Citation Nr: 21064060 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 20-04 205 DATE: October 18, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected residuals of prostate cancer is remanded. Entitlement to a compensable disability rating for service-connected residual surgical scar from prostatectomy is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected residuals of right thumb strain is remanded. Entitlement to service connection for ventral hernia, secondary to service-connected residuals of prostate cancer and residual surgical scar from prostatectomy is remanded. Entitlement to service connection for an acquired psychiatric disorder, secondary to service-connected residuals, prostate cancer is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his tinnitus first manifest during active service and has recurred intermittently since that time. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1964 to August 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran presented testimonial evidence at a virtual Board hearing held before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Entitlement to service connection for tinnitus is granted. Certain chronic diseases listed in 38 C.F.R. § 3.309(a) will be service connected on a presumptive basis if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Tinnitus is an organic disease of the nervous system and is therefore a chronic disease under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). With chronic disease shown as such in service or within the presumptive period under 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent cause. The Veteran's lay reports are sufficient to establish manifestation of tinnitus in service and on an intermittent basis thereafter. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Although a September 2016 VA ear, nose, and throat evaluation note documents a report of sudden onset right-sided tinnitus in December 2015, the Veteran testified at the July 2021 Board hearing that he had previously experienced ringing in his ears during service, which would come and go over the years, but that it became significantly more noticeable in terms of volume and consistency around December 2015. He described his prolonged exposure to excessively loud noise while working on the flight line during service, sometimes without hearing protection, and explained that the tinnitus would come and go during and following work on the flight line. The Board notes that the Veteran's MOS as an aircraft maintenance specialist is consistent with his contentions regarding in-service hazardous noise exposure, and such exposure has previously been conceded. He further testified that he did not have any other significant noise exposure, post-service. The Board finds these reports to be credible. While a December 2017 VA medical examiner concluded that the Veteran's tinnitus was less likely than not caused by or was a result of his military noise exposure, the examiner based this on the premise that the Veteran's tinnitus first began in 2015, more than 40 years after the Veteran's separation from service. As the examiner did not have the benefit of considering the Veteran's clarifying testimony concerning his historical experience of high-pitched ringing in his ears during service, the opinion is found to carry little probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, when resolving all reasonable doubt in the Veteran's favor, he is found to have first manifested tinnitus during active service, and to presently suffer from tinnitus. Thus, service connection for tinnitus is found warranted on a presumptive basis. REASONS FOR REMAND Further development is found needed prior to adjudication of the remaining appeals. 1. Entitlement to a disability rating in excess of 10 percent for service-connected residuals of prostate cancer is remanded. 2. Entitlement to a compensable disability rating for service-connected residual surgical scar from prostatectomy is remanded. 3. Entitlement to a disability rating in excess of 10 percent for service-connected residuals of right thumb strain is remanded. Notations in the Veteran's VA treatment records reflect that the Veteran sees a non-VA primary care physician, (Dr. W.) and his testimony at the Board hearing indicates that he also sees a non-VA dermatologist who has allegedly prescribed a topical steroid to apply to his service-connected scar. The record does not reflect that private treatment records have yet been sought by the RO. On remand, the Agency of Original Jurisdiction (AOJ) should ask the Veteran to identify and provide any authorization necessary for it to request these treatment records on his behalf. The Veteran was previously provided VA examinations pertaining to his right thumb and residuals of prostate cancer disabilities in December 2017. At the July 2021 Board hearing, the Veteran testified to experiencing symptoms of greater severity than those reported at the December 2017 examinations. Based on this evidence of worsening since the most-recent examination, remand is warranted to the provide the Veteran with additional VA examinations. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 4. Entitlement to service connection for ventral hernia, secondary to service-connected residuals of prostate cancer and residual surgical scar from prostatectomy is remanded. 5. Entitlement to service connection for an acquired psychiatric disorder, secondary to service-connected residuals, prostate cancer is remanded. At the Board hearing, the Veteran testified that he presently suffers from a mental health disorder including anxiety, and ventral hernia secondary to his residuals of prostate cancer and surgical scar. The Board therefore finds that the issues of entitlement to service connection for ventral hernia and an acquired psychiatric disorder, secondary to service-connected residuals, prostate cancer, have been reasonably raised by the record, and must be considered in connection with the claim seeking higher disability ratings for residuals, prostate cancer. See Bailey v. Wilkie, 33 Vet. App. 188 (2021) (38 C.F.R. § 3.155(d)(2) (requiring that when entitlement to secondary service connection is raised in connection with a claim for an increased rating, a formal claim for secondary service connection need not be filed, and VA must consider those "complications" in connection with the claim on appeal). Review of the Veteran's treatment records show that he has been prescribed Xanax by a private physician and has previously undergone ventral hernia repair. On remand, the AOJ should provide the Veteran with notice of what the evidence must demonstrate to substantiate a claim for service connection on a secondary basis, develop the claims, and consider entitlement to service connection for an acquired psychiatric disorder and ventral hernia in the first instance. Further, in considering the Veteran's lay testimony and the medical articles submitted concerning hernias following prostatectomy, the Board finds that the low evidentiary threshold has been met so as to require that the Veteran be provided with VA examination and medical opinion on the issues. On remand, such examination and opinion should be provided. The matters are REMANDED for the following action: 1. Ask the Veteran to adequately identify and complete a VA Form 21-4142 for any relevant private treatment records he wishes for VA to obtain on his behalf, including but not limited to those from his private primary care physician, Dr. W., and dermatologist. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Send the Veteran appropriate notice of what must be shown for entitlement to service connection on a secondary basis. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of prostate cancer. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. A clear rationale must be provided for any conclusion or opinion stated. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of right thumb strain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A clear rationale must be provided for any conclusion or opinion stated. 5. Schedule the Veteran for a VA examination for his claimed ventral hernia. The examiner must review the claims file. The examiner is asked to provide a response to the following: a. Is the Veteran's ventral hernia at least as likely as not (50 percent or greater probability) proximately due to his service-connected residuals of prostate cancer and/or residual surgical scar from prostatectomy? b. Is the Veteran's ventral hernia at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected residuals of prostate cancer and/or residual surgical scar from prostatectomy? c. If the response to either a or b is "yes" (i.e., the Veteran's ventral hernia was at least as likely as not proximately due to or aggravated beyond its natural progression by a service-connected disability), please identify any residuals of the hernia and/or hernia surgery present at any time during the relevant appeal period (November 2017 to the Present). A clear rationale must be provided for any conclusions or opinions stated. 6. Schedule the Veteran for a VA examination for his claimed acquired psychiatric disorder. The examiner must review the claims file. The examiner should identify the diagnosis for any acquired psychiatric disorder present at any time during the relevant appeal period (November 2017 to present). If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: a. Is the psychiatric disability at least as likely as not (50 percent or greater probability) proximately due to service-connected residuals of prostate cancer? b. Is the psychiatric disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected residuals of prostate cancer? A clear rationale must be provided for any conclusion or opinion stated. 7. After completing the above, and conducting any other development deemed necessary in light of the expanded record, readjudicate the issues of entitlement to a disability rating in excess of 10 percent for service-connected residuals of prostate cancer, a compensable disability rating for service-connected residual surgical scar from prostatectomy, and a disability rating in excess of 10 percent for service-connected residuals of right thumb strain, and entitlement to service connection for ventral hernia, as secondary to service-connected residuals of prostate cancer and residual surgical scar from prostatectomy and service connection for an acquired psychiatric disorder, secondary to service-connected residuals, prostate cancer. 8. If any claim is not granted in full, issue the Veteran and his representative a supplemental statement of the case and afford them an opportunity to respond before returning the appeal to the Board. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.