Citation Nr: 1212790 Decision Date: 04/09/12 Archive Date: 04/19/12 DOCKET NO. 07-04 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, not otherwise specified. 2. Entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to herbicides. 3. Entitlement to hypertension, to include as secondary to diabetes mellitus, type 2. 4. Entitlement to service connection for a low back disorder. 5. Entitlement to service connection for hepatitis. 6. Entitlement to service connection for prostate carcinoma, status post radical prostatectomy, to include as due to exposure to herbicides. ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from September 1972 to December 1973. This matter comes before the Board of Veterans' Appeals (BVA or Board) from July 2005, September 2006 and March 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. This appeal is expanded from the Veteran's original claim to include all acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking entitlement to an acquired psychiatric disorder, to include PTSD and depressive disorder, not otherwise specified, entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to herbicides, entitlement to hypertension, to include as secondary to diabetes mellitus, type 2, entitlement to service connection for a low back disorder, entitlement to service connection for hepatitis, and entitlement to service connection for prostate carcinoma, status post radical prostatectomy, to include as due to exposure to herbicides. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to assist a claimant in the development of the claim. This duty includes assisting the Veteran in the procurement of pertinent records and in substantiating a claim for VA benefits as well as providing an examination, if necessary. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). Pertaining to the claim of entitlement to an acquired psychiatric disorder, the Board notes that the Veteran has been diagnosed with anxiety disorder with depressive features, PTSD, and depressive disorder, not otherwise specified. See June 2005 VA examination and January 2006 Psychiatric Evaluation. During the January 2006 private psychiatric evaluation, the Veteran asserted that he auto-inflicted cuts on his arm in the Army, which caused him to receive reprimands from behalf of his superiors. The Board notes that a service treatment record from May 1973 indicates the Veteran had a self-inflicted laceration to his left upper arm and forearm. Additionally, the Veteran's discharge examination indicates that he was a Chapter 13, which is a separation for unfitness or unsuitability. See December 1973 discharge examination. However, the Veteran's service treatment records and personnel file do not contain any other explanation as to why the Veteran received a Chapter 13. A remand is necessary to determine if there are additional records pertaining to the Veteran's Chapter 13. The Veteran has stated that his stressors during service began in Germany, where he had problems with authorities, was given several Article 15s and medical treatment for his nerves, which eventually led to his discharge. The Veteran is currently diagnosed with depressive disorder, not otherwise specified. Although the Veteran was afforded a VA examination for mental disorders in June 2005, a medical opinion was not obtained. The Veteran should be afforded a VA examination to determine the nature and etiology of any diagnosed acquired psychiatric disorders. Additionally, to date, the Veteran has not yet been afforded a VA examination for his diabetes mellitus, type 2, hypertension, low back disorder, or prostate carcinoma status post radical prostatectomy. Furthermore, and although an examination was afforded for Hepatitis, the examiner noted that there were no records available for review. See June 2005 VA examinations. The Board notes that the Veteran has current diagnoses of Hepatitis C, diabetes mellitus, type 2, hypertension, prostate carcinoma status post radical prostatectomy, and has been treated for low back pain, post-service. Furthermore, the Veteran has asserted that his disorders are due to service. The Board finds a remand is necessary to afford the Veteran VA examinations for all of his claimed disorders and to obtain medial opinions regarding the nature and etiology of each claimed disorder. Finally, all updated VA treatment records should be obtained and associate with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any additional personnel records and/or service treatment records, to include psychiatric records. Ensure that the Veteran's entire 201 file is obtained. Particularly, any records pertaining to the Veteran's Chapter 13 discharge and any disciplinary actions should be obtained. If no additional records are available, specific note of that fact should be included in the claims file. 2. Obtain and associate with the claims file all updated VA treatment records. 3. Afford the Veteran a VA examination for acquired psychiatric disorders, to include PTSD and depression. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. All current psychiatric diagnoses should be noted. The examiner is requested to review all pertinent records associated with the claims file, including the service treatment note reporting a self-inflicted laceration. After the claims file is reviewed, for each psychiatric disorder diagnosed, the examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the diagnosed psychiatric disorder is causally or etiologically related to service, to include the Veteran's account of symptoms experienced during service or occurred within one year of discharge from service. In doing so, the examiner must acknowledge symptoms experienced during and after discharge from service, and discuss lay and medical evidence of a continuity of symptomatology. In particular, review the Veteran's lay statements as they relate to the development of his disorder and provide information as to how his statements comport with generally accepted medical norms. The examiner is also reminded that an examination is inadequate where the examiner does not comment on the Veteran's report of an in-service disorder and instead relies on the absence of evidence in the service treatment records to provide a negative opinion. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 4. Afford the Veteran a VA examination for diabetes mellitus, type 2. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file. After the claims file is reviewed, the examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the diagnosed diabetes mellitus, type 2, is causally or etiologically related to service, or occurred within one year of discharge from service. In doing so, the examiner must acknowledge symptoms experienced during and after discharge from service, and discuss lay and medical evidence of a continuity of symptomatology. In particular, review the Veteran's lay statements as they relate to the development of his disorder and provide information as to how his statements comport with generally accepted medical norms. The examiner is also reminded that an examination is inadequate where the examiner does not comment on the Veteran's report of an in-service disorder and instead relies on the absence of evidence in the service treatment records to provide a negative opinion. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 5. Afford the Veteran a VA examination for hypertension. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file. After the claims file is reviewed, the examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the diagnosed hypertension is causally or etiologically related to service, to include the Veteran's account of symptoms experienced during service, occurred within one year of discharge from service OR is proximately due to or aggravated by his diabetes mellitus, type 2. In doing so, the examiner must acknowledge symptoms experienced during and after discharge from service, and discuss lay and medical evidence of a continuity of symptomatology. In particular, review the Veteran's lay statements as they relate to the development of his disorder and provide information as to how his statements comport with generally accepted medical norms. The examiner is also reminded that an examination is inadequate where the examiner does not comment on the Veteran's report of an in-service disorder and instead relies on the absence of evidence in the service treatment records to provide a negative opinion. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 6. Afford the Veteran a VA examination for a low back disorder. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. All current low back diagnoses should be noted. The examiner is requested to review all pertinent records associated with the claims file. After the claims file is reviewed, for each low back disorder diagnosed, the examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the diagnosed disorder is causally or etiologically related to service, to include the Veteran's account of symptoms experienced during service or occurred within one year of discharge from service. In doing so, the examiner must acknowledge symptoms experienced during and after discharge from service, and discuss lay and medical evidence of a continuity of symptomatology. In particular, review the Veteran's lay statements as they relate to the development of his disorder and provide information as to how his statements comport with generally accepted medical norms. The examiner is also reminded that an examination is inadequate where the examiner does not comment on the Veteran's report of an in-service disorder and instead relies on the absence of evidence in the service treatment records to provide a negative opinion. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 7. Afford the Veteran a VA examination for Hepatitis. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file. After the claims file is reviewed, the examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Hepatitis is causally or etiologically related to service, to include the Veteran's account of symptoms experienced during service or occurred within one year of discharge from service. In doing so, the examiner must acknowledge symptoms experienced during and after discharge from service, and discuss lay and medical evidence of a continuity of symptomatology. In particular, review the Veteran's lay statements as they relate to the development of his disorder and provide information as to how his statements comport with generally accepted medical norms. The examiner is also reminded that an examination is inadequate where the examiner does not comment on the Veteran's report of an in-service disorder and instead relies on the absence of evidence in the service treatment records to provide a negative opinion. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 8. Afford the Veteran a VA examination for prostate carcinoma status post radical prostatectomy. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file. After the claims file is reviewed, the examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the prostate carcinoma is causally or etiologically related to service, to include the Veteran's account of symptoms experienced during service or occurred within one year of discharge from service. In doing so, the examiner must acknowledge symptoms experienced during and after discharge from service, and discuss lay and medical evidence of a continuity of symptomatology. In particular, review the Veteran's lay statements as they relate to the development of his disorder and provide information as to how his statements comport with generally accepted medical norms. The examiner is also reminded that an examination is inadequate where the examiner does not comment on the Veteran's report of an in-service disorder and instead relies on the absence of evidence in the service treatment records to provide a negative opinion. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 9. The Veteran is hereby notified that it is his responsibility to report for the examinations scheduled in connection with this REMAND and to cooperate in the development of his case. 10. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2011).