Citation Nr: 1327168 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-04 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a prostate disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for hepatitis C. 5. Entitlement to service connection for a lumbar spine disorder. 6. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from January 1974 to January 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which, in pertinent part, denied the Veteran's claims for service connection for a prostate condition, a back condition, a left knee condition, hypertension, hepatitis C and hearing loss. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals the Informal Hearing Presentation submitted by the Veteran's representative in July 2013. VA treatment records dated through May 2013 have also been associated with the Virtual VA claims file; such records have not been considered by the agency of original jurisdiction (AOJ). In addition, subsequent to the issuance of the November 2009 statement of the case (SOC), the Veteran submitted additional evidence in support of his claims. The Veteran's representative waived initial RO consideration of any additional evidence received after the issuance of the SOC in its July 2013 Informal Hearing Presentation. See 38 C.F.R. § 20.1304 (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND With respect to the issues on appeal, the Board finds that a remand is necessary in order to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. §§ 5107(a), 5103A; 38 C.F.R. § 3.159(c). First, the Board also finds that a remand is necessary in order to obtain outstanding Social Security Administration (SSA) records. The Veteran reported that he received Social Security Disability Insurance (SSDI) benefits in a May 2013 VA treatment note. The basis of this award is not clear from the current record. The United States Court of Appeals for Veterans Claims has held that where there has been a determination with regard to Social Security benefits, the records concerning that decision must be obtained. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Therefore, such records should be obtained on remand. Pertaining to the Veteran's service connection claims, VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For the below noted reasons, the Board finds that a VA examination is necessary in order to determine the nature and etiology of the Veteran's claimed prostate disorder and hepatitis C. In this regard, the Veteran has alleged that his in-service genitourinary symptoms, including the diagnosis of prostatitis, have resulted in his current prostate disorder. Service treatment records document complaints related to urethral discharge and a diagnosis of gonorrhea in October 1974, an assessment of questionable urethritis in November 1975 and an impression of prostatitis in November 1975. An etiological opinion as to the Veteran's claimed prostate disorder has not yet been obtained. As such, he should be scheduled for a VA examination to determine the nature and etiology of his claimed prostate disorder. In addition, the Veteran has alleged contracting hepatitis C as a result of his in-service circumcision. The April 1976 service discharge examination notes a circumcision that was not noted on service entrance, although it is not clear from the treatment records when it was conducted. The Board notes that the Veteran reported the daily use of heroin while at sea during service and that he also engaged in intravenous drug use following service in a November 2009 VA treatment note. Furthermore, the Veteran's treatment for gonorrhea suggests unprotected sexual contact. To date, the Veteran has not been provided a VA examination addressing whether his current hepatitis C is due to his active military service, to include his in-service circumcision and sexual contact. Therefore, a remand is necessary so as to afford him such examination. Finally, due to the length of time which will elapse on remand, updated VA treatment records dated from May 2013 to the present from the Dallas VA Medical Center (VAMC) that are not already associated with the claims file should be obtained for consideration in the Veteran's appeals. In this regard, VA treatment records dated through May 2013 have been associated with the Veteran's Virtual VA file. Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records from the Dallas VAMC dated from May 2013 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained from SSA and associated with the claims file. All efforts to obtain these records should be documented in the claims file. If no such records are available, the Veteran should be so informed and also told of the efforts to obtain the records. 3. After obtaining any outstanding records, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his claimed prostate disorder. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. The examiner is asked to furnish an opinion with respect to the following questions: a) Identify all diagnoses related to the Veteran's prostate. The examiner should identify all such disorders that have been present at any time since December 2008. (b) For each diagnosed prostate disorder, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder is related to the Veteran's military service, to include the October 1974 complaints of urethral discharge and diagnosis of gonorrhea, the assessment of questionable urethritis in November 1975 and the impression of prostatitis in November 1975. The examiner should specifically consider the documented in-service complaints of urethral discharge in October 1974, the assessment of questionable urethritis in November 1975 and the impression of prostatitis in November 1975, as well as the Veteran's lay statements regarding his in-service injury. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. The rationale for any opinion offered should be provided. 4. After obtaining any outstanding records, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his hepatitis C. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hepatitis C is related to his military service, to include his in-service circumcision and sexual contact. The examiner should specifically consider the Veteran's contentions that he acquired hepatitis C as a result of his in-service circumcision or sexual contact. In addition, the examiner should consider the Veteran's documented post-service history of intravenous drug use as well as his reported daily in-service use of intravenous drugs and the positive October 1975 urinalysis screening. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. The rationale for any opinion offered should be provided. 5. After completing the above, 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 based on the entirety of the evidence. If the claims remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ T. MAINELLI 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) (2012).