Citation Nr: 1608793 Decision Date: 03/04/16 Archive Date: 03/09/16 DOCKET NO. 09-28 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for hypertension, to include as due to herbicide exposure, and to include as due to diabetes mellitus, type II. 3. Entitlement to service connection for a renal condition, to include renal cancer and renal insufficiency, to include as due to herbicide exposure, to include as due to diabetes mellitus, type II, and to include as due to prostate cancer. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to November 1971, and served in the Reserves from February 1984 to January 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2007 and May 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2011, the Veteran presented testimony in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. This matter was remanded by the Board in March 2012 and January 2015. The Veteran's file has been scanned, and converted from a hybrid paper and electronic file to a purely electronic file located on the Veterans Benefits Management System. Documents contained on the Virtual VA paperless claims processing system are duplicative of the evidence of record, or are not relevant to the issues currently before the Board. The issue of entitlement to an increased disability rating for diabetes mellitus, type II, has been raised by the record in an August 2015 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). In the January 2015 remand, the Board also referred the issue of entitlement to an increased disability rating for posttraumatic stress disorder (PTSD) to the AOJ. See also July 2015 Appeals Management Center Memorandum; May 2015 Veteran statement. To date, it does not appear the AOJ has adjudicated this claim, and therefore the Board again refers it to the AOJ for appropriate action. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). First, in accordance with the Board's January 2015 remand, the Veteran was asked in an April 2015 letter to identify all relevant private treatment, and to complete an Authorization to Disclose Information, VA Form 21-4142, and General Release for Medical Provider Information, VA Form 21-4142a, so VA could obtain treatment records on his behalf. In May 2015, VA received a VA Form 21-4142a from the Veteran, on which the Veteran wrote, "See back of this form." However, it is not clear the back of the form was scanned and associated with the evidentiary record. Although a timeline of treatment is associated with the evidence submitted by the Veteran on that date, it is unclear if this was the information contained on the back of the VA Form 21-4142a as referenced by the Veteran. Accordingly, on remand, the AOJ should again ask the Veteran to identify any relevant private treatment, and make appropriate efforts to obtain any outstanding treatment records. Further, it does not appear that VA treatment records dated from December 2014 to April 2015 were obtained. On remand, the AOJ should obtain any outstanding VA treatment records. Hearing Loss In accordance with the Board's January 2015 remand instructions, the Veteran's private treatment records from Tampa Ear, Nose & Throat Associates were associated with the evidentiary record, to include an August 2008 audiogram. The Veteran was then afforded a VA audiological examination in July 2015. First, the Board finds the July 2015 VA examiner's review of the evidentiary record was incomplete. The examiner incorrectly stated there were no private medical records pertaining to audiology, and no VA treatment records with an evaluation or treatment for hearing loss or tinnitus, but both private and VA treatment records related to the Veteran's claimed hearing loss and his service-connected tinnitus are associated with the evidentiary record. Further, in the January 2015 remand, the Board instructed the VA examiner to opine as to whether the Veteran's claimed hearing loss was incurred in, or is otherwise related to, his active duty service. The examiner was asked to specifically address the Veteran's contention that he has experienced hearing loss since his Reserve service. However, the July 2015 did not address the Veteran's contention, and instead discussed only the Veteran's service treatment records. Further, the Board instructed the VA examiner to opine as to whether the Veteran's hearing loss is caused or aggravated by his service-connected tinnitus, and to address the August 2008 letter from Tampa Ear, Nose & Throat Associates stating the Veteran's hearing loss is associated with his tinnitus, as well as the Veteran's testimony that he first noticed both his hearing loss and tinnitus during his Reserve service. The July 2015 VA examiner stated the Veteran reported first noticing his tinnitus after his Reserves service, but that it worsened in the early 1990s. As noted above, the Veteran's Reserve service ended in 1994, which would therefore indicate the Veteran did notice tinnitus during his Reserve service. Further, the VA examiner opined there is a lack of evidence of tinnitus causing hearing loss, though it is a symptom of hearing loss, and that research does not support tinnitus interfering with hearing sensitivity or aggravating a pre-existing hearing loss. However, the VA examiner did not address the August 2008 letter from Tampa Ear, Nose, & Throat Associates, and did not address the Veteran's contention that he noticed both the hearing loss and tinnitus during his Reserve service. For these reasons, the Board finds the July 2015 VA examination inadequate. 