Citation Nr: 1237220 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 05-11 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for right hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for hypertension, including as due to exposure to Agent Orange. 4. Entitlement to service connection for type II diabetes mellitus, including as due to exposure to Agent Orange. 5. Entitlement to service connection for benign prostatic hypertrophy, including as due to exposure to Agent Orange. 6. Entitlement to a disability rating in excess of 40 percent for prostate cancer, status post radiation therapy, since September 1, 2008. 7. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran, VJJ ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2004, March 2007, and June 2008 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2009, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of this proceeding is associated with the claims file. In August 2011, the Board denied entitlement to service connection for bilateral hearing loss, tinnitus, hypertension, type II diabetes mellitus, and benign prostatic hypertrophy. The Board also determined that a disability rating in excess of 40 percent for prostate cancer was not warranted since September 1, 2008. The issues of entitlement to an increased rating for PTSD and TDIU were remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. The Veteran appealed the denial of his claims to the United States Court of Appeals for Veteran's Claims (Court). In an April 2012 Order, the Court vacated the August 2011 decision of the Board to the extent that it denied service connection for right hearing loss, tinnitus, hypertension, type II diabetes mellitus, and benign prostatic hypertrophy and a disability rating in excess of 40 percent for prostate cancer since September 1, 2008. The claims were remanded to the Board for further proceedings consistent with the Joint Motion for Partial Remand. The Veteran elected to no longer pursue his appeal of entitlement to service connection for left ear hearing loss and thus, the August 2011 Board decision is final with respect to that issue. The Court lacked jurisdiction with regard to the claims for an increased rating for PTSD and TDIU as the matters were remanded by the Board. Development directed by the Board in August 2011 has not been completed and re-adjudication of the claims for an increased rating for PTSD and TDIU by the Agency of Original Jurisdiction (AOJ) are still pending. As these matters have not been recertified to the Board, they are not ready for appellate disposition. The appeal is REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking entitlement to service connection for right hearing loss and tinnitus, which he contends resulted from noise exposure incurred during active duty. He also seeks entitlement to type II diabetes mellitus, hypertension, and benign prostatic hypertrophy, which he asserts result from exposure to Agent Orange during his service in the Republic of Vietnam. With regard to the claim for benign prostatic hypertrophy, the Veteran additionally claims that it is secondary to the service-connected prostate cancer. He further maintains that his service-connected prostate cancer warrants a rating in excess of 40 percent for symptoms, to include, but not limited to, urinary incontinence and the need for the use of absorbent materials. As noted in the Introduction, the matters were vacated by the Court in April 2012 and remanded to the Board for further proceedings consistent with the Joint Motion for Partial Remand. Notably, the Court found the Board failed to satisfy the duties as outlined under 38 C.F.R. § 3.103(c)(2), and addressed by the Court in Bryant v. Shinseki, 23 Vet. App. 488 (2010), i.e., it is the responsibility of VA employee conducting the hearing to suggest the submission of evidence which would be advantage to the claimant's position. The Court indicated that the Veteran testified during the October 2009 Board hearing that his physician at the VA Medical Center (VAMC) in Dallas advised him that his hypertension could be related to his military service. However, the Court found that the Board failed to suggest that the Veteran obtain a written statement from this physician to support his claim as required by 38 C.F.R. § 3.103(c)(2). With regard to the claim for increased rating for prostate cancer, the Court found that the Veteran's urinary frequency and use of absorbent material was not fully or accurately detailed in the record evidence and thus, required additional notice to the Veteran. Upon Remand the RO must notify the Veteran of any information and evidence needed to substantiate and complete his claims for hypertension and prostate cancer. 38 U.S.C.A. § 5103(a); 38 C.F.R.§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Specifically, the Veteran must be informed that he can obtain a written statement from his physician at the Dallas VAMC regarding the relationship between the Veteran's hypertension and military service. He must be further informed that he can submit evidence of urinary frequency and use of absorbent material as outlined in the rating criteria for the genitourinary system. With regard to the claim for benign prostatic hypertrophy, the Court found that the matter must be remanded to obtain clarification of a VA's examiner's two conflicting medical opinions. The Court cited the April 2010 opinion diagnosing the Veteran with benign prostatic hypertrophy and finding that it was not due to his service-connected prostate carcinoma and the August 2010 addendum that the Veteran did not have a diagnosis of benign prostatic hypertrophy and symptoms of urinary frequency and incontinence were due to radiation treatment. As the opinions contain contradictory statements regarding whether the Veteran has benign prostatic hypertrophy and the etiology of such, a new opinion must be sought, which answers the questions posed below. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). The Court additionally found that the Board failed to provide an adequate statement of reasons and bases for its decision to deny the claim for diabetes mellitus. The Court indicated the Board denied the Veteran's claim on the basis of no current diabetes mellitus disability; however, VA records suggested that he had glucose levels greater than or equal to 126 milligram (mg) per deciliter (dL), which was the threshold for determining whether a person suffers from diabetes mellitus according to THE MERCK MANUAL 1275 (18th ed. 2006). In claims seeking service connection, VA must arrange for an examination to secure a nexus opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claims. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran served in the Republic of Vietnam for March 1968 to October 1968 and thus, he is presumed to have been exposed to herbicides during such service. 38 C.F.R. §§ 3.307, 3.309. Diabetes mellitus is a disease associated with exposure to certain herbicide agents. 38 C.F.R. § 3.309(e). During his October 2009 Board hearing, the Veteran testified that his primary physician stated that he was borderline diabetic at one time, but that six months later, when he had another physical examination, he was told that he was not diabetic or borderline diabetic. VA outpatient treatment records dated in May 2008 reflect that the Veteran's glucose level reached 138 mg/dL. The Board finds that the low threshold of McClendon is met and a VA examination is necessary. In August 2012, the Veteran' representative informed VA that the Veteran continued to seek treatment for the claimed conditions at the Dallas VAMC, and his updated records were relevant to the current severity of his prostate cancer, as well as his current diagnoses. The representative requested that all records from January 2010 onward be obtained. Updated records of any subsequent treatment the Veteran has received for the claimed disabilities are pertinent evidence that must be secured. 38 C.F.R. § 3.159(c)(2). Because pertinent treatment records are outstanding (and as it essential that each disability be viewed in relation to its history), a contemporaneous examination to assess the severity of the Veteran's prostate cancer is also necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 4.1. The Board incorporates by reference, and has reproduced below, the reasons for Remand cited by the Board in August 2011 with regard to the claim of entitlement to a disability rating in excess of 30 percent for PTSD and the claim for TDIU. The Veteran contended that the severity of his PTSD warranted a higher disability rating. In the May 2011 Informal Hearing Presentation, the representative at the time stated that the Veteran's PTSD symptomatology had increased in severity since his September 2007 VA examination. The Board found that another VA examination was appropriate. VAOPGCPREC 11-95 (1995). Lastly, as to the TDIU issue, the Board previously found that this claim was inextricably intertwined with the PTSD issue, (and now with the other claims addressed in this Remand) . Therefore, the Board found that adjudication of the TDIU issue must be deferred pending completion of the additional evidentiary development, since the outcome of the PTSD issue (as well as the others on appeal) may impact the eventual determination on the TDIU issue. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that when a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Accordingly, the case is REMANDED for the following action: 1. The RO should ensure that all due process requirements in these matters under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) are met. The RO must notify the Veteran (and his representative) of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim of service connection for hypertension and a higher rating for prostate cancer; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, the letter should advise the Veteran of the need to submit medical nexus evidence relating his hypertension to service , to include a written statement from his physician at the Dallas VAMC. Further, the VCAA notice should also include an explanation as to the information or evidence needed to establish a disability rating for the prostate cancer claim on appeal, i.e. evidence of urinary frequency and the use of absorbent materials as outlined in the rating criteria for disorders of the genitourinary system. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). He must be afforded a reasonable opportunity to respond. 2. The RO should secure for the record copies of the complete updated (from January 2010 onward) clinical records of all evaluations and treatment the Veteran received for disabilities remaining at issue at the Dallas VAMC. 3. After the development described in paragraphs 1 and 2 is completed, the RO should contact the VA examiner who rendered the April 2010 and August 2010 opinions and seek clarification as to existence, nature, and likely etiology of the claimed benign prostatic hypertrophy. If the examiner is not available, such opinion must be rendered by a similarly qualified examiner. The entire record must be reviewed by the examiner in conjunction with the examination. If an examiner does not have access to Virtual VA, any relevant treatment records in Virtual VA (but not otherwise in the record) must be printed and associated with the claims file so that they are available to the examiner's review. The examiner should provide opinions that respond to the following: (a) please opine whether or not the Veteran currently has benign prostatic hypertrophy; (b) and if yes, it is at least as likely as not (50% or better probability) incurred or aggravated in service (to include exposure to herbicides); and (c) please opine whether or not any currently diagnosed benign prostatic hypertrophy is at least as likely as not (50% or better probability) proximately due to, the result of, or aggravated by his service-connected prostate cancer. The examiner must explain the rationale for all opinions, citing to supporting factual data. 4. After the development described in paragraphs 1 and 2 is completed, the RO should arrange for the Veteran to be afforded an examination by an appropriate provider to determine the existence, nature, and likely etiology of the claimed diabetes mellitus. The entire record must be reviewed by the examiner in conjunction with the examination. If an examiner does not have access to Virtual VA, any relevant treatment records in Virtual VA (but not otherwise in the record) must be printed and associated with the claims file so that they are available to the examiner's review. Any indicated tests or studies must be completed. The examiner should describe all findings in detail. Based on examination of the Veteran and review of his record, the examiner should provide opinions that respond to the following: (a) please opine whether or not the Veteran currently has diabetes mellitus type II (making specific reference to the May 2008 138 mg/dL glucose level) and (b) if yes, it is at least as likely as not (50% or better probability) incurred or aggravated in service, to include presumed exposure to herbicides. The examiner must explain the rationale for all opinions, citing to supporting factual data. 5. After the development described in paragraphs 1 and 2is completed, the RO should arrange for the Veteran to be afforded an examination by an appropriate provider to determine the current severity of the service-connected prostate cancer. The entire record must be reviewed by the examiner in conjunction with the examination. If an examiner does not have access to Virtual VA, any relevant treatment records in Virtual VA (but not otherwise in the record) must be printed and associated with the claims file so that they are available to the examiner's review. Any indicated tests or studies must be completed. The examiner should describe all findings in detail. Based on examination of the Veteran and review of his record, the examiner should provide opinions that allow for the application of the rating criteria for the genitourinary system. The examiner should be notified that voiding dysfunction is rated based on symptoms of urine leakage, frequency, or obstructed voiding. The examiner must make specific findings as to the use of an appliance or the wearing of absorbent materials and the number times it must be changed per day. The examiner must make specific findings as to the number of daytime voiding intervals or awakening to void intervals per night. The examiner must make specific findings as to whether there is obstructed voiding or marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream). The examiner should specifically address the functional effects of the disability under the ordinary conditions of daily life, including employment. The examiner must explain the rationale for all opinions, citing to supporting factual data. 6. After the development described in paragraphs 1 and 2 is completed, the RO should arrange for the Veteran to be afforded an examination by an appropriate provider to determine the current severity of the service-connected PTSD. The entire record must be reviewed by the examiner in conjunction with the examination. If an examiner does not have access to Virtual VA, any relevant treatment records in Virtual VA (but not otherwise in the record) must be printed and associated with the claims file so that they are available to the examiner's review. Any indicated tests or studies must be completed. The examiner should describe all findings in detail. Based on examination of the Veteran and review of his record, the examiner should provide opinions that allow for the application of the rating criteria for mental disorders. A Global Assessment of Functioning (GAF) score should be reported. The examiner should specifically address the functional effects of the disability under the ordinary conditions of daily life, including employment. The examiner must explain the rationale for all opinions, citing to supporting factual data. 7. In the interest of avoiding future remand, the RO should then review the examination reports to ensure that the above question has been clearly answered and a rationale furnished for any opinion expressed. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 8. The RO should arrange for any further development suggested by the results of that sought above, to include ordering new VA examinations for the claimed right hearing loss and tinnitus, if necessary. Thereafter, the issues on appeal should be readjudicated. The Veteran (and his representative) should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran 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). 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. 2010). _________________________________________________ ALAN S. PEEVY 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) (2011).