Citation Nr: 18158228 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-00 729 DATE: December 14, 2018 REMANDED Entitlement to service connection for a balance disorder, claimed as secondary to service-connected residuals of a brain tumor and/or lung cancer, is remanded. Entitlement to service connection for tinnitus, to include as secondary to service-connected residuals of a brain tumor and/or lung cancer, is remanded. Entitlement to an initial compensable rating for residuals of a bilateral inguinal hernia repair is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1977 to July 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January and February 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, he waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record subsequent to the issuance of the May 2016 statement of the case. 38 C.F.R. § 20.1304(c). Therefore, the Board may properly consider such evidence. However, following the August 2017 Board hearing, additional evidence consisting of VA and private treatment records were associated with the record and the Veteran has not waived AOJ consideration of such evidence. However, as his claims are being remanded, the AOJ will have an opportunity to review the newly received documents such that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. 1. Entitlement to service connection for a balance disorder, claimed as secondary to service-connected residuals of a brain tumor and/or lung cancer. As an initial matter, the Board notes that the evidence does not show, and the Veteran does not contend, that his claimed balance disorder had its onset during service, or is directly related to any aspect of his military service. Rather, he contends that such disorder, which includes symptoms of vertigo and dizziness, is caused or aggravated by his service-connected residuals of a brain tumor and/or lung cancer. Specifically, he reported that he did not experience dizziness prior to undergoing an occipital resection, lobectomy, and corresponding radiation. Therefore, he claims that service connection for a balance disorder is warranted. In this regard, the Veteran underwent a VA central nervous system and neuromuscular diseases examination in February 2016. At such time, a brain tumor was diagnosed. As relevant, the examiner reported that the Veteran was diagnosed with non-small cell carcinoma of the lung in 2003 and had a right upper lobectomy at such time. She further reported that the Veteran developed neurological signs and symptoms in 2006 and was diagnosed with right parietooccipital brain metastases that were subsequently resected. Here, the examiner explained that the Veteran only complained of problems with balance shortly after surgery during the perioperative healing period and had made no complaints of such since August 2006. She concluded that it was less likely than not that the Veteran’s balance issues were caused by or related to residuals of his brain tumor. Additionally, the Veteran underwent a VA ear conditions examination in February 2016. At such time, the examiner indicated that the Veteran did not have an ear or peripheral vestibular disorder. In this regard, she reported that there was no pathology or diagnosis of a peripheral vestibular disorder, and that there was neither a chronic nor disabling disorder at such time. The examiner further reported that the Veteran had not made complaint of, sought care for, been diagnosed with, or been treated for a peripheral vestibular disorder. Here, she noted that the Veteran made a single complaint of balance issues in the perioperative healing period after the resection of a right parietooccipital metastatic tumor in August 2006. The examiner further observed that such complaint was not further addressed, no diagnosis was rendered, and the Veteran had made no similar complaints since. She concluded that, in any case, the weight of the medical literature supported that a brain tumor would not lead to a condition or pathology of the peripheral vestibular system. However, the non-documentation of complaints related to the Veteran’s difficulty with balance as described by the February 2016 VA examiner, is not consistent with the evidence of record. Specifically, the examiner reported that the Veteran made a single complaint of balance issues in August 2006 after the resection of his brain tumor. To the contrary, the record includes a May 2008 VA treatment record that reflects that the Veteran complained of questionable balance problems. A February 2010 VA treatment record noted that he reported problems with his balance especially when he closed his eyes. A May 2014 VA treatment record indicated that the Veteran reported feeling off balance when he turned quickly, which occurred approximately three times in that past week. Such record further indicated an assessment that it was not clear whether the Veteran’s off-balance spells were related to his medications as such was not constant. An October 2014 VA treatment record revealed that he reported feeling a little off balance if he turned quickly, and used a walker most of the time. A March 2015 VA treatment record indicated that the Veteran felt himself to be constantly without balance. Furthermore, during his August 2017 Board hearing, the Veteran reported that his symptoms of dizziness and vertigo had continued since 2006 to the present time. Here, he indicated that he had recently fallen due to his vertigo. Therefore, such opinion appears to be based on an incomplete factual history. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on inaccurate factual premise are not probative). Moreover, the February 2016 VA examiner failed to consider and comment on the relationship between the Veteran’s claimed balance disorder, to include symptoms of dizziness and vertigo, and his service-connected lung cancer, but rather focused on the relationship between such disorder and the Veteran’s service-connected residuals of a brain tumor. Therefore, a remand for an addendum opinion is necessary. 