Citation Nr: 1317282	
Decision Date: 05/28/13    Archive Date: 06/06/13

DOCKET NO.  10-21 579	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to service connection for lung cancer, to include as due to exposure to herbicides.  

2.  Entitlement to service connection for cancer of the tonsils, (claimed as cancer of the larynx/trachea), to include as due to exposure to herbicides

3.  Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

F. Yankey, Counsel


INTRODUCTION

The Veteran served on active duty from June 1969 to June 1971, to include service in the Republic of Vietnam.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  Jurisdiction currently resides with the RO in New Orleans, Louisiana.

A Travel Board hearing was held in March 2012 before the undersigned Veterans Law Judge, sitting in Washington, D.C.  A copy of the transcript of that hearing is of record.  Thereafter, additional evidence was received.  The Veteran's right to have the RO initially review this evidence was waived by his representative in a May 2012 document.  Accordingly, the Board may consider it in the first instance here.  See 38 C.F.R. § 20.1304(c) (2012).  

In December 2012, the Board requested an expert opinion via the Veteran's Health Administration (VHA).  An opinion was provided in March 2013 and has been associated with the record.

The issue of entitlement to an initial increased rating for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.





FINDINGS OF FACT

1.  On March 15, 2012, prior to promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his appeal for the claim of service connection for lung cancer, to include as due to exposure to herbicides.  

2.  The Veteran served in Vietnam and was exposed to herbicides.

3.  The evidence of record shows that tonsillar cancer was not present in service or until years thereafter, and is not etiologically related to service.


CONCLUSIONS OF LAW

1.  The appellant has met the criteria for withdrawal of an appeal for entitlement to service connection for lung cancer, to include as a due to exposure to herbicides.  38 U.S.C.A. § 7105(b)(2),(d)(5) (West 2002 & Supp. 2012); 38 C.F.R. § 20.204 (2012).  

2.  The evidence of record shows that tonsillar cancer was not incurred or aggravated during active duty, and its incurrence or aggravation during such service may not be presumed.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In a January 2009 letter, issued prior to the initial adjudication of the claims, the RO notified the Veteran of the evidence needed to substantiate his claims for service connection.  The letter satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them.

The Veteran has substantiated his status as a Veteran.  He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claim in the January 2009 letter.

VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim, as was done here.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  




The Duty to Assist

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  The VCAA also provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.

VA has obtained records of treatment reported by the Veteran, including service treatment records, and VA and private treatment records.  The Board also obtained a VHA medical opinion to address the Veteran's claim that his tonsillar cancer is related to herbicide exposure.  

Under the VCAA, VA is obliged to provide a medical examination and/or opinion when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

The medical evidence of record shows that the Veteran has been found to have tonsillar cancer.  The Veteran contends that he was exposed to herbicides while serving in Vietnam.  As will be discussed in more detail below, the Veteran submitted a private medical opinion indicating that his tonsillar cancer could be related to herbicide exposure in service.  As discussed below, his exposure to herbicides in Vietnam is conceded.  Because of this conceded exposure and the private medical opinion, the Board obtained a VHA opinion in March 2013 to obtain a definitive opinion.  Accordingly, VA's duty to provide a medical opinion under the circumstances of this case has been met.  

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The appeal is thus ready to be considered on the merits.

Withdrawn Claim

Pursuant to 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2011).  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204(b) (2012).  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204(c) (as amended by 68 Fed. Reg. 13235 (April 18, 2003)).  

At the Travel Board hearing held on March 15, 2012, prior to promulgation of a decision in the appeal, the Veteran notified the undersigned Veterans Law Judge of his desire to withdraw his appeal as to the issue of entitlement to service connection for lung cancer, to include as due to herbicide exposure.  

As the Veteran has withdrawn the appeal as to the issue of entitlement to service connection for lung cancer, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue.  Accordingly, the Board does not have jurisdiction to review the appeal with regards to this claim, and it is dismissed.  

Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As the Veteran's tonsillar cancer is not one of the chronic diseases identified under 38 C.F.R. § 3.309(a), this manner of establishing service connection is not for application under the circumstances of this case.

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In considering the Veteran's claim, the Board has considered 38 U.S.C.A. 1154(a), which requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

As the Veteran's claim is based on herbicide exposure during service in Vietnam, the provisions of 38 U.S.C.A. § 1116(a) (West 2002) and 38 C.F.R. § 3.309(e) (2012) are applicable.  Such provisions provide for presumptive service connection on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent within a specified period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975.  It also provides presumptive service connection on the basis of herbicide exposure for each additional disease that the Secretary determines in regulations prescribed under this section warrants a presumption of service-connection by reason of having a positive association with exposure to an herbicide agent, and that becomes manifest within the period (if any) prescribed in such regulations in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975.  

Whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for the purposes of this section.  38 U.S.C.A. § 1116(b)(1).  

In making determinations for the purpose of this subsection, the Secretary shall take into account (A) reports received by the Secretary from the National Academy of Sciences under section 3 of the Agent Orange Act of 1991 [note to this section], and (B) all other sound medical and scientific information and analyses available to the Secretary.  In evaluating any study for the purpose of making such determinations, the Secretary shall take into consideration whether the results are statistically significant, are capable of replication, and withstand peer review.  38 U.S.C.A. § 1116(b)(2).  

The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).  

An association between the occurrence of a disease in humans and exposure to an herbicide agent shall be considered to be positive for the purposes of this section if the credible evidence for the association is equal to or outweighs the credible evidence against the association.  38 U.S.C.A. § 1116(b)(3).

Tonsillar cancer is not among the diseases specified in 38 U.S.C.A. § 1116(a).  In addition, the Secretary has not determined, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of hypertension in humans.  See 38 C.F.R. § 3.309(e).  Notwithstanding the inapplicability of the Agent Orange presumptive service connection regulations, in this case the Board is obligated to fully consider the Veteran's claim on a direct basis.  See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).



Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54.  

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380- 81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the instant claim.




Analysis

The Veteran contends that his current squamous cell carcinoma of the left tonsil (claimed as cancer of the larynx/trachea) diagnosed in 2007 is related to his military service, to include his exposure to Agent Orange during active duty in Vietnam.  Because the Veteran served in Vietnam, his exposure to herbicides is presumed.  38 C.F.R. § 3.307(a)(6)(iii).  

Initially, it is important to note that VA regulations do not provide for presumptive service connection for cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), or nasal cavity (including ears and sinuses).  See Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, 72 Fed. Reg. 32395-407 (June 12, 2007); Veterans and Agent Orange: Update 2008, 75 Fed. Reg. 81332 -247 (December 27, 2010); see also 38 C.F.R. § 3.309(e) (2012).  The Veteran could, nonetheless establish service connection with evidence of direct incurrence.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

The current record contains no probative evidence of a nexus between the Veteran's military service and his tonsillar cancer.

The Veteran's service treatment records contain no findings of tonsillar or other oral cancers, and the Veteran has reported no in-service symptoms or treatment.  

The post-service medical evidence of record shows that in early 2007, the Veteran was found to have stage III well-differentiated squamous cell carcinoma of the left tonsillar area, left soft palate, and left uvula.  He underwent surgery in October 2007 with follow-up chemotherapy and radiation treatment.  

In April 2012, the Veteran submitted a letter from a private doctor of dental surgery in support of his claim.  The physician noted that the Veteran had been followed in his office since 2007, when he first presented with head and neck cancer.  At that time, he was diagnosed with squamous cell carcinoma of the palate and pharynx and supraglottic areas and was treated with chemotherapy and radiation therapy.  He subsequently developed bilateral metastatic lymph nodes to the neck which grew through radiation therapy.  Salvage surgery was performed in hopes of control of the disease.  The doctor further noted that the Veteran had had a good response to treatment and remained disease free with sequelae of radiation and bilateral neck dissection.  

The private physician also noted that the Veteran gave a history of exposure to Agent Orange during service.  He added that this was a known carcinogen for lung and laryngeal cancers.  He opined that, "from a scientific viewpoint," exposure to a carcinogen, particularly a potent carcinogen such as Agent Orange, "imposed a lifelong increased risk of the development of cancer."  He noted further that the time line of exposure to a carcinogen and onset of cancer was not limited to a few months or a year, but most certainly increased a patient's chance of developing cancer throughout the remainder of his lifespan.  The Board notes that although the physician noted that exposure to carcinogens, including Agent Orange, imposes a lifelong increased risk of the development of cancer, and that Agent Orange was known to be related to lung and laryngeal cancers; he did not state that the herbicide had been specifically linked to tonsillar cancer, which the Veteran had been diagnosed with.  His opinion was a more general statement that exposure to carcinogens increase one's risk of developing cancer.  Accordingly, and for additional reasons set forth below, the Board finds that the private physician's opinion lacks significant probative value.

As noted above, the Board requested a VHA opinion in December 2012.  A VHA specialist submitted an opinion in March 2013.  The specialist noted that he had reviewed the Veteran's entire claims file, as well as the publication Veterans and Agent Orange, updated in 2010, which was the most definitive publication he could find on the subject of the relationship of Agent Orange and tonsil carcinoma.  He noted further that in 2006, there were three cohort studies of oral and pharyngeal cancers that were alleged to be caused by Agent Orange, and that it was the feeling then and in 2010 that there was inadequate evidence for an association between Agent Orange and tonsillar and oral carcinomas since they were not respiratory carcinomas.  Based on this evidence, the specialist opined that the likelihood that the Veteran's tonsillar carcinoma was caused by exposure to Agent Orange during his service in Vietnam is less than 50 percent.

The Board finds that the March 2013 VHA opinion is the most probative regarding the relationship of the Veteran's herbicide exposure to his currently diagnosed tonsillar cancer.  In this regard, the opinion is definitive, based upon a complete review of the Veteran's entire claims file and/or clinical examinations of the Veteran, and supported by a detailed rationale.

Here, the Board notes VA's reliance on a medical opinion requires a finding that the conclusion was made after consideration of "all procurable and assembled data."  Jones v. Shinseki, 23 Vet. App. 382 (2010).  Reliance on an examiner's opinion further requires that the basis for it be provided or otherwise be apparent from a review of the record.  Id.  Factors for assessing the probative value of a medical opinion indeed include the examiner's access to the claims file and the thoroughness and detail of the opinion.  Prejean v. West, 13 Vet. App. 444 (2000).

Here, the claims file containing service treatment records, post-service treatment records, and statements from the Veteran and his private physician, was reviewed by the VHA specialist prior to the opinion being rendered.  Furthermore, in rendering the March 2013 opinion, the VHA specialist discussed the medical literature relevant to the relationship between Agent Orange exposure and tonsillar and other oral cancers, and the likelihood that such exposure would lead to the development of tonsillar and other oral cancers.  Thus, the basis for the March 2013 opinion was clearly set forth.

Because the two aforementioned requirements have been met, the Board may rely on the March 2013 VHA specialist opinion.  

There is no evidence otherwise linking the current disability to service.  The Veteran has not reported a continuity of symptomatology beginning in service and there is no other probative evidence, VA or private, that the current tonsillar cancer, may be related to service.  

The Veteran is competent to report the symptoms of his tonsillar cancer; however, it would require medical expertise to say that the current tonsillar cancer, identified long after service, is the result of exposure to herbicides in service.  The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his tonsillar cancer.  38 C.F.R. § 3.159(a)(1),(2) (2012).  Indeed the statutory scheme discussed above envisions that the link between a disease and herbicide exposure is established by scientific or medical evidence.  See 38 U.S.C.A. § 1116.  

