Citation Nr: 1340757 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-23 883 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for an innocently acquired psychotic disorder, to include depression. 2. Entitlement to service connection for the residuals of prostate cancer, claimed as secondary to in-service exposure to herbicides. 3. Entitlement to service connection for a skin disorder, claimed as secondary to in-service exposure to herbicides. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from February 1976 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision by the RO. The Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge in August 2012. A transcript of the hearing has been associated with the Veteran's VA claims folder. As will be discussed, the Board finds that additional relevant service personnel records have been received and the previously denied claim of service connection for an innocently acquired psychiatric disorder must be reconsidered pursuant to 38 C.F.R. § 3.156(c). The reconsidered claim of service connection for an innocently acquired psychiatric disorder, as well as the claims for service connection for residuals of prostate cancer and a skin condition, are being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. In an unappealed June 2003 rating decision, the RO confirmed and continued a previous denial of service connection for depression. 2. In February 2012, VA received relevant official service department records that had not been associated with the claims file when the claim for an acquired psychiatric disorder was decided in June 2003. CONCLUSION OF LAW The criteria for reconsideration of the claim for service connection for an innocently acquired psychiatric disorder have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(c) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Here, the Veteran filed a claim for an acquired psychiatric disorder that was denied by the RO in a May 2003 rating decision. Following the receipt of additional evidence, the RO confirmed and continued this denial in a June 2003 rating decision. In April 2009, the Veteran filed to reopen his previously denied claim of service connection for an innocently acquired psychiatric disorder. He subsequently submitted excerpts of his service personnel records that contained entries including that "his attitude ha[d] been totally negative and unresponsive to various types of counseling" and was demonstrating "serious disciplinary problems." Insofar as the relevant service personnel record existed and were not associated with the claims file when VA first decided the Veteran's claim in May 2003, and because these records are relevant to the Veteran's claim, the issue of service connection for an innocently acquired psychiatric disorder must be reconsidered. 38 C.F.R. § 3.156(c) (2013). ORDER The claim of service connection for an innocently acquired psychiatric disability must be reconsidered. REMAND For the following reasons, the Board finds that the issues of service connection for an innocently acquired psychiatric disorder, prostate cancer residuals, and a skin condition must be remanded to ensure that the Veteran is accorded full compliance with the statutory duty to assist. In a self-report of medical history completed during his enlistment, the Veteran indicated that he previously had nervous trouble and neuritis. (Neuritis is an "inflammation of the nerve." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1252 (30th ed. 2003)). A physician reviewing the Veteran's comments noted that the Veteran was hospitalized for neuritis at age 12, but did not address his complaints of prior nervous trouble. A physical examination conducted at the time of his enlistment included a psychiatric examination that found no abnormalities. Phrased differently, a psychiatric disorder was not noted at the time of the Veteran's enlistment. The service treatment records document that the Veteran was treated for situational depression in October 1977. At the time of his separation from service, the Veteran reported having had, or previously had, excessive worry and nervous trouble. He also reported that he was hospitalized for a nervous condition at the age of 14. A separation examination, however, found no psychiatric abnormalities. The Veteran's DD Form 214 documents that he lost 5 days during his active duty service, and he reports going AWOL due to stress from marital problems and depression. He has stated that these psychiatric problems ultimately led to his early discharge from active duty. While the record currently contains excerpts of the Veteran's service personnel records, it is possible that a complete set might shed more light on the Veteran's in-service depression. Under these circumstances, the Board believes that it is appropriate to obtain a complete set of the Veteran's service personnel records (if available) for his period of service. See Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) (VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.) These records could potentially also provide additional information on the Veteran's alleged in-service exposure to herbicides. As the service treatment records document that the Veteran was treated for situational depression, and he has a current diagnosed of depression (see an October 2010 VA treatment record), the Board finds that a VA examination is necessary. See McLendon v. Nicholson, 20 Vet.App. 79 (2006); Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2013). With respect to the Veteran's claims for service connection for a skin disorder, the record indicates that the Veteran received treatment while on active duty for a rash on his face and neck. He was diagnosed with pseudofolliculitis barbae. Currently, the Veteran has been diagnosed with chronic psoriasis. See an October 2010 VA treatment record. He has also submitted treatment records documenting treatment for a rash of unknown etiology and seborrheic dermatitis. Under these circumstances, the Veteran should be afforded a VA examination to determine whether the current skin disability had its clinical onset in service or is otherwise related to active duty. See McLendon, supra; Charles, supra; see also 38 C.F.R. § 3.159(c)(4). Finally, as the Veteran's claims are being remanded, any ongoing VA medical treatment records pertinent to issues on appeal should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and ask that he identify the names and addresses of all health care providers who have treated him for his prostate, skin and psychiatric disabilities since October 2010. The Board is particularly interested in any treatment the Veteran has received through the North Texas VA HealthCare system. The RO should attempt to obtain such records. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran's VA claims folder. The Veteran should also be notified that he may submit medical evidence or treatment records to support his claim. 2. The RO should take all indicated action to contact the National Personnel Records Center and/or any other appropriate repository of records, and request a complete copy of the Veteran's service personnel records. All efforts to obtain such records should be documented in the claims folder. 3. The RO then should have the Veteran scheduled for an appropriate VA examination to determine the nature and etiology of the claimed psychiatric disorder. The examiner should review the claims file and opine as to whether it is at least as likely as not (50 percent probability or greater) that any innocently acquired psychiatric disability had it clinical onset during service or otherwise is due to an event or incident of the Veteran's active duty. 4. The RO then should have the Veteran scheduled for an appropriate VA examination to determine the nature and etiology of any current skin disorder. The examiner should review the claims file and opine as to whether it is at least as likely as not (50 percent probability or greater) that any identified skin disability had its clinical onset during service or otherwise is due to an event or incident of the Veteran's active service. 5. After completing all indicated development, the RO should readjudicate the issues remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should provide the Veteran and his representative with a fully responsive SSOC and afford them a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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. The law requires that all claims that are remanded by the Board 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs