Citation Nr: 1313658 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 12-12 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as due to ionizing radiation exposure. 2. Entitlement to a compensable disability rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from March 1952 to March 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied, in pertinent part, the Veteran's claim of service connection for prostate cancer, to include as due to ionizing radiation exposure. A videoconference Board hearing was held at the RO in March 2013 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. This matter also is on appeal from a December 2012 rating decision in which the RO denied the Veteran's claim for a compensable disability rating for bilateral hearing loss. The Veteran disagreed with this decision later in December 2012. The RO issued a Statement of the Case (SOC) on this claim in January 2013. The Veteran subsequently testified at his March 2013 Board hearing about this claim. Having reviewed the claims file, to include the transcript of the Veteran's March 2013 hearing testimony, the Board finds that this testimony constituted a substantive appeal on his claim for a compensable disability rating for bilateral hearing loss. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 on his part. REMAND The Veteran contends that he incurred prostate cancer during active service. He specifically contends that his in-service ionizing radiation exposure during Operation IVY caused or contributed to his prostate cancer. The Veteran also contends that his service-connected bilateral hearing loss is more disabling than currently evaluated. With respect to the Veteran's service connection claim for prostate cancer, the Board notes that the Veteran meets all of the criteria set out in 38 CFR 3.311(b) for adjudicating service connection claims based on ionizing radiation exposure. See 38 C.F.R. § 3.311(b) (2012). The Defense Threat Reduction Agency (DTRA) has confirmed that the Veteran participated in radiation-risk activity during service (in this case, at the Pacific Proving Ground in Operation IVY). See 38 C.F.R. § 3.311(b)(1); see also 38 C.F.R. § 3.309(3)(v)(H) (providing dates for Operation IVY). He has been diagnosed as having prostate cancer which VA recognizes is a "radiogenic disease." See 38 C.F.R. § 3.311(b)(2). The Veteran's prostate cancer also was diagnosed in 2007, approximately 55 years after his ionizing radiation exposure. See 38 C.F.R. § 3.311(b)(5). The Board observes that the RO denied this claim on the basis of a 2006 internal VA memorandum governing the expediting of radiation exposure claims adjudicated by VBA. In this 2006 internal VA memorandum, the Chief Public Health and Environmental Hazards Officer stated that, because all Veterans exposed to radiation in service whose prostate cancer was diagnosed 25 or more years after exposure (as in this case) have adjusted total prostate radiation doses less than an applicable screening dose (created by DTRA and VA), it is unlikely that prostate cancer in these Veterans can be attributed to in-service ionizing radiation exposure. Although this 2006 internal VA memorandum may permit expedited processing at the RO level of claims similar to the currently appealed claim in this case, the Board, in its consideration of appeals, "is not bound by Department manuals, circulars, or similar administrative issues." See 38 U.S.C. § 7104(c); 38 C.F.R. § 19.5. In other words, the Board is not bound by the 2006 internal VA memorandum governing expedited processing of claims involving in-service ionizing radiation exposure. There is no examination of record concerning the nature and etiology of the Veteran's claimed prostate cancer. It is not clear from a review of the record whether the Veteran currently experiences prostate cancer which could be attributed to active service, however. It appears that he was treated for prostate cancer with radiation in 2006 and 2007. More recent VA treatment records in 2009 and 2010 indicate only a history of prostate cancer. The Veteran subsequently testified at his March 2013 Board hearing that his prostate specific antigen (PSA) was on the rise again and he wasn't sure what that meant. See Board hearing transcript dated March 13, 2013, at pp. 7, 10. The Board notes in this regard that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary. To date, the Veteran has not been provided with a VA examination for his prostate cancer. Given the Veteran's contentions, the Board finds that, on remand, he should be scheduled for VA examination to determine the current nature and etiology of his prostate cancer. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. With respect to the Veteran's increased rating claim for bilateral hearing loss, the Board notes that he essentially testified at his March 2013 hearing that this disability had worsened since his most recent VA examination. See Board hearing transcript dated March 13, 2013, at pp 11. He also testified that he was unable to understand all of the instructions that he had been given by the VA examiner who had examined him most recently for bilateral hearing loss in August 2012. Id., at pp 12-13. He finally testified that he was unable to hear in crowds. Id., at pp. 14. A review of the Veteran's August 2012 VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) shows that the VA examiner checked a box marked "No" when asked whether the Veteran's service-connected bilateral hearing loss interfered with his daily function. The Veteran's subsequent Board hearing testimony in March 2013 indicates, however, that this disability interferes with his daily functioning by preventing him from being able to hear in crowds. See also Martinak v. Nicholson, 21 Vet. App. 447 (2007) (requiring detailed information regarding impact of Veteran's bilateral hearing loss on daily functioning in VA examination reports). Because it appears that either the August 2012 VA examiner did not consider the Veteran's lay statements regarding the impact of his service-connected bilateral hearing loss on his daily functioning or the Veteran provided inaccurate information concerning this matter when asked by the August 2012 VA examiner, the Board finds that the August 2012 VA hearing loss and tinnitus DBQ is less than probative because it is not based on "sufficient facts and data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Court also has held that, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Court further has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Thus, the Board finds that, on remand, the Veteran should be scheduled for an updated VA examination which addresses the current nature and severity of his service-connected bilateral hearing loss, to include a discussion of the functional impact of this disability. The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. The Board notes in this regard that the Veteran testified at his March 2013 Board hearing that all of his available private treatment records had been submitted to VA. See Board hearing transcript dated March 13, 2013, at pp. 8. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for his service-connected bilateral hearing loss in recent years or for prostate cancer since his service separation. Advise the Veteran not to resubmit any records already provided to VA. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Schedule the Veteran for appropriate examination to determine the nature and etiology of his prostate cancer. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that prostate cancer, if diagnosed, is related to active service or any incident of service. A complete rationale must be provided for any opinions expressed. The examiner is advised that the Veteran is a confirmed participant in radiation-risk activity during active service; thus, his in-service ionizing radiation exposure is presumed. The examiner also is advised that the Veteran has contended that his current prostate cancer is due to his presumed in-service ionizing radiation exposure or otherwise is related to active service. 3. Schedule the Veteran for updated examination to determine the current nature and severity of his service-connected bilateral hearing loss. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. This VA examiner must provide detailed information regarding the impact of the Veteran's service-connected bilateral hearing loss on his daily functioning. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The examiner is advised that the Veteran has reported that he is unable to hear in crowds due to his service-connected bilateral hearing loss. The examiner also is advised that, because the Veteran currently experiences bilateral hearing loss, it may be necessary to take additional steps to ensure that he understands the directions given to him during this examination. 4. The Veteran should be given adequate notice of the requested examinations which includes advising him of the consequences of his failure to report to the examinations. If he fails to report to the examinations, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 5. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ WAYNE M. BRAEUER 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).