Citation Nr: 1820344 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 14-35 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include Posttraumatic Stress Disorder (PTSD) and paranoid schizophrenia, due to military sexual trauma (MST) and/or exposure to contaminated water Camp Lejeune. 2. Entitlement to service connection for prostate cancer due to exposure to contaminated water at Camp Lejeune. 3. Entitlement to service connection for body pain, to due to exposure to contaminated water at Camp Lejeune and as secondary to prostate cancer. REPRESENTATION Appellant represented by: Yelena C. Duterte, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from March 1979 to July 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Jurisdiction was subsequently transferred to the Buffalo, New York RO. On June 2017, the Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing. A transcript of the hearing is of record. The Board notes that the claim for service connection for paranoid schizophrenia was denied by the Board in a March 2009 decision. However, at the time of this decision, the claims file did not include a complete copy of the Veteran's service personnel records; these records were submitted by the Veteran subsequent to the March 2009 Board decision and are relevant to the Veteran's PTSD claim. Accordingly, de novo review of the previously denied claim is appropriate. See 38 C.F.R. § 3.156 (c). Although a Veteran may only claim service connection for a particular psychiatric disorder, the claim cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, based on the medical evidence of record which includes diagnoses of PTSD and other psychiatric disorders, the Board will consider entitlement to all psychiatric diagnoses raised by the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he has a psychiatric disorder, to include PTSD due to military sexual trauma (MST) and exposure to contaminated water at Camp Lejeune. He also contends that he has prostate cancer and body pain due to exposure to contaminated water at Camp Lejeune. Alternatively, and body pain and residuals of a prostatectomy are related to his prostate cancer. With regard to the Veteran's claimed psychiatric disorder, the Veteran claims that he was sexually assaulted by a sergeant in his platoon in late 1979. His service personnel records show that in December 1979, he was given non-judicial punishment for being disrespectful to a First Lieutenant for which he was required to forfeit $50.00 of pay for one month. In June 1980, he had an unauthorized absence and was required to pay $100.00 for one month and given extra duties for fourteen days. Shortly thereafter, he was transferred to Northern Norway and in November 1980 was given orders to go to Iwakuni, Japan where he did not have any reported incidents. See, Appellant's Brief dated in September 2015. As noted in the September 2015 Brief, VA treatment records include a March 2012 report from Dr. Bedynerman which reflects reported symptoms of PTSD such as flashbacks, nightmares, associated with MST. A July 2013 report from Dr. Kahn reflects positive symptoms of hypervigilance, recurrent dreams, flash back, and avoidance to signify PTSD related to MST. Since it is unclear whether the Veteran has any psychiatric disorder that is related to his service, the Board finds a VA medical examination and medical opinion should be obtained. With regard to the Veteran's claimed prostate cancer and body pain, the Veteran contends that his prostate cancer is related to contaminated water at Camp Lejeune. In August 2013 a VA medical opinion was obtained by a Subject Matter Expert Panel member of the Camp Lejeune Contaminated Water Project. She opined that the Veteran's prostate cancer was not related to exposure to contaminated water at Camp Lejeune based, in part, on the rationale that African American men tend to get prostate cancer at earlier ages and higher rates than Caucasian men. The examiner also stated that with the possible exception of significant occupational exposure to solvents for greater than 5 years, there is no scientifically documented link between exposure to either solvents and the development of cancer (PERC or TCE). However, in September 2015 the Veteran's representative cited a February 2014 study which found elevated hazard ratios for prostate cancer at Camp Lejeune. On this basis, the representative requested a new medical opinion regarding whether the Veteran's prostate cancer is related to his exposure to toxins at Camp Lejeune. With regard to the claim for service connection for body pain, to the extent that the complaints of body pain are related to the Veteran's claimed prostate cancer, the Board finds that it is inextricably intertwined with the claim for service connection for prostate cancer. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Because adjudication of this claim will potentially affect the body pain claim, adjudication of the Veteran's body pain claim is deferred. The body pain claim should not be returned to the Board until the claim for service connection for prostate cancer is adjudicated and is longer pending or is certified to the Board for appellate review. Finally, additional records pertinent to the claims should be requested and obtained. In this regard, the Veteran was initially treated for schizophrenia while incarcerated in the Onondaga County Correctional Facility from May 1996 to February 1998. A February 2007 Statement of the Case indicates that the Veteran was asked to complete an authorization for release of these records, but the authorization was not provided to VA. On remand, another attempt should be made to obtain these records, by the Veteran, if possible to expedite the case, and associated with the claims file. In addition, the record also reflects that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). Since the Board is remanding this case for further development, VA should also attempt to obtain these records. Additional VA treatment records should also be associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he either submit, or provide VA sufficient information and authorization to obtain, any records of mental health treatment during his incarceration with the Onondaga County Correctional Facility from May 1996 to February 1998. 2. Obtain all records from the Social Security Administration, to include all awards of disability benefits and any underlying records used in reaching the determination. All efforts to obtain Social Security records should be fully documented, and a negative response must be provided if records are not available. 3. Obtain all outstanding VA medical records related to the Veteran's psychiatric disorders, prostate cancer, and body pain, dated from July 2017 to the present. All records and/or responses received should be associated with the claims file. In order to expedite this case, the Veteran is asked to obtain his SSA, correctional facility, and VA treatment records himself and inform the RO/AMC that all appropriate records have been submitted in order to insure that all pertinent records have been submitted in a highly timely manner so that the VA may adjudicate this case promptly. 4. After the foregoing has been completed, schedule the Veteran for a VA examination which addresses the nature and etiology of his acquired psychiatric disorder. All indicated tests and studies should be performed. The claims folder should be provided to the examiner for review of pertinent documents. The examination report should reflect that such a review was conducted. Diagnose any current acquired psychiatric disorder, including PTSD and paranoid schizophrenia. a) Is it at least as likely as not (50 percent or more probability) that any acquired psychiatric disorder, including PTSD and paranoid schizophrenia, had its onset in or is etiologically-related to the Veteran's active duty service, including MST and exposure to contaminated water at Camp Lejeune? If a psychosis is diagnosed, the examiner should indicate whether it was manifested within one year after the Veteran's period of active duty. b) If the examiner finds that the Veteran meets the criteria for a PTSD diagnosis, he/she should specifically identify which stressors are linked to the PTSD diagnosis, including any stressors prior to or after service. If the stressor involves a MST event, the examiner should provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that any behavior changes were demonstrated in service or shortly thereafter and, if so, whether such changes may be indicative of a personal assault having been committed upon the Veteran in service. As the Veteran's claim is largely based on personal testimony regarding symptoms and his psychological history, the examiner should address the Veteran's reliability in his reports of symptomatology and alleged stressors. The examiner should review and consider the September 2015 Brief and associated documents and the Veteran's June 2017 testimony before the Board. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 5. Schedule an appropriate VA examination to determine the nature and etiology of any prostate cancer and residuals thereof and body pain. All indicated tests and studies should be performed. The claims folder should be provided to the examiner for review of pertinent documents. The examination report should reflect that such a review was conducted. Is it at least as likely as not (a 50 percent probability or greater) that any current prostate cancer and any residuals thereof, a prostatectomy, and complaints of body pain had its onset in or is etiologically-related to the Veteran's active duty service, to include exposure to contaminated water at Camp Lejeune? The examiner is asked to identify any residuals of prostate cancer and a prostatectomy to include complaints of body pain, a knee condition, bloody stools, and incontinence. The examiner should review and consider the September 2015 Brief and associated documents and studies and the Veteran's June 2017 testimony before the Board. The report of examination should include the complete rationale for all opinions expressed. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If an opinion cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative, and 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 appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). _________________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).