Citation Nr: 18140856 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-13 916 DATE: ORDER Service connection for hypertension is denied. An effective date prior to July 2, 2013, for the award of service connection for prostate cancer residuals is denied. An effective date prior to July 2, 2013, for the award of service connection for tinnitus is denied. REMANDED The issue of service connection for a recurrent skin disorder is remanded. The issue of service connection for a psychiatric disorder to include a depressive disorder is remanded. The issue of service connection for a sleep disorder to include obstructive sleep apnea (OSA) is remanded. The issue of service connection for peripheral neuropathy is remanded. The issue of an initial compensable rating for prostate cancer residuals is remanded. The issue of an initial rating in excess of 10 percent for tinnitus to include on an extra schedular basis is remanded. The issue of entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Hypertension was not manifested during active service or for many years thereafter and may not be presumed to have been incurred during active service. 2. Prostate cancer was diagnosed in March 2011. 3. The Veteran’s June 2014 original claim for service connection was received by Department of Veterans Affairs (VA) on July 2, 2014. 4. Tinnitus originated during active service. 5. The Veteran’s June 2014 original claim for service connection was received by VA on July 2, 2014. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309. 2. The criteria for an effective date prior to July 2, 2013, for the award of service connection for prostate cancer residuals are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400; Public Law 112-154, Section 506. 3. The criteria for an effective date prior to July 2, 2013, for the award of service connection for tinnitus are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400; Public Law 112-154, Section 506. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1971 to November 1972. He served in the Republic of Vietnam. The Veteran has advanced on appeal that the service connected tinnitus “impacts ordinary conditions of daily life, including ability to work.” Such contentions may be reasonably construed as a claim for a TDIU. When entitlement to a TDIU is raised during the adjudicatory process of evaluating the underlying disability or disabilities, it is part of the claim for benefits for the underlying disability or disabilities. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Service Connection for Hypertension Service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Where a veteran served continuously for ninety days or more during a period of war and cardiovascular-renal disease including hypertension becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303 (d). The service treatment records make no reference to hypertension. A June 2010 VA Agent Orange examination states that the Veteran was initially diagnosed with hypertension in 2000, approximately 28 years after service separation. The Veteran makes no specific contentions as to the onset of the diagnosed hypertension or its relationship to active service. Hypertension was initially manifested some 28 years after service separation. Neither the Veteran nor any competent medical professional has advanced that the hypertension was manifested during active service or to a compensable degree within one year of service separation. Given such facts, the Board of Veterans’ Appeals (Board) finds that service connection for hypertension is not warranted. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309. Earlier Effective Dates Generally, the effective date for an award of service connection is the day after service separation or the date entitlement arose, whichever is later, if the claim is received within one year of the date of separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). Section 506 of the “Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012,” Public Law 112-154, amends 38 U.S.C. § 5110 to allow up to a one year retroactive effective date for awards of disability compensation based on fully-developed original claims for compensation received between August 6, 2013, and August 5, 2015. The Veteran contends that effective dates prior to July 2, 2013, for the awards of service connection for prostate cancer residuals and tinnitus are warranted. He does not make any specific contentions as to when he believes the awards of service connection should have been effectuated. The service personnel records show that the Veteran served in the Republic of Vietnam as a light weapons infantryman. Therefore, he is presumed to have been exposed to herbicide agents while in the Republic of Vietnam and his in service noise exposure is conceded. A September 2011 private treatment record states that the Veteran was diagnosed with prostate cancer in March 2011. Tinnitus has been shown to have originated during active service. In a June 2014 Application for Disability Compensation and Related Compensation Benefits, VA Form 21-526EZ, the Veteran claimed service connection for both a prostate disorder and tinnitus. The claim was received by VA on July 2, 2014. In March 2015, the Agency of Original Jurisdiction granted service connection for both prostate cancer residuals associated with herbicide agent exposure and tinnitus and effectuated the awards as of July 2, 2013, one year prior to the date of receipt of the claims for service connection. The Veteran has made no specific argument as to why an earlier effective date for the award of service connection for either prostate cancer residuals or tinnitus is warranted. The evidence does not show any claim, formal or informal, was received for service connection for the claimed disability prior to the effective date assigned. Prostate cancer was initially manifested in March 2011 and tinnitus originated during active service. Given those facts and as the Veteran’s initial claim for service connection was subsequently received in July 2014, the Board concludes that the appropriate effective date for the award of service connection for both prostate cancer residuals and tinnitus is July 2, 2013, the date one year prior to VA’s receipt of the initial claims for service connection. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i); Public Law 112-154, Section 506. The Board finds that the preponderance of the evidence is against the assignment of any earlier effective date. REASONS FOR REMAND 1. The issue of service connection for a recurrent skin disorder is remanded. The service treatment records reflect that the Veteran was seen for skin complaints. The June 2010 VA Agent Orange examination report states that the Veteran had a “rash on arms off and on.” The Veteran has not been afforded a VA skin examination to determine the nature of the claimed recurrent skin disorder and its relationship, if any, to active service. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Clinical documentation dated after March 2015 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. The issue of service connection for a psychiatric disorder to include a depressive disorder is remanded. The Veteran asserts that service connection for a psychiatric disorder is warranted as the claimed disorder was manifested during active service and/or as the result of the service connected prostate cancer residuals and tinnitus. A July 2016 psychiatric evaluation from H. Henderson Galligan, Ph.D., states that the Veteran “suffers from an unspecified depressive disorder more likely than not began in military service, continues uninterrupted to the present and is aggravated by his tinnitus and prostate cancer.” Service connection may be granted for disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (a). