Citation Nr: 1237328 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 11-10 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include as a result of asbestos exposure. 2. Entitlement to service connection for a right temple skin disorder, claimed as a sore, to include as a result of exposure to ionizing radiation. 3. Entitlement to service connection for hair loss, to include as a result of exposure to ionizing radiation. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD) due to an in-service personal assault. 5. Entitlement to service connection for a psychological disorder other than PTSD, to include anxiety and depression. 6. Entitlement to service connection for bilateral hearing loss. 7. Entitlement to service connection for tinnitus. 8. Entitlement to service connection for an eye disorder. 9. Entitlement to service connection for nephrolithiasis (kidney stones), to include as a result of exposure to ionizing radiation. 10. Entitlement to service connection residuals of a circumcision, to include erectile dysfunction. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from February 1977 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 and March 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In February 2012, the Veteran appeared at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Although any further delay is regrettable, the Board determines that a remand for additional development is required. Notice As an initial matter, the Veteran should be provided with a notification letter advising him of how to substantiate a claim for PTSD as the result of an in-service personal assault. In this case, the Veteran reported seeking a consult for a circumcision in service, during which time the treating medical consultant performed an improper procedure involving a laceration to the penis (but not a full circumcision at that time) that caused subsequent infection and emotional distress. The Veteran reported that he was intimidated into performing the procedure without anesthetic or proper equipment (see November 2009 statement) and that he has PTSD as a result of this incident. The Adjudication Procedures Manual states, "Personal trauma is an event of human design that threatens or inflicts harm, such as: rape, physical assault and domestic battering, robbery and mugging, stalking, and harassment." M21-1MR, III.iv.4.H.30.a (2012); see also Patton v. West, 12 Vet. App. 272, 278 (1999). Because the Veteran alleges that he was intimidated and the subject of an improper or unauthorized invasive procedure by the medical consultant, the Board finds that the procedures applicable to traumas based on an in-service personal assault apply to this case. There are special considerations for PTSD claims predicated on a personal assault. For example, the pertinent regulation, 38 C.F.R. § 3.304(f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than a veteran's service records, including evidence of behavior changes, which may corroborate his or her account of the stressor incident. As such, remand is required so that the Veteran can be provided with adequate notice and assistance consistent with the provisions of 38 C.F.R. § 3.304(f) (2011). Federal Records The evidence of record reasonably identifies pertinent Federal records that have not yet been associated with the claims file. With regard to the Veteran's claim for PTSD, service treatment records document several consults evaluating the Veteran for circumcision. However, it does not appear that any in-patient hospital records or clinical records have been requested from the Naval Hospital in Philadelphia, where the Veteran reports the claimed incident occurred. As there may be additional records available that could corroborate the claimed stressor, a request should be made for these records. Moreover, the Veteran identified potentially relevant Social Security Administration (SSA) records that are outstanding. In a statement received July 2012 but dated December 2011, the Veteran indicated that he has applied for "Social Security or SSI." Accordingly, SSA may have developed evidence, including examination reports and medical records, with respect to his application for SSA benefits or Social Security Supplemental Security Income (SSI) benefits, which is based on age, disability, and income and resource limits. VA has a duty to make reasonable efforts to assist a claimant to obtain evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011). Further, when VA has actual notice of the existence of relevant Federal records, to include records from the SSA, the duty to assist includes requesting those records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); see also Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency and will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159(c)(2) (2011). Therefore, on remand, the RO/AMC must make attempts to obtain the documents identified above and, if unavailable, the Veteran should be provided with notification of their unavailability in accordance with 38 C.F.R. § 3.159(e)(1). Radiation Dose Estimate In this case, the Veteran claims that his hair loss and right temple skin condition, claimed as a sore, is a result of exposure to ionizing radiation in service. He claims that he was exposed to radiation from ammunition testing aboard the U.S.S. John King. The duty to obtain dose estimates under 38 C.F.R. § 3.311 not only applies to radiogenic diseases listed in 38 C.F.R. § 3.311(b)(2), but also applies to any other disorder when a claimant cites or submits competent scientific or medical evidence that the claimed disease "may be induced by ionizing radiation" under 38 C.F.R. § 3.311(b)(4). See 67 Fed. Reg. 6,870 (Feb. 14, 2002). This provision was added to the regulation effective September 1, 1994, in response to the Federal Circuit's decision in Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), that determined that VA was not authorized to establish an exclusive list of radiogenic diseases for which a clamant might establish entitlement to direct service connection. 60 Fed. Reg. 9,627 (Feb. 21, 1995). Therefore, the provisions of 38 C.F.R. § 3.311 that require VA to request dose information under § 3.311 will apply to those diseases that fall under the scope of § 3.311(b)(4) even if they are not listed as radiogenic diseases under § 3.311(b)(2). Here, an April 2010 VA dermatology consult indicated an assessment of chronic cutaneous lupus, discoid type, versus squamous cell carcinoma "arising in an area of radiation dermatitis." However, an August 2010 biopsy of the right temporal scalp skin was consistent with verrucous lupus erythematosus, which impliedly ruled out carcinoma, and lupus is not on the list of radiogenic diseases. Notwithstanding the above, because the April 2010 dermatologist's assessment indicated an area of "radiation dermatitis," this constitutes competent scientific or medical evidence that the claimed disease "may be induced by ionizing radiation" under 38 C.F.R. § 3.311(b)(4). Accordingly, a remand is required so that the RO/AMC may follow the appropriate procedures to obtain a dose estimate. As far as the procedure for requesting dose estimates is concerned, to include the particular locations to submit such requests, there is additional guidance in the M21-1MR, Part IV, Subpart ii, Chapter 1, Section C, Verification of Exposure to Ionizing Radiation Under 38 C.F.R. § 3.311. Of note, when requesting verification from DTRA, that letter should also include a copy of the medical or scientific evidence showing a causal relationship between the claimed disease and exposure to radiation if the disease is not among those listed in § 3.311(b)(2). Hearing for Separately Appealed Claims The February 2012 hearing in this case elicited testimony relevant to the Veteran's claims perfected in April 2011 for entitlement to service connection for PTSD, a respiratory disorder, a skin disorder, and hair loss. However, in a separate VA Form 9, the Veteran perfected an appeal for the issues of entitlement to service connection for a psychological disorder other than PTSD (claimed as anxiety and depression), nephrolithiasis, residuals of a circumcision, bilateral hearing loss, tinnitus, and an eye disorder. He expressly indicated a desire for a video-conference hearing on these issues, as well. Therefore, the Veteran should be scheduled for a video-conference hearing in accordance with his expressed desires for these separately appealed issues. Because such hearings are scheduled by the RO, the Board must remand the case to the RO for that purpose, to ensure full compliance with due process requirements. See 38 C.F.R. §§ 20.1304 (2011). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. Schedule the Veteran for a video-conference hearing for the issues of entitlement to service connection for (1) a psychological disorder other than PTSD (claimed as anxiety and depression), (2) nephrolithiasis, (3) residuals of a circumcision, (4) bilateral hearing loss, (5) tinnitus, and (6) an eye disorder before a Veterans Law Judge in accordance with applicable laws and regulations. [The Board notes that a hearing has already been held on the remaining four issues listed on the first page of this decision (entitlement to service connection for PTSD, a respiratory disorder, hair loss, and a skin disorder of the right temple); as such, those issues are not the subject the requested second hearing.] A copy of the notice to the Veteran of the scheduling of the hearing should be placed in the record. 2. Provide the Veteran with a notice letter that complies with the notification requirements for claims for PTSD based upon a personal assault under 38 C.F.R. § 3.304(f)(5). That letter must advise the Veteran that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor. 3. Request in-patient hospital records or clinical records from the Naval Hospital in Philadelphia regarding the claimed incident with the medical consultant (described above). The attempts to obtain this information, as well as any negative response, should be documented in the claims folder. If such records are unavailable, the Veteran must be provided with notice of this fact in compliance with 38 C.F.R. § 3.159(e)(1). 4. Request SSA records, including copies of the relevant medical evidence used to determine eligibility for disability benefits, and any other relevant information. The attempts to obtain this information, as well as any negative response, should be documented in the claims folder. If such records are unavailable, the Veteran must be provided with notice of this fact in compliance with 38 C.F.R. § 3.159(e)(1). 5. Obtain a dose estimate. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section C, Verification of Exposure to Ionizing Radiation Under 38 C.F.R. § 3.311. When requesting verification from DTRA or other appropriate entity, include a copy of the April 2010 dermatology report, which suggests a causal relationship between the claimed disease that not among those listed in § 3.311(b)(2) and exposure to radiation. All efforts to obtain this information should be documented in the claims file. 6. Thereafter, with consideration of the additional development undertaken, the RO/AMC should consider whether a VA examination/opinion is required for the Veteran's service connection claims for PTSD based on an in-service personal assault, a respiratory disorder, hair loss, and right temple skin disorder. 7. Following the completion of the above, and any other development deemed necessary, readjudicate the issues on appeal. If any of the benefits sought on appeal remain denied, the Veteran should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). (CONTINUED ON THE NEXT PAGE) These claims 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). _________________________________________________ JOHN Z. JONES 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).