Citation Nr: 21013186 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-43 970 DATE: March 8, 2021 ORDER Service connection for prostate cancer, as due to herbicide exposure, is granted. For the entire initial rating period on appeal, a higher initial disability rating in excess of 10 percent for tinnitus is denied. REMANDED Service connection for bilateral hearing loss is remanded. Entitlement to a service connection for vertigo, as secondary to service connected tinnitus, is remanded. Entitlement to a service connection for insomnia, as secondary to service connected tinnitus, is remanded FINDINGS OF FACT 1. The Veteran is currently diagnosed with prostate cancer and/or residuals thereof. 2. Throughout 1970, the Veteran was stationed at the Takhli Royal Thai Air Force Base (RTAFB). 3. Duties as an electrician brought the Veteran to the air base perimeter on a regular basis. 4. Throughout the entire initial rating period on appeal, the Veteran has received the maximum schedular rating possible for the service connected tinnitus. 5. The Veteran’s tinnitus disability picture does not present an exceptional or unusual disability picture to render impractical the schedular rating criteria. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for presumptive service connection for prostate cancer and/or residuals thereof have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313, 3.326(a). 2. For the entire initial rating period on appeal, the criteria for a disability rating in excess of 10 percent for the service connected tinnitus have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.10, 4.20, 4.21, 4.87, Diagnostic Code 6260. 3. For the entire initial rating period on appeal, the criteria for referral for extraschedular rating for the service connected tinnitus have not been met. 38 C.F.R. § 3.321(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from July 1967 to June 1971. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The instant matter was previously before the Board in October 2019, where the tinnitus rating issue and the question of service connection for bilateral hearing loss was denied. Further, the Board also remanded the issue of service connection for prostate cancer for additional development. As the instant decision grants service connection for prostate cancer, which is a complete grant as to that issue, the Board need not address remand compliance at that time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran appealed the October 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated September 2020, the Court granted a Joint Motion for Remand (JMR), which remanded the tinnitus and hearing loss issues on appeal back to the Board for development consistent with the JMR. The Board addresses the JMR in the decision below. See Forcier v. Nicholson, 19 Vet. App. 414 (2006). 1. Service Connection for Prostate Cancer Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(c), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, VA’s Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War and determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases during the period beginning on January 9, 1962 and ending on May 8, 1975. There were several Royal Thai Air Force Bases (RTAFBs) in Thailand, including U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, and pursuant to the VA Adjudication Manual, herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the RTAFBs as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin’s lymphoma, Parkinson’s disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(c). The Veteran seeks service connection for prostate cancer on the basis of exposure to the herbicide, Agent Orange, while stationed at the Takhli RTAFB in 1970. Initially, the Board finds that the Veteran is diagnosed with prostate cancer and/or residuals thereof. Various VA and private treatment records received during the course of this appeal reflect that the Veteran has a history of diagnosis and treatment for prostate cancer. Having reviewed all the evidence of record, lay and medical, the Board finds the evidence at least in equipoise as to the question of whether the Veteran was exposed to herbicides during service. Per the DD Form 214, the Veteran worked as an electrician during service. A June 1970 service personnel record from the Veteran’s time at the Takhli RTAFB reflect that the Veteran was an outstanding electrician who would often handle all jobs individually when on night shift. While stationed at the Takhli RTAFB, the Veteran was placed in charge of a crew of seven local workers. It was noted that the Veteran quickly organized the crew, inspected his area of responsibility, and systematically corrected the problems. In an October 2013 lay statement, the Veteran conveyed having electrical duties throughout the Takhli RTAFB, both internally and externally, to include on the perimeter. Responsibilities included replacing lightbulbs and repairing malfunctioning switches, gears, solenoids, and overhead doors. In multiple subsequently received lay statements, the Veteran consistently advanced having electrical duties throughout the Takhli RTAFB. Per a December 2018 lay statement, the Veteran noted responsibilities that included changing runway light bulbs and fixing hanger doors. A cursory internet search for satellite photographs of the Takhli RTAFB show the flight line to be near the base perimeter. Significantly, in a November 2019 lay statement, the Veteran explicitly stated that during service he was responsible for perimeter lighting. The Board finds maintenance of perimeter lighting to be both consistent with in-service responsibilities as an electrician and consistent with the Veteran’s previous electrical duty lay statements. In sum, the Veteran is currently diagnosed with prostate cancer or residuals thereof, and the evidence of record supports that in-service duties as an electrician, to include repair of perimeter lighting, brought the Veteran to the air base perimeter on a regular basis. Such evidence warrants the grant of service connection for prostate cancer on a presumptive basis due to in-service herbicide exposure. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. 2. Initial Tinnitus Disability Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. Throughout the entire initial disability rating period on appeal, the Veteran’s tinnitus has been rated as 10 percent disabling, which is the maximum schedular rating under Diagnostic Code 6260; therefore, a higher initial schedular rating is not warranted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran has appealed from the initial 10 percent schedular disability rating assigned for the service connected tinnitus. Tinnitus is rated under Diagnostic Code 6260, which provides a 10 percent disability rating for recurrent tinnitus. 38 C.F.R. § 4.87. Note (2) further explains that the Board must assign only a single rating for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. The Federal Circuit affirmed VA’s long-standing interpretation of DC 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Citing United States Supreme Court precedent, the Federal Circuit explained in Smith that an agency’s interpretation of its own regulations was entitled to substantial deference by the courts as long as that interpretation was not plainly erroneous or inconsistent with the regulations. Finding that there was a lack of evidence in the record suggesting that VA’s interpretation of Diagnostic Code 6260 was plainly erroneous or inconsistent with regulations, the Federal Circuit concluded that the Veterans Court had erred in not deferring to VA’s interpretation. The Veteran asserts there should be an extraschedular rating for symptoms or impairment that he believes are associated with the service-connected tinnitus. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). However, the Board gives no deference to the Director’s adjudication and the Board is permitted to exercise jurisdiction over the question of entitlement to an extraschedular rating whether or not the Director of the Compensation and Pension Service finds an extraschedular rating warranted. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (applying principles announced in Wages to 38 C.F.R. § 3.321(b) extraschedular adjudication, namely, Director of C&P decision is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board); Cf. Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). In its October 2019 decision, the Board found that referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) was not warranted. Specifically, the Board explained that, per the evidence of record, the Veteran has symptoms of tinnitus, a ringing or buzzing sound in the ears with no external cause, impacting the ordinary conditions of daily life. As for functional impairment, the Veteran conveyed that the tinnitus made it difficult to sleep and increased difficulty hearing. The Board held that the diagnostic criteria specifically contemplated this symptomatology, and the schedular criteria compensated for functional impairment that resulted from this symptomatology. As such, the Veteran’s reported impairments due to the service-connected disability were not exceptional or unusual functional limitations resulting from tinnitus, and were, thus, reasonably compensated by the 10 percent rating. Per the August 2020 JMR, the parties agreed that in its October 2019 decision the Board did not adequately address whether an extraschedular rating was warranted based upon the Veteran’s complaints of vertigo/dizziness/head spinning and difficulty sleeping, which were purportedly due to tinnitus. At the outset, the Board notes that the parties did not agree that there was any error in the Board’s previous finding that the symptom of increased difficulty hearing due to tinnitus was specifically contemplated by the rating schedule. Even so, the Board notes that tinnitus symptoms are subjective. Considering this, the Rating Schedule was implemented to assign a single 10 percent rating for all degrees of recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2). As such, all tinnitus symptoms, loud or soft, constant or infrequent, and/or of high or low frequency, and in both ears, are contemplated by the schedular rating criteria at Diagnostic Code 6260; therefore, tinnitus symptoms that are of such severity to result in functional impairment that negatively affects hearing has been specifically contemplated by the schedular rating criteria for tinnitus. Next, the Board will address the argument that symptoms of vertigo/dizziness/head spinning and difficulty sleeping warrant an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1). Recently, the Court issued an en banc decision in Long v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 2371 (December 30, 2020) (en banc). Per the decision, the Court reaffirmed that the first step of Thune is only satisfied when “a veteran presents symptoms that are truly unusual or exceptional.” Id. at *8. Relevant to the question of an extraschedular rating based upon advanced symptoms of vertigo/dizziness/head spinning and/or difficulty sleeping due to tinnitus, the Court went on to discuss Morgan v. Wilkie, 31 Vet. App. 162 (2019), for the proposition that extraschedular consideration is not appropriate unless all other disability rating avenues have been considered, to include the question of secondary service connection. Id. at *11. The Court explained that a symptom cannot be found exceptional when it can be evaluated under conventional rating means, which, again, includes separate compensable disability ratings under a theory of secondary service connection. Id. at 11-12. In this case, while it is true that vertigo (which includes symptoms of dizziness/head spinning) is not contemplated by the schedular disability rating criteria for tinnitus, vertigo is a separate and distinct disability from tinnitus, for which secondary service connection under 38 C.F.R. § 3.310 and a separate compensable schedular disability rating stand available to rate. See 38 C.F.R. § 4.97, Diagnostic Code 6204 (rating peripheral vestibular disorders on the basis of dizziness and staggering). As such, pursuant to Long and Morgan, referral for an extraschedular rating for tinnitus based upon symptoms of vertigo/dizziness/ head spinning is not warranted, all schedular alternatives, namely, secondary service connection, have not been exhausted in this case. Compensation for such vertigo symptoms should be considered for secondary service connection (38 C.F.R. § 3.310) – a schedular remedy. Along the same lines, per an April 2018 VA treatment record, the Veteran has been diagnosed with the sleep disorder of insomnia, which is also a service-connectable disability. Again, pursuant to Long and Morgan, an extraschedular rating for tinnitus based upon sleep disorder symptoms is not warranted, as an exhaustion of all schedular alternatives reflects that compensation for such symptoms should be considered on a secondary service connection (38 C.F.R. § 3.310) – a schedular remedy. For the aforementioned reasons, in the instant decision the Board bifurcates and remands for additional development the question of secondary service connection (38 C.F.R. § 3.310) for vertigo and/or insomnia as due to service connected tinnitus. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. “Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” 38 C.F.R. § 4.1. Absent any other purported tinnitus symptoms, because the symptoms identified by the Veteran are either specifically contemplated by the schedular rating criteria or are subject to secondary service connection (38 C.F.R. § 3.310), the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. For the above stated reasons, the Board finds that an increased disability rating in excess of 10 percent for the service connected tinnitus is not warranted, and referral for extraschedular rating is not warranted. Again, the Board has bifurcated the issue of entitlement to separate compensable disability ratings for vertigo and/or insomnia, as due to service connected tinnitus, and the issue is addressed in the remand section below. REASONS FOR REMAND 3. Service Connection for Bilateral Hearing Loss 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. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In its October 2019 decision, the Board denied service connection for bilateral haring loss on the basis that the Veteran’s hearing loss was not severe enough to constitute a disability for VA rating purposes. Per the August 2020 JMR, the parties agreed that the Board did not address lay and medical evidence of record indicating that the Veteran’s hearing may have worsened since the September 2013 VA audiometric examination that measured normal hearing for VA rating purposes. With this suggestion of worsening, the Board finds remand for a new VA audiometric examination to be warranted. A medical nexus opinion is unnecessary, as the VA examiner in September 2013 previously opined that it is at least as likely as not that the Veteran’s hearing loss is related to in-service acoustic trauma. 4. Secondary Service Connection for Vertigo 5. Secondary Service Connection for Insomnia As discussed above, during the course of this appeal the Veteran has argued that the service-connected tinnitus has resulted in symptoms of vertigo/dizziness/head spinning and difficulty sleeping. Review of the VA treatment records reflect that during the course of this appeal there is evidence of vertigo and insomnia. As such, the Board finds remand for a VA examination to assist in determining whether secondary service connection (38 C.F.R. § 3.310) for vertigo and/or insomnia, as secondary to the service-connected tinnitus, is warranted. The aforementioned matters are REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning hearing loss, vertigo, and insomnia. Upon receipt of the requested information and the appropriate releases, the Agency of Original Jurisdiction (AOJ) should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of these symptoms, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of hearing loss, vertigo, and insomnia, not already of record, for the period from September 2020. 3. Request the appropriate VA examination(s). A detailed history of relevant symptoms should be obtained from the Veteran and the evidence of record. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. Measure Bilateral Hearing Loss By audiometric testing, the VA examiner should measure the current level of severity of the Veteran’s bilateral hearing loss. The VA examiner should report the extent of the bilateral hearing loss in accordance with VA rating criteria, to include performance of Puretone audiometry and Maryland CNC speech discrimination testing. Opinions on Secondary Service Connection for Vertigo A) Is it at least as likely as not (50 percent or higher degree of probability) that service-connected tinnitus caused the current vertigo? B) Is it at least as likely as not (50 percent or higher degree of probability) that service-connected tinnitus aggravated (that is, worsened in severity) the current vertigo? Opinions on Secondary Service Connection for Insomnia A) Is it at least as likely as not (50 percent or higher degree of probability) that service-connected tinnitus caused the current insomnia? B) Is it at least as likely as not (50 percent or higher degree of probability) that service-connected tinnitus aggravated (that is, worsened in severity) the current insomnia? (Continued on the next page)   If it is the opinion of the VA examiner that there was aggravation by a service-connected disability, identify the baseline level of severity of the aggravated disability prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. “Aggravation” is defined for legal purposes as a worsening of the underlying condition beyond its normal progression J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.