Citation Nr: 0814372 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 06-15 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to a rating in excess of 20 percent for post-operative residuals of prostate cancer. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for gastroesophageal reflux disease (GERD) and hiatal hernia. ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran had active military service from December 1965 to September 1967 and was awarded a Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In October 2004, the veteran's case was transferred from the VA RO in Roanoke, Virginia, to the VA RO in Huntington that now has jurisdiction of his appeal. The Board notes that the RO's February 2005 rating decision on appeal also denied the veteran's claim for service connection for post-traumatic stress disorder. However, in a March 2006 rating decision, the RO granted service connection for PTSD that was awarded an initial 50 percent disability rating. That action represents a full grant of the benefits sought as to the veteran's claim for service connection for PTSD. He then submitted a timely notice of disagreement as to the initial rating assigned for his service-connected PTSD, and a statement of the case was issued in March 2007. However, a substantive appeal is not associated with the claims file as to this claim, and the matter not certified for appellate consideration. As such, the Board will confine its consideration to the issues as set forth on the title page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran seeks service connection for bilateral hearing loss and tinnitus and for GERD and hiatal hernia, and an increased rating for his service-connected residuals of prostate cancer. In an April 2005 written statement that was received by the RO in May 2006, the veteran said that the stress in his life caused by his service-connected prostate cancer and prostate removal exacerbated his GERD and hiatal hernia. VA medical records, dated through March 2006 include a diagnosis of GERD (noted in November 2005 and other records) for which the veteran took prescribed medication. To establish service connection for a disability on a secondary basis, there must be evidence sufficent to show that a current disability exists and that the current disability was either caused by or aggravated by a service- connected disability. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1997). Additionally, when aggravation of a nonservice- connected disability is proximately due to or the result of a service-connected disorder, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b) (2007). Here, the Board is of the opinion that the veteran should be afforded a VA examination to determine the etiology of any gastrointestinal disorder found to be present, including whether the veteran has GERD and hiatal hernia disorders due to his service-connected prostate cancer residuals or PTSD. Second, the veteran seeks service connection for bilateral hearing loss and tinnitus. When examined for pre-induction into service in September 1965, audiogram findings, in pure tone thresholds, in decibels, were as follows when converted to ISO (ANSI) values: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 10 25 LEFT 35 15 20 25 Findings appear suggestive of hearing loss prior to entering service (as noted by the RO in the March 2006 statement of the case), although none was noted on the examination report at the time, and the veteran was found qualified for active service. His September 1967 separation examination report does not include audiogram findings. A December 14, 2004 VA outpatient audiology consultation record indicates that results of an audiogram showed normal to mild hearing loss in the right ear and normal to moderate hearing loss in the left ear. The examiner said the veteran was not a hearing aid candidate at the time due to the mild degree of loss. The audiogram findings are not included in the claims file. However, the Board notes that a veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3-2003. A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2007). In VAOGCPREC 3-2003, the VA's General Counsel determined that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) and Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). In this case, the RO has not determined whether there is clear and unmistakable evidence that any currently diagnosed bilateral hearing loss and tinnitus preexisted the appellant's entry into active military service in December 1965 and was not aggravated by service. Third, the veteran seeks a rating in excess of 20 percent for his service-connected post-operative residuals of prostate cancer evaluated under 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528 (2007) that evaluates malignant neoplasms of the genitourinary system. In his written statements in support of his claim, and during his January 2005 VA examination, the veteran said he urinated every 1 1/2 to 2 hours during the day and at night. He told the examiner his stream was okay and that he did not wear a pad, but experienced some occasional urinary incontinence. The examiner noted that the veteran probably should wear a pad and his underwear stayed wet at times. However, when seen in the VA urology clinic in July 2005, it was noted that he was voiding well and there was no indication of any complaints regarding urinary incontinence or frequency. Given that the veteran has not been examined by VA in more than three years, the Board believes he should be afforded a new VA examination to determine the current severity and all manifestations of his service-connected residuals of prostate cancer. The Board also finds that the veteran has not been provided complete notice with respect to the Veterans Claims Assistance Act of 2000 consistent with the recent holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Finally, an October 2003 VA outpatient record indicates the veteran reported that he just transferred to the Clarksburg, West Virginia, area, and sought medical care. It is unclear if he received VA or private medical treatment in the Virginia and Washington, D.C., area, for his claimed disabilities, other than the records of his prostate cancer in the claims file. Accordingly, the case is REMANDED for the following actions: 1. The appellant should be provided the notice required under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007) and 38 C.F.R. § 3.159(b) (2007), to include the notice specified in Vazquez-Flores v. Peake, 22 Vet. App. 37, to include notice that he should submit all pertinent evidence in his possession. The veteran should specifically be advised that, if the diagnostic code under which he is rated for his residuals of prostate cancer contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by his demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on his employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant 2. The RO/AMC should obtain all medical records regarding the veteran's treatment at the VA medical facility in Clarksburg, West Virginia, for the period from March 2006 to the present, and any additional VA or private medical records identified by him. If any records are unavailable, a note to that effect should be placed in the claims file and the veteran (and his representative, if any) should be so advised in writing. 3. The veteran should be scheduled for a VA genitourinary examination, to be performed by a physician, to determine the current severity and all manifestations of his service- connected residuals of prostate cancer. The claims folder must be available to the examiner prior to entry of pertinent findings. All indicated tests and studies should be performed and all clinical findings reported in detail. The examiner is requested to set forth all pertinent findings so that voiding dysfunction and urinary frequency may be determined and the matter rated. 4. Then, the veteran should be scheduled for a VA gastrointestinal examination to be performed by a physician to determine the etiology of any GERD and hiatal hernia found to be present. All indicated tests and studies should be performed and all clinical findings reported in detail. a. The examiner should identify if the veteran has GERD or a hiatal hernia, or another gastrointestinal disorder. b. For each such GERD, hiatal hernia, or other gastrointestinal disorder identified, the physician should proffer an opinion, with supporting analysis, as to the likelihood that any diagnosed GERD and hiatal hernia, or other gastrointestinal disorder, was caused by, or aggravated by, the veteran's service-connected residuals of prostate cancer or PTSD disability. The degree of GERD or hiatal hernia, or other gastrointestinal disorder, that would not be present but for the service-connected residuals of prostate cancer or PTSD should be identified. 5. The veteran should also be scheduled for appropriate VA examinations, e.g., audiology and ENT to determine the etiology of any bilateral hearing loss and tinnitus found to be present. A complete history of any post service noise exposure should be obtained from the veteran. Prior to the examination, the examiner should review the claims folder, including the appellant's service medical records, including the September 1965 and September 1967 service medical records. All indicated tests and studies should be performed and all clinical findings reported in detail. The examining physician is requested to address the following matters: a. Does the appellant currently have a disorder manifested by bilateral hearing loss and tinnitus? b. Taking into consideration the evidence incorporated in the service medical records (including the September 1965 pre-induction examination report) when was the disability (or disabilities) started? c. If any disability was incurred before December 1965, was there a permanent increase in disability, beyond the natural progress of the disorder, during the veteran's period of military duty, namely from December 1965 to September 1967? d. If any diagnosed disability was incurred after December 1965, the examiner is requested to provide an opinion concerning the etiology of bilateral hearing loss and tinnitus found to be present, to include whether it is at least as likely as not (i.e., to at least a 50- 50 degree of probability) that any currently bilateral hearing loss and tinnitus were caused by military service, or whether such an etiology or relationship is unlikely (i.e., less than a 50-50 probability). 6. Thereafter, the RO should readjudicate the veteran's claims for service connection for bilateral hearing loss, tinnitus, GERD, and hiatal hernia, and a rating in excess of 20 percent for residuals of prostate cancer. If the benefits sought on appeal remain denied, the veteran should be provided with a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).