Citation Nr: 1753766 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 14-35 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for prostate cancer, to include as a result of radiation exposure. 3. Entitlement to an initial rating in excess of 10 percent for intestinal residuals of colon cancer, post-colectomy. 4. Entitlement to an initial compensable rating for scars, post-excision of basal cell carcinoma and post-colectomy. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel INTRODUCTION The Veteran had active military service from February 1946 to December 1947 and from September 1950 to August 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Jackson, Mississippi Regional Office (RO) of the Department of Veterans Affairs (VA). The Board has recharacterized the issues on appeal as above to better reflect the allegations made by the Veteran. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is entitled to service connection for prostate cancer as a result of exposure to ionizing radiation. Specifically, the Veteran alleges that exposure to ionizing radiation during Operation Crossroads caused his prostate cancer. The Veteran was previously denied service connection because it was found that the calculated dose of radiation for individuals participating in Operation Crossroads was too low to cause prostate cancer. When it is determined that a veteran was exposed to ionizing radiation as a result of participating in atmospheric testing of nuclear weapons and subsequently developed a radiogenic disease, such as prostate cancer, and that the prostate cancer became manifest five years or more after exposure, the matter shall be referred to the Under Secretary for Benefits for further consideration prior to adjudication. 38 C.F.R. §§ 3.311 (b)(1), (2)(xxiii), & (5)(iv). In this case, credible evidence that the Veteran was exposed to ionizing radiation during atmospheric nuclear weapon testing is contained within the record, including credible statements from the Veteran, service records, and dose estimates from competent authorities. Furthermore, medical evidence indicates that the Veteran was diagnosed with prostate cancer more than five years after exposure to ionizing radiation. Therefore, this matter was required to be referred to the Under Secretary for Benefits prior to adjudication. A review of the record before the Board does reveal a number of signed administrative opinions and worksheets signed by VA personnel, but it does not reveal a document unambiguously identified as an opinion by the Under Secretary for Benefits. Therefore, this matter must be remanded in order to refer this matter to the Under Secretary for Benefits. Also of issue, the September 2014 Statement of the Case listed VA treatment reports from the VA Medical Center in Dallas, Texas dated through October 24, 2013 as having been reviewed by the RO. The claims file does not include VA treatment reports, other than VA examinations, dated after July 2011. These missing VA treatment records may be relevant to the Veteran's claims and should be obtained before the Board can decide this appeal. Finally, at VA examinations in January 2011 and January 2013, the examiner opined that the Veteran did not meet the criteria for a PTSD diagnosis per the DSM-IV criteria. However, effective March 19, 2015, VA amended the portion of the Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replaced them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 80 Fed. Reg. 53, 14308 (March 19, 2015). The provisions of the final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. As the Veteran's case was not certified to the Board until December 2014, the DSM-V applies to his psychiatric disability claim. There is no VA examination addressing whether the Veteran meets the criteria for a PTSD diagnosis per the DSM-V criteria. Further, as the current 38 C.F.R. § 4.125 requires diagnoses to conform to the DSM-V and the criteria for a PTSD diagnosis in the DSM-IV and DSM-V are not identical nor substantially similar, a new VA examination is necessary to determine whether the Veteran, at any point during his lifetime, met the criteria for a diagnosis of PTSD using the DSM-V criteria. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Refer the claim for service connection for prostate cancer as a result of exposure to ionizing radiation to the Under Secretary for Benefits for review in compliance with 38 C.F.R. § 3.311 (c) & (e). 2. Obtain VA treatment records from July 2011 to the present, to include records from the VA Medical Center in Dallas, Texas. 3. Schedule the Veteran for a VA psychiatric examination with a VA psychiatrist or psychologist. The examiner should diagnose any acquired psychiatric disability, to include PTSD, using the DSM-V criteria. A) If PTSD pursuant to the DSM-V criteria is found, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or greater likelihood) that the PTSD was caused by the Veteran's military service. Why or why not? In doing so, the examiner should specifically address whether or not the claimed in-service stressors are sufficient to support a diagnosis of PTSD using the DSM-V criteria. The examiner should also identify what stressor(s) caused the PTSD. B) If an acquired psychiatric disorder other than PTSD is found pursuant to the DSM-V criteria, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or greater likelihood) that such disability either began during service or was otherwise caused by his military service. Why or why not? In answering the above questions, the examiner should specifically consider the Veteran's statements in support of his claim and his stressor statements. 4. Then, readjudicate the claim on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if in order. 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 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. §§ 5109B, 7112. _________________________________________________ MATTHEW W. BLACKWELDER 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) (2017).