Citation Nr: 18158716 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-34 191 DATE: December 17, 2018 ORDER Entitlement to an effective date of February 7, 2011, but no earlier, for service connection of adenocarcinoma of the prostate, is granted, subject to the laws and regulations governing monetary benefits. REMANDED Entitlement to service connection for a low back condition, to include a pinched nerve, is remanded. Entitlement to service connection for a neck condition, to include a pinched nerve, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to the pinched nerve condition, is remanded. Entitlement to service connection for chest pain, to include as secondary to the pinched nerve condition, is remanded. Entitlement to service connection for tingling in hands, to include pain along pathway to hands, as secondary to the pinched nerve condition, is remanded. Entitlement to service connection for cold injury of the bilateral feet is remanded. Entitlement to service connection for cold injury of the bilateral hands is remanded. Entitlement to service connection for skin conditions/rashes is remanded. Entitlement to an initial compensable disability rating for hearing loss is remanded. FINDINGS OF FACT 1. On February 7, 2011, the Veteran filed a claim for entitlement to service connection for a pre-cancerous prostate condition; this claim was denied in a March 2013 rating decision. 2. In a February 2014 rating decision, within a year of the previous March 2013 rating decision, the Veteran was granted service connection for adenocarcinoma of the prostate, evaluated as 100 percent, effective September 10, 2013, the date of the confirmed diagnosis of prostate cancer. 3. Affording the Veteran the benefit of the doubt, his elevated prostate-specific antigens (PSAs) in 2011 are proof that the Veteran had prostate cancer at that time. CONCLUSION OF LAW The criteria for an effective date of February 7, 2011, and no earlier, for the grant of service connection for adenocarcinoma of the prostate, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1966 to September 1969. These matters are before the Board of Veterans’ Appeals (Board) on appeal from March 2013, April 2013, and February 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In April 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). During that hearing, the Veteran waived RO consideration of new evidence. Earlier Effective Date Entitlement to an earlier effective date for service connection of adenocarcinoma of the prostate, prior to September 10, 2013. Unless otherwise provided, the effective date for an award of compensation for service-connected disability shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 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(a); 38 C.F.R. § 3.400. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a NOD is filed within one year of the notice of decision or unless new and material evidence was received within the appeal period. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In this case, the Veteran seeks entitlement to an effective date earlier than September 10, 2013 for the grant of service connection for adenocarcinoma of the prostate (prostate cancer). Originally, the Veteran first filed a claim for pre-cancerous prostate on February 7, 2011. A March 2013 rating decision denied this claim, but in a February 2014 rating decision, the Veteran was granted service connection for prostate cancer, effective September 10, 2013. In April 2014, the Veteran filed a claim for an earlier effective date for the grant of service connection for prostate cancer, which was denied in a July 2014 rating decision. In May 2015, the RO received the Veteran’s Notice of Disagreement, and in a May 2016 Statement of the Case, the claim was once again denied. In July 2016, the Veteran submitted a VA Form 9, Substantive Appeal. In an October 2014 letter, the Veteran’s private urologist wrote that an initial referral was made in 2011 for elevated PSA. The Veteran’s evaluation was inconclusive and negative for cancer. Since the 2011 evaluation though, the Veteran’s PSA levels continued to rise, leading to the suspicion of missed prostate cancer. In October 2012, the Veteran was re-evaluated for prostate cancer and was given an MRI. The October 2012 MRI demonstrated a small lesion within the left prostrate that was suspicious for cancer. Using MRI guidance, which was the newest technology available, a biopsy targeting the specific area of suspicion was performed in September 2013. The biopsy results indicated prostate cancer, confirming the initial 2011 suspicions. The private urologist opined that based on this date, it was “more likely than not” that the Veteran’s cancer “was present as early as 2011 and more likely present as of October 2012…” Based on the above analysis, and affording the Veteran the benefit of the doubt, an effective date of February 7, 2011, the date of the Veteran’s original claim, but no earlier, for the Veteran’s service-connected adenocarcinoma prostate is granted. REASONS FOR REMAND Entitlement to service connection for low back and neck conditions, to include pinched nerves. In a March 2013 VA opinion, the examiner opined that the Veteran’s low back condition, to include a pinched nerve, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The rationale was that the Veteran’s service treatment records (STRs) documented a prior back injury in 1965. However, the Board notes that on the Veteran’s April 1967 Report of Medical Examination for induction, no back condition was noted. The Veteran self-reported a 1965 car accident, on his April 1967 Report of Medical History, in which he injured his back. However, in his April 2018 hearing, he testified that his back issues had resolved before he entered service. In the April 2018 hearing, the Veteran testified, and his claims file confirms, that there is a gap in his STRs from August 1967 to July 1968, which includes his training at Fort Benning and Fort Bragg. At his hearing, the Veteran reported that during that gap period, he complained about his back numerous times. A December 1968 STR noted back pain, and during the April 2018 hearing, the Veteran testified that he had pain in his back and neck that recurred ever since service. As a result, and in light of the Veteran’s detailed testimony, a new VA examination is necessary to determine if he is diagnosed with back or neck conditions, to included pinched nerves, if these conditions pre-existed active service, if so, whether they were not aggravated by service, and if they were not, whether they are directly related to active service. 