Citation Nr: 1333797 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 07-33 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder other than post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for skin cancer, to include as a result of herbicide exposure. 4. Entitlement to service connection for a growth on the left foot. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2005 and May 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned at a June 2010 Travel Board hearing. A transcript of that hearing is of record. In December 2010, the Board denied a claim of entitlement to service connection for PTSD and remanded the remaining issues for additional development. The claims have been returned to the Board for further appellate review. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The issues of entitlement to service connection for bilateral hearing loss, skin cancer and a growth on the left foot 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 The Veteran's anxiety disorder is as likely as not attributable to traumatic events during his military service. CONCLUSION OF LAW The Veteran's currently diagnosed anxiety disorder was incurred in military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Because the claim for entitlement to service connection for an acquired psychiatric disorder is being granted, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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 order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). The Board has reviewed all the evidence in the appellant's claims file. The Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As noted in the introduction, in December 2010, the Board denied the Veteran's claim for service connection for PTSD but remanded a claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD for further development. The RO has undertaken that development and the issue is now before the Board for appellate consideration. The Veteran contends that he currently suffers from a psychiatric disorder (other than PTSD) related to his active duty service in Vietnam. Specifically, he reports that he was in the Field Artillery while he was in Vietnam, and he was under constant rocket and mortar attacks. He stated that he never knew when or where the rounds would come from and hit his base camp. He stated that one round killed several members of his unit and that he had helped to remove the bodies. His military personnel records indicate that he served in Vietnam from December 10, 1967 to December 11, 1968. It is also reported that his military occupational specialty was cannoneer. The Veteran's DD Form 214 reflects that he was awarded the Vietnam Service Medal with 4 Bronze Service Stars, the Republic of Vietnam Campaign Medal, and the National Defense Service Medal. Of record is a certification memo from the U.S. Army and Joint Services Records Research Center (JSRRC) coordinator dated in October 2008. It was noted that the personnel records showed that the Veteran participated in Counter Offensive Phases III, IV, and V. He also participated in the Tet Offensive 1968 as well as an unnamed campaign. It was further noted that, review of the official website for research of Vietnam Operations during the time of the Veteran's assignment to Vietnam shows that the 1st Infantry Division and subordinate units were involved in numerous operations against the enemy to include firing upon enemy positions with field artillery. All operating locations within the division's area of responsibility reported receiving incoming enemy fire during this period. The JSRRC coordinator stated that, based on this evidence, when the Veteran was assigned to this unit, he not only came under attack by enemy forces, he also performed duties as a cannoneer. Based upon the foregoing, the JSRRC coordinator concluded that the Veteran's stressor statements were corroborated. The Veteran was afforded a VA examination in October 2008. He reported having had combat experiences while in Vietnam. He also reported having intrusive recollections, difficulty sleeping, hypervigilance and exaggerated startle response. The examiner reported the following diagnoses: adjustment disorder with anxiety and depression. The examiner, however, did not opine whether any of these diagnoses were related to service. At the June 2010 Board hearing, the Veteran described some stressful events that occurred during his period of active duty in Vietnam. He reported suffering from recurrent nightmares, flashbacks and outbursts of anger. In December 2010, the Board remanded the claim for further VA examination and opinion. The Veteran underwent a VA examination in April 2011. Following a review of the Veteran's claims folder and a mental evaluation, the examiner provided a diagnosis of anxiety disorder NOS. The examiner concluded that the Veteran's anxiety disorder NOS is considered at least partially related to military service, as the Veteran reported some anxiety symptoms in relation to his experiences in combat. The examiner also noted that Veteran was under significant psychosocial stress which was also likely contributing to anxiety disorder symptoms. The Board finds that the March 2011 VA examiner's statement that the Veteran's anxiety disorder is at least partially the result of his combat experiences in Vietnam places the evidence in equipoise with regard to whether any part of the Veteran's anxiety disorder is related to his active duty service. As such, the Board finds that the Veteran's claim for service connection for anxiety disorder must be granted. Resolving reasonable doubt in favor of the Veteran, the Board finds that the currently diagnosed anxiety disorder was incurred during the period of active service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for anxiety disorder is granted. REMAND The Veteran also seeks entitlement to service connection for bilateral hearing loss, skin cancer and a growth on the left foot. Unfortunately, the Board finds that these claims on appeal must again be remanded for further development. A remand by the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. Bilateral Hearing Loss The Veteran has a current diagnosis of bilateral sensorinueral hearing loss. He reports significant artillery and combat related noise exposure. A November 2008 VA examination report reveals that the examiner opined that the Veteran's military noise exposure has not had an effect on his hearing loss. However, the examiner also stated that the record indicates significant noise history both during and post service; and that the Veteran was in combat. In its December 2010 remand, the Board noted that the examiner's opinion was not only contradictory but was also based on the lack of evidence demonstrating hearing loss in the service treatment records. The Board noted that the mere fact that hearing loss was not demonstrated during active duty is not fatal to the Veteran's claim. Service connection for a current hearing disability is not precluded where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); 38 C.F.R. §§ 3.303(d), 3.385 (2013). Thus, the claim was remanded for further VA examination and opinion. In response to the Board's December 2010 remand, a VA examination was conducted in March 2011. Unfortunately, the same examiner once again concluded that the Veteran's hearing loss is not a result of military exposure based on the lack of evidence demonstrating hearing loss in the service treatment records. Therefore, further clarification is warranted. Specifically, a VA examiner should determine whether the Veteran's current bilateral hearing loss is the result of conceded acoustic trauma sustained in service. Skin Cancer and Growth on Left Foot The Veteran essentially contends that his many skin conditions are related to his period of active duty in Vietnam, to include herbicide exposure. Post-service medical records document various diagnoses of skin disorders, including seborrhea keratosis behind the right ear, and squamous cell carcinoma. The Board remanded the claim in December 2010 for VA examination and opinion. Thereafter, a VA examination was conducted in March 2011. The examiner provided a diagnosis of squamous cell carcinoma of the left foot, left eyebrow and occiput of the scalp, all status post excisions with no recurrence. The examiner concluded that that the Veteran's Agent Orange exposure is less likely than not related to the three areas of squamous cell carcinoma as the medical literature does not reveal any recognized association between skin cancer and such exposure. The examiner, however, failed to address the question of direct service connection, as it had been specified in the December 2010 Board remand. In this regard, the March 2011 examination report reveals that the Veteran reported sun exposure in Vietnam and that he often did not wear a shirt when he went out. The examiner noted that the Veteran was predisposed to skin cancer in sun exposed areas due to his blue eyes and fair skin but did not provide any further comment. Based on the foregoing, the Board finds that a remand is necessary for clarification of the VA examiner's opinion. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claims folder to a VA audiologist who has not previously examined him for a clarifying opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has contended that he had noise exposure in service. In particular, the evidence establishes significant artillery and combat related noise exposure. The examiner should state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's current bilateral hearing loss is causally or etiologically related to his military service, including noise exposure. The examiner is asked to provide an explanation for all conclusions reached based on medical principles and the medical and lay evidence of record. 2. Provide the claims folder to the VA examiner who provided the VA skin examination in March 2011 for clarification. The examiner should clearly identify all current skin disabilities. With respect to each such diagnosed disability, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service, to include in-service sun exposure. In rendering the requested opinion, the examiner should specifically consider the in-service and post-service medical records, as well as the Veteran's lay assertions. The examiner is asked to provide an explanation for all conclusions reached based on medical principles and the medical and lay evidence of record. 3. After the development requested has been completed, the RO must review the examination reports to ensure that they are in complete compliance with the directives of this Remand. If the reports are deficient in any manner, the RO must implement corrective procedures at once. 4. After completing the above action 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 the benefits sought on appeal remain denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. 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). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs