Citation Nr: 1648205 Decision Date: 12/28/16 Archive Date: 01/06/17 DOCKET NO. 12-08 549 ) 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, to include posttraumatic stress disorder. 2. Entitlement to service connection for an ear condition. 3. Entitlement to service connection for a knee condition. 4. Entitlement to service connection for a prostate condition. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1970 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran was scheduled for a hearing in connection with his appeal in October 2016. However, he failed to report for such hearing, and his hearing requested is deemed withdrawn. In accordance with Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009), the Board has expanded the issue of entitlement to service connection for PTSD to include any acquired psychiatric disorder, as private medical records have noted depression and anxiety. Additionally, the Board has expanded the originally claimed ear infection to include an ear condition. The issues of entitlement to service connection for hypertension and erectile dysfunction, as well as a claim to reopen a service connection claim for a skin rash have been raised by the record in April 2013 and October 2011 statements, respectively, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND As a preliminary matter, the Board finds that remand is necessary in order to attempt to obtain both VA and private treatment records with respect to all issues, as referenced by the Veteran in statements submitted subsequent to the September 2010 rating decision on appeal. Specific to the Veteran's service connection claim for PTSD, which the Board has expanded to include acquired psychiatric conditions, a new psychiatric examination is necessary in order to determine if the Veteran has a current psychiatric disability. Previously the Veteran attended an August 2010 VA examination, in which the examiner determined that the Veteran did not meet the diagnostic criteria for PTSD or any other psychiatric condition. The examiner noted the Veteran's in-service stressor, however determined that current symptoms did meet the necessary diagnostic criteria. The examiner failed to reconcile her diagnostic findings with private treatment records noting depression and anxiety. Since the August 2010 examination the Veteran has continued to assert that he suffers from a current psychiatric condition, to include manifestations of panic attacks in an April 2013 statement. The Board finds that a new VA psychiatric examination is necessary in order to clarify whether the Veteran has a currently diagnosed psychiatric condition and reconcile any diagnostic findings with private treatment records. Regarding the Veteran's service connection claims for ear and knee conditions, the Veteran has not been clear on which ear he is claiming service connection. Service treatment records document treatment for bilateral otitis externa in February 1971. In his October 2010 notice of disagreement, the Veteran indicated that he was claiming service connection for his left knee. However, in June 1970 he was treated for a right knee bruise. The Board notes that he has not been afforded a VA examination. Here, the Board finds that the evidence is sufficient to warrant VA examinations and corresponding opinions. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (provides an analysis of when an examination is required). There is no indication in service treatment records of a prostate condition or relevant treatment. However, personnel records indicate that the Veteran served within the Republic of Vietnam and as a result herbicide exposure is conceded. Prostate cancer is a presumptive condition for herbicide exposure under 38 C.F.R. § 3.309(e). There is no documentation of diagnosed prostate cancer and an August 2010 Agent Orange examination notes that a biopsy six months prior did not identify cancer. However, the Veteran continues to assert that he has a prostate condition. As a result, the Board finds that an examination is warranted in order to determine if the Veteran has a current prostate condition, and if he has a prostate condition other that cancer, an opinion as to etiology of the condition is necessary. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any other relevant treatment that he is receiving and request that he forward any additional records to VA to associate with the claims file or provide VA with authorization to obtain such records. If the Veteran is receiving regular VA treatment, obtain the updated medical records and associate them with the claims file, this includes treatment at a VAMC, Vet Center, or out-patient clinic. 2. Thereafter, schedule the Veteran for a VA psychiatric examination with an examiner of appropriate expertise. All appropriate tests and studies should be performed and all clinical findings reported in detail. The claims file and a copy of this remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the report. Based on a review of the claims file and the clinical findings of the examination, the VA examiner is requested to: a) Identify any current psychiatric diagnoses. If the Veteran currently does not meet the criteria for any psychiatric disorder, the examiner should address whether he met the criteria at any time since he filed his claim in October 2009. The examiner is asked to address the private medical records noting depression and anxiety. b) If the Veteran is diagnosed with PTSD specifically, the examiner should then offer an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's reported stressors are adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to those reported stressors. c) If the Veteran is diagnosed with a psychiatric disorder other than PTSD, then the examiner should specifically offer an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the diagnosed psychiatric disorder was sustained during service, or, is etiologically related to an injury or illness sustained by the Veteran during his active duty service, to include his service in Vietnam. A complete rationale for any opinion expressed should be provided in a report. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. After the development in #1 has been completed, schedule the Veteran for appropriate VA examinations to determine the nature and etiology of any diagnosed ear or knee disability. The claims file and a copy of this remand must be made available to and be reviewed by the examiner in conjunction with the examination. Any evaluations, studies, or tests deemed necessary by the examiner should be performed and any such results must be included in the examination report. Based on a review of the record, the examiner(s) is asked to provide a medical opinion as to the following: a) As to any ear disability identified, provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the disability is causally or etiologically related to the Veteran's period of active service. b) As to any knee disability identified, provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the disability is causally or etiologically related to the Veteran's period of active service. The examiner(s) should specifically address any relevant service treatment records, private medical records, or other potentially relevant medical or lay evidence, to include the June 1970 notation of a bruised right knee and February 1971 finding of bilateral otitis externa. A complete rationale for any opinion expressed should be provided in a report. If the examiner is unable to reach an opinion without resort to speculation, she or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. After the development in #1 has been completed, schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed prostate disability. The claims file and a copy of this remand must be made available to and be reviewed by the examiner in conjunction with the examination. Any evaluations, studies, or tests deemed necessary by the examiner should be performed and any such results must be included in the examination report. Based on a review of the record, the examiner is asked to provide a medical opinion as to the following: a) State whether the Veteran has a current diagnosis of prostate cancer. b) As to any other prostate disability identified, provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the disability is causally or etiologically related to the Veteran's period of active service, to include the Veteran's presumed exposure to Agent Orange. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence, or information would be useful in rendering an opinion. 5. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. 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). These claims 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 2014). _________________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).