating to the veteran's appeal for an increased rating for this disability is not prejudicial to the veteran. The Board also notes that the veteran was provided notice in May 2006 pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006), that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. However, given the denial of the veteran's claims, any questions as to a disability rating or effective date are moot. Thus the Board finds that the veteran has not been prejudiced by VA's failure to provide notice earlier on these elements of his claims. With regard to the veteran's claim to reopen for service connection for a lumbar spine disorder, the Board notes that during the pendency of this appeal, the Court of Appeals for Veterans Claims (Court) issued a decision in Kent v. Nicholson, 20 Vet. App. 1 (2006), which established additional requirements with respect to the content of notice for reopening claims. Since the Board is reopening the claim, any failure to provide notice as specified in Kent is harmless error. Finally, the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. He was told it was his responsibility to support the claims with appropriate evidence and has been given the regulations applicable to VA's duty to notify and assist. Indeed, the veteran submitted substantial evidence in connection with his claims, which indicates he knew of the need to provide VA with information and evidence to support his claims. Thus the Board finds that the purposes behind VA's notice requirement have been satisfied, and VA has satisfied its "duty to notify" the veteran. With respect to VA's duty to assist, the RO attempted to obtain all medical records identified by the veteran. The veteran's service medical records are in the claims file. VA medical records are in the claims file for treatment from December 1982 through June 2004. The veteran provided private medical treatment records and VA obtained additional records identified by him. The veteran was notified in the rating decision and Statement of the Case of what evidence had been obtained and considered. He has not identified any additional evidence in support of his claims. VA is only required to make reasonable efforts to obtain relevant records that the veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1) (West 2002). VA, therefore, has made every reasonable effort to obtain all records relevant to the veteran's claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. The veteran was afforded VA examinations on his claims in March 2005. Thus, the Board finds that VA has satisfied its duties to inform and assist the veteran at every stage of this case. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Reduction in Rating for Prostate Cancer Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e) (2007); see also 38 U.S.C.A. § 5112(b)(6) (West 2002). In May 2004, the RO notified the veteran that it proposed to reduce the 100 percent evaluation assigned for his prostate cancer to 0 percent based upon the veteran's failure to appear for a scheduled VA examination, and provided the veteran 60 days to submit additional evidence or to request a hearing. The veteran contacted VA indicating that he did not receive notification to report for an examination and requesting a hearing. Although a hearing was scheduled, the veteran cancelled it. The VA examination was rescheduled and conducted in July 2004. In addition to the VA examination, the RO obtained additional medical evidence regarding the veteran's treatment for his prostate cancer from September 2002 through September 2004. By rating action issued in January 2005, the RO notified the veteran that it was reducing his disability rating for prostate cancer from 100 percent to 20 percent based upon the evidence of record. The reduction was to be effective April 1, 2005. Thus, the veteran was properly notified of the reduction. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections. See 38 C.F.R. § 3.344 (2007). That section provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. However, the provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings which have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Service connection for prostate cancer was granted and evaluated as 100 percent disabling effective January 29, 1998. The RO proposed reducing that evaluation in May 2004. The 100 percent evaluation had, therefore, been in effect for a period of more than five years, and the provisions of 38 C.F.R. § 3.344 are applicable in this instance. To warrant a reduction in rating, the evidence must show maintained improvement under the ordinary conditions of life, and any examinations upon which a reduction is based must be full and complete, including a review of the entire record of examinations and the medical-industrial history. See 38 C.F.R. § 3.344(a) (2007). The Board finds that improvement was demonstrated by the medical evidence that was sufficient to establish the current level of disability due to the veteran's prostate cancer. In addition, there is subsequent medical evidence to show that the veteran continued without local recurrence or metastases confirming the basis of the reduction. See Bennett v. Brown, 10 Vet. App. 178, 183 (1997) (Examinations conducted subsequent to the rating decision reducing the veteran's evaluation for lung cancer confirmed the absence of recurrence or metastasis and, therefore, supported the change in the rating that had already taken place based on residuals.). In making the reduction, the RO relied upon the veteran's private medical treatment records in addition to the July 2004 VA examination report in establishing a showing of maintained improvement. The private medical treatment records show that, in December 2002, the veteran decided to proceed with radiation therapy for his prostate cancer as his prostate-specific antigen (PSA) had risen to 7. He completed radiation therapy on March 19, 2003. (See June 27, 2003 radiation therapy follow-up note.) In April 2003, his PSA had dropped to 2.6 from pre-treatment range of 7. In June 2003, his PSA had further dropped to 1.4. His oncologist's treatment notes subsequent to the completion of radiation therapy, show the veteran continued to improve and, the veteran was noted to be asymptomatic. By February 2004, his PSA had dropped to 0.6. VA examination was conducted in July 2004. At that examination, the veteran reported having treated his prostate cancer with radiation therapy one year before. His current PSA was noted to be 3.0 and continuing to fall. The veteran reported that his current problems consisted of using the bathroom approximately every two hours during the day and every two to three hours at nighttime. He referred being wet on a daily basis, but not using any pads or undergarments. He does not become soaked. He did not refer any clothing changes due to the wetting. He denied problems with stool, leakage or pain with defecation. He did report having inability to achieve an erection. In summary, the examiner stated that there is no evidence of any active malignancy status post external beam therapy one year before. He does have voiding dysfunction and is wet on a daily basis without use of absorbent materials. At a September 2004 follow-up visit, the veteran reported having more urinary urgency and frequency, but negligible post-void residuals. His frequency and nocturia were considered probably due to detrusor instability. Thus the medical evidence of record clearly shows that, at the time of the reduction on April 1, 2005, the veteran did not have any active malignancy to warrant a 100 percent disability rating for his prostate cancer. Rather, the evidence shows the veteran completed therapy in March 2003, and thereafter, he was completely asymptomatic with his PSA having dropped to well within normal range. Thus, a reduction from 100 percent was warranted. The reduction from 100 percent is furthermore supported by the evidence developed subsequent to the January 2005 rating decision that set forth the reduction. Treatment records from the veteran's oncologist from 2005 show his PSA continued to be stable without any sign of recurrence of malignancy. The veteran underwent another VA examination in November 2005. This report indicates that the veteran's last PSA on April 15, 2005, was 0.43 without evidence of recurrence. Thus the Board finds that the reduction of the 100 percent rating of the veteran's prostate cancer was appropriate. The remaining question, therefore, is whether the evaluation of 20 percent for the residuals of the veteran's prostate cancer is appropriate. The Board finds that it is. An evaluation of 100 percent is provided under 38 C.F.R. § 4.115b, Diagnostic Code 7528, for malignant neoplasms of the genitourinary system. The note following this Diagnostic Code indicates that, following the cessation of surgery, chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, then the veteran's cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. Id. The ratings for voiding dysfunction and renal dysfunction are found at 38 C.F.R. § 4.115a (2007). Renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN [blood urea nitrogen] more than 80mg% [milligrams per 100 milliliters]; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent rating. Renal dysfunction characterized by persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or a limitation of exertion warrants an 80 percent rating. Renal dysfunction with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101 warrants a 60 percent rating. Renal dysfunction where albumin is constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101 warrants a 30 percent rating. Renal dysfunction with albumin and casts with history of acute nephritis; or, hypertension that is noncompensable under Diagnostic Code 7101 is noncompensably disabling. Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. Continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day warrants a 60 percent rating. Where such requires the wearing of absorbent materials which must be changed two-to-four times per day, a 40 percent rating is warranted. Where such requires the wearing of absorbent materials which must be changed less than two times per day, a 20 percent rating is warranted. Urinary frequency with daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent rating. A daytime voiding interval between one and two hours, or awakening to void three to four times per night warrants a 20 percent rating. A daytime voiding interval between two and three hours, or awakening to void two times per night warrants a 10 percent rating. Obstructed voiding with urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. Marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: Post void residuals greater than 150 cc.; uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); recurrent urinary tract infections secondary to obstruction; stricture disease requiring periodic dilatation every two-to-three months, warrants a 10 percent rating. A noncompensable rating is assigned for obstructive symptomatology with or without stricture disease requiring dilatation one-to-two times per year. The medical evidence shows that, in June 2003, the veteran reported at a radiation treatment follow up visit having nocturia one to two times per night, but not having any other problems. At the July 2004 VA examination, the veteran reported daytime intervals of two hours and nighttime intervals of two to three hours. He also reported some daytime wetting without soaking, the use of absorbent materials or changing of clothes. In September 2004, the veteran reported to his oncologist having more urgency and frequency, but negligible post-void residuals. In March 2005, he reported getting up two to four times per night and having door key incontinence. In September 2005, he reported nocturia two times per night. At the November 2005 VA examination, the veteran reported getting up three to four times per night and having occasional leakage if he does not have access to a bathroom. Thus the preponderance of the evidence is against finding that a disability rating higher than 20 percent is warranted for the veteran's prostate cancer residuals as the evidence fails to show that the veteran has any renal dysfunction, urine leakage requiring the wearing of absorbent materials requiring changing two to four times per day, urinary frequency with daytime interval of less than one hour or awakening to void five or more times per night, or urinary retention requiring intermittent or continuous catheterization. The Board acknowledges that the veteran reported in his March 2005 Notice of Disagreement of having to go to the bathroom four to five times per night. However, the veteran has consistently reported to his private doctors and the VA examiners that he only has nocturia ranging from two to four times per night. The probative value of the veteran's single statement made in support of his claim for benefits is outweighed by the multiple statements shown in the medical treatment notes as to the frequency of the veteran's nocturia. For the foregoing reasons, the Board finds that the reduction from 100 percent to 20 percent for the veteran's prostate cancer was appropriate, and that the preponderance of the evidence is against finding that a disability rating higher than 20 percent is warranted for his residuals therefrom. The preponderance of the evidence being against the veteran's claim, the benefit of the doubt doctrine is not applicable in this case. Consequently, the veteran's appeal must be denied. III. Initial Increased Rating for Tinnitus The veteran seeks an initial disability rating for bilateral tinnitus in excess of 10 percent. The VA Rating Schedule limits a veteran to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral. See Smith v. Nicholson, 541 F.3d. 1344 (2006). The veteran's tinnitus has been assigned the maximum schedular rating available for tinnitus. 38 C.F.R. §4.87, Diagnostic Code 6260. As there is no legal basis upon which to award a higher schedular evaluation for tinnitus in each ear, the veteran's appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board further finds that there is no showing that the veteran's tinnitus reflects so exceptional or so unusual a disability picture as to warrant the assignment of a higher rating on an extraschedular basis. There is no showing the disability results in marked interference with employment. Moreover, his tinnitus has not required any, let alone, frequent periods of hospitalization, or otherwise rendered impractical the application of the regular schedular standards. In the absence of evidence of these factors, the criteria for submission for assignment of an extraschedular rating are not met. Thus, the Board is not required to remand this claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). IV. Claim to Reopen for Service Connection for Lumbar Spine Disorder The veteran's attempt to reopen a claim service connection for a lumbar spine disorder was last denied in a March 1984 rating decision. Rating actions are final and binding based on evidence on file at the time the veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a) (2007). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision. The decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c) (West 2002). The veteran did not at any time indicate disagreement with this rating decision. Therefore, it is final. 38 U.S.C.A. § 7105 (West 2002). In August 2004, the RO received a claim for service connection for a back condition. However, since the veteran was previously denied service connection for such a disability, this claim is clearly one to reopen the previously denied claim. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). With claims to reopen filed on or after August 29, 2001, such as this one, "new" evidence is defined as evidence not previously submitted to agency decision makers and "material" evidence is 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 (2007). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claims sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The evidence received subsequent to March 1984 is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). The RO denied reopening the veteran's claim in March 1984 on the basis that no disability was found on the last VA examination (conducted in December 1983). New evidence submitted since March 1984 consists of VA and non-VA treatment records. These records show the veteran is currently diagnosed by magnetic resonance imaging (MRI) study dated February 28, 2003, to have multilevel degenerative disc and joint disease of the lumbar spine. In addition, the veteran submitted a statement dated in November 2004 from one of his private doctors that provides an opinion that is favorable to the veteran's claim. Thus the new medical evidence received is material as it tends to establish facts previously unestablished and necessary to substantiate the claim. New and material evidence having been received, the veteran's claim for service connection for a lumbar spine disorder is reopened and, to that extent only, the appeal is granted. ORDER The reduction from 100 percent to 20 percent for service- connected prostate cancer was appropriate, and the appeal to restore the 100 percent rating is denied. Entitlement to an initial disability rating in excess of 10 percent for service-connected tinnitus is denied. New and material evidence having been presented, the veteran's claim for service connection for a lumbar spine disorder is reopened and, to that extent only, the appeal is granted. REMAND The Board finds that remand is necessary on the veteran's claims for increased disability ratings for cardiac arrhythmias and hearing loss and for service connection for vertigo, gastroesophageal reflux disease (GERD), left eye blindness, sleep disorder and lumbar spine disorder for the following reasons. Increased Rating Claims The veteran's claims for increased ratings for cardiac arrhythmias and hearing loss must be remanded in order to comply with the decision of the Court of Appeals for Veterans Claims (Court) in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez-Flores v. Peake, the Court held that where the claim is for an increased rating and the Diagnostic Code under which the claimant's disability is rated contains criteria that would not be satisfied by the demonstration of a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement to the claimant. Id. The criteria used to evaluate both of these disabilities requires demonstration of more than a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life. They require evidence of specific measurements or test results (e.g., audiometric testing or ECG or Holter monitor tests). Thus the veteran must be given at least general notice of these requirements. Service Connection Claims Vertigo As to Vertigo, the Board notes that it is unclear from the record whether the veteran in fact has vertigo and, if he does, what is the cause of it. The medical evidence shows that the veteran was seen for complaints of imbalance and dizziness as early as 1993. This was initially thought to possibly be due to labyrinthitis as the veteran had otitis media as well at that time. However, he continued to complain of imbalance, incoordination and dizziness over the years. He has been worked up numerous times by VA with various possible causes given including an old brain stem infarct and cervical myelopathy. An April 2001 neurology treatment note indicates that the veteran's chief complaint was unsteadiness when on his feet but that no true vertigo was reported. He also complained of discoordination with the upper extremities. The doctor reviewed prior diagnostic tests and based on these diagnosed the veteran to have vermian atrophy with consistent ataxia. The doctor further suggested a hereditary spinocerebellar ataxia. However, in January 2007, the veteran submitted directly to the Board, a private medical treatment note from November 2006 that shows the veteran was evaluated by a private neurologist who diagnosed him to have vertigo. Given the apparent inconsistent diagnoses, the complete records of this private physician should be obtained, and the veteran examined for the purpose of clarifying the veteran's diagnosis and obtaining an opinion as to whether the veteran's current problem is related to service or was aggravated by service. The Board notes that the veteran attributes this problem to an injury he reportedly received in service when he fell out of a moving vehicle in Vietnam. Left Eye Blindness The veteran contends that he is legally blind in his left eye due to an injury he reportedly received in service when he fell out of a moving vehicle while in Vietnam. The Board notes that the veteran is diagnosed to have both glaucoma and cataracts bilaterally. Service medical records do not show any complaints of or treatment for any injury to or disease in service that affected the visual acuity of the veteran's left eye. The only thing seen is that the veteran had a refractive error of his near vision for which he was given a prescription. In fact, the veteran had 20/20 vision in his left eye at the time of his separation examination in July 1982. The first post-service eye examination seen in the record is from September 2000. At this examination, the veteran reported a history of having had a bleed in the left eye in the 1970s, treated with a laser, and having very poor vision since. (As previously noted, however, there is no record of any such treatment in service.) Uncorrected visual acuity of the left eye was 20/CF with manifest refraction of 20/200. He was diagnosed to have glaucoma suspect, decreased visual acuity of the left eye and cataracts bilaterally. A positive family history of glaucoma was also noted. In January 2007, the veteran submitted two statements from different eye doctors in support of his claim. The first statement, from Calvert Ophthalmology Center, indicates that the veteran was seen in December 2006 and January 2007, and his best corrected visual acuity in the left eye is 20/400. The diagnoses were glaucoma and cataracts. The doctor also stated that the decreased vision in the left eye is apparently due to an old injury during military service. The second statement, from Dr. Drew, indicates that the veteran has cataracts and glaucoma in both eyes. The cataracts are age related, chronic and progressive. They are visually limiting with right eye best corrected visual acuity of 20/25 and left eye of 20/50. Dr. Drew also stated that glaucoma is present in both eyes and is chronic and progressive. It is currently being treated with ocular medication and his intraocular pressure is well controlled. He stated that, because both conditions have been present multiple years prior to the veteran's coming into his care, it is impossible for him to know when these conditions became clinically significant. Based upon this evidence, the Board finds that a VA examination is needed in order to first clarify the veteran's uncorrected and corrected visual acuity. The two doctors' statements received in January 2007 clearly are inconsistent with one saying the veteran's best left eye visual acuity is 20/400 and the other saying it is 20/50. In addition, a medical opinion based upon a review of the entire record is needed as to the etiology of the veteran's loss of visual acuity in the left eye and whether it is related to any injury or disease incurred in service. GERD The veteran has claimed service connection for GERD, also arguing this condition got worse after the radiation treatment he received for his prostate cancer. The service medical records contain two treatment notes that record gastrointestinal complaints, both from March 1982. Although post service medical records do not show diagnosis of GERD until 2005, because the evidence clearly shows a current disability, the Board finds that a medical opinion is needed to assist in determining whether the veteran's GERD is related to his military service, or is proximately due to or aggravated by the radiation therapy he received for his service-connected prostate cancer. Also, the Board notes that there seems to be a gap in the treatment records from July 2004 to February 2005, which appears to be the period during which the veteran began treatment for his GERD. These treatment notes should, therefore, be obtained on remand. Sleep Disorder The veteran has claimed service connection for a sleep disorder. In his March 2005 Notice of Disagreement, the veteran stated that this condition has got worse after the radiation therapy for his service-connected prostate cancer. Medical evidence shows that the veteran has been diagnosed in 2003 to have obstructive sleep apnea. Because the medical evidence clearly shows a current diagnosis of sleep apnea, the Board finds that a medical opinion is needed to assist in determining whether the veteran's obstructive sleep apnea is related to his military service, or is proximately due to or aggravated by the radiation therapy received for the veteran's service- connected prostate cancer. Lumbar Spine Disorder As previously discussed, the veteran's claim for service connection for a lumbar spine disorder has been reopened. The veteran claims that his current lumbar spine disorder is due to the fall he had from a vehicle while in Vietnam. A VA examination is needed in order to obtain an opinion as to whether the veteran's current lumbar spine disability is related to any disease or injury incurred in service. The Board notes that the service medical records include treatment for complaints of back pain in October 1980 and November 1981, and an August 1982 record noted that x-rays showed minimal degenerative joint disease of the lumbosacral spine. However, post service records from 1983, show x-rays were interpreted as normal, although a private examiner considered the veteran suffered a back sprain that he feels definitely could have resulted from the injuries the veteran cited to him (veteran gave a history of falling off a truck (APC) while in Vietnam). Yet, VA examination for his back in December 1983, failed to find any current problem with his lumbar spine. Thereafter, records show periodic treatment for back pain over the years, and an October 1997 treatment note reflects the veteran sustained a work-related back injury when he fell down four to five stairs, and that he took early retirement from his employment as a protection officer at the Federal Reserve Bank in October 1999 partially due to back pain. In any event, more current records show multilevel degenerative disc and joint disease and small central disc protrusion L5- S1 with mild effacement of the thecal sac ventrally, and a November 2004 statement from a private physician included the opinion that the veteran's medical conditions, including chronic lumbar pain, has existed from military service to the present. Given this, a medical opinion should be obtained to ascertain whether current disability is linked to service. Accordingly, the case is REMANDED for the following action: 1. Provide the veteran with notice of the information and evidence necessary to substantiate his increased rating claims that is compliant with the current requirements pursuant to Vasquez-Flores v. Peake, No. 05- 0355 (U.S. Vet. App., January 30, 2008). Specifically, the notice should provide the content of Diagnostic Codes 7010 and 7011, together with the content of 38 C.F.R.§§ 4.85 and 4.86, with accompanying tables. 2. Request that the veteran provide a completed release form authorizing VA to request copies of his treatment records from Dr. Naimoli of Gazza Lab Neurology, whom it appears has treated the veteran since December 2006. If the veteran provides a completed release form, then request the medical records identified. The veteran should be advised that he can submit these treatment records directly to VA himself in lieu of providing the release form. All efforts to obtain these records, including follow-up requests, if appropriate, should be fully documented. The veteran and his representative should be notified of unsuccessful efforts in this regard and afforded an opportunity to submit the identified records. 3. Obtain the veteran's treatment records from the VA Medical Center in Nashville, Tennessee from July 2004 to February 2005 and from November 2005 through the present. All efforts to obtain VA records should be fully documented, and the VA facility should provide a negative response if records are not available. 4. When the above development has been accomplished and any available evidence has been obtained, the veteran should be scheduled for the following VA examinations. The claims file must be provided to each examiner for review in conjunction with the examination, and said review should be noted in the examination report. The examiner should provide a full explanation for any opinion(s) rendered. Vertigo - After reviewing the file and conducting all necessary diagnostic tests related to the veteran's complaints of vertigo, unsteadiness, loss of coordination, etc., the examiner should provide a definitive diagnosis as is possible of the cause of the veteran's complaints taking into consideration the various diagnoses shown in the treatment records. Thereafter, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the veteran's current balance disorder (claimed as vertigo) is related to any disease or injury incurred during service. The examiner is specifically requested to consider whether this condition is related to injuries received when the veteran fell off a vehicle while serving in Vietnam. Left Eye Blindness - After reviewing the file and conducting all necessary diagnostic tests, the examiner should provide a diagnosis that accounts for the loss of visual acuity in the left eye. Thereafter, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the veteran's loss of visual acuity in the left eye is related to any disease or injury incurred during service, and specifically whether this is related to injuries received when the veteran fell off a vehicle while serving in Vietnam. Lumbar Spine Disorder - After reviewing the file and conducting all necessary diagnostic tests, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the veteran's current lumbar spine disorder (diagnosed by a February 2003 MRI study as multilevel degenerative disc and joint disease) is related to any disease or injury incurred during service. The examiner is specifically requested to consider whether this is related to an injury received when the veteran fell off a vehicle while serving in Vietnam, and/or the other in-service back complaints. 5. Next, the veteran's claims file should be forwarded to persons with the appropriate medical expertise who can provide medical opinions with regard to the veteran's claims for service connection for his current GERD and sleep disorder (diagnosed as obstructive sleep apnea). Physical examinations of the veteran as to these two claimed disorders should only be provided if deemed necessary by the person providing the opinion. GERD - After reviewing the claims file, the reviewer is requested to render opinions on the following questions. a) Is it at least as likely as not (i.e., at least a 50 percent probability) that the veteran's current GERD is related to any disease or injury incurred during service? The reviewer is specifically directed to the service treatment records from March 1982 reflecting reported gastritis and reflux esophagitis. b) Is it at least as likely as not (i.e., at least a 50 percent probability) that the veteran's current GERD is either proximately due to or the result of the radiation therapy the veteran received in 2003 for his service- connected prostate cancer or, in the alternative, was aggravated by (increased in severity due to) said radiation therapy? Sleep Disorder (diagnosed as obstructive sleep apnea) - After reviewing the claims file, the reviewer is requested to render opinions on the following questions. a) Is it at least as likely as not (i.e., at least a 50 percent probability) that the veteran's current obstructive sleep apnea is related to any disease or injury incurred during service? b) Is it at least as likely as not (i.e., at least a 50 percent probability) that the veteran's current obstructive sleep apnea is either proximately due to or the result of the radiation therapy the veteran received in 2003 for his service-connected prostate cancer or, in the alternative, was aggravated by (increased in severity due to) said radiation therapy? 6. Then, after taking any actions needed to ensure VA's duty to assist and notice obligations are accomplished and that the VA examination and opinion reports are complete, the veteran's claims should be readjudicated. If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, these claims should be returned to this Board for further appellate review, if in order. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims 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 Supp. 2007). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs