Citation Nr: 1207985 Decision Date: 03/02/12 Archive Date: 03/16/12 DOCKET NO. 09-20 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for gunshot/shrapnel wound residuals of the neck and buttocks. 2. Entitlement to service connection for right leg disorder manifested by tingling and numbness. 3. Entitlement to service connection for left leg disorder manifested by tingling and numbness. 4. Entitlement to service connection for left shoulder melanoma, claimed as skin cancer, to include as secondary to in-service herbicide and/or ultraviolet light exposure. 5. Entitlement to service connection for gastroesophageal reflux disorder (GERD). 6. Entitlement to service connection for right knee patellofemoral syndrome. 7. Entitlement to service connection for left knee patellofemoral syndrome. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from May 1957 to February 1990. Service personnel records in his claims file verify his status as a combat veteran, specifically his receipt of the Combat Infantryman Badge (CIB) and the Purple Heart. He is also a recipient of the Silver Star and a Bronze Star with a V device. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision rendered by the Department of Veterans' Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the claims for entitlement to service connection. The Board acknowledges that the Veteran initially requested a Board hearing in his June 2009 substantive appeal. However, in a September 2011 statement, he expressly withdrew his hearing request. 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 Board's review of the claims file reveals that further development on the matters of entitlement to service connection listed above is warranted. In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id. As an initial matter, the Veteran has asserts that he suffers from residuals of in-service shell fragment wounds to the neck and buttocks. Service treatment records showed a notation that the Veteran sustained shrapnel and/or gunshot wounds in 1967 and 1969. Additional service clinical records clearly documented that the Veteran was awarded a Purple Heart after being wounded in action during a mortar attack in April 1970. He was hospitalized for seven days for treatment of a fragment wound of the left mandible angle with no artery or nerve involvement. Post-service VA examination reports dated in 2005 and 2007 detailed that the Veteran underwent treatment for salivary gland carcinoma with excision of a right neck mass in 2001. In an October 2007 VA PTSD examination report, the Veteran discussed his in-service neck wound, recalled spitting out metal, and commented on his later development of salivary cancer in that area. As such, the Veteran should be scheduled for an appropriate VA examination(s) to resolve whether he has any current residuals etiologically related to his documented in-service fragment wounds. The Veteran also contends that his claimed skin cancer was incurred as a result of in-service events, to include in-service herbicide and/or ultraviolet light exposure. Service treatment records detailed treatment for obvious sun damage, actinic keratoses, and actinic cheilitis in 1983 and 1985. Service personnel records also verified the Veteran's period of service in Vietnam during the presumptive period under 38 C.F.R. § 3.307. Post-service private and VA treatment records reflected findings of nevoid melanoma of left shoulder and basil cell carcinoma. In a September 2007 statement of record, a private physician further opined that the Veteran had a malignant melanoma excised in August 2002 that was surely related to in-service ultraviolet light exposure. The Board finds that these assertions raise a medical question outside of its jurisdiction. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). As such, a VA examination is required to determine the etiology of the Veteran's claimed skin disorder. Regarding the Veteran's claims for entitlement to service connection for bilateral leg disorders manifested by tingling and numbness as well as bilateral patellofemoral syndrome, service treatment records reflected findings of bilateral patellofemoral syndrome as well as complaints of leg cramps, frequent generalized arthralgia, and knee pain. Post-service VA treatment records and examination reports were void of any lower extremity X-ray or physical examination findings but detailed assessments of arthritis and osteoarthritis as well as complaints of bilateral knee pain. In addition, in a September 2007 statement, a private physician identified as A. C., M. D. highlighted the Veteran's in-service assignments and noted that the Veteran had complained of various leg and knee pains as well as numbness and tingling since the early 1990s. The Veteran has repeatedly asserted that his claimed lower extremity disorders are casually related to his in-service duty assignments, numerous parachute jumps, and verified combat service. Based on the foregoing, a VA examination is required to determine the character and etiology of the Veteran's claimed bilateral lower extremity disorders. The Veteran has also claimed that he currently suffers from GERD that onset during his active service. Service treatment records detailed multiple complaints of dyspepsia as well as frequent indigestion as well as findings of duodenal ulcer and peptic ulcer disease. Post-service private and VA treatment records showed findings of GERD with regular intake of medication for acid reduction. The Board finds that a remand for a VA examination is necessary to determine whether there is a casual relationship between in-service gastrointestinal problems and post-service treatment for GERD. In light of the cumulative record discussed above, the AMC should arrange for the Veteran to undergo VA examinations to ascertain the nature and etiology of his claimed lower extremity, skin, and gastroesophageal disorders on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Evidence of record further indicated that the Veteran received treatment from a private dermatologist identified as J. A. Y., M. D. for his claimed skin cancer and from a private physician identified as A. C., M. D. for his claimed bilateral lower extremity disorders. Any available records from those private treatment providers should be obtained. 38 C.F.R. § 3.159(c) (2011). The claims file also reflects that the Veteran has received VA medical treatment for his claimed disorders from the VA Medical Center (VAMC) in Charleston, South Carolina, and the VA Outpatient Clinic (VAOPC) in Savannah, Georgia; however, as the claims file only includes treatment records from those providers dated up to May 2009, any additional records from those facilities should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC should obtain and associate with the claims file all outstanding VA records. Accordingly, the case is REMANDED for the following actions: 1. The AMC should contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for his claimed lower extremity, skin, and gastroesophageal disorders. Of particular interest are all private treatment records from A. C., M. D. for the time period from January 1990 to the present and from J. A. Y., M. D. for the time period from January 2002 to the present. After the Veteran has signed the appropriate releases, those records not already associated with the claims folder, should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. Regardless as to whether or not the Veteran responds, the AMC should obtain VA clinical records pertaining to the Veteran's claimed lower extremity, skin, and gastroesophageal disorders from the Charleston VAMC and Savannah VAOPC for the period from May 2009 to the present. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran and his representative must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(c)(2),(e). 2. Once the foregoing development has been accomplished to the extent possible, and the requested records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination(s) to determine the nature and etiology of his claimed lower extremity disorders. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the claims folder, examination of the Veteran, and utilizing sound medical principles, the examiner is requested to provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that any diagnosed lower extremity disorder is casually related to his periods of active service, to include documented in-service treatment for patellofemoral syndrome and complaints of knee pain and/or shell fragment wounds to the lower torso. In doing so, the examiner should acknowledge and discuss the statements from the Veteran asserting the continuity of lower extremity symptomatology since service as well as the September 2007 private physician statement from A. C., M. D. The rationale for all opinions expressed should be provided in a legible report. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with supporting rationale. 3. Thereafter, the Veteran should be afforded an appropriate VA examination(s) to determine the nature and etiology of his claimed skin disorders, to include neck and buttocks shrapnel wound residuals as well as skin cancer. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the claims folder, examination of the Veteran, and utilizing sound medical principles, the examiner is requested to provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that any diagnosed skin disorder either began during or was otherwise caused by the Veteran's military service, to include presumed in-service herbicide exposure and/or claimed in-service ultraviolet light exposure. The examiner should definitely state whether the Veteran has any residuals (scars or muscle group injury) related to his documented in-service fragment wounds. The examiner should render an opinion as to (a) whether it is at least as likely as not (a 50 percent probability or greater) that any current skin cancer had its onset in service or within one year of service discharge and (b) whether the Veteran is diagnosed with soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). If it is determined that the Veteran's current skin disorder did not have its onset in service or within one year of service discharge, or that his disorder cannot be characterized by a diagnosis of soft-tissue sarcoma, the examiner should determine whether it is at least as likely as not (a 50 percent probability or greater) that his skin disorder is otherwise related to service, to include exposure to ultraviolet light and/or herbicides. In doing so, the examiner should acknowledge and discuss the in-service treatment for fragment wounds and various skin lesions, in-service notations of sun damage, statements from the Veteran asserting the continuity of symptomatology since service, the September 2007 private physician statement from J. A. Y., M. D., and the findings in the post-service private and VA treatment records on file. The rationale for all opinions expressed should be provided in a legible report. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with supporting rationale. 4. The Veteran should be afforded an appropriate VA stomach examination to determine the nature and etiology of his claimed GERD. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the claims folder, examination of the Veteran, and utilizing sound medical principles, the examiner is requested to provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that any diagnosed GERD is casually related to his periods of active service, to include documented in-service treatment for ulcers and complaints of dyspepsia and frequent indigestion. In doing so, the examiner should acknowledge and discuss the statements from the Veteran asserting the continuity of GERD symptomatology since service as well as the September 2007 private physician statement from A. C., M. D. The rationale for all opinions expressed should be provided in a legible report. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with supporting rationale. 5. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims file. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655. 6. Upon completion of the above, readjudicate the issues on appeal, with consideration of all evidence obtained since the issuance of SOC in May 2009. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate SSOC and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 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). 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). _________________________________________________ MICHAEL A. HERMAN 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).