Citation Nr: 1121138 Decision Date: 06/01/11 Archive Date: 06/09/11 DOCKET NO. 08-19 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a stomach disorder, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for benign prostatic hypertrophy, to include as secondary to herbicide exposure. 4. Entitlement to service connection for erectile dysfunction. 5. Entitlement to service connection for glaucoma, to include as secondary to herbicide exposure. 6. Entitlement to service connection for sleep apnea, to include as secondary to medications prescribed for service-connected PTSD. 7. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The RO in Atlanta, Georgia currently holds jurisdiction over the claims. In January 2011, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing held at the Atlanta RO. The hearing transcript is associated with the claims folder. The issue of entitlement to a total disability rating based upon individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the claim which is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The RO last adjudicated these claims in a June 2008 Statement of the Case. Thereafter, the RO associated with the claims folder additional VA clinical records and a July 2009 VA Compensation and Pension (C&P) psychiatric report. In March 2011, the Veteran submitted additional records for consideration of his claims on appeal. The record, however, does not include a waiver of RO review of this evidence in the first instance. The Board, therefore, finds that remand is necessary on due process grounds. See 38 C.F.R. §§ 19.37(a) and (b), 20.1304(c). The Board next notes that the record is unclear as to whether the RO has associated all relevant VA clinical records with the claims folder. For example, the VA clinical records associated with the claims folder do not reflect any consultations for gastrointestinal or eye problems. However, the record does include notations that the Veteran had VA optometry appointments in June 2005, October 2005 and July 2007 and underwent a colonoscopy in November 2007. These records are not associated with the claims folder. On remand, the RO must ensure that complete VA clinical records are associated with the claims folder. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Board next notes that the Veteran seeks to establish service connection for the disabilities at hand on the basis of private treatment contemporaneous in time to his discharge from service. He has undertaken significant efforts to obtain his past private medical records, but the available evidence does not establish his treatment for any of the claimed disabilities until many years after his service discharge. The Veteran has supplemented the lack of medical records with his testimony before the Board. However, his recollections of past treatment do not appear to be reliable. For example, the Veteran has testified to formal treatment for stomach problems in 1971 which included a prescription of Tagamet. The Board takes judicial notice that the United States Food and Drug Administration did not approve prescriptive use of Tagamet (otherwise known as Cimetidine) until January 1, 1979. See http://en.wikipedia.org/wiki/Cimetidine. See also Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (Courts may take judicial notice of facts not subject to reasonable dispute). Thus, the Veteran's recollections as to this event are not plausible, undermining his statements regarding all claims before the Board. On remand, the Veteran is once again encouraged to exhaust all efforts to obtain his relevant past private treatment records for his claimed stomach disorder, left ear hearing loss, benign prostatic hypertrophy, erectile dysfunction, glaucoma, sleep apnea and hypertension disabilities. Finally, the Board notes that the Veteran initially alleged that his stomach disorder was proximately due to an anxiety disorder. See VA Form 21-4138 received in February 2006. In June 2008, the RO awarded service connection for PTSD. At his hearing in January 2011, the Veteran appeared to allege that medications prescribed for service-connected PTSD caused and/or aggravated a sleep apnea disability. On remand, the RO should provide the Veteran notice of the criteria for establishing service connection on a secondary basis under 38 C.F.R. § 3.310. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding the criteria for establishing service connection on a secondary basis pursuant to 38 C.F.R. § 3.310. 2. Obtain the Veteran's clinical records of VA treatment since June 2009 as well as all specialty consultations since 2005 (e.g., the reported VA optometry appointments beginning in June 2005 and the colonoscopy performed in November 2007.) 3. Associate with the claims folder a copy of the June 8, 2009 rating decision addressing a claim for an increased rating for PTSD. 4. Thereafter, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and an appropriate period of time to respond. The appellant has the right to submit additional evidence and argument on the 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. 2009). _________________________________________________ JOHN J. CROWLEY 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) (2010).