Citation Nr: 0818495 Decision Date: 06/05/08 Archive Date: 06/12/08 DOCKET NO. 04-29 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for tonsilar squamous cell carcinoma with metastasis, left neck dissection, pharyngeal carcinoma, as a result of exposure to herbicides. REPRESENTATION Appellant represented by: Kenneth M. Carpenter ATTORNEY FOR THE BOARD Linda E. Mosakowski, Associate Counsel INTRODUCTION The veteran served on active duty from September 1966 to August 1968 and from August 1974 to August 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from two rating decisions: an October 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, that denied service connection for PTSD; and a March 2005 rating decision by the VA RO in San Juan, the Commonwealth of Puerto Rico, that denied service connection for tonsilar squamous cell carcinoma with metastasis, left neck dissection, pharyngeal carcinoma, as a result of exposure to herbicides. In November 2007, the veteran sent the Board a fax requesting a personal hearing. Since it was not clear whether the veteran wanted to appear in person before a Veterans Law Judge or participate in a video-conference, the Board wrote to the veteran in February 2008, asking for clarification about the personal hearing request. In March 2008, the veteran's representative replied that the veteran did not wish to have a personal hearing. In February 2008, the veteran also submitted a motion for an extension of time in order to obtain and submit additional evidence and/or argument in support of this appeal. That motion was denied in May 2008. The Board notes that as a result of the remand, below, the veteran has the right to submit to the RO/AMC additional evidence to support his claim. In January 1980, the veteran sought service connection for anxiety neurosis. A January 1981 rating decision by the RO denied that claim. The claim at issue in this appeal was filed in June 2002. That claim sought service connection for anxiety neurosis and PTSD. The claim for PTSD was considered a new claim. See Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996) (a different diagnosis yields a new claim). But the claims folder does not show that the claim to reopen the previously-denied claim for anxiety neurosis was adjudicated. This matter is referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the delay, it is necessary to ensure that there is a complete record upon which to decide the veteran's claim so that he is afforded every possible consideration. The record shows that the veteran has received treatment from many VA medical facilities-namely, the VA Medical Center (MC) in Marion, Illinois; the Jesse Brown VAMC in Chicago, Illinois [formerly, the Chicago Westside VAMC]; the Louisville VAMC in Louisville, Kentucky; the Martinsburg VAMC in Martinsburg, West Virginia; the Miami VA Healthcare System in Miami, Florida; the Arecibo Community Based Outpatient Clinic, in Arecibo, the Commonwealth of Puerto Rico; the Caribbean Health Care System in San Juan, the Commonwealth of Puerto Rico; the VA facility in Rouderbush, Indiana; and the Vet Center in Arecibo, the Commonwealth of Puerto Rico. Although VA has a duty to assist a claimant in obtaining evidence to substantiate his claim (see 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007)), nothing in the claims folder indicates that the RO requested all of the veteran's medical treatment records from VA facilities. VA medical treatment records are deemed to be within the control of VA and should have been included in the record, as they may be determinative of the claim. Therefore, a remand is necessary for the purpose of asking the veteran to identify all mental health treatment records and obtaining such records. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Although compensation and pension (C&P) examinations were conducted in October 2002 and in May 2005 that determined that the veteran had no current diagnosis of PTSD, since that time, various health professionals have indicated that a PTSD diagnosis has been made. See, e.g., July 2007 VA Vet Center Summary of Treatment; June 2007 Discharge Diagnosis by Dr. M. at an unidentified VA facility. As a result, once all of the VA treatment records have been obtained, make arrangements for the veteran to have a C&P examination to determine whether he currently meets the diagnostic criteria for PTSD. In providing that opinion, the examiner should address any contrary opinions in the record. As for the veteran's claim for tonsilar squamous cell carcinoma with metastasis, left neck dissection, pharyngeal carcinoma, as a result of exposure to herbicides, the record contains a January 2007 medical opinion from Dr. Craig N. Bash stating that it is at least as likely as not that the veteran's tonsilar squamous cell carcinoma with metastasis, left neck dissection, pharyngeal carcinoma was caused by exposure to Agent Orange. But Dr. Bash does not identify any reasons particular to this veteran to explain why this particular veteran's carcinomas are the result of exposure to herbicides. Nor did he conduct a physical examination of the veteran. Accordingly, the veteran should be given a C&P examination by an oncologist and the oncologist should provide an opinion as to whether it is at least as likely as not that the veteran's tonsilar squamous cell carcinoma with metastasis, left neck dissection, pharyngeal carcinoma is the result of exposure to herbicides. In providing that opinion, the oncologist should address any contrary opinions in the record. Accordingly, the case is REMANDED for the following action: 1. As discussed above, the veteran has reported receiving treatment at numerous VA facilities. Ask him to identify which of these treatment facilities treated him for PTSD or for any tonsilar, pharyngeal, or neck symptoms, and make arrangements to obtain all identified records. If these records are not available, a negative reply is required. 2. After all additional evidence has been associated with the claims folder, make arrangements for the veteran to have a VA examination by a psychiatrist. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the psychiatrist in conjunction with the examination. Any and all studies deemed necessary by the psychiatrist should be completed. The diagnosis should be in accordance with the American Psychiatric Association's: Diagnostic and Statistical Manual of Mental Disorders-IV (DSM-IV). The psychiatrist must express an opinion as to whether the veteran meets the criteria for PTSD contained in DSM- IV, and if he meets such criteria, whether PTSD can be related to the stressor or stressors reported by the veteran and established as having occurred during the veteran's active service. The psychiatrist must provide a comprehensive report including complete rationales for all conclusions reached, and address any contrary opinions in the record. 3. Make arrangements for the veteran to have an appropriate examination with an oncologist to determine the etiology of his tonsilar squamous cell carcinoma with metastasis, left neck dissection, pharyngeal carcinoma. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the oncologist in conjunction with the examination, and this should be reflected in the examination report. Any indicated studies should be performed. The oncologist should provide an opinion, with complete rationale, as to whether it is at least as likely as not (that is, a probability of 50 percent or greater) that this veteran's tonsilar squamous cell carcinoma, left neck dissection, with metastasis and/or pharyngeal carcinoma is related to his exposure to herbicides, such as Agent Orange, during service. Please note that the question is not seeking an opinion whether the veteran's condition can be presumed to be the result of exposure to herbicides because the veteran's theory is that notwithstanding that VA does not recognize these diseases as presumptively the result of herbicide exposure, his post-service medical records, imaging reports, lay statements, pathology reports, other medical opinions, and review of medical literature show that his disease is at least as likely as not the result of herbicide exposure during service. Thus, the opinion requested must specifically address the etiology of this particular veteran's condition. If the above opinions differs from that of the January 2007 opinion of Dr. Craig N. Bash, or from any other medical opinion contained in the record, the oncologist must explain how and why his/her opinion is different from the opinions of other examiners in the claims folder. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. 4. Finally, readjudicate the claims. If any sought benefit is denied, issue the veteran and his representative a supplemental statement of the case. After they have been given an opportunity to respond, the claims file should be returned to this Board for further appellate review. The appellant 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. 2008). _________________________________________________ P. M. DILORENZO 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) (2007).