Citation Nr: 18142069 Decision Date: 10/15/18 Archive Date: 10/12/18 DOCKET NO. 15-41 050A DATE: October 15, 2018 REMANDED Entitlement to service connection for a psychiatric disorder to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a skin disorder to include as due to herbicide exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1966 to January 1969, with service in the Republic of Vietnam from May 1967 to May 1968. He served in the United States Army. In October 2015, the Veteran submitted a VA Form 21-22, appointing Agent Stephen Vaughn of the Alpha Veterans Disability Advocates as his representative in this case. In a December 2016 Letter, after certification of the appeal to the Board, Mr. Vaughn submitted a written statement to the Oakland, California Regional Office (RO) requesting that he and Alpha Veterans Disability Advocates’ power of attorney be revoked for the Veteran. The letter did not give a reason for the revocation request. On August 22, 2018, a letter was sent to the Mr. Vaughn informing him that if he did not file a motion within 30 days of receipt of that letter, he would remain the Veteran’s representative. No such motion has been received. The Board finds a motion showing good cause for withdrawal was not submitted and the Board continues to recognize Stephen Vaughn as the Veteran’s accredited representative in this appeal. 38 C.F.R. § 20.608(b)(2) (2018). First, remand is required to obtain and associate with the claims file any outstanding private treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159(c) (2018). This includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). The Veteran has indicated that he receives treatment for his skin condition and had received a psychiatric consult from Kaiser Permanente. In November 2012 the Veteran completed an authorization for disclosure of these records. In December 2013, Kaiser Permanente responded and provided only the invoices for services. No treatment or medical records were provided, nor was there any documentation that those records were not available. Remand is necessary for the RO to make more attempts to obtain these outstanding treatment and medical records. Second, remand is required to attempt to obtain VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records. 38 C.F.R. § 3.159(c)(2). The RO should obtain any outstanding treatment records from the Fresno VA. In his November 2015 VA Form 9 Substantive Appeal, the Veteran indicated that he was diagnosed with PTSD at the Fresno VA approximately two years ago. These treatment records are not of record, nor has there been any attempts to obtain them. On remand, this must be done. Third, remand is necessary for new VA examinations. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 1. Entitlement to service connection for a psychiatric disorder to include PTSD. Here, the Veteran alleges that his psychiatric disorder was related to active service. In a January 2012 lay statement, the Veteran stated that he occasionally gets into a state of depression that surrounds him like a dark cloud, but that it did not happen enough to warrant medication. The Veteran also stated that he was involved in front line combat action in Vietnam, specifically in Kon Tum and Dac To (hamberger hill). A January 2014 VA examination was conducted. During the examination, the Veteran reported being traumatized by deployment because he never knew what was around the corner and experienced fearfulness and hyper-vigilance for much of the tour. He reported attacks by mortars and small arms fire, witnessed the deaths of soldiers by mortars and grenade launchers that blew a guy’s face off, was nearly killed by their Vietnamese allies in a bar at gunpoint, and collected and piled over 100 bodies of the opposition. Since service, the Veteran reported monthly nightmares of Vietnam, flashbacks and/or intrusive memories, avoidant behavior of people and crowds, and a lack of emotional attachment and investment with those outside of his family. No other symptoms of alterations in mood/cognitions were reported. The Veteran also described depression, loss of appetite, low energy, and depressed mood, but also good motivation, interest, and participation in life activities, including being able to derive pleasure from his hobbies and time with family. The examiner identified three potential military stressors, including Stressor 1: Veteran was exposed to daily mortar attacks – which is adequate to support PTSD because it is related to fear of hostile military or terrorist activity; Stressor 2: witnessed the deaths and mutilated bodies of US and VC soldiers, specifically a US soldier who lost his face to a grenade launcher - which is adequate to meet the criteria for PTSD because it is related to Veteran’s fear of hostile military or terrorist activity; and Stressor 3: attacked by grenades and small arms fire – which is adequate to meet the criteria for PTSD because it is related to fear of hostile military or hostile terrorist activity. Nevertheless, the examiner opined that the Veteran’s symptoms did not meet the criteria for PTSD. The examiner reasoned that the Veteran’s intrusive symptoms were not persistently experienced and that he denied symptoms of alterations in mood/cognition and arousal/reactivity. The examiner also opined that the nature and presentation of the Veteran’s depressive symptoms did not meet the criteria for a diagnosable mood disorder. The examiner also noted that the Veteran sought psychiatric consultation for possible medication 10 years but was not prescribed treatment, and that he had also recently sought medication from his primary care provider but was informed his symptoms did not warrant treatment. On the November 2015 VA Form 9, the Veteran alleged that he was diagnosed with PTSD in or around 2013 by the Fresno VA. Thus, the issue must be remanded because attempts to obtain those records are being undertaken. A new VA examination is also warranted to clarify. 2. Entitlement to service connection for a skin disorder to include as due to herbicide exposure. Here, the Veteran alleges that he has had a rash on both of his legs since May 1968 while he was in the Vietnam jungles on patrol, and has continued to have the rash on his legs since discharge from service. Specifically, the Veteran alleges that the rash was a result of exposure to Agent Orange. A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed during such service to Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f) (2018); 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.307(d) (2018). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309 (e) if manifested to a compensable degree within one year of the last date the Veteran was exposed to an herbicide agent during active service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6)(ii). Additionally, a Veteran may establish service connection based on exposure to Agent Orange with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). That is, if the claimed disease is not one of the presumptive diseases listed in 38 C.F.R. § 3.309 (e), but exposure to an herbicide is presumed, a Veteran may still establish service connection for the disease by (1) showing that the disease actually occurred in service; or (2) by submitting evidence of a nexus between the disease and his exposure to herbicides during military service. Combee, 34 F.3d at 1043-1044. A January 2014 VA examination was conducted. The Veteran had a diagnosis of lichen planus chronicus. The examiner noted that the Veteran had varicose veins which happened after service, and that he never wore any support hose. The examiner stated that due to varicose veins, the lichen planus chronicus – a form of eczema – had been refractory to treatment. The examiner concluded that the Veteran’s lichen planus chronicus and varicose veins were unrelated to service, reasoning that there was no skin condition mentioned on the February 1966 Separation Physical nor is varicose veins and lichen planus chronicus related to agent orange exposure according to a VA website. However, the examination report is inadequate because the examiner failed to address the Veteran’s description of his symptoms such as having a rash on both his legs in May 1968, during service. The examination report also incorrectly stated that the Separation Physical was conducted in February 1966; it was conducted in December 1968. Thus, remand for a new examination is warranted. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center(s) and obtain and associate with the claims file all outstanding records of treatment. A specific request should be made from the Fresno, California VA, for all records, per the information indicated on the Veteran’s Form 9 Substantive Appeal. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. A specific request should be made from Kaiser Permanente, specifically to include all treatment and medical records relating to any skin disorder and/or psychiatric disorder, to include a psychiatric consultation on or around 2004. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to assist in determining the nature and etiology of all psychiatric disorders to include PTSD. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit from the Veteran a full history and/or description of his active service. (a.) The examiner must identify all currently diagnosed psychiatric disorders, to include PTSD, if present. (b.) For each diagnosed non-PTSD psychiatric disorders, is it at least as likely as not (a probability of 50 percent or greater) that the disorder, had onset in, or is otherwise related to the Veteran’s active service, to include, but not limited to: 1) being traumatized by deployment; 2) never knowing what was around the corner; 3) feelings of fearfulness and hyper-vigilance; 4) attacks by mortars and small arms fire; 5) witnessing the deaths of soldiers by mortars and grenade launchers that blew a guy’s face off; 6) being nearly killed by their Vietnamese allies in a bar at gunpoint; and 7) collecting and piling over 100 bodies of the opposition? Specifically, the examiner must address 1) the stressors identified in the January 2014 VA examination report, and 2) the Veteran’s lay statements indicating that he was involved in front line combat action in Kon Tum and Dac To. (c.) If a diagnosis of PTSD is deemed appropriate, the examiner must also opine as to whether it is at least as likely as not (a probability of 50 percent or greater) that it had onset in, or is otherwise related to, an in-service stressor(s)? The examiner must consider and address: 1) being traumatized by deployment; 2) never knowing what was around the corner; 3) feelings of fearfulness and hyper-vigilance; 4) attacks by mortars and small arms fire; 5) witnessing the deaths of soldiers by mortars and grenade launchers that blew a guy’s face off; 6) being nearly killed by their Vietnamese allies in a bar at gunpoint; and 7) collecting and piling over 100 bodies of the opposition. Specifically, the examiner must address 1) the stressors identified in the January 2014 VA examination report, and 2) the Veteran’s lay statements indicating that he was involved in front line combat action in Kon Tum and Dac To. 4. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to assist in determining the etiology of all skin disorders to include as due to herbicide exposure. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit from the Veteran a full history and/or description of his symptoms. (a.) The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that each diagnosed skin disorder had onset in, or is otherwise related to active service, to include as due to herbicide exposure. The examiner must address 1) the Veteran’s June 2014 lay statement regarding having a rash since May 1968 during full patrol in Vietnam jungles, and 2) the January 2014 VA examination report. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2018). In the event that the Veteran does not report for any 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. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Nguyen, Associate Counsel