38 C.F.R. § 3.159(c)(4). Additionally, the RO should attempt to obtain and associate with the claims file the Veteran’s STRs from August 1967 to July 1968. Entitlement to service connection for sleep apnea; chest pain; tingling in hands, to include pain along pathway to hands; as secondary to the pinched nerve condition in the back and neck. In his April 2018 hearing, the Veteran testified that his sleep apnea, chest pain, and tingling in his hands were all the result of his pinched nerves in his back and neck. The Veteran has never had examinations to evaluate his claimed sleep apnea, chest pains, or tingling in his hands. As a result, and in light of the Veteran’s detailed testimony, VA examinations are necessary to determine if he is diagnosed with these conditions, and if so, whether they are secondarily related to his pinched nerve conditions. Id. Additionally, the Board notes that favorable decisions on the claims for service connection for pinched nerve conditions in his back and neck could impact upon the Veteran’s claim for service connection for sleep apnea, chest pains, and tingling in his hands. Thus, the Board finds that these issues are inextricably intertwined. As a result, the appeals are remanded. See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) (en banc). Entitlement to service connection for cold injuries of the bilateral hands and feet. In his April 2018 hearing, the Veteran testified that his hands and feet were exposed to extreme cold while he was in basic training. He reported that ever since, he had burning in his hands and feet when the temperature dropped. The Veteran has never had a VA examination to evaluate these claimed injuries. In light of the Veteran’s detailed testimony, a VA examination is necessary to determine if he is diagnosed with cold injuries to his hands and feet, and if so, whether they are directly related to active service. 38 C.F.R. § 3.159(c)(4). Entitlement to service connection for skin conditions/rashes. In a March 2013 opinion, the VA examiner opined that the Veteran’s skin condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran’s claims file documented many different body locations of skin lesions and rashes over the years. However, according to the examiner, none of those could have arisen out of the Veteran’s time in service and still be a medical issue today. The examiner opined that the rash on the Veteran’s legs and right forearm were most likely due to psoriasis. The Board notes that there are multiple problems with this opinion. First, the Veteran is already service connected for tinea pedis, so, clearly, some of his symptoms during service are related to a current condition. Second, in the March 2013 VA examination report, the Veteran was diagnosed with dermatitis or eczema and psoriasis. The VA examiner never addressed the Veteran’s diagnosed dermatitis or eczema condition. Finally, in the rationale, the VA examiner stated that none of the lesions or rashes the Veteran has experienced could have arisen out of his time during service, but provided no explanation why this is. The Board determines that the March 2013 opinion is inadequate. As a result, and in light of the Veteran’s detailed testimony, a new VA examination is necessary to determine if his diagnosed skin and rash condition is directly related to active service. 38 C.F.R. § 3.159(c)(4). Entitlement to an initial compensable disability rating for hearing loss. The last VA examination the Veteran had to evaluate his service-connected hearing loss was in April 2016. In his April 2018 hearing, the Veteran noted that his hearing was worse than when evaluated. As a result, and in light of the Veteran’s testimony, a new VA examination is necessary to determine the current nature, extent, and severity of his hearing loss. 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following actions: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all VA and private treatment records concerning these claims, to include STRs from August 1967 to July 1968. 2. After the above has been completed, schedule the Veteran for appropriate VA examinations to determine the nature and etiology of any diagnosed low back and neck conditions, to include pinched nerves; sleep apnea; chest pains; tingling in hands; cold injuries of the bilateral hands and feet; and skin conditions/rashes; as well as the current severity and manifestations of his hearing loss. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiners for review in conjunction with the examination. The examiners are requested to opine whether any back or neck conditions, to include pinched nerves, clearly and unmistakably (obviously, manifestly or undebatable) preexisted active service, and, if so, whether the disabilities were clearly and unmistakably NOT aggravated beyond the natural progression by active service. If any back or neck conditions did not clearly and unmistakably pre-exist service, and were clearly and unmistakably not aggravated by service, the examiner is asked to opine whether it is at least as likely as not (a 50 percent or greater probability) that these conditions had their onset in service, or were otherwise the result of a disease or injury in active service, rather than other intervening factors. If yes, the examiner is separately requested to opine whether it is at least as likely as not that the Veteran’s claimed sleep apnea, chest pain, and tingling in hands, to include pain along pathway to hands, are proximately due to or aggravated by his back and neck conditions, to include pinched nerves. If not, please opine as to whether such disorders at least as likely as not had their onset in service, or were otherwise the result of a disease or injury in active service. Additionally, the examiner is separately requested to opine whether it is at least as likely as not that the Veteran’s claimed cold injuries of the bilateral hands and feet and skin conditions/rashes had their onset in service, or were otherwise the result of a disease or injury in active service. Finally, with regard to the service-connected hearing loss, the most up-to-date Disability Benefits Questionnaire must be employed in ascertaining the symptoms and severity of this disorder, utilizing puretone threshold and Maryland CNC testing. The Veteran’s subjective symptoms and functional effects of hearing loss must be fully considered, along with the objective findings shown on examination. All opinions must be supported by a detailed rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel