Citation Nr: 1336047 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-24 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for interstitial fibrosis, including as due to in-service asbestos exposure. 3. Entitlement to service connection for prostate cancer residuals, including as due to in-service chemical exposure. 4. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from July 1967 to April 1971 and from January to May 1991. He also had additional U.S. Naval Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the Veteran's claims of service connection for an acquired psychiatric disability, to include PTSD (which was characterized as anxiety (to include nervousness)), and for prostate cancer residuals, including as due to in-service chemical exposure (which was characterized as prostate cancer). This matter also is on appeal from a February 2011 rating decision in which the RO denied the Veteran's claims of service connection for bilateral hearing loss and for interstitial fibrosis, including as due to in-service asbestos exposure (which was characterized as bilateral interstitial pulmonary fibrosis (claimed as asbestosis and lung condition)). A Travel Board hearing was held at the RO in July 2013 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. 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 on his part. REMAND The Veteran contends that he incurred bilateral hearing loss, interstitial fibrosis, prostate cancer residuals, and an acquired psychiatric disability, to include PTSD, during active service. He specifically contends that his in-service duties onboard U.S.S. WASP (CVS-18) and U.S.S. JOHN F. KENNEDY (CVA-67) exposed him to significant acoustic trauma which caused his current bilateral hearing loss. He also contends that in-service asbestos exposure while onboard U.S.S. WASP (CVS-18) when it was in dry dock for a major overhaul caused his current interstitial fibrosis. He further contends that his current prostate cancer residuals were caused by in-service exposure to chemicals that he used as part of his in-service duties onboard ship. He finally contends that he experienced several in-service stressors which led to his current acquired psychiatric disability, to include PTSD. The Veteran's available service personnel records confirm that he served onboard U.S.S. WASP (CVS-18) and U.S.S. JOHN F. KENNEDY (CVA-67) during active service. Having reviewed the record evidence, the Board finds that additional development is necessary before the underlying claims can be adjudicated. The Veteran testified at his July 2013 hearing that there were additional VA and private treatment records which have not yet been obtained or associated with his claims file. He specifically testified that he recently had been diagnosed as having PTSD by a VA clinician. See Board hearing transcript dated July 11, 2013, at pp. 7. He also testified that he had been seen recently at a VA outpatient treatment clinic in Rock Hill, South Carolina, for treatment of an acquired psychiatric disability, to include PTSD. He testified further that he had been treated by a private provider that he identified as "Metrolina Medical." Id., at pp. 12, 14. A review of the Veteran's claims file and his Virtual VA claims file shows that the only VA outpatient treatment records on file are dated through January 2012. This review also shows that no records from "Metrolina Medical" have been obtained or associated with the Veteran's claims file. It is not clear from the Veteran's hearing testimony whether he has been treated either by VA or a private provider since January 2012 for any of his claimed disabilities other than an acquired psychiatric disability, to include PTSD. The Board notes in this regard that, in a rating decision issued in August 2013 and included in the Veteran's Virtual VA claims file, there are multiple private providers, to include "Metrolina Medical," identified in the "Evidence" section of the rating decision narrative whose records have not yet been obtained or associated with either the Veteran's claims file or his Virtual VA claims file. See Rating Decision dated August 9, 2013, at pp. 2. A review of the August 2013 rating decision indicates that multiple VA Form 21-4142's for multiple private providers, to include "Metrolina Medical," were received by the RO on March 13, 2012. Id. The status of these medical records release forms received in March 2012 is not clear from a review of the Veteran's Virtual VA claims file. It also is not clear whether the RO has requested any of these records or if updated release forms are needed from the Veteran. The Board also notes in this regard that, in the "Evidence" section of the August 2013 rating decision, the RO noted that these medical records release forms "require[] development as of this rating decision." Id. Thus, on remand, the RO either should attempt to obtain these records or request that the Veteran provide an updated VA Form 21-4142, if necessary, in order to attempt to obtain these records. The United States Court of Appeals for Veterans Claims (Court) has held that VA is on constructive notice of all documents generated by VA, even if the documents have not been made part of the record in a claim for benefits. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Thus, on remand, the Veteran's updated VA and private outpatient treatment records should be obtained. With respect to the Veteran's service connection claim for bilateral hearing loss, the Board notes that he testified in July 2013 that he had not been examined for hearing loss since a VA examination in 2010 when he was diagnosed as having normal hearing bilaterally. See Board hearing transcript dated July 11, 2013, at pp. 2-3. A review of the Veteran's claims file shows, however, that he was examined for bilateral hearing loss for VA purposes in January 2012. Following this examination, he was diagnosed as having high frequency hearing loss which is not considered a disability for VA compensation purposes. See generally 38 C.F.R. § 3.385 (2013). Again, because it is not clear whether there are additional outstanding VA and private treatment records which demonstrate the presence of bilateral hearing loss, this claim must be remanded in order for the RO/AMC to attempt to obtain the additional treatment records identified in the Veteran's hearing testimony. See Board hearing transcript dated July 11, 2013, at pp. 7. With respect to the Veteran's service connection claim for prostate cancer residuals, including as due to in-service chemical exposure, the Board notes that the Veteran has been diagnosed as having prostate cancer residuals which could be attributed to active service. A review of private treatment records currently associated with the Veteran's claims file indicates that his prostate cancer residuals include impotence (or erectile dysfunction) and urinary incontinence (per treatment records dated in 2007 and in 2009). The Board notes that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary. Given the Veteran's contentions, the Board finds that, on remand, he should be scheduled for appropriate VA examination to determine the nature and etiology of his prostate cancer residuals. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for bilateral hearing loss, interstitial fibrosis, prostate cancer residuals, or for an acquired psychiatric disability, to include PTSD, since his service separation. Obtain all VA treatment records which have not been obtained already, to include any records dated since January 2012. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already, to include any records for which a valid VA Form 21-4142 was received by the RO on March 13, 2012. If an updated VA Form 21-4142 is needed for any provider identified by the Veteran in March 2012, then ask him to provide it. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Schedule the Veteran for appropriate examination to determine the nature and etiology of his prostate cancer residuals. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible, to include his alleged in-service chemical exposure. The examiner is asked to identify any residuals of prostate cancer currently experienced by the Veteran, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that prostate cancer residuals, if diagnosed, are related to active service or any incident of such service. The examiner is asked to provide a separate etiological opinion for each of the prostate cancer residuals currently experienced by the Veteran, if diagnosed. The examiner is advised that the Veteran contends that his current prostate cancer residuals are related to active service, to include as due to in-service exposure to chemicals. 3. The Veteran should be given adequate notice of the requested examination which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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. 2013). _________________________________________________ WAYNE M. BRAEUER 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).