Citation Nr: 1807876 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 15-40 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for neuropathy, to include as due to Agent Orange exposure and/or jungle rot. 2. Entitlement to service connection for a bilateral leg disorder, to include as due to Agent Orange exposure and/or jungle rot. 3. Entitlement to service connection for a skin disorder, to include as due to Agent Orange exposure and/or jungle rot. 4. Entitlement to service connection for a foot disorder, to include swelling of the feet, to include as due to Agent Orange exposure and/or jungle rot. 5. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD E. Kunju, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1967. He served in Vietnam from June 1966 to June 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that the scope of a claim for service connection for disability includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In accordance with Clemons, the Board has expanded the issue on appeal as service connection for an acquired psychiatric disorder as reflected on the title page. The issue of rectal bleeding as due to Agent Orange exposure has been raised by the record in a notation written by the Veteran on a March 2013 private treatment record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it. The Veteran is advised that if he wishes to file a claim for the referenced disorder, he should contact the RO, which should respond appropriately. 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 AOJ. VA will notify the Veteran if further action is required. REMAND The October 2015 statement of the case (SOC) listed outpatient treatment records from the Biloxi VA Medical Center (VAMC) from September 2004 through December 2013 as reviewed evidence. At a December 2013 VA examination, the Veteran reported that he was seen at two VAMCs located in Alabama, namely in Biloxi and Mobile. The VA examiner at that time noted review of certain mental health records from the VA; these records have not been associated with the claims file. Regarding private treatment records, the Veteran indicated on an April 2009 explanation of benefits that he was seen by Dr. H.H., a dermatologist in Mobile, Alabama, for swelling of the feet, legs, and skin rash. Records from Dr. H.H. are not on file. In light of the above, remand is warranted to obtain the missing records. Remand is also required to afford the Veteran VA examinations. He asserts that he has neuropathy, a bilateral leg disorder, a skin disorder, and foot disorder as a consequence of his service in Vietnam. In his February 2013 claim, the Veteran noted that he was claiming a disability related to Agent Orange or herbicide exposure. In his November 2015 substantive appeal, the Veteran stated that all his conditions were caused by jungle rot in Vietnam. In an undated correspondence, the Veteran stated that he was in pain every day, he cannot wear shoes because of swelling in his feet, and his legs and back itch constantly. At a December 2013 VA examination, the Veteran reported that he has a rash on his lower legs, back, and ankles, due to Agent Orange. Service treatment records (STRs) include a November 1966 diagnosis of tinea cruris and a May 1967 notation regarding a tongue rash. STRs also indicate complaints regarding his left knee. Given the above, the Board finds that VA's duty to obtain a medical examinations and opinions regarding these claims have been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (stipulating that VA's duty to assist veterans, pursuant to the VCAA, includes the duty to obtain a medical examination and/or opinion when necessary to make a decision on a claim). The Board notes that based on his service in Vietnam, the Veteran is presumed to have been exposed to Agent Orange. 38 U.S.C.A. § 1116 (f) (West 2014); 38 C.F.R. § 3.307 (a)(6)(iii) (2017). If the Veteran has not been diagnosed with a disease that is presumed service connected in Veterans who have been exposed to Agent Orange, 38 U.S.C.A. § 1116 (a)(1); 38 C.F.R. § 3.309 (e), he may still establish that he has a disability due to such exposure. See 38 U.S.C.A. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Regarding his claim for psychiatric disability, the Veteran was afforded a VA examination in December 2013. The examiner found the Veteran did not have a diagnosis of PTSD or other mental disorders. However, the VA examiner noted that review of mental health records indicated diagnoses of adjustment disorder and schizotypal personality, and depression with a rule out diagnosis of psychosis. The Veteran reported that while in Vietnam, he was shot at, witnessed his friends coming out in body bags, and saw people with their arms and legs cut off. The formulating her opinion, the examiner remarked that the Veteran currently did not meet the diagnostic criteria for any axis 1 or axis 2 disorders and did not report symptoms that would be consistent with the diagnoses of anxiety, depression, and insomnia. That examiner noted that the Veteran enjoyed a socially inactive life and a quiet environment and denied any depression or anxiety. Furthermore, the examiner explained that while the Veteran's lifestyle may seem irregular to some people, the Veteran reported a preference for a quiet lifestyle. The examiner also noted that the Veteran enjoyed a long successful career and had a long-term marriage. However the examiner noted that results of a valid objective testing with trauma symptoms inventory did not support a diagnosis of PTSD. The Board finds that another VA examination is warranted to explore the possibility that while the Veteran may not now have a psychiatric disorder, that he did not have one which resolved during the pendency of his appeal. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the appropriate VA Medical Center(s) including in Biloxi, Alabama and Mobile, Alabama, and obtain and associate with the claims file all outstanding records of treatment for the Veteran. 2. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant medical records, including dermatologist Dr. H.H. in Mobile, Alabama. 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. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his neuropathy. The electronic claims file must be made accessible 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 should provide an opinion as to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's neuropathy had onset in, or is otherwise related to, active service, including to presumed exposure to herbicides in Vietnam. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his bilateral leg disorder. The electronic claims file must be made accessible 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 should provide an opinion as to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral leg disorder had onset in, or is otherwise related to, active service, including to presumed exposure to herbicides in Vietnam. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his skin condition. The electronic claims file must be made accessible 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 should provide an opinion as to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's skin disorder had onset in, or is otherwise related to, active service, including to any presumed exposure to herbicides in Vietnam. The examiner should consider the following: 1) November 1966 STR diagnosing tinea cruris and the May 1967 STR noting a tongue rash; and 2) the December 2013 VA examination where the Veteran reported that he has a rash on his lower legs, back, and ankles due to Agent Orange. 6. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his foot disorder, to include swelling of the feet. The electronic claims file must be made accessible 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 should provide an opinion as to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's foot disorder had onset in, or is otherwise related to, active service, including to presumed exposure to herbicides in Vietnam. 7. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his acquired psychiatric disorder, to include PTSD, adjustment disorder and schizotypal personality, and depression with a rule out diagnosis of psychosis. The electronic claims file must be made accessible 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 of any psychiatric symptoms and any fear of hostile military activity from when the Veteran was stationed in Vietnam a) Identify all psychiatric diagnoses made/present during the period on appeal. If adjustment disorder and schizotypal personality, and depression with a rule out diagnosis of psychosis are not found, the examiner must address the prior diagnoses of record and indicate whether those diagnoses were mistaken, or instead represented disorders which resolved during the appeal period. b) If a diagnosis of PTSD is deemed appropriate, the examiner must identify the stressor event or events supporting the diagnosis, including whether the PTSD resulted from hear of hostile military activity. c) With respect to any diagnosed psychiatric disorder other than PTSD, including any such disorder diagnosed during the appeal which has now resolved, the examiner should provide an opinion as to whether it is at least as likely as not that such disorder is etiologically related to service. 8. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). 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.A. §§ 5109B, 7112 (West 2012). _________________________________________________ Thomas H. O'Shay 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).