Citation Nr: 18151438 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 16-23 029 DATE: November 20, 2018 REMANDED Entitlement to service connection for a psychiatric disability, to include as secondary to service-connected disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for degenerative disc disease of the lumbar spine is remanded. Entitlement to service connection for degenerative joint disease of the left hip is remanded. Entitlement to a compensable rating prior to March 19, 2012, and in excess of 10 percent on and after March 19, 2012, for herpes simplex is remanded. Whether the reduction in rating from 100 percent to 20 percent, effective December 1, 2014, for prostate cancer is proper is remanded. INTRODUCTION The Veteran served on active duty from July 1961 to May 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2012, September 2014, and December 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO). In September 2018, the Veteran filed a motion to advance his case based upon serious illness. The Board grants this motion, and this appeal is hereby advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2017). 38 U.S.C. § 7107 (a)(2) (2012). Preliminarily, the Board observes that the Veteran submitted claims of entitlement to service connection for disabilities of the herpes simplex, lumbar spine, left shoulder, and left hip in June 1982. For unknown reasons, these claims were not adjudicated until September 2012, after which the Veteran timely perfected an appeal. Accordingly, the appeal period for these claims is on and after the date the claims were received by VA (i.e., June 8, 1982). REASONS FOR REMAND Psychiatric In a December 2015 rating decision, the Veteran’s claim of entitlement to service connection for a psychiatric disability was denied. Thereafter, he submitted a notice of disagreement in May 2016. To date, a statement of the case has not been provided to the Veteran. Consequently, a remand is required in order for the Agency of Original Jurisdiction to issue a statement of the case and to provide the Veteran an opportunity to perfect an appeal. See Manlicon v. West, 12 Vet. App. 238 (1999). Left Shoulder, Left Hip, and Lumbar Spine The Veteran was provided a VA examination in August 2012, in order to ascertain the presence and nature of any left shoulder, left hip, and lumbar spine disability. If any found, the examiner was asked to provide an opinion as to the etiological relationship between each such disability and the Veteran’s active duty. Ultimately, the examiner rendered diagnoses of current left shoulder, left hip, and lumbar spine disabilities, but provided negative etiological opinions for each. These negative opinions were at least partly based on a long period of time separating the Veteran’s active duty and his “first” post-service diagnosis. However, the examiner failed to discuss that the Veteran submitted the claims in June 1982, one month after his discharge from active duty, and that VA failed to develop or consider these claims for decades after they were received. Further, given the VA’s failure to timely consider the Veteran’s claims, evidence contemporaneous to his claims has since been destroyed (albeit in accordance with the applicable law), leaving only the Veteran’s recollections for review. However, the examiner did not consider the Veteran’s assertions as to lay observable symptoms. Consequently, the Board finds that a remand is warranted in order to obtain a supplemental opinion. Herpes Simplex The applicable law concerning disabilities of the skin has recently changed, specifically in regard to the rating criteria under 38 C.F.R. § 4.118, Diagnostic Code 7806, and the definition of “systemic therapy such as corticosteroids or other immunosuppressive drug.” See Burton v. Wilkie, 16-2037 (September 23, 2018). Based on the evidence of record, the Board is unable to ascertain whether and/or during what periods of time the Veteran was prescribed qualifying medication for his service-connected herpes simplex, especially given that this appeal period began in June 1982. As such, the Board finds that a remand is warranted in order to obtain a supplemental opinion. Prostate Cancer Reduction The evidence appears to indicate that the Veteran is a candidate for additional treatment for prostate cancer following his prostatectomy despite “undetectable” results from PSA testing. However, prior to deciding whether to undergo this additional treatment, the Veteran asserts that he should be afford a more accurate clinical test (AccuPSA versus the PSA). The Board is unable to ascertain from the evidence of record whether the AccuPSA test is necessary/appropriate in order for the Veteran to make the decision regarding the additional treatment. As such, a remand is warranted in order to obtain an opinion from a VA examiner. Alternatively, the Veteran asserts that the reduction to 20 percent (which was based on his voiding frequency), was not warranted and that a higher rating should have been assigned. As such, a remand is also warranted in order to ascertain the severity of his service-connected prostate cancer, status post-prostatectomy. The matters are REMANDED for the following action: 1. Obtain a supplemental opinion from a VA examiner. Make the Veteran’s electronic claims file available to and ensure that it is reviewed by the examiner. Request that the examiner provide opinions as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s current left shoulder, left hip, and/or lumbar spine disabilities were incurred in or due to his active duty. The examiner is also asked to opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any left shoulder, left hip, or lumbar spine arthritis was present within one year following the Veteran’s active duty. In addressing the above questions, the examiner is requested to specifically acknowledge and discuss the following: (a) the Veteran submitted these claims in June 1982, one month after his active duty; (b) allegedly pertinent evidence was destroyed or is otherwise unavailable due to VA’s prolonged delay in developing and adjudicating the Veteran’s claims; (c) the Veteran’s report of ongoing lay observable symptoms; and (d) the March 2017 report submitted by D.L., MD. A thorough rationale is required for any rendered opinion. If the examiner determines that a new examination is required, the AOJ must provide one to the Veteran. 2. Obtain a supplemental opinion from a VA examiner. Make the Veteran’s electronic claims file available to and ensure that it is reviewed by the examiner. In addition to assessing the current severity of the Veteran’s herpes simplex, the examiner is requested to respond to the following questions: Was the Veteran ever prescribed systemic therapy such as corticosteroids or other immunosuppressive drugs to treat his service-connected herpes simplex? If so, during what period on and after June 1982? In addressing this question, the examiner is asked to consider whether any topical treatment operated by affecting the Veteran’s body as a whole AND whether any systemic treatment is like a corticosteroid or other immunosuppressive drug (even if not actually either of those). A thorough rationale is required for any rendered opinion. If the examiner determines that a new examination is required, the AOJ must provide one to the Veteran 3. Schedule the Veteran for a VA examination with a urologist or oncologist to determine the current severity of his service-connected prostate cancer, post-prostatectomy. The Veteran’s electronic claims file must be made available to and reviewed by the specialist. The specialist must fully describe all manifestations of this disability. All necessary tests must be conducted, and all clinical findings must be reported in detail. Additionally, the specialist is requested to provide an opinion as to whether the Veteran is a candidate, or was a candidate for any period of time since December 1, 2014, for additional treatment, including, but not limited to, adjuvant radiotherapy and anticholinergic therapy. If so, is providing an AccuPSA test necessary, advisable, and/or medically appropriate before deciding whether to undergo the treatment for which the Veteran is a candidate? In addressing this question, the examiner is asked to consider and discuss the Veteran’s post-operative pathology report, including the surgical margins and extraprostatic extension, as well as the medical literature associated with the claims file and the Veteran’s assertions. A thorough rationale is required for any rendered opinion. 4. Once the above actions have been completed, the AOJ must adjudicate the claims of entitlement to service connection for left shoulder, left hip, and lumbar spine, as well as the increased rating claim for herpes simplex and the rating reduction regarding prostate cancer. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. 5. Adjudicate the issue of entitlement to service connection for a psychiatric disability, to include as secondary to service-connected disability. If the benefit sought is not granted, issue the Veteran a statement of the case and notice of his appellate rights. Inform the Veteran and his representative that to vest jurisdiction over this issue with the Board, a timely substantive appeal must be filed. If the Veteran perfects an appeal, it must be certified to the Board for appellate review. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel