Citation Nr: 1317366 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 07-04 219 ) 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 an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, not otherwise specified (NOS). 2. Entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to herbicides. 3. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type 2. 4. Entitlement to service connection for a low back disorder. 5. Entitlement to service connection for prostate carcinoma, status post radical prostatectomy, to include as due to exposure to herbicides. ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to December 1973. This was previously before the Board of Veterans' Appeals (Board) on appeal from July 2005, September 2006, and March 2007 rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded by the Board in April 2012. As development conducted subsequent to the April 2012 remand resulted in a grant of service connection for Hepatitis C by November 2012 rating action, the issues remaining for adjudication are limited to those listed on the Title Page. 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 remand of April 2012 was required to provide VA examinations to address the claims on appeal. Unfortunately, the examinations with respect to the claims for service connection for diabetes mellitus, hypertension, a low back disorder, and prostate carcinoma were inadequate and did not respond to the questions asked. As such, the Board finds a remand is necessary to afford the Veteran VA examinations for these disorders and to obtain medial opinions regarding the nature and etiology of each such disorder. Additionally, all updated VA treatment records should be obtained and associate with the claims file. While the Board finds that the examination provided post remand with respect to the claim for service connection for a psychiatric disorder was adequate, and that all other development with respect to this claim has been accomplished to the extent possible, the adjudication of this claim must be deferred as it is inextricably intertwined with the claim for service connection for prostate carcinoma. Harris v Derwinski, 1 Vet. App. 80 (1991). Such is the case because the examiner who completed the April 2012 VA psychiatric examination post-remand found that the Veteran's psychiatric condition "started on account of prostate cancer and posterior prostatectomy." As such, should the development requested with respect to the claim for service connection for prostate cancer result in a grant of this claim, service connection for a psychiatric disability may potentially be granted for a psychiatric disability as "secondary" to prostate cancer pursuant to 38 C.F.R. § 3.310. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file all updated VA treatment records. 2. Ask the examiner who saw the Veteran in April 2012 to provide an addendum to the opinion that addressed the questions asked below. If required, afford the Veteran another VA examination for diabetes mellitus, type 2. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file. After the claims file is reviewed, the examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the diagnosed diabetes mellitus, type 2, is causally or etiologically related to service, or occurred within one year of discharge from service. In doing so, the examiner must acknowledge symptoms experienced during and after discharge from service, and discuss lay and medical evidence of a continuity of symptomatology. In particular, review the Veteran's lay statements as they relate to the development of his disorder and provide information as to how his statements comport with generally accepted medical norms. The examiner is also reminded that an examination is inadequate where the examiner does not comment on the Veteran's report of an in-service disorder and instead relies on the absence of evidence in the service treatment records to provide a negative opinion. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.) If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 3. Ask the examiner who saw the Veteran in April 2012 to provide an addendum to the opinion that addressed the questions asked below. If required, afford the Veteran a VA examination for hypertension. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file. After the claims file is reviewed, the examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the diagnosed hypertension is causally or etiologically related to service, to include the Veteran's account of symptoms experienced during service, occurred within one year of discharge from service OR is proximately due to or aggravated by his diabetes mellitus, type 2. In doing so, the examiner must acknowledge symptoms experienced during and after discharge from service, and discuss lay and medical evidence of a continuity of symptomatology. In particular, review the Veteran's lay statements as they relate to the development of his disorder and provide information as to how his statements comport with generally accepted medical norms. The examiner is also reminded that an examination is inadequate where the examiner does not comment on the Veteran's report of an in-service disorder and instead relies on the absence of evidence in the service treatment records to provide a negative opinion. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 4. Ask the examiner who saw the Veteran in April 2012 to provide an addendum to the opinion that addressed the questions asked below. If required, afford the Veteran a VA examination for a low back disorder. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. All current low back diagnoses should be noted. The examiner is requested to review all pertinent records associated with the claims file. After the claims file is reviewed, for each low back disorder diagnosed, the examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the diagnosed disorder is causally or etiologically related to service, to include the Veteran's account of symptoms experienced during service or occurred within one year of discharge from service. In doing so, the examiner must acknowledge symptoms experienced during and after discharge from service, and discuss lay and medical evidence of a continuity of symptomatology. In particular, review the Veteran's lay statements as they relate to the development of his disorder and provide information as to how his statements comport with generally accepted medical norms. The examiner is also reminded that an examination is inadequate where the examiner does not comment on the Veteran's report of an in-service disorder and instead relies on the absence of evidence in the service treatment records to provide a negative opinion. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 5. Ask the examiner who saw the Veteran in April 2012 to provide an addendum to the opinion that addressed the questions asked below. If required, afford the Veteran a VA examination for prostate carcinoma status post radical prostatectomy. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file. After the claims file is reviewed, the examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the prostate carcinoma is causally or etiologically related to service, to include the Veteran's account of symptoms experienced during service or occurred within one year of discharge from service. In doing so, the examiner must acknowledge symptoms experienced during and after discharge from service, and discuss lay and medical evidence of a continuity of symptomatology. In particular, review the Veteran's lay statements as they relate to the development of his disorder and provide information as to how his statements comport with generally accepted medical norms. The examiner is also reminded that an examination is inadequate where the examiner does not comment on the Veteran's report of an in-service disorder and instead relies on the absence of evidence in the service treatment records to provide a negative opinion. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 6. The Veteran is hereby notified that it is his responsibility to report for the examinations scheduled in connection with this REMAND and to cooperate in the development of his case. 7. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated. If this results in a grant of service connection for prostate cancer, the adjudication of the claim for service connection for a psychiatric disability should include consideration of whether the claim may be granted as secondary to prostate cancer. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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. 2012). _________________________________________________ MARJORIE A. AUER 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) (2012).