Citation Nr: 1317632 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 08-19 618A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a prostate disability, to include as due to herbicide exposure. 2. Entitlement to service connection for a disability productive of urinary problems, other than a prostate disability, to include as due to herbicide exposure. 3. Entitlement to service connection for a skin disability, claimed as skin irritation and cysts, to include as due to herbicide exposure. 4. Entitlement to service connection for an acquired psychiatric disability, characterized as anxiety and to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2007 and September 2008 rating decisions of the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2011, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO. A copy of the hearing transcript is associated with the claims folder and has been reviewed. In an October 2011 decision, the Board denied entitlement to service connection for a prostate disability, a urinary disability other than a prostate disability, and a skin disability. In July 2012, the United States Court of Appeals for Veterans Claims (Court) remanded these matters pursuant to a Joint Motion for Remand (JMR) of the parties. Also, in October 2011, the Board remanded the issue of entitlement to service connection for an acquired psychiatric disability to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA examination. The action specified in the October 2011 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). After the RO issued a September 2012 supplemental statement of the case, additional evidence was sent to the Board for inclusion in the Veteran's claims file. Thereafter, the Veteran's representative sent correspondence dated in October 2012, indicating that the Veteran waives initial RO consideration of the newly submitted evidence. The issues of entitlement to service connection a prostate disability, a disability productive of urinary problems other than a prostate disability, and a skin disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT An acquired psychiatric disability, to include PTSD was not manifest during service and is not otherwise attributable to service. CONCLUSION OF LAW An acquired psychiatric disability, characterized as anxiety, was not incurred in or aggravated by service, and a psychosis may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. 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 United States Court of Appeals for the Federal Circuit (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 these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. 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 all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also 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. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Psychoses are listed as chronic diseases under 38 C.F.R. § 3.303(b). Certain chronic diseases, including psychoses, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2012). 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) (2012). Establishing service connection for PTSD requires specific findings. These are (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2012). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV). Id.; see also 38 C.F.R. § 4.125(a) (2012). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Whether the veteran engaged in combat with the enemy is determined through the receipt of certain recognized military citations or other supportive evidence. West v. Brown, 7 Vet. App. 70 (1994). Previously, if VA determined either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor was not combat related, the veteran's lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Instead, the record had to contain credible supporting evidence that corroborates the veteran's testimony or statements. Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). However, VA has recently amended its regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor where the following requirements are satisfied: For claims that were appealed to the Board but not decided as of July 13, 2010, which is the case here, changes to the applicable regulations are in effect as follows. If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. §3.304(f)(3) (2012); 75 Fed. Reg. 39,843 (July 13, 2010). "Fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. In making this determination, VA must duly consider the places, types, and circumstances of a veteran's service as shown by the service record, the official history of each organization in which such a veteran served, a veteran's medical records, and all pertinent medical and lay evidence. The new rule is limited to cases in which the claimed stressor is related to a veteran's fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843 (Jul. 13, 2010). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. Additionally, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604(Fed.Cir.1996). Service Connection for an Acquired Psychiatric Disability The Veteran is seeking entitlement to service connection for an acquired psychiatric disability, characterized as anxiety. The Veteran has not been specific about how he believes his current acquired psychiatric disability is related to service. He appears to allege that the sole fact that he served in Vietnam is the reason for any current psychiatric disabilities, but fails to describe any particular traumatic incident. The Veteran's Form DD-214 shows that the Veteran's military occupational specialty (MOS) was a supply clerk, not a job associated with combat, and he has no medals such as a Purple Heart or Bronze Star indicative of combat experience. The Veteran's service treatment records show that on a Report of Medical History completed in March 1969 at his enlistment, the Veteran checked the box indicating he suffered from depression or excessive worry. However, his enlistment physical is negative for any psychiatric disability, as is a March 1971 separation examination. Service treatment records are negative for any complaints of or treatment for anxiety, depression, or other psychiatric problems. Post-service, there is no evidence that the Veteran was diagnosed with or treated for an acquired psychiatric disability until more than three decades after separation from service. However, the Veteran testified at his April 2011 Travel Board hearing that he started having problems soon after he came home from Vietnam. See Hearing Transcript at 26 (April 21, 2011). He suggested that he had been receiving treatment for his condition since that time. In support of his