2. Entitlement to service connection for tinnitus, to include as secondary to service-connected residuals of a brain tumor and/or lung cancer. The Veteran contends that he has recurrent tinnitus that began during his military service in approximately 1981, which was his service-connected residuals of a brain tumor and/or lung cancer. Specifically, he reported that his tinnitus worsened after he underwent an occipital resection, lobectomy, and corresponding radiation in 2006. The Veteran’s service treatment records, as well as his post-service treatment records, are negative for any complaints, treatment, or diagnoses referable to tinnitus. However, the Board observes that his DD Form 214 reflects that his primary Military Occupational Specialty (MOS) was Electrical/Mechanical Equipment Repairman. In light of his MOS, his in-service noise exposure has been acknowledged and, as tinnitus is a condition capable of lay observation, the Board finds that he has a current diagnosis of such disorder. The Veteran underwent a VA audiological examination in January 2016, at which time, the examiner noted his report that his recurrent tinnitus had been present for ten years. Based on such report, she opined that the Veteran’s tinnitus was less likely than not caused by or a result of his military noise exposure. The examiner further indicated that, as with hearing loss, the course of noise-induced tinnitus was evident immediately following noise exposure that resolved or remained stable over time, not twenty years after the fact. However, at the Veteran’s August 2017 Board hearing, he provided additional information regarding the onset of his tinnitus, which was not considered by the January 2016 VA examiner. Specifically, he reported that he first noticed the ringing in his ears in approximately August 1981 and such had continued to the present time. He further reported that there might have been a miscommunication with the January 2016 VA examiner as during the examination as he indicated that his tinnitus became worse ten years prior when he underwent radiation and a lobectomy in 2006. Therefore, the Board finds that a remand is necessary in order to obtain an addendum opinion regarding the etiology of the Veteran’s tinnitus that takes into account his recent statements regarding the onset and aggravation of such disorder. 3. Entitlement to an initial compensable rating for residuals of a bilateral inguinal hernia repair. The Veteran was afforded a VA examination in January 2016 so as to determine the nature and severity of his residuals of a bilateral inguinal hernia repair. However, the Board finds that, as the Veteran testified to increased and additional symptomatology at his August 2017 Board hearing, a remand is necessary in order to afford him a contemporaneous VA examination so as to address the current nature and severity of such disability. In this regard, he reported that he was in constant severe pain and unable to cross his legs, had difficulty walking and falling asleep, and was limited in lifting. Furthermore, the Veteran noted that he believed that there was still something internally that was causing him pain, such as a nerve or scar tissue. Therefore, as the evidence suggests that the Veteran’s symptomatology may have increased in severity since the last VA examination, a remand is necessary in order to schedule him for an appropriate VA examination in order to assess the current nature and severity of such service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The matters are REMANDED for the following action: 1. Return the record to the VA examiner who offered the February 2016 VA opinions with respect to the Veteran’s claimed balance disorder. The record and a copy of this Remand must be made available to the examiner. If the February 2016 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should offer an opinion on the following: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has a balance disorder that is caused or aggravated by his service-connected residuals of a brain tumor and/or lung cancer, to include as a result of radiation treatment? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In rendering such opinion, the examiner should consider and discuss the VA treatment records dated from May 2008 to March 2015 reflecting complaints of balance issues, and his August 2017 Board hearing testimony that he has experienced balance issues since 2006. A rationale for any opinion offered should be provided. 2. Return the record to the VA examiner who offered the January 2016 VA audiological opinion. The record and a copy of this Remand must be made available to the examiner. If the January 2016 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should offer an opinion on the following: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s tinnitus had its onset, or is otherwise related to, his military service, to include his acknowledged in-service noise exposure? (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s tinnitus is caused or aggravated by his service-connected residuals of a brain tumor and/or lung cancer, to include as a result of radiation treatment? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In rendering such opinions, the examiner should consider and discuss the Veteran’s August 2017 Board hearing testimony in which he clarified that his tinnitus symptoms actually began in approximately 1981 and had been present since such time, but worsened after he underwent an occipital resection, lobectomy, and corresponding radiation in 2006. A rationale for any opinion offered should be provided. 3. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected residuals of a bilateral inguinal hernia repair. The record and a copy of this Remand must be made available to the examiner, and all indicated tests should be performed. The examiner should identify the current nature and severity of all manifestations associated with the Veteran’s bilateral inguinal repair. He or she should specifically indicate whether a hernia has reoccurred, and describe the nature and severity of any residual neurological impairment or scarring. The examiner should also describe the functional impairment associated with such disability. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel