Citation Nr: 1643666 Decision Date: 11/17/16 Archive Date: 12/01/16 DOCKET NO. 13-00 263A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for prostate cancer from May 1, 2008. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran had active service from November 1963 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2008 and January 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal was processed using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of the appellant's case should take into consideration the existence of these electronic records. Additional medical evidence was associated with the record following the December 2012 Statement of the Case (SOC) which was not accompanied by a signed waiver of initial RO consideration. Fortunately, because this case is being remanded for other reasons, the Agency of Original Jurisdiction (AOJ) will have the opportunity for initial review of this evidence. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Regarding the Veteran's claim for an increased rating for prostate adenocarcinoma, the RO granted service connection for adenocarcinoma of the prostate with voiding dysfunction and assigned a 100 percent evaluation effective from January 2008 to April 30, 2008. A 10 percent evaluation was assigned from May 1, 2008. The Veteran was last afforded a VA examination in November 2009. In that examination the VA examiner noted that the Veteran had a prostate condition with erectile dysfunction secondary to prostate cancer and radiation. The record supports that the Veteran's service-connected prostate disability may have worsened since his last VA examination; as such, a new VA examination is warranted. Specifically, the Veteran has reported that his daytime voiding is at a rate of approximately 1.1 hours per a six day study. In addition, a February 2013 private treatment report reflects that the Veteran's PSA has increased and noted that "there appears to be a recurrence of the cancer." When the evidence suggests that a disability has worsened since the veteran's last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). Given the evidence of increased symptomatology, a new VA examination is warranted to determine the current severity of the Veteran's prostate condition. Diagnostic Code 7528 provides that the residuals of prostate cancer are rated as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b (2015). Additionally, the Board notes that, in January 2008, the Veteran submitted an authorization and consent form to release medical information from South Florida Radiation Oncology, Dr. L. Goyal, for treatment of his prostate cancer. The RO does not appear to have requested these records. The RO/AMC must thus provide the Veteran with a new authorization form, and, if the Veteran provides a timely completed form, must attempt to get any relevant records from South Florida Radiation Oncology. 38 C.F.R. §3.159 (c) (1). Regarding the Veteran's claims for service connection for hearing loss and tinnitus, the Veteran was afforded a VA audio examination in November 2009. The VA audio examiner indicated that the Veteran suffered from hearing loss and tinnitus in both ears. Specifically, she opined that the Veteran's hearing loss and tinnitus are not caused by or a result of in-service noise exposure. Her rationale indicated that hearing was normal at the time of separation. However, according to the October 1967 separation examination, the Veteran was noted to have defective hearing in the high frequencies, mild. The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Id. at 304; Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In this case, the VA audio examiner's opinion does not reflect adequate review of the service treatment records and implies that service connection cannot be established unless there is evidence of hearing loss during service as directly reflected in the service treatment records. This is incorrect. The governing laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the United States Court of Appeals for Veterans Claims (Court), VA regulations do not preclude service connection for a hearing loss which first meets VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Further, as noted above, there appears to be some indication of hearing loss in service. Additionally, it is unclear whether audiograms performed during service noted a threshold shift in the Veteran's hearing. Testing was performed upon entrance in October 1963 and upon separation in October 1967, meaning that the results were likely expressed in ASA units as opposed to the current ISO units. However, there is no indication that the examiner converted the results of the in-service audiological testing. VA recognizes threshold levels greater than 20 decibels as indicative of some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). On remand, the examiner should convert the audiological results in the Veteran's service treatment records from ASA units to ISO units and indicate whether there were any significant shifts in the Veteran's hearing during active duty that may be indicative of hearing loss. According to a September 2010 statement, the Veteran also noted that he had recently gone to a doctor who stated that it is more likely that the ringing in his ears is due to his exposure to running jet engines while in the air force. That opinion is not currently of record and should be obtained on remand. In light of the inadequacy of the opinions, an addendum opinion should be obtained addressing whether the Veteran's hearing loss and tinnitus are related to service. Once VA has provided a VA examination, even if it was not statutorily obligated to do so, an adequate one must be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A (c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran to ask him to identify any additional pertinent private treatment records. Request that he provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any updated treatment records from any private medical providers identified, to include South Florida Radiation Oncology, Dr. L. Goyal, and any opinion regarding tinnitus. After the Veteran has signed the appropriate releases, those records not already associated with the record should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the record. If records identified by the Veteran cannot be obtained, a notation to that effect should be included in the claims file, and the AOJ must notify the Veteran and his representative of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Obtain any outstanding VA treatment records. 3. Then, schedule the Veteran for a VA genitourinary examination to determine the extent of his prostate adenocarcinoma, to include whether there is any related renal dysfunction. All indicated tests and studies are to be performed. The examiner must review the claims folder in conjunction with the examination. Following the examination, the examiner should indicate whether the Veteran suffers from renal dysfunction, and if so, provide an opinion as to whether the renal dysfunction is related to the Veteran's prostate cancer residuals. Taking into account the evidence in the claims file and the Veteran's lay statements, the examiner must determine the current severity and functional impact of the Veteran's prostate cancer. A medical basis for any opinion expressed must be provided. 4. Then refer the entire record to the VA examiner who conducted the November 2009 VA Audio examination regarding the Veteran's claimed hearing loss and tinnitus. If deemed necessary, another examination should be conducted. The examiner should review the entire record, including this REMAND. The clinician is asked to appropriately convert the audiological results in the Veteran's service treatment records from ASA units to ISO units. The clinician is advised that VA recognizes threshold levels greater than 20 decibels as indicative of some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Following a review of the Veteran's service treatment records, lay statements, and post-service treatment records, and completion of the examination, if necessary, the examiner is asked to answer the following: Is it at least as likely as not (i.e., at least a 50 percent or better probability) that the Veteran's hearing loss and/or tinnitus are etiologically related to an event, injury, or disease in service, to include as a result of exposure to loud noises? In providing this opinion, the examiner should specifically address the October 1967 notation of defective hearing, any statements from the Veteran regarding the onset and continuity of his hearing loss and tinnitus. The examiner also should specifically address any additional opinions indicating that the Veteran's hearing loss and/or tinnitus are related to in-service noise exposure, if provided. A thorough rationale must be provided for all opinions expressed. In the extraordinary circumstance that the examiner is unable to provide any requested opinion, a supporting rationale must be provided concerning why the opinion cannot be given. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the claims. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant 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). _________________________________________________ K. PARAKKAL 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).