Accordingly, the Board must conclude that the preponderance of the evidence is against a link between the current disability and service.  As the evidence is against the claim, reasonable doubt does not arise, and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002).  


ORDER

The claim for entitlement to service connection for lung cancer, to include as due to exposure to herbicides, is dismissed.  

Service connection for cancer of the tonsils, (claimed as cancer of the larynx/trachea) is denied.


REMAND
The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  

In a May 2009 rating decision, the RO granted service connection for PTSD.  A 30 percent rating was assigned, effective January 8, 2009.  The rating was based on the findings made upon VA psychiatric examination in April 2009.  At that time, the Veteran reported that he had attended group therapy and taken medication for management of his psychiatric symptoms.  He no longer attended group, but continued to take medication.  He was married with two children.  He had problems with irritability, anger, and isolation.  He enjoyed time with his wife but spent a lot of time alone.  He was neatly groomed, and his speech was unremarkable.  On evaluation, his affect was appropriate, and his mood was good.  His thought process was unremarkable, and he did not have sleep impairment or hallucinations.  There were no obsessive behaviors or suicidal thoughts.  His memory was mildly to moderately impaired.  He had recurrent, distressing, and intrusive recollections of in-service events.  The examiner diagnosed PTSD, and assigned a Global Assessment of Functioning (GAF) score of 60.  

During his March 2012 Travel Board hearing, the Veteran reported that his PTSD had worsened since he was last examined in April 2009.  He testified specifically that he continued to have problems with his memory, isolated from others, and had occasional panic attacks.  He also reported that he had not worked since 1991.  In addition, the Veteran reported that he attended monthly PTSD sessions at the VA Medical Center in Homer, Louisiana.  See Travel Board hearing transcript.  
VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).  Given the evidence of increased symptomatology, a new VA examination is warranted to determine the current severity of the Veteran's PTSD.

When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination.  Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992).  See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (Court determined the Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of a Claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination).  

The appellant is advised that it is his responsibility to report for the examinations and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claims.  See 38 C.F.R. §§ 3.158 and 3.655 (2012).

The Board notes that following his hearing, the record was left open for 60 days so that the Veteran could submit records beneficial to his claim.  Records pertaining to his PTSD were not submitted.  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 procurement of potentially pertinent medical records referenced by the Veteran is required.  As it appears that there may be available VA medical records that are not presently associated with the claims folder, a remand is required.  See 38 C.F.R. § 3.159(c)(2).  The provisions of 38 C.F.R. § 3.159(c) provide that VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency.  If VA is unable to obtain such records, VA must provide the claimant with oral or written notice of that fact.  The notice must contain various information, including an explanation of the efforts VA made to obtain the records and a description of any further action VA will take regarding the claim.  38 C.F.R. § 3.159(e).

Accordingly, the case is REMANDED for the following action:

1.  The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected PTSD.  After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file.  
As already noted, he asserts that there are records of treatment at the VA Medical Center in Homer, Louisiana, which are not of record.  

The RO should also obtain any outstanding VA medical records, including any records of treatment at the VA facility in Homer, Louisiana, which the Veteran reported during his March 2012 hearing.  

2.  Then, afford the Veteran a VA examination to determine the current severity of his service connected PTSD.  The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. The examiner should obtain a full history of the Veteran's relevant symptomatology and assess the current severity of his psychiatric disorder in accordance with 38 C.F.R. § 4.125 and the DSM-IV.  All tests, studies, or evaluations deemed necessary should be performed, and the results should be reported in detail.  

3.  When the development requested has been completed, readjudicate the Veteran's claim.  If the benefit sought on appeal is not granted, the agency of original jurisdiction should issue a supplemental statement of the case.  The case should be returned to the Board, if otherwise in order.

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. 2012).



______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs