Citation Nr: 20052992 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 20-10 819 DATE: August 10, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depressive disorder, anxiety, and memory loss, is remanded. Entitlement to service connection for prostate cancer, to include as due to asbestos exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1955 to January 1958. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s February 2020 Form 9 indicates a request for a Board hearing before a Veterans Law Judge. 02/27/2020 Form 9. In an April 2020 correspondence, the Veteran requested to withdraw the February 2020 Board hearing request. 04/07/2020 Correspondence. The Board therefore finds that the Veteran’s request for a Board hearing has been withdrawn pursuant to 38 C.F.R. § 20.704(e). 1. Service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder, anxiety disorder, and memory loss, is remanded. The Veteran contends that he has a current psychiatric disorder caused by two in-service incidents in 1956 where he witnessed the deaths of two fellow sailors, and that he has had recurrent nightmares of the incidents ever since. See 07/11/2018 VA 21-4138, Statement in Support of Claim. At the outset, the Board notes that VA has determined that the Veteran’s service treatment records (STRs) are unavailable after efforts to obtain them were unsuccessful. See 08/14/2018 Subsequent Development Letter. In cases where VA deems STRs to