Citation Nr: 1339399 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 10-20 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for benign prostatic hypertrophy, to include as due to diabetes mellitus, type II disorder. 2. Entitlement to an initial disability rating in excess of 10 percent for bilateral foot onychomycosis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, 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 an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Boston, Massachusetts (RO). A May 2010 statement from the Veteran raises the issue of entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II disorder. As such, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran contends that his current benign prostatic hypertrophy (BPH) is the result of exposure to Agent Orange in Vietnam during active service coincident to his duties as an infantryman, in the United States Army. In the alternative, he contends that his BHP is due to his service-connected diabetes mellitus, type II disorder. Service personnel records demonstrate that the Veteran had service in the Republic of Vietnam during the Vietnam Era, to include participation in the Vietnam Counteroffensive Phase III, as well as the Tet Counter Offensive. In addition, the Veteran's DD Form 214 reflects that he served in the United States Army as a light weapons infantryman, and was the recipient of the Combat Infantryman Badge, the Vietnam Service Medal with two Bronze Service Stars, and the Republic of Vietnam Campaign Medal. As such, the Veteran is presumed to have been exposed to an herbicide agent during such service, as the record does not contain any affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2013). Service treatment records are negative for complaints, treatment, or a diagnosis of a prostate disorder, to include BPH. The post-service medical evidence of record, to include private treatment records dated in October 2006 through April 2009, demonstrate current diagnoses of BPH. Such diagnoses were noted during the course of treatment for diabetes mellitus, type II disorder. Further, the report of a June 2009 fee-based examination for erectile dysfunction includes the examiner's finding of residual sequelae from the "prostate problem, including urinary hesitancy." Therefore, the case must be remanded in order for the Veteran to be afforded a VA examination to determine whether any BPH found or previously diagnosed during the appeal period is related to active service, to include exposure to an herbicide agent, or is due to or aggravated by the service-connected diabetes mellitus, type II disorder. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the claim for an initial disability rating in excess of 10 percent for bilateral foot onychomycosis, the Board notes that the Veteran has not been afforded a VA examination. The Veteran, however, contends that he has experienced pain on a daily basis, as well as discoloration of his toes, and scaling. The Board finds that such statements suggest that the Veteran's bilateral foot disorder may have increased in severity since his most recent June 2009 private outpatient treatment. Consequently, the Veteran's claims file does not contain evidence wherein the present severity of the disorder is described. Thus, in order to comply with VA's duty to assist, the Board finds that a thorough and contemporaneous medical examination is necessary. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In addition, in his May 2010 substantive appeal, the Veteran indicated that he received ongoing treatment every two months for his bilateral foot onychomycosis disorder from R. M., D.P.M. at the Everett Care Center, located in Everett, Massachusetts. The most recent treatment record from the Center is dated in June 2009. Therefore, the RO must attempt to obtain records from the Center dated from June 2009 to the present and associated them with the record. 38 C.F.R. § 3.159(c)(1). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must attempt to obtain the Veteran's private treatment records from R. M., D.P.M. at the Everett Care Center dated from June 2009 to the present. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If the RO is unable to secure any of the identified records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded an appropriate VA examination to determine whether any currently or previously diagnosed BPH is related to his military service. The Veteran's claims file and all electronic records must be made available to the examiner, and the examiner must specify in the report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records. All pertinent symptomatology and findings must be reported in detail. All diagnostic tests and studies deemed necessary by the examiner must be accomplished. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether any BPH found or previously diagnosed is related to his military service, to include exposure to an herbicide agent, or to the service-connected diabetes mellitus, type II disorder. The examiner is instructed to accept as fact that the Veteran was exposed to an herbicide agent during his service in Vietnam. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The Veteran must be afforded an appropriate VA examination to determine the current severity of his service-connected bilateral foot onychomycosis. The Veteran's claims file and all electronic records must be made available to the examiner, and the examiner must specify in the report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records. All pertinent symptomatology and findings must be reported in detail. All diagnostic tests and studies deemed necessary by the examiner must be accomplished. The examiner must provide specific findings as to (a) The measurement of the percentage of the entire body affected by the skin disorder, including associated scarring or hyperpigmentation; (b) The measurement of the percentage of exposed areas affected by the skin disorder, including associated scarring or hyperpigmentation; (c) The need for systemic therapy such as corticosteroids or other immunosuppressive drugs, and, if there is such a need, the total duration required over the past 12 months; and (d) Whether there is extensive lesions or marked disfigurement associated with the service-connected skin disorder. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. The examination reports must be reviewed to ensure that they are in complete compliance with the directives of this remand. If either report is deficient in any manner, the RO must implement corrective procedures. 6. After completing the above actions, the RO must readjudicate the Veteran's claims, taking into consideration any and all evidence that has been added to the record since its last adjudicative action. If any benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).