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service connected disorder has aggravated a nonservice connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection is currently in effect for prostate cancer residuals and tinnitus. The Veteran has not been afforded a VA psychiatric examination to determine the relationship, if any, between the diagnosed depressive disorder and active service and/or the service connected disabilities. 3. The issue of service connection for a recurrent sleep disorder to include OSA is remanded. The Veteran contends that service connection for a recurrent sleep disorder is warranted as the disability was increased in severity by the service connected tinnitus. An April 2013 VA sleep study states that the Veteran has been diagnosed with upper airway resistance syndrome. The July 2016 psychiatric evaluation from Dr. Henderson Galligan states that the Veteran “suffers from chronic sleep impairment including insomnia and broken sleep.” She states that the service connected tinnitus aggravates the Veteran’s sleep disability. The Veteran has not been afforded a VA sleep examination to determine the relationship, if any, between the diagnosed sleep disorders and active service and/or the service connected disabilities. 4. The issue of service connection for peripheral neuropathy is remanded. The June 2010 VA Agent Orange examination report states that the Veteran had “peripheral neuropathy since 2009” and “this condition is considered connected to exposure to herbicides.” The Veteran has not been afforded a VA neurological examination to determine the relationship, if any, between the diagnosed peripheral neuropathy and active service and/or the service connected disabilities. 5. The issue of an initial compensable rating for prostate cancer residuals is remanded. The report of a January 2015 prostate examination conducted for VA states that Veteran exhibited “significant abnormalities” on contemporaneous diagnostic “CBC, Chemistry, and Urinalysis” testing. The examiner did not clarify whether such abnormalities were related to the service connected prostate cancer residuals. When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that further VA prostate evaluation is necessary to determine the current nature and severity of the service connected prostate cancer residuals. 6. The issue of an initial rating in excess of 10 percent for tinnitus to include on an extra schedular basis is remanded. The Veteran asserts that a rating in excess of 10 percent is warranted for tinnitus as the disability has increased in severity to such a point that it hurts his ears and severely impacts his occupational pursuits and sleep. The Veteran has not been afforded a VA ear examination to determine the current nature and severity of the service connected tinnitus. 7. The issue of entitlement to a TDIU is remanded. Entitlement to TDIU requires an accurate assessment of the impairment associated with all of the service-connected disabilities. That claim is also inextricably intertwined with other issues being remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for any recurrent skin, psychiatric, sleep, and peripheral neuropathy disabilities and the service connected prostate cancer residuals and tinnitus. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records dated after March 2015. 3. Schedule the Veteran for a VA skin examination to assist in determining the current nature of any identified recurrent skin disorder and the relationship, if any, to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all recurrent skin disabilities found. If no recurrent skin disorder is identified, the examiner must specifically state that fact. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent skin disorder had its onset during active service or is related to any incident of service, including the Veteran’s presumed exposure to herbicide agents while in the Republic of Vietnam. 4. Schedule the Veteran for a VA psychiatric examination to assist in determining the nature of any diagnosed psychiatric disability and its relationship, if any, to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all psychiatric disorders found. If PTSD is not found, the examiner should specifically state that fact. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified psychiatric disability had its onset during active service; otherwise originated during active service; or is related to any incident of service, including the Veteran’s experiences in the Republic of Vietnam. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified psychiatric disorder is due to the service connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any psychiatric disorder has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by the service connected disabilities. 5. Schedule the Veteran for a VA examination with a medical doctor to assist in determining the nature and etiology of any identified recurrent sleep disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all recurrent sleep disabilities found. If OSA or other sleep disability is not diagnosed, specifically state that fact, and explain the findings that indicate that sleep apnea is not present. (b) Opine as to whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent sleep disability had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent sleep disorder is due to the service connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified recurrent sleep disorder has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by the service connected disabilities. 6. Schedule the Veteran for a VA neurological examination to assist in determining the current nature of any identified peripheral neuropathy and its relationship, if any, to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all peripheral neuropathy found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified peripheral neuropathy had its onset during active service or is related to any incident of service, including the Veteran’s presumed exposure to herbicidal agents while in the Republic of Vietnam. 7. Schedule the Veteran for a VA prostate examination to assist in determining the current nature and severity of any identified prostate cancer residuals. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) State whether the prostate cancer is currently active. (b) Opine as to the impact of the prostate cancer residuals on the Veteran’s vocational pursuits and whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the effects of the prostate cancer residuals. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service-connected disabilities. 8. Schedule the Veteran for a VA examination to assist in determining the current nature of and severity of the service connected tinnitus. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should advance an opinion as to the impact of the tinnitus on the Veteran’s vocational pursuits and whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the effects of the tinnitus. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service-connected disabilities. J. T. HUTCHESON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. E., Associate Counsel