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). Finally, the Board notes that upon examination in July 2015, the Veteran's left ear hearing loss met the criteria under 38 C.F.R. § 3.385 (2015) for a disability, but his right ear hearing loss did not. However, August 2008 audiogram from Tampa Ear, Nose, & Throat Associates showed hearing loss in the Veteran's right ear which did meet the criteria under 38 C.F.R. § 3.385, and upon the July 2015 VA examination the bilateral speech discrimination scores were right above the threshold to qualify as a disability. Therefore, the Board finds that on remand, the Veteran should be afforded another VA audiological examination to determine the current severity of his bilateral hearing loss, and to obtain an opinion regarding the nature and etiology of the Veteran's bilateral hearing loss. Hypertension In accordance with the January 2015 remand instructions, an addendum VA examiner's opinion was obtained from a fee basis physician, Dr. M.N.A. In the June 2015 opinion, the VA examiner opined that the Veteran's hypertension was not incurred in, or otherwise related to, the Veteran's active duty service, to include his herbicide exposure, because hypertension is a common disease in the general population, and because hypertension is not included in the VA list of diseases conceded to be caused by Agent Orange. The Board notes, however, that although a current diagnosis, such as hypertension, has not been shown to warrant a regulatory presumption of service connection as a result of in-service herbicide exposure, it must still be determined whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation). Further, the Board finds that noting hypertension is common in the general population, without further explanation, does not adequately address the specific facts related to the Veteran, and his contention that his current hypertension is related to his active duty service. Further, the June 2015 VA examiner opined the Veteran's current hypertension is not aggravated by his service-connected diabetes mellitus, type II, to include the medications prescribed for the diabetes. However, the VA examiner appears to have based this opinion on a few of the Veteran's blood pressure readings dated between 2013 and 2015, finding that therefore there was no factual data to show the Veteran's hypertension became uncontrollable after he began taking medication for his diabetes. However, the Veteran's VA treatment records indicate the Veteran was prescribed medication for his diabetes in 2007, and his private and VA treatment records indicate he was treated for persistent high blood pressure readings in 2007 and 2008. See, e.g., September 2008 Dr. F.D.T. treatment note; November 2007 Dr. F.D.T. treatment note; November 2007 VA primary care note (hypertension uncontrolled and metformin prescribed for hyperglycemia); see also April 2006 Dr. F.D.T. treatment note (impression includes diabetes). Accordingly, the Board finds the June 2015 VA examiner has not adequately addressed the Veteran's contention and the evidence of record. For these reasons, the Board finds the June 2015 VA examiner's opinion is inadequate. 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). Therefore, on remand, the AOJ should obtain a new VA medical opinion as to the nature and etiology of the Veteran's hypertension. This opinion should include whether the Veteran's hypertension is related to his active duty service, to include in-service herbicide exposure, and whether the Veteran's hypertension is aggravated by his service-connected diabetes mellitus, type II, to include the medications taken by the Veteran to treat the diabetes mellitus throughout the appeal period. Renal Condition In accordance with the January 2015 remand instructions, Dr. M.N.A. also provided an addendum medical opinion regarding the Veteran's claimed renal conditions, to include renal insufficiency and renal cancer. In the June 2015 opinion, the VA examiner opined that the Veteran's renal cancer was not incurred in, or otherwise related to, the Veteran's active duty service, to include his herbicide exposure, because renal cancer is not included in the VA list of diseases conceded to be caused by Agent Orange. Again, although a current diagnosis has not been shown to warrant a regulatory presumption of service connection as a result of in-service herbicide exposure, it must still be determined whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Further, the Board specifically instructed the VA examiner to address a November 2010 letter opinion from Dr. P.E.S. which stated there may be an association between the Veteran's in-service herbicide exposure and his renal cell carcinoma. In the June 2015 opinion, the VA examiner noted that Dr. P.E.S. also stated that "clearly making a direct association...is EXCEEDINGLY difficulty and could not be conclusively shown" (emphasis in June 2015 opinion). However, the Board finds this discussion is also inadequate, as the Board did not ask the VA examiner to opine as to whether there is a "conclusive" association, but instead to opine whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's renal cancer is related to his active military service, to include herbicide exposure. For these reasons, the Board finds the June 2015 VA examiner's opinion is inadequate. 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). Further, in a May 2015 statement, the Veteran contends for the first time that his renal cancer was caused by his service-connected prostate cancer. The Veteran contends that his private physician, Dr. P.E.S., told him he received incorrect treatment by a private physician regarding increased PSA readings, which delayed the diagnosis of his prostate cancer, and the Veteran contends he had prostate cancer prior to his kidney cancer, and the slow growth of prostate cancer reveals a chance that the prostate cancer actually caused his kidney cancer. See May 2015 Veteran statement; May 2015 Veteran timeline of treatment. The Veteran's private and VA treatment records indicate he was treated for an increased PSA level in 2006. See November 2007 VA primary care nursing note (noting prostatitis); December 2006 Dr. F.D.T. treatment note. Accordingly, on remand the AOJ should obtain a new VA medical opinion as to the nature and etiology of the Veteran's renal condition. This opinion should include whether the Veteran's renal cancer is related to his active duty service, to include in-service herbicide exposure, and whether the Veteran's renal cancer was caused or aggravated by his service-connected prostate cancer. Accordingly, the case is REMANDED for the following action: 1. The AOJ should ask the Veteran to identify all private treatment related to his bilateral hearing loss, his renal condition, and his hypertension, and to clarify the information which was provided on the back of VA Form 21-4142a in May 2015. The AOJ should undertake appropriate development to obtain all outstanding treatment records pertinent to the Veteran's claims. The Veteran's assistance should be requested as needed. All obtained records should be associated with the evidentiary record. The AOJ must perform all necessary follow-up indicated. If the records are not available, or a negative response is received, the AOJ should make a formal finding of unavailability, advise the Veteran and his representative of the status of his records, and give the Veteran the opportunity to obtain the records on his own. 2. The AOJ should obtain any outstanding VA treatment records, to include records dated from December 2014 to April 2015. Any scanned audiometric testing results should also be obtained. All obtained records should be associated with the evidentiary record. 3. After the above development has been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a new VA audiological examination with an appropriate examiner to determine the nature and etiology of his bilateral hearing loss. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. The examiner should elicit a full history from the Veteran. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA examiner should offer his/her opinion with supporting rationale as to the following inquiries: a) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's bilateral hearing loss was either incurred in, or is otherwise related to, the Veteran's active duty service? The examiner should note that the Veteran's in-service acoustic trauma has been conceded. The examiner should specifically address the Veteran's contention that he has experienced hearing loss since his Reserve service. b) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current bilateral hearing loss was caused by his service-connected bilateral tinnitus? The examiner should address the August 2008 Tampa Ear, Nose & Throat Associates consultation letter stating that the Veteran's hearing loss is associated with his tinnitus. The examiner should also address the Veteran's testimony that he first noticed both his tinnitus and the hearing loss during his Reserve service. c) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current bilateral hearing loss is aggravated by his service-connected bilateral tinnitus? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The complete rationale for all opinions should be set forth. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered. 4. After #1 and #2 have been completed, and after any records obtained have been associated with the evidentiary record, obtain an addendum opinion from the June 2015 examiner, or another appropriate VA examiner, to determine the nature and etiology of the Veteran's current hypertension. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The addendum opinion must include a notation that this record review took place. It is up to the discretion of the examiner as to whether a new examination is necessary to provide an adequate opinion. After the record review, and examination of the Veteran if deemed necessary by the examiner, the VA examiner is asked to respond to the following inquiries: a) Is it at least as likely as not that the Veteran's hypertension was either incurred in, or is otherwise related to, the Veteran's active duty service, to include his herbicide exposure? The examiner should specifically note that service connection can be established on a direct basis for diseases, such as hypertension, even if they have not been shown to warrant a regulatory presumption of service connection due to herbicide exposure. b) Is it at least as likely as not that the Veteran's hypertension is aggravated by his service-connected diabetes mellitus, type II, to include his diabetes medications? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The examiner should specifically address the Veteran's contention that his hypertension became uncontrollable after he began taking medication for his diabetes in 2007, and that as his diabetes has worsened, his hypertension has also worsened. The examiner should consider the medical evidence of record showing the Veteran's treatment for consistent high blood pressure readings in 2007 and 2008. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner cannot provide an opinion without resorting to mere speculation, he/she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he/she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. After #1, #2, and #4 have been completed, and after any records obtained have been associated with the evidentiary record, obtain an addendum opinion from the June 2015 examiner, or another appropriate VA examiner, to determine the nature and etiology of the Veteran's renal conditions, to include renal cancer and renal insufficiency. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The addendum opinion must include a notation that this record review took place. It is up to the discretion of the examiner as to whether a new examination is necessary to provide an adequate opinion. After the record review, and examination of the Veteran if deemed necessary by the examiner, the VA examiner is asked to respond to the following inquiries: a) Is it at least as likely as not that the Veteran's renal cancer was either incurred in, or is otherwise related to, the Veteran's active duty service, to include his herbicide exposure? The examiner should specifically note that service connection can be established on a direct basis for diseases, such as renal cancer, even if they have not been shown to warrant a regulatory presumption of service connection due to herbicide exposure. The examiner should specifically discuss the November 2010 letter by Dr. P.E.S., who performed the Veteran's right partial nephrectomy, which stated that there may be an association between the Veteran's in-service herbicide exposure and his renal cell carcinoma. b) Is it at least as likely as not that the Veteran's renal cancer was caused by his service-connected prostate cancer? The examiner should specifically address the Veteran's contention that Dr. P.E.S. told him the treatment of his increased PSA levels with antibiotics in 2006 was incorrect, and the Veteran's contention that the diagnosis of his prostate cancer was therefore delayed, that he actually had prostate cancer in December 2006, and that the slow growth of prostate cancer indicates it caused his kidney cancer. c) Is it at least as likely as not that the Veteran's renal cancer was aggravated by his service-connected prostate cancer? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. If, in accordance with directive #4 above, a VA examiner determines that the Veteran's hypertension is at least as likely as not aggravated by his service-connected diabetes mellitus, and/or the current VA examiner determines that the Veteran's renal cancer is related to his active duty service or prostate cancer, then the current VA examiner is asked to respond to the following inquiries: d) Is it at least as likely as not that the Veteran's current renal insufficiency was caused by his hypertension, his renal cancer, and/or the combination of his renal cancer and/or hypertension with his service-connected diabetes mellitus? The examiner should comment upon the February 2009 and September 2012 VA examiner opinions that hypertension, diabetes, and the Veteran's renal cancer surgery are all risk factors for his development of renal insufficiency. e) Is it at least as likely as not that the Veteran's renal insufficiency is aggravated by his hypertension, renal cancer, and/or the combination of his hypertension and/or renal cancer with his service-connected diabetes mellitus? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 6. The AOJ should conduct any other development deemed appropriate, and ensure that the VA examination reports and opinions comply with the Board's remand instructions. 7. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the 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 2014). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).