Citation Nr: 1416305 Decision Date: 04/11/14 Archive Date: 04/24/14 DOCKET NO. 09-38 999 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to an increased (compensable) rating for bilateral hearing loss on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1). 2. Entitlement to a rating in excess of 60 percent for prostate cancer, status post radical prostatectomy with ileal conduit and scar. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to January 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2008 rating decision in which the RO, inter alia, denied a compensable rating for bilateral hearing loss and a rating in excess of 60 percent for prostate cancer, status post radical prostatectomy with ileal conduit and scar. In October 2008, the Veteran filed a notice of disagreement. A statement of the case (SOC) was issued in August 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2009. In December 2011, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In February 2012, the Board denied an increased (compensable) schedular rating for bilateral hearing loss (finding that the record did not raise the matter of a higher rating fon an extra-schedular basis). At that time, the Board also remanded the Veteran's prostate cancer claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further development. In April 2012, the Veteran appealed the Board's denial of a compensable rating for hearing loss to the United States Court of Appeals for Veterans Claims (Court),. In August 2013, the Court issued a Memorandum Decision, setting aside the Board's determination that the record did not raise a the matter of whether referral for extra-schedular consideration was warranted, remanding to the Board the matter of a higher, extra-schedular rating for further proceedings consistent with its decision. As for the matter, in a July 2013 supplemental SOC (SSOC), the RO/AMC continued to deny the Veteran's claim of entitlement to a rating in excess of 60 percent for prostate cancer, status post radical prostatectomy with ileal conduit and scar. Such matter is also now again before the Board. As noted in the remand directives of the Board's February 2012 decision, the RO was instructed to adjudicate the Veteran's claim for service connection for bladder removal. As yet, no action has been taken on this matter by the RO. Accordingly, the Board does not have jurisdiction over such matter and it is again referred to the RO for appropriate action. The e Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) file that has been reviewed in connection with the Veteran's claim For reasons expressed below, the matters remaining on appeal are being remanded to the RO via the AMC.. VA will notify the Veteran when further r action, on his part, is required. As a final preliminary matter, the Board points out that, in the February 2012 remand, the RO was instructed to adjudicate the Veteran's claim for service connection for bladder removal. As yet, no action has been taken on this matter by the RO. Accordingly, the Board does not have jurisdiction over such matter and it is again referred to the RO for appropriate action. REMAND In light of points raised in the Court's Memorandum Decision, and the Board's review of the claims file, further RO action on the extra-schedular component of the Veteran's claim for an increased rating for bilateral hearing loss is warranted. The Court found that the Board did not provide adequate reasons and bases to support its finding that referral of the hearing loss claim for consideration of an extra-schedular rating was not warranted. The Court suggested that the Board consider the adequacy of the August 2008 VA audiology examination report, The Court noted the lack of information provided by the VA examiner regarding the Veteran's functional impairment, employment or other factors which may be relevant to the extra-schedular issue. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Given the above, and the Court's remand of only the matter of a higher, extra-schedular rating, the Board finds that a new VA audiology examination, to obtain findings needed to resolve the extra-schedular rating claim, is warranted. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Board notes that the RO has not addressed the applicability of section 3.321(b)(1) in connection with the Veteran's hearing loss claim. Hence, to avoid any prejudice to the Veteran, a remand of the hearing loss claim is also necessary for RO consideration of a higher, extra-schedular rating, in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993) (the Board must consider whether a claimant will be prejudiced by addressing a question that has not been addressed by the RO). Regarding the Veteran's claim for a rating in excess of 60 percent for prostate cancer, status post radical prostatectomy with ileal conduit and scar, the Board finds that the prior remand directives have not been fulfilled, necessitating another remand. While a VA prostate examination was obtained in June 2013, the examiner failed to specifically indicate whether the Veteran's prostate cancer residuals result in persistent edema and albuminuria with BUN 40 to 80mg%, or creatinine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. As such a determination is necessary for the Board to rate the Veteran's disability, another examination in connection with the prostate cancer claim Is warranted, as well. The Board further notes, as mentioned above, that the RO has not yet adjudicated the inextricably intertwined claim for service connection for bladder removal. To the extent that the appellant's claim for higher rating for residuals of prostate cancer is based upon symptoms of voiding dysfunction, these matters should be considered together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). If the claim for service connection for bladder removal is denied, the RO should furnish notice of the denial to the Veteran and his representative, and afford them the opportunity to perfect an appeal as to that issue. The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may well result in denial of the claim(s) for increase. See 38 C.F.R. § 3.655(b) (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination(s), the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examinations, to ensure that all due process requirements are met, and the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. The record indicates that there are missing, relevant VA treatment records. The Veteran indicated in an April 2013 statement that he receives treatment relevant to his prostate cancer claim for the, VA Central California Health Care System (VACCHCS) in Fresno, California, and the VA Medical Center (VAMC) in Palo Alto, California. The most recent treatment records from the Fresno and Palo Alto VA facilities are dated July 2009 and November 2011, respectively. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims remaining on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should notify the Veteran of what evidence is needed to support a claim for a higher rating on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. Accordingly, these matters are hereby REMANDED , for the following action: 1. Obtain from the Fresno VACCHCS and Palo Alto VAMC records dated from July 2009 and November 2011, respectively. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private records. Notify the Veteran of what is needed to support a claim for a higher rating on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1). Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination by an audiologist. The contents of the entire claims file (paper and electronic), to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies (to include audiometry and speech discrimination testing) should be accomplished, and all clinical findings should be reported in detail. Based on consideration of the testing results and the Veteran's documented history and assertions, the examiner should fully describe the functional effects of the Veteran's bilateral hearing loss on his activities of daily living, to include employment. All examination findings/testing results, along with complete rationale for the conclusions reached, must be provided. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA genitourinary examination, by an appropriate physician, at a VA medical facility. The contents of the entire claims file (paper and electronic), to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies (to include X-rays) should be accomplished, and all clinical findings should be reported in detail. The examiner should specifically address whether there has been any local recurrence or metastasis of prostate cancer The examiner should identify all current prostate cancer residual(s), status post radical prostatectomy with ileal conduit, to include urinary and renal dysfunction. . The examiner should also address whether there is continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence which requires the use of an appliance or the wearing of absorbent materials. If so, the examiner should describe the frequency that such absorbent materials must be changed, i.e., the number of times per day. The examiner should specifically indicate whether the Veteran's prostate cancer residuals result in renal dysfunction, manifested by constant albuminuria with some edema or definite decrease in kidney dysfunction; or persistent edema and albuminuria with BUN 40 to 80mg%, or creatinine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. All examination findings, along with complete rationale for the conclusions reached, must be provided. 6. If the Veteran fails to report to any scheduled examination(s), obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted (to include consideration of whether referral of the claim for a higher, extra-schedular rating for bilateral hearing loss to the Chief Benefits Director or Director of Compensation and Pension Service is warranted), adjudicate the claims remaining on appeal. If the Veteran fails, without good cause, to report to any scheduled examination(s), in adjudicating the respective claims(s) for increase, apply the provisions of 3.655(b), as appropriate. Otherwise, adjudicate the claim for a higher, extra-schedular rating for bilateral hearing loss, as well as the claim for a rating in excess of 60 percent or residuals of prostate cancer (along with the claim for service connection for bladder removal) in light of all pertinent evidence and legal authority. ,. 8. If the claim for a higher, extra-schedular rating for bilateral hearing loss, and/or the claim for a rating in excess of 60 percent or residuals of prostate cancer is/are denied, furnish to the Veteran and his representative an appropriate SSOC that includes citation to and discussion of additional legal authority considered (in particular, 38 C.F.R. § 3.321(b)(1)), along with clear reasons and bases for all determinations, and afford them the appropriate time period for response. 9. If the claim for service connection for bladder removal is denied, furnish the Veteran and his representative separate notice of the denial, and afford them the appropriate opportunity to file a notice of disagreement with the denial. The Veteran and his representative are hereby reminded that to obtain appellate jurisdiction over this claim, a notice of disagreement, and, after the issuance of a statement of the case, a substantive appeal must be filed. 10. If the claim for service connection for bladder removal is denied, the claims file should not be returned to the Board until after the Veteran perfects an appeal as to the or the time period for doing so expires, whichever occurs first. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999)). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2013). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).