claim, the Veteran has also submitted statements from family members, friends, colleagues, and his ex-wife testifying that after he returned home from Vietnam, they observed a change in the Veteran's personality. They indicated that the Veteran became anxious, extremely exhausted, and violent after his discharge. They also described the Veteran as having flashbacks, mood swings, and nightmares. The Board also notes that the Veteran has testified that after he returned from Vietnam, he began heavily abusing alcohol, as well as marijuana, and "started doing crazy stuff." See Hearing Transcript at 13, 26 (April 21, 2011). The Veteran's former spouse also testified that the Veteran "drank so much alcohol that he reeked of it more often than not." She indicated that following his discharge, the Veteran was physically and emotionally abusive. In October 2011, the Veteran was seen for an initial VA psychiatric evaluation. The Veteran's chief complaints were anxiety, headaches, and depression. The Veteran denied any past psychiatric or detoxification treatment. He reported issues with anxiety and depression for "many years", but was unable to be more specific. However, he did state that his symptoms had become worse over the past few years. The Veteran also acknowledged daily alcohol use and suicidal ideations. He reported that he served in Vietnam as a Marine, but denied being exposed to direct combat and any PTSD symptoms. He was diagnosed with depressive disorder NOS and alcohol abuse. See VA Mental Health Initial Evaluation Note (October 26, 2011). The VA psychiatric attending noted that the Veteran's mood disorder may be substance induced. VA Psychiatric Attending Note (October 26, 2011). In October 2011, the Veteran was afforded a VA examination. At that time, the Veteran reported that he had not had any therapy until ten to fifteen years ago when he was anxious and depressed. His first VA treatment of record is a psychiatric evaluation in October 2011. The Veteran complained about VA hospital policies and procedures, which had been a source of frustration to him. He reported being depressed and anxious, as well as in poor physical health. The Veteran denied any substance abuse. VA C &P Examination (October 22, 2011). On examination, the Veteran was alert, well oriented, and appropriately groomed. He had good eye contact, but his affect was very intense, angry, and depressed. His mood was anxious and frustrated, but he denied suicidal or homicidal ideations. There were no delusions, hallucinations, or psychosis. Memory and judgment were intact, but the Veteran was noted to lack insight into his problem. Id. The Veteran was diagnosed with chronic depressive disorder, which the examiner concluded was not likely related to service. Id. In an August 2012 addendum, the VA examiner reiterated that it is less likely than not that the Veteran's depressive disorder was related to service given the absence of any acquired psychiatric disability until 2011, as well because the Veteran did not meet the DSM-IV criteria for PTSD. The examiner found no evidence that any of the Veteran's current psychiatric problems are related to fear of hostile military activity during his period of service. He opined that the Veteran's chronic depressive disorder is more likely related to his frustration with the medical system. See VA C& P Examination (August 20, 2012). In January 2012, the Veteran reported that during his active service, the military became his parents. His drill sergeants conducted the orders and the discipline. They told him when to eat, sleep, wash-up, wake-up, brush his teeth, etc. The drill sergeant commanded how he would live. He says they trained him how to be a killer; gave him a gun and sent him to Vietnam where he was exposed to many different elements (drugs, combat zone, fighting on a daily basis) and where he was expected to survive in an environment far from what he was accustomed. He alleged that he was wounded physically and emotionally by the experience. When he returned to civilian life, he had problems coping with everyday affairs. He reported continuing flashbacks of his military life including "the horrors of trauma from the war effort." He also reported problems sleeping, chronic headaches, chronic depression, being moody, and having physical discomforts. Addendum (January 31, 2012). In September 2012, a private psychiatrist diagnosed the Veteran with PTSD with depression and anxiety, which he related to the Veteran's military service. However, he did not discuss any of the Veteran's alleged stressors, stating only that the Veteran was stationed in an area where conflict was frequent and the Veteran "was exposed to the traumas and tragedies of war." Report of Dr. J.L. (September 21, 2012). Based on the all the above evidence, the Board concludes that entitlement to an acquired psychiatric disability must be denied. There is no medical evidence of any acquired psychiatric disability in service or for approximately forty years after separation from service. While the Veteran has claimed that he has suffered from psychiatric problems since his discharge, his claims are not supported by the available medical records. The earliest available records from Advocate Health Center from 2003 and these records are negative for any complaints of or treatment for an acquired psychiatric disability. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). Additionally, although the Veteran testified at his Travel Board hearing that he began suffering from anxiety and depression after his deployment in Vietnam and that he had been treated since that time, he told the October 2011 VA examiner that he only began receiving treatment ten to fifteen years ago. The Veteran has also provided conflicting information regarding the nature of his symptoms. In October 2011, he denied any direct combat experience or current PTSD symptoms; however, by January 2012, he was claiming that he suffered from the effects of combat trauma. In light of this, the Board finds that the Veteran cannot be considered a credible historian. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Statements from the Veteran's family, friends, and co-workers offer evidence that the Veteran manifested symptoms of an acquired psychiatric disability after separation from service; however, the cause of this disability is unclear. There is evidence that the Veteran engaged in the abuse of alcohol and drugs and it is unclear whether the Veteran's abuse was due to an underlying disability or whether his symptoms were secondary to the substance abuse. In October 2011, a VA attending psychiatrist suggested that the Veteran's current mood disorder may be due to his substance abuse. Significantly, the Board notes that the October 2011 VA examiner reviewed the Veteran's claims file, including lay statements from the Veteran and his family and friends and concluded that the Veteran did not suffer from an acquired psychiatric disability that is related to service. While the examiner relied on the absence of any diagnosis or treatment for an acquired psychiatric disability for forty years after service, he also considered the absence of any evidence of any specific details of traumatic or stressful events in service which could have caused his present symptoms. The Board has also considered the private medical opinion, but finds that it has limited probative value. While Dr. J.L. diagnoses the Veteran with PTSD, he provides no rationale for this finding other than to state that the Veteran's served in a "significant battle area" and "was exposed to the traumas and tragedies of war." He spends a significant portion of his report making generalized statements about the experiences of Vietnam veterans, rather than discussing the specific circumstances of the Veteran's service and how it relates to his current psychiatric disability. He also erroneously stated that he is not required to discuss the Veteran's specific stressors (apparently in reference to the liberalized regulation). However, the Board notes that for the revised PTSD regulations to apply, the diagnosis of PTSD must be made by a VA psychiatrist or psychologist or a psychiatrist or psychologist contracted by VA. Dr. J.L., a private practitioner, does not meet this criterion. Thus, as there is no evidence that the Veteran engaged in combat with the enemy, any in-service stressors must be corroborated. The mere fact that the Veteran served in a combat zone is not sufficient basis to grant entitlement to service connection for an acquired psychiatric disability, to include PTSD. The Veteran's available personnel records do not support a finding that the Veteran was involved in direct combat and he has provided nonspecific information concerning the nature of his service. The fact that the Veteran has not provided any detail about his military service and what circumstances purportedly caused his current psychiatric symptoms undermines his claim. In light of the above, the Board gives greater weight to other evidence, in particular the opinion of the October 2011 VA examiner, and concludes that the preponderance of the evidence is against the Veteran's claim for an acquired psychiatric disability, to include PTSD. Entitlement to service connection for an acquired psychiatric disability is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Board notes that VCAA notice requirements have been satisfied by virtue of letters sent to the Veteran in December 2006, April 2008, April 2010, and June 2010. Collectively, these letters informed him of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. The Veteran has also been advised as to how disability ratings and effective dates are assigned. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims folder contains service treatment records, VA medical evidence, private medical evidence, and lay statements. As indicated, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge in April 2011. In this regard, the Board notes that in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that there are two duties imposed by 38 C.F.R. § 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked are not impacted by the Veteran's receipt of letter that complies with VA's duty to notify. In this case, during the Board hearing, testimony was elicited regarding the elements that were lacking to substantiate the claim and the Veteran and his representative demonstrated actual knowledge of this information. The representative's questions specifically elicited responses designed to show that the Veteran's understood the criteria necessary to substantiate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim). Further, a review of the record also reveals no assertion, by the Veteran or his representative, that VA or the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Board observes that the Veteran identified treatment at the Hines VA Medical Center from March to December 1971. The RO attempted to secure any such records, however, none were located. Correspondence dated in June 2010 from the RO indicates that it has been unable to obtain the claimed records and noted that any further requests on its part would be futile. The RO asked that the Veteran send the records if he has them or send additional information if he knows the whereabouts of the records. The actual records or any additional information have not been forthcoming and as such the Board also finds that additional requests would be futile. The Veteran also identified treatment from Mt. Sinai, Martha Washington, and St. Ann's Hospital. The RO, in its April 2008 letter, asked that the Veteran complete the enclosed VA Forms 21-4142 so that VA can request the records. However, the claims folder does not contain any completed forms for the identified private facilities. Moreover, according to the April 2011 hearing transcript, the Veteran had planned to obtain some of the private treatment records along with some lay evidence after the hearing. Although additional evidence in the form of lay statements was thereafter received, neither the private medical evidence nor a completed VA Form 21-4142 was received. The Court has held that the "duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, the Board finds that any further attempts to secure any additional records from these private facilities would be futile. The Veteran was afforded a VA examination of his acquired psychiatric disability in October 2011, and the examiner also issued an August 2012 addendum after reviewing additional relevant evidence. The examination is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for an acquired psychiatric disability is denied. REMAND The Veteran is also seeking entitlement to service connection for a prostate disability or other genitourinary disability, to include as due to herbicide exposure, as well entitlement to service connection for a skin disability, claimed as skin irritation and cysts. As noted above, the Board previously denied entitlement to service connection for a prostate disability, a urinary disability other than a prostate disability, and a skin disability. In July 2012, the United States Court of Appeals for Veterans Claims (Court) remanded these matters pursuant to a Joint Motion for Remand (JMR) of the parties. The Court found that the Board had not adequately addressed the credibility of the Veteran's lay statements and appeared to attribute weight to the absence of evidence, rather than substantive negative evidence. Service Connection Claim for a Prostate Disability and a Disability Otherwise Productive of Urinary Problems The record shows current diagnoses of benign prostatic hypertrophy, prostatitis, urinary tract infections, and hematuria. The Veteran maintains that he has a prostate disability and/or a disability otherwise productive of urinary problems that is related to his active service, to include his service in Vietnam. Service in Vietnam is undisputed, as the Veteran's service personnel records show that he served in the Republic of Vietnam from May 1970 to March 1971. Therefore, he is entitled to a presumption of exposure to herbicide agents. However, although exposure to herbicides during service is conceded, the Board notes that the Veteran's current prostate and urinary diagnoses are not disabilities which are recognized by the Secretary as warranting a presumption of service connection. 38 C.F.R. § 3.309(e). The Board acknowledges that presumptive service connection is warranted for prostate cancer; however such a diagnosis is not shown in the record. VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined a presumption of service connection is warranted. 61 Fed. Reg. 41,446 (1996); 59 Fed. Reg. 341 -46 (1994). However, an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). Accordingly, the Board must consider whether service connection for a prostate disability and/or a disability otherwise productive of urinary problems is warranted on a direct basis. In this regard, there is no medical evidence of prostate or urinary treatment, diagnoses, or complaints during service or for many years thereafter. In fact, a history of prostatitis and benign prostatic hypertrophy are not shown in the record until 2003, more than three decades since service discharge. Moreover, a urinary tract infection is not shown in the record until 2006. However, the Veteran has argued that although copies of the relevant medical records are not of record, he in fact received treatment for his genitourinary disability earlier than 2003. At his April 2011 Travel Board hearing, the Veteran testified that he started having problems with urinary frequency while on active duty. See Hearing Transcript at 21 (April 21, 2011). The Board notes that at an October 2006 Agent Orange examination, the Veteran appears to contradict his later Travel Board testimony, reporting benign prostatic hypertrophy for the past five years only, placing onset of his disability approximately thirty years after service. See VA Agent Orange Program Note (October 11, 2006). Nevertheless, in light of the Veteran's competent testimony that he had symptoms of a genitourinary disability in service, the Board finds that the issues of entitlement to service connection for a prostate disability and entitlement to service connection for a urinary disability other than prostate disability should be remanded to afford the Veteran a VA examination and obtain a VA medical opinion to determine the etiology of the Veteran's disability. Service Connection Claim for a Skin Disability The Veteran also seeks service connection for a skin disability. The record confirms treatment of recurrent facial rashes, variously diagnosed as folliculitis, furuncles, and cystic acne. As previously noted, exposure to herbicides during service has been conceded based on the Veteran's service in Vietnam during the Vietnam Era. However, the Veteran has not been diagnosed with a skin disability that is afforded the presumption of service connection based on herbicide exposure, specifically, chloracne or porphyria cutanea tarda. Accordingly, service connection for a skin disability presumed as secondary to in-service herbicide exposure is not warranted. Moreover, the Board notes that there is no medical evidence of skin treatment, diagnoses, or complaints during service. The Veteran's skin complaints and treatment for rashes, folliculitis, and cysts are not seen in the record until 2004, many decades after service discharge. However, the Veteran has testified that he first noticed cysts "in the early 70s" and that he finally sought medical treatment to have one removed, "it might have been like '75." See Hearing Transcript at 30 (April 21, 2011). At an October 2006 Agent Orange examination, the Veteran told the examining physician that he had had a rash on his face "for the past 15 years." See VA Agent Orange Program Note. In light of the Veteran's competent lay testimony of in-service skin problems, the issue of entitlement to service connection for a skin disability is remanded to afford the Veteran a VA examination and obtain a VA medical opinion. Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the Veteran for a VA examination of his prostate or other genitourinary disabilities. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. The VA examiner is asked to a) diagnose all the Veteran's current prostate and genitourinary disabilities and b) render an opinion as to whether it is at least as likely as not (fifty percent or greater) that the Veteran's prostate disability or a urinary disability other than a prostate disability had onset in service or was caused by the Veteran's active military service, to include exposure to Agent Orange or other herbicides. A rationale for the examiner's opinion should be provided. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. The examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of his disability. All findings should be described in detail and all necessary diagnostic testing performed. 2. The RO should schedule the Veteran for a VA dermatology examination. The examiner should note any functional impairment caused by the Veteran's skin disability, including a full description of the effects of his disability upon his ordinary activities, if any. The VA examiner is asked to a) diagnose all the Veteran's current skin disabilities and b) render an opinion as to whether it is at least as likely as not (fifty percent or greater) that the Veteran's skin disability had onset in service or was caused by the Veteran's active military service, to include exposure to Agent Orange or other herbicides. A rationale for the examiner's opinion should be provided. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. The examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of his disability. All findings should be described in detail and all necessary diagnostic testing performed. 3. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs