BVA9501757 DOCKET NO. 93-04 174 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for prostate cancer and for incontinence. 2. Entitlement to service connection for bilateral defective hearing. 3. Entitlement to service connection for tinnitus. 4. Whether new and material evidence has been received to reopen the claim for service connection for a hiatal hernia. 5. Entitlement to an increased rating for benign prostatic hypertrophy, currently evaluated as 40 percent disabling. 6. Entitlement to an increased rating for anxiety disorder, currently evaluated as 30 percent disabling. 7. Entitlement to an increased rating for diabetes mellitus, currently evaluated as 10 percent disabling. 8. Entitlement to an increased rating for hypertension, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant, a veteran, served on active duty for more than 22 years before retiring in January 1970. The Department of Veterans Affairs (VA) Cleveland, Ohio Regional Office (RO) denied the benefits sought. The appellant claimed service connection for "mustard and lewisite gas" in a letter received in December 1993. In that same communication, he referred to entitlement to temporary total ratings based on several medical and surgical procedures. Some, but not all, of these issues were addressed in an August 1992 rating decision, although the appellant was not informed of these decisions in writing. The RO should consider whether the appellant has submitted a notice of disagreement on the temporary total rating issues previously addressed, and should appropriately address the other temporary total issues raised. Additionally, he submitted evidence for an increased rating for his service-connected postoperative ureteral calculi and right ureterocele disability in May 1994. These issues are also referred to the RO for appropriate action. REMAND On appeal, after the claims folder was received at the Board of Veterans' Appeals (Board), evidence relevant to issues on appeal which has not been considered by the RO was sent to the Board. No waiver of RO consideration of this evidence has been submitted. Thus, it must be considered by the RO. 38 C.F.R. §§ 19.37, 20.1304(c) (1993). Since the appellant's prostatectomy for prostate cancer in July 1992, he has claimed that his psychiatric symptomatology has increased in severity. Moreover, the last VA psychiatric examination in 1992 is not adequate for rating purposes because it does not include an assessment by the examiner of the degree of social and industrial inadaptability due to the anxiety neurosis. See Massey v. Brown, No. 93-135 (U.S. Vet.App. Dec. 6, 1994). With respect to the claim for increase for benign prostatic hypertrophy, the attention of the RO is directed to the fact that the record shows that the appellant underwent a radical retropubic prostatectomy in July 1992. This should be reflected in the rating assigned for the prostatic hypertrophy. In April 1992, the appellant requested that VA obtain an audiology examination report that was conducted in 1970 when he was employed with the U.S. Department of the Treasury. In May 1992, the RO informed the office of the Honorable Edward F. Feighan that his inquiry was being referred to the U.S. Office of Personnel Management (OPM), but no response is of record. Also with respect to the hearing loss claim, the RO has not considered or provided the appellant with the provisions of 38 C.F.R. § 3.385 (as restated at 59 Fed. Reg. 60560 (Nov. 25, 1994)). This regulation been in effect since the appellant filed his claim for service connection for defective hearing, and must be considered. 38 C.F.R. § 3.101 (1993). In addition, the Board is of the opinion that additional medical opinion is warranted on the question of whether hearing loss or tinnitus was due to the acoustic trauma that the appellant claims he sustained in service. The evidence which is of record shows a history of tinnitus from approximately 1979 and high frequency sensorineural hearing loss in 1986. In a June 1994 statement received after the case was certified to the Board, the appellant referred to treatment for transient ischemic attacks (TIA) in connection with the claim for an increased rating for hypertension. In essence, he is claiming service connection for TIA secondary to hypertension. According to Harris v. Derwinski, 1 Vet. App. 180 (1991) these are inextricably intertwined issues which must both be addressed by the RO. The appellant has submitted private medical records in support of his contentions that the benefits sought are warranted. Additionally, he has received VA treatment. While the RO has obtained pertinent VA and private medical records up to the date of its original request, all subsequent records which are relevant to the matters under consideration should be obtained by the RO. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should follow-up with respect to the June 1970 Coast Guard audiology report by inquiring whether the office of Congressman Feighan received a reply from OPM. If the Congressman's office did not receive a satisfactory reply from OPM, the RO should request the audiology report from OPM. 2. The RO should obtain and incorporate into the claims folder all VA, service department or private medical records of treatment which the appellant has received since 1992. He should be requested to provide specific information with respect to the above-mentioned treatment. 3. A VA psychiatric examination should be conducted to determine the extent and severity of the appellant's service-connected anxiety disorder. All pertinent indicated tests and studies should be conducted, and the results thereof should be reported in detail, in accordance with the VA Physician's Guide for Disability Evaluation Examinations (IB 11-56 (1985)). The claims folder must be made available to the psychiatrist prior to the examination. The psychiatrist should assign a global assessment of functioning score consistent with the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (3d ed. rev., 1987), and explain what the assigned score represents. A complete rationale for any opinion must be provided. 4. VA ear, nose, and throat and audiology examinations should be conducted. All pertinent indicated tests and studies should be conducted. The results thereof should be certified and reported in detail, in accordance with the VA Physician's Guide for Disability Evaluation Examinations (IB 11-56 (1985)) and subsequently implemented procedures for defective hearing claims. An opinion with reasons should be rendered as to whether the acoustica trauma that the appellant claims that he sustained in service caused tinnitus or hearing loss. The claims folder must be made available to and reviewed by the examiners prior to the examinations. 5. A VA cardiology examination should be conducted to determine the nature, extent, and severity of the appellant's service-connected hypertension disability. All pertinent indicated tests and studies should be conducted, and the results thereof should be reported in detail, in accordance with the VA Physician's Guide for Disability Evaluation Examinations. The claims folder should be made available to the cardiologist prior to the examination. 6. The RO should then review the claims. With respect to the claim for an increased rating for benign prostatic hypertrophy, the RO must consider this claim in light of the fact that a prostatectomy was performed in July 1992. With respect to the hearing loss claim, the claim should be adjudicated in light of 38 C.F.R. § 3.385, as amended (see 59 Fed. Reg. 60560 (Nov. 25, 1994). With respect to the hypertension claim, the RO should consider the inextricably intertwined issue of service connection for TIA. The RO should consider all of the evidence as it pertains to each of the appellant's claims, including the evidence the RO sent to the Board in September 1994 without considering it. Thereafter, the case should be returned to this Board in accordance with the usual appellate procedures, unless all benefits sought are granted or unless the appellant himself, in writing, expressly withdraws all outstanding appeals. No action is required of the appellant until he is further informed. The purpose of this REMAND is to assist the appellant and to provide him with due process of law. No inference is to be drawn regarding the final disposition of the claims. (CONTINUED ON NEXT PAGE) NANCY I. PHILLIPS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).