Citation Nr: 1310149 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-24 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 60 percent for prostate cancer, status-post radiation with erectile dysfunction, from June 22, 2012. 2. Entitlement to an initial evaluation in excess of 20 percent for prostate cancer, status-post radiation with erectile dysfunction, prior to June 22, 2012. 3. Entitlement to service connection for bilateral hearing loss disability. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served in the Army National Guard from December 1965 to May 1966. He had active duty service in the U.S. Air Force from June 1966 to July 1977, with service in the Republic of Vietnam from September 24, 1968, to July 11, 1969. This matter comes to the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran was afforded a Travel Board hearing in December 2012. A transcript of the hearing has been associated with the record. At his Board hearing, the appellant waived initial RO consideration of several pieces of evidence, including evidence previously submitted and unconsidered by the RO. Accordingly, the Board may consider it in the first instance. See 38 C.F.R. § 20.1304(c) (2012). The issues of entitlement to service connection for bilateral hearing loss disability and entitlement to service connection for tinnitus 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. Prior to June 22, 2012, the competent, credible and probative evidence does not indicate that the Veteran's prostate cancer, status-post radiation with erectile dysfunction, was manifested by urinary frequency with daytime voiding interval less than one hour, or awakening to void five or more times per night, or urinary leakage requiring the wearing of absorbent material which must have been changed 2 to 4 times per day, or more frequently, or requiring the use of an appliance, or voiding obstruction manifested by urinary retention requiring intermittent or continuous catheterization. 2. In December 2012, prior to promulgation of a final decision, the Veteran expressed his intent to withdraw the issue of entitlement to an initial evaluation in excess of 60 percent for prostate cancer, status-post radiation with erectile dysfunction, from June 22, 2012; hence, there is no question of fact or law remaining before the Board as to this matter. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 20 percent have not been met for service-connected prostate cancer, status-post radiation with erectile dysfunction prior to June 22, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.115a, 4.115b, Diagnostic Code 7528 (2012). 2. As the criteria for withdrawal of a Substantive Appeal by the Veteran have been met, the Board has no further jurisdiction as to the matter of entitlement to an initial evaluation in excess of 60 percent for prostate cancer, status-post radiation with erectile dysfunction, from June 22, 2012. 38 U.S.C.A. §§ 7104, 7105(d)(5) (West 2002); 38 C.F.R. §§ 20.101 , 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a case such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). The Veteran has not alleged any prejudice; thus that burden has not been met in this case. Nevertheless, the Board notes that VA has fully complied with the notice provisions of 38 U.S.C.A. § 5103(a). In an April 2009 letter the Veteran was advised of how to substantiate his claim for service connection, his and VA's respective duties in developing the claim and as to the disability rating and effective date elements of his claim. The record also shows that VA has obtained the Veteran's service treatment records and VA records, assisted the Veteran in obtaining evidence, and obtained medical examinations and opinions as to the severity of his service-connected disability involved in the present appeal. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The United States Court of Appeals for Veterans Claims (hereinafter 'the Court ') has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA examinations obtained in this case are adequate. They are predicated on a substantial review of the record and medical findings, and consider the Veteran's complaints, symptoms and history. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Withdrawal of Substantive Appeal The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C.A. § 7105 , the Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At his December 2012 Board hearing. the Veteran expressed his clear intent to withdraw the issue of entitlement to an initial evaluation in excess of 60 percent for prostate cancer, status-post radiation with erectile dysfunction, from June 22, 2012. Consequently, there are no allegations of error of fact or law remaining for appellate review in connection with this claim. Accordingly, as this matter is found to be withdrawn, the appeal to this extent is dismissed. Increased Evaluation, Residuals of Prostate Cancer Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The VA schedule of ratings will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 38 C.F.R. Section 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." Id. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service-connected prostate cancer, status-post radiation with erectile dysfunction, is currently rated as 20 percent disabling, prior to June 22, 2012, and 60 percent disabling, from that date forward, under 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7528. He contends that his symptomatology warrants a 60 percent rating for his voiding dysfunction prior to June 22, 2012. See December 2012 Board hearing transcript. Under Diagnostic Code 7528, a 100 percent rating is assigned for malignant neoplasms of the genitourinary system. A Note following Diagnostic Code 7528 provides that following the cessation of surgical, X-ray, antineoplastic 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, the disability is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. The Veteran filed his claim for service connection of prostate cancer and its residuals in March 2009, subsequent to the cessation of radiation treatment in January 2008. A review of the record shows that the Veteran's primary complaints and symptoms reflect voiding dysfunction. Neither treatment records nor VA examination reports indicate the presence of renal dysfunction. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a. Diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. The following section provides descriptions of various levels of disability in each of these symptom areas. Where diagnostic codes refer the decisionmaker to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. Because the areas of dysfunction described do not cover all symptoms resulting from genitourinary diseases, specific diagnoses may include a description of symptoms assigned to that diagnosis. 38 C.F.R. § 4.115a. For urine leakage (continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence), a 20 percent rating is assignable for requiring the wearing of absorbent materials which must be changed less than 2 times per day. A 40 percent rating is assignable for requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. A 60 percent rating is assignable for requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a. For urinary frequency, a 20 percent rating is assignable for daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 40 percent rating is assignable for daytime voiding interval less than one hour, or awakening to void five or more times per night. 38 C.F.R. § 4.115a. For a rating based on obstructed voiding, a 30 percent evaluation is warranted for urinary retention requiring intermittent or continuous catheterization. A 10 percent evaluation is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post void residuals greater than 150 cc; (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every 2 to 3 months. Obstructive symptomatolgy with or without stricture disease requiring dilatation 1 to 2 times per year is rated noncompensable (zero percent). 38 C.F.R. § 4.115a. By way of background, the Board notes that the Veteran was assessed as having prostate cancer by biopsy in June 2007 following an April 2007 complaint of difficulty voiding and an elevated PSA. At this time, the Veteran complained of urinary frequency and nocturia. The Veteran underwent radiation therapy from November 2007 to January 2008. See January 2008 record from The Center for Cancer and Blood Disorders. Overall, he tolerated his treatment course well, experiencing minimal bowel and bladder symptomatology. An April 2008 private treatment record documents a new complaint of 2 to 3 episodes of gross and painless hematuria. He denied urinary frequency, urgency, nocturia and dysuria at this time. See April 2008 record from D.R., D.O. A May 2008 record from D.R., D.O. discloses continued complaints of moderate gross hematuria, likely related to radiation cystitis. A June 2008 record from D.R., D.O. notes that the hematuria had resolved and he was then voiding without difficulty and had good urinary control. A December 2008 record from D.R., D.O. pertains to a one week follow up of urinary retention and an apparent emergency room visit with placement of a catheter. He then reported some urgency, improved by Enablex. He denied any dysuria or hematuria and reported that he was doing well since the placement of the catheter, except for the occasional bladder spasm. His catheter was removed at this time. A January 2009 note from D.R., D.O. documents a recent urinary tract infection (UTI), that had responded adequately to medical therapy. The Veteran reported that at this time he was doing well. He reported occasional urgency, but nothing overwhelming. He had a normal force to his urinary stream with good urinary control. UTI, resolved, inter alia, was assessed at this time. In September 2009, the Veteran was afforded a VA examination. At this time, his history of diagnosis and treatment was outlined by the examiner, who notably reviewed the claims file. At this time, he reported some occasional hematuria, which began about 6 months after he completed radiation therapy and which only lasted for a day at a time. He related that he had hematuria about every 2 to 4 months with the last episode in April 2009. Also, at this time, the Veteran complained of voiding frequency every 1 to 1 1/2 hours during the day and nocturia times 3. However, it was noted that he drank a lot of fluids and was on a diuretic for hypertension and had had urinary frequency even before treatment for prostate cancer. He also complained of infrequent hesitance and occasional weak stream. He also noted dysuria, but only with hematuria. In terms of incontinence, he had minimal incontinence. It was noted that he was then working as a truck driver and if he had to hold off voiding for a long time he may leak a little bit. He related that he wore a pad just in case, but did not have to change pads regularly during the day. A history of catheterization in December 2008, but none since, was also noted. Examination showed an alert, pleasant male, in no acute distress. Genitourinary examination showed a normal male, normal penis and normal size testicles with normal consistency. There was no hernia and no leakage of urine with cough. The prostate was smooth and without lesions. There was no blood in the urine. The examiner assessed prostate cancer, status-post radiation with no recurrence to date. Also assessed was minimal incontinence and intermittent hematuria. The examiner noted that the Veteran complained of urinary frequency, but that this predated the treatment for his prostate cancer and concluded that this was less likely than not related to prostate cancer and its treatment. In an October 2009 statement the Veteran offered his reasons for disagreeing with the assigned 20 percent evaluation. He particularly asserted that he changed protective pads twice per day. He related that he had informed the September 2009 VA examiner of this and asserted that the examiner ignored him. Of record is a July 2010 letter from D.R., D.O. The letter notes that this doctor had treated the Veteran since April 2007 for prostate cancer. It notes, further, that since the cessation of radiation treatment he had had issues with radiation cystitis and urinary incontinence, which required him to wear a protective pad. In furtherance of substantiating his claim the Veteran submitted a "buddy" statement dated in May 2012 from acquaintances of his, A.B. and S.B. The letter notes, inter aliaļ that the Veteran had to go to the bathroom every 30 to 45 minutes when he attended NASCAR races with the authors. On June 22, 2012, the Veteran was afforded another VA examination. The examination report was used as the basis to increase the evaluation of the Veteran's condition from 20 to 60 percent disabling. The report documents voiding dysfunction manifested by urine leakage requiring the use of absorbent material that must be changed more than 4 times per day, but without the use of an appliance. The report also documents voiding dysfunction with a daytime voiding interval less than 1 hour with nighttime awakening to void 3 to 4 times. It also outlines that voiding dysfunction manifested by symptoms of obstructed voiding, particularly hesitancy and a slow or weak stream that was not markedly such, but no other symptoms of obstruction. There was no history of recurrent UTIs. In December 2012 the Veteran testified before the Board. At the hearing, he contended that a 60 percent evaluation was warranted from the outset of the claim to present as he had the symptomatology outlined in the June 2012 VA examination throughout the course of the claim and appeal, i.e. voiding dysfunction manifested by urine leakage requiring the use of absorbent material that must be changed more than 4 times per day, but without the use of an appliance. He testified that he had indeed had to wear absorbent pads and that he had to change them between 4 to 6 times per day and that this had never changed. He also testified that he had to urinate about once every hour. His wife testified in corroboration, particularly referencing frequent nocturia and that she often purchased protective pads. As outlined above, the Veteran's residuals of prostate cancer are evaluated under voiding dysfunction, as no renal dysfunction has been shown. 38 C.F.R. § 4.115a. Accordingly, the condition may be evaluated for the predominant area of voiding dysfunction, i.e. urine leakage, urinary frequency or obstructed voiding. Id. The Veteran's condition has manifested by all three modes of dysfunction, to some extent, as outlined above. In this regard, the Board does not find that evaluation for voiding obstruction is proper. As outlined above, the Veteran had a single instance of catheterization and UTI December 2008/January 2009. Thereafter, he complained only of hesitancy and a slow/weak stream which was not markedly so. There is no evidence of dilatation. Moreover, it is clear that urinary leakage and frequency are the Veteran's main post-treatment residual complaints. Thus, during the period involved in the present appeal, an evaluation in excess of 20 percent could be awarded for urinary frequency with daytime voiding interval less than one hour, or awakening to void five or more times per night, or for urinary leakage requiring the wearing of absorbent materials that must be changed 2 to 4 times per day or urinary leakage requiring the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times per day. As outlined above, the Veteran contends that the September 2009 VA examination is in error and that he had informed the examiner of greater frequency of the changing of absorbent materials due to urinary leakage and of greater voiding frequency, to include nocturia. He asserts that throughout the relevant period he had urinary leakage requiring the changing of absorbent materials more than 4 times per day and that he had urinary frequency manifested by hourly or greater voiding and nocturia five times or greater per day. It remains the duty of the Board as the fact finder to determine credibility in any number of other contexts, whether it has to do with testimony or other lay or other evidence. See Culver v. Derwinski, 3 Vet. App. 292, 297 (1992). The appellant's credibility affects the weight to be given to his testimony, and it is the Board's responsibility to determine the appropriate weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). See also Layno v. Brown, 6 Vet. App. 465, 469(1994) (finding that the weight and credibility of evidence "is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The Veteran lacks credibility in terms of his reports regarding urinary frequency and urinary incontinence. In this regard, it is noted by the Board that the Veteran is certainly competent to relate his observations regarding urinary frequency and leakage. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Nevertheless, the Veteran's assertion that his urinary symptoms reported in the June 2012 VA examination were of such severity prior thereto are contradicted by his own October 2009 statement in which he states that he had to then change his protective pads only twice per day. Thus, given this material inconsistency, the Board finds that the Veteran's statements regarding urinary symptomatology lack credibility. As is true with any piece of evidence, the credibility and weight to be attached to this evidence are within the province of the Board as adjudicators. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Likewise, the Board does not afford the Veteran's spouse's statements in this regard any probative value. Although she is certainly competent to relate her observations, the Board does not find that her observations could possibly carry as much weight as the Veteran's, which the Board finds lacking in credibility and probative value. In other words, as the Veteran's firsthand account of these symptoms have been found incredible, the Board feels that his spouse's assertions cannot compensate therefor, particularly as the most probative evidence in this regard would be the Veteran's own lay statements. Also, the Board acknowledges the Veteran's acquaintances' letter regarding urinary frequency at NASCAR events. However, this evidence is not very probative as it only addresses a small snapshot of the Veteran's life, i.e. occasional NASCAR events at which the Veteran apparently had to frequently urinate. Accordingly, the Board affords it little, if any, probative value. On the other hand, the September 2009 examination report indicates voiding frequency every 1 to 1 1/2 hours and nocturia times 3, as well as that the Veteran did not have to regularly change his protective pads, and the Board finds it to be the most probative evidence of record. The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Under these facts, the predominant disability is clearly urinary frequency and, notwithstanding the fact that urinary frequency was not attributed to prostate cancer treatment by the September 2009 VA examiner, this only meets the criteria for a 20 percent evaluation for urinary frequency. 38 C.F.R. § 4.115a. Thus, given the fact that the Board finds the otherwise remaining evidence regarding such symptomatology lacking in probative value, entitlement to an evaluation in excess of 20 percent prior to June 22, 2012, is not warranted. Gilbert, supra.; Fenderson, supra. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected condition is inadequate. A comparison between the level of severity and symptomatology of the Veteran's prostate cancer, status-post radiation with erectile dysfunction, with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The criteria particularly contemplate his specific symptoms of voiding dysfunction. The Board further observes that, even if the available schedular evaluation for his disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent, or any, hospitalizations for his condition. Additionally, there is not shown to be evidence of marked interference with employment due to this disability. Furthermore, the 20 percent disability rating assigned contemplates some industrial impairment, and there is nothing in the record which suggests that his disability markedly impact his ability to perform a job. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that the service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER The appeal is dismissed with respect to entitlement to an initial evaluation in excess of 60 percent for prostate cancer, status-post radiation with erectile dysfunction, from June 22, 2012. Entitlement to an initial evaluation in excess of 20 percent for prostate cancer, status-post radiation with erectile dysfunction, prior to June 22, 2012, is denied. REMAND The Veteran seeks service connection for bilateral hearing loss and tinnitus. In furtherance of substantiating his claims, he was afforded a VA examination in September 2009. On the authorized audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 25 LEFT 10 15 10 15 50 Pure tone averages were 14 for the right ear and 23 for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. Examination did not result in favorable etiologic opinions. The examiner rendered a negative opinion regarding left ear hearing loss under 38 C.F.R. § 3.385 "[a]fter review of service medical records, personal interview wand comparison of audiometric testing in the military with audiometric testing completed [at that time]." With respect to the right ear, the examiner noted that the puretone thresholds did not meet VA's criteria for considering hearing loss a disability. Id. With respect to tinnitus, the examiner also rendered a negative opinion, concluding that the Veteran's unilateral tinnitus that very rarely occurred should not be considered pathologic because occasional tinnitus occurs in the normal population without hearing loss. In terms of rationale, the examiner cited numerous in-service audiograms, which notably showed some "fluctuating hearing loss." In this regard, the examiner stated that the Veteran had informed them that he had had fluid behind the eardrum at this time, which apparently resolved with medication, and that "[t]his may explain the fluctuating hearing loss noted on audiograms in service." A medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship. Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993). Medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. 38 C.F.R. § 3.102; see also Bloom v. West, 12 Vet. App. 185, 187 (1999); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). 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). As the examiner's opinion contains insufficient rationale, it must be returned. 38 C.F.R. § 4.2. Lastly, the Board notes that 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. The Board finds it is unclear from the examination report whether the examiner considered the fact that the audiological service treatment records dated prior to November 1967 were recorded using ASA measurements, not ISO (ANSI) measurements. Therefore, the Board also finds that the necessity for a new VA audiological examination 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 issues must be remanded in order to schedule the Veteran for another VA examination. 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 pre-November 1967 findings as appropriately converted. The Board also notes that since the Veteran's audiologic examination, he submitted a letter from a private ear, nose and throat doctor, J.W., M.D., noting that the Veteran had been under their care. The letter contains positive etiologic opinions relating bilateral hearing loss and tinnitus to service, but no rationale or audiometrics. VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from private medical care providers. 38 C.F.R. § 3.159(c)(1). Upon remand, VA should attempt to obtain any records associated with this treatment, with the Veteran's assistance, if provided. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VA Form 21-4142 with respect to Dr. J.W. and ask him to execute the same. Thereafter, if the Veteran returns an executed release, attempt to obtain these medical records and associate them with the claims file. The Veteran should be advised that, in the alternative, he may submit these records. Perform any and all follow-up as necessary, and document negative results. 2. After the development directed in paragraph 1 has been completed to the extent possible, schedule the Veteran for a new VA audiological examination to determine the presence, severity and etiology of the Veteran's claimed bilateral hearing loss and tinnitus. All indicated tests and studies should be conducted. The claims file should be available for review by the examiner. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his 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. 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 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 in-service audiological findings dated prior to November 1967 as appropriately converted to ISO (ANSI) measurements, which are as follows: May 31, 1966: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 15 5 5 Zero 5 Zero LEFT 10 5 5 Zero Zero 30 July 15, 1966: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 20 15 10 Zero -5 15 LEFT 10 5 5 5 5 35 November 7, 1966: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 10 Zero Zero Zero -5 Zero LEFT 10 5 Zero Zero Zero 45 June 22, 1967: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 10 5 Zero Zero -5 10 LEFT 35 35 35 30 30 65 June 26, 1967: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 15 5 Zero Zero 5 Zero LEFT 40 35 40 40 40 55 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 hearing loss, either bilateral or unilateral, is attributable to service, including noise exposure experienced in service. A complete explanation for the opinion should be provided. 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. 3. Then, after conducting any additional indicated development, readjudicate the claims currently on appeal. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case and provide the appellant and his representative an appropriate period of time to respond before this case is returned to the Board. 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. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs