Citation Nr: 1326593 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 10-44 107A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a skin disorder. 2. Entitlement to service connection for a neck disorder. 3. Entitlement to service connection for a kidney disorder. 4. Entitlement to service connection for a prostate disorder. 5. Entitlement to service connection for a left ankle disorder. 6. Entitlement to service connection for a right ankle disorder. 7. Entitlement to service connection for a lumbar spine disorder. 8. Entitlement to service connection for residuals of a right testicular injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Ames INTRODUCTION The Veteran served on active duty from September 1955 to August 1958. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office and Insurance Center in Philadelphia, Pennsylvania (RO). In this case, recent VA medical records were added to the Veteran's electronic Virtual VA folder. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks entitlement to service connection for disorders of the skin, neck, kidney, prostate, left ankle, right ankle, lumbar spine, and testicles. The Veteran's claims were previously denied on the basis that there was no evidence of record that the Veteran experienced the claimed disorders during service or that they were otherwise related to service. However, the evidence of record shows that the Veteran's service treatment records are unavailable and are presumed to have been destroyed in a fire at the National Personnel Records Center in July 1973. The Board therefore has a heightened obligation to consider carefully whether there is reasonable doubt to resolve in favor of the Veteran. 38 U.S.C.A. § 5107 (West 2002); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In response to information provided by the Veteran, VA obtained a large quantity of private medical records in December 2009. Among these records were copies of three pages of a Social Security Administration (SSA) disability decision which stated that the Veteran filed for SSA disability benefits in August 1988, claiming that he had been disabled since February 1988 as the result of constant back pain. The evidence of record does not show that VA has made any attempts to obtain these records. Accordingly, an attempt must be made to obtain the Veteran's SSA records. See 38 C.F.R. § 3.159(c)(2) (2013). The Board notes that the SSA decision also references multiple sources of medical treatment of which there is currently no evidence associated with the claims file. Specifically, the SSA decision states that the Veteran was hospitalized at Wilkes-Barre General Hospital from May 10, 1988, to May 17, 1988, for back symptoms. Additional relevant medical records were discussed from the Kelly and Kelly Physical Therapy Clinic from March 18, 1988, to June 3, 1988; Dr. A. M. C. on June 20, 1988; Dr. P. G. D. on September 24, 1988; Dr. D. L. on December 19, 1988; and Dr. A. F. D. on October 11, 1989. In an April 2013 hearing before the Board, the Veteran also reported that he'd been examined by a Dr. K. in conjunction with a Worker's Compensation claim. None of these records are currently associated with the claims file, and the evidence of record does not show that VA has made any attempts to obtain them. Accordingly, an attempt must be made to obtain these identified private treatment records. See 38 C.F.R. § 3.159(c)(1) (2013). The Veteran's statements are competent to report that he experienced an injury during military service that resulted in hospitalization, as well as the symptoms he experienced at that time. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 21 Vet. App. 191 (2007). There is no evidence of record which contradicts the Veteran's claims of an in-service injury which resulted in hospitalization, or his reported in-service symptomatology. As such, the Board finds the Veteran's reports of his in-service injury, and the nature of his contemporary symptoms, to be credible. As there is no evidence of record which contradicts the Veteran's reported in-service injury and symptomatology, and due to the loss of the Veteran's service medical records through no fault of his own, the Board finds that the Veteran's reports of his in-service injuries and symptoms must be accepted as stated. Furthermore, the post-service medical evidence of record includes diagnoses of neck, skin, and lumbar spine disorders. There is also post-service medical evidence documenting pain and swelling in the Veteran's bilateral ankles, as well as testicular discomfort. Although there is no medical evidence of a current kidney or prostate disorder, the Veteran reported that he was informed by a physician that he had an enlarged prostate and a kidney problem during active service. The Veteran has also reported that he has been told that he currently has chronic nephritis. The Board finds that the Veteran is competent and credible to report the diagnoses he was told in-service and after separation from service. Accordingly, there is competent and credible evidence of in-service injury, in-service symptomatology, and post-service diagnoses or relevant symptoms of the claimed disabilities. However, there is insufficient medical evidence of record as to the etiology of these disorders. The Board notes that a June 2013 letter from a VA physician stated that the Veteran had multiple "service related conditions" including disorders of the neck, back, testicles, legs, and skin. However, the examiner simply made a conclusory statement without giving any basis for the opinion expressed. As such, the June 2013 letter is not sufficient by itself to allow the Board to decide the claims. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); 38 C.F.R. § 3.159(c)(4) (2013). The Veteran has never been provided with a VA medical examination in connection with any of the claims on appeal. Accordingly, the evidence of record shows that the Veteran needs VA medical examination to determine the nature and etiology of any currently diagnosed disabilities which are related to his claims. 38 C.F.R. § 3.159(c)(4). Finally, in the April 2013 hearing before the Board, the Veteran claimed that during active service he was present at the site of a nuclear test. However, there is no evidence of record that the Veteran has ever had a diagnosis of a disease specific to radiation-exposed veterans or a radiogenic disease. 38 C.F.R. § 3.309(d); 3.311(b)(2) (2013). The Veteran also reported that no doctor or physician had ever suggested that any of his conditions were related to radiation exposure. Accordingly, additional development to determine whether the Veteran qualifies as a radiation-exposed veteran for VA purposes is not necessary. 38 C.F.R. § 3.309(d)(3)(i). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. The AMC must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. The AMC must request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated or examined him for skin, neck, kidney, prostate, left ankle, right ankle, lumbar spine, and testicle disorders, to specifically include all of the sources listed in the partial copy of the SSA decision and the April 2013 hearing transcript. An attempt must be made to obtain, with any necessary authorization from the Veteran, copies of pertinent treatment records identified by him in response to this request which have not been previously secured. Regardless of any response from the Veteran, the AMC must also contact the SSA and obtain copies of all medical and other records considered by SSA as part of any claim for benefits submitted by the Veteran. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts to obtain named records, such records cannot be obtained, the Veteran must be notified and (a) the specific records that cannot be obtained must be identified; (b) the efforts that were made to obtain those records must be explained; (c) any further action to be taken by VA with respect to the claims must be noted; and (d) the Veteran must be informed that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Schedule the Veteran for the appropriate VA examinations to ascertain the etiology of any currently diagnosed skin, neck, kidney, prostate, left ankle, right ankle, lumbar spine, and testicle disorders. The examiner must review the claims file and should note that review in the report. Based upon review of the available lay and medical evidence, the examiner must provide opinions as to whether it is at least as likely as not (50 percent or greater probability) that any disability found was incurred in or aggravated by the Veteran's period of service, to specifically include his reported in-service injury and symptoms. The examiner must also provide opinions as to whether it is at least as likely as not (50 percent or greater probability) that any disability found was caused or aggravated by a disability which was incurred in or aggravated by the Veteran's period of service. In providing the opinions, the examiner is specifically instructed to consider the Veteran's reports of the nature of his in-service injury and symptomatology to be credible unless the examiner can provide a clear rationale as to why the available medical evidence contradicts the Veteran's recollection of the in-service events. A complete rationale for all opinions must be provided. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. 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 paragraphs above, the Veteran's claims must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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). 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. 2012). _________________________________________________ JAMES RIDGWAY Acting 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) (2013).