Citation Nr: 1303198 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-04 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an initial compensable disability rating for service-connected status post prostate cancer. 4. Entitlement to an initial compensable disability rating for service-connected erectile dysfunction associated with status post prostate cancer. 5. Entitlement to an initial compensable disability rating prior to June 29, 2010, and in excess of 30 percent thereafter for service-connected overactive bladder associated with status post prostate cancer. 6. Entitlement to an initial disability rating in excess of 40 percent for service-connected loose bowel disability associated with status post prostate cancer. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2005 and December 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In his February 2009 VA Form 9, the Veteran requested a personal hearing before a Veterans Law Judge at the RO. However, in September 2011, the Veteran withdrew his request for a hearing. See 38 C.F.R. § 20.704(e) (2012). With regard to the Veteran's status post prostate cancer claim, the Board notes that this issue was addressed in a statement of the case (SOC) dated December 2008. Thereafter, the Veteran perfected the appeal in a February 2009 VA Form 9, in which he checked the box in section 9.A. of the form. See Evans v. Shinseki, 25 Vet. App. 7 (2011). The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Service connection for bilateral hearing loss disability and tinnitus Prior to November 1967 service departments consistently used ASA units to record pure tone sensitivity thresholds in audiometric measurement. VA currently uses ISO (ANSI) units. For purposes of comparison between the service audiometric data and more recent VA audiometric data, VA must convert the ASA measurements recorded in service to the comparable ISO (ANSI) measurements. In June 2005 the Veteran was afforded a VA audiologic examination. Examination resulted in assessments of tinnitus and bilateral hearing loss. In regards to bilateral hearing loss, the examiner, based upon a finding of hearing within normal VA limits in both ears at the Veteran's October 1965 enlistment examination and October 1968 discharge examination, concluded that bilateral hearing loss was not incurred in service. With respect to tinnitus, the examiner concluded that it had the same etiology as the hearing loss and was therefore less than likely related to the Veteran's military service. VA's duty to assist includes providing an adequate examination when such an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl, 21 Vet. App. at 123. The Board finds it is unclear from the examination report whether the examiner considered the fact that the October 1965 audiological findings upon entrance into service were recorded using ASA measurements, not ISO (ANSI) measurements. Therefore, the Board finds that the necessity for a clarifying opinion is shown for the proper assessment of the Veteran's claims for service connection of bilateral hearing loss and tinnitus. 38 U.S.C.A. § 5103A (West 2002). As such, the issue must be remanded in order to obtain a medical opinion as to the etiology of the Veteran's bilateral hearing loss disability and tinnitus. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). In rendering any opinion, the examiner must specifically consider the October 1965 findings as appropriately converted. Once this is accomplished, an issue arises concerning the presumption of soundness. When no defect is noted at the time a Veteran enters service, the presumption of soundness arises and the Veteran is presumed to have been sound upon entry. The presumption of soundness may only be rebutted by clear and unmistakable (i.e., undebatable) evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304(b) (2012). A history of the pre-service existence of a condition recorded at the time of the entrance examination does not constitute a notation of such a condition, and a claimant's condition is not "noted" when the induction examination does not contain a medical diagnosis by the examiner. See 38 C.F.R. § 3.304(b)(1). Pure tone thresholds, in decibels, were as follows for the October 1965 entrance audiological examination: HERTZ 500 1000 2000 3000 4000 RIGHT 20 (35) 15 (25) 20 (30) X 20 (25) LEFT 10 (25) 10 (20) 5 (15) X 10 (15) The Board has converted the ASA units to ISO units in parentheses above. Pure tone thresholds, in decibels, were as follows for the October 1968 separation audiological examination: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 25 X 25 LEFT 15 15 10 X 20 Partial deafness in the Veteran's right ear was noted on the Veteran's October 1968 separation examination report. The Board notes that the examiner on the induction examination found hearing levels in excess of 20 decibels at different thresholds with respect to each ear. In that regard, the United States Court of Appeals for Veterans Claims has held that the threshold for normal hearing is from 0 to 20 decibels and higher thresholds indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Furthermore, the Veteran was placed on a profile for hearing loss, and his temporary profile was listed as a "2." See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). However, as the examiner did not report a diagnosis with respect to either ear on the entrance examination, the Veteran is presumed sound at entry. Accordingly, it must be determined whether the presumption of soundness is rebutted by clear and unmistakable evidence. If either prong of the presumption of soundness is not rebutted, regarding the audiologist's opinion, it must be noted that the absence of any documented in-service hearing loss is not necessarily fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). The requirements for service connection for hearing loss need not be shown by audiometric testing during a claimant's period of active duty in order for the claim to be granted. 38 C.F.R. § 3.385 (2012). Rather, service connection for a bilateral hearing loss disability may be granted where there is credible evidence of acoustic trauma due to noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Such also applies to tinnitus. Higher evaluations for status post prostate cancer, erectile dysfunction, overactive bladder, and loose bowel disabilities After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the claims for higher evaluation for the Veteran's erectile dysfunction, overactive bladder, and loose bowels associated with status post prostate cancer must be remanded for further evidentiary development. The Veteran was last afforded a VA examination in June 2010 as to his service-connected erectile dysfunction, overactive bladder, and loose bowels. Furthermore, the most recent clinical evidence currently of record is a May 2010 VA outpatient treatment record. The Veteran essentially contends that his service-connected erectile dysfunction, overactive bladder, and loose bowels have since increased in severity. See the January 2013 Informal Hearing Presentation (IHP). In light of the foregoing, the Board finds that a contemporaneous VA examination is warranted to ascertain the current severity of the Veteran's service-connected erectile dysfunction, overactive bladder, and loose bowels. See Snuffer v. Gober, 10 Vet. App. 400 (1997) [a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination]; Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) [Court determined that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating]; Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) [VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse]. The Board adds that the Veteran receives medical care through VA facilities and that VA records date only through June 2010. In addition, in his notice of disagreement of August 2008, he reported that his life had been impacted tremendously and that VA could contact his physician, Dr. Lubbers. VA treatment records also note that he continues under the care of private physicians Lubbers, Wang, and Vigliotti. The last medical records from these physicians concerning the issues on appeal are dated in 2003, although Dr. Lubbers also provided a statement in July 2006. Thus, on remand, all available VA and non-VA treatment records should be obtained. See 38 C.F.R. § 3.159(c); Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that relevant VA treatment records are considered to be constructively contained in the claims folder and must be obtained before a final decision is rendered). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and obtain the names and addresses of all non-VA medical care providers who treated him for the claims remanded herein. After obtaining proper authorization, the RO should obtain any relevant records from these providers, including Dr. Lubbers, Dr. Vigliotti and Dr. Ward, that are not already of record in order to ensure that complete records from these providers are of record. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The Veteran must then be given an opportunity to respond. 2. The RO should obtain VA treatment records dated after June 2010 pertaining to the Veteran's bilateral hearing loss disability and tinnitus as well as his status post prostate cancer, erectile dysfunction, overactive bladder, and loose bowels. 3. Schedule a VA audiological examination to determine the presence, severity and etiology of the Veteran's claimed bilateral hearing loss and tinnitus. The claims file should be available for review by the examiner. The examiner should review the claims file, giving particular attention to the Veteran's lay assertions regarding noise exposure, hearing loss and tinnitus, as well as the pertinent medical evidence. The examiner should note that the claims file has been reviewed. The examiner should elicit a complete medical history with respect to the hearing loss and tinnitus. In this regard, it is noted that the examiner in 2005 indicated that the Veteran noted temporary hearing loss and tinnitus in service which resolved. Bilateral ringing was noted all the time if he was in a very quiet situation, which was noticeable the past 5 years and intermittent prior to that. It is unclear from this history how long the Veteran has had intermittent tinnitus. Based on a review of the record and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that tinnitus began in or is attributable to service, including noise exposure experienced in service. A complete explanation for the opinion should be provided. Regarding hearing loss, the examiner should specifically consider the October 1965 in-service audiological findings as appropriately converted to ISO (ANSI) measurements, which are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 25 30 25 LEFT 25 20 15 15 a. State whether it is clear and unmistakable (obvious, manifest, and undebatable) that a hearing loss disability in either ear pre-existed active service. b. If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that pre-existing hearing loss WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress. c. If any responses above are negative, provide an opinion as to whether the current hearing loss disability at least as likely as not (a probability of 50 percent or greater) began in or is related to active service. It is noted that the requirements for service connection for hearing loss need not be shown by audiometric testing during a claimant's period of active duty in order for the claim to be granted. Rather, service connection for a bilateral hearing loss disability may be granted where there is credible evidence of acoustic trauma due to noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically-sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Any and all opinions must be accompanied by a complete rationale. 4. The RO should afford the Veteran a genitourinary examination to determine the current severity of the Veteran's status post cancer, erectile dysfunction, overactive bladder, and loose bowel disabilities. The claims folder and a copy of this Remand must be made available to the examiner who should indicate on the examination report that the folder was reviewed in conjunction with the examination. The examiner should evaluate and discuss the severity of the Veteran's service-connected status post cancer (to include consideration of whether there has been a reoccurrence of his prostate cancer), erectile dysfunction, overactive bladder, and loose bowel disoabilities. The examiner should comment on any occupational impairment resulting from these disabilities. The examiner should indicate in his/her report that the claims file was reviewed. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. A rationale for all opinions expressed should be provided. A report should be prepared and associated with the Veteran's VA claims folder. 5. Thereafter, the issues on appeal should be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and afforded the opportunity to respond thereto. The matter should then be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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. 2012). _________________________________________________ S.S. TOTH 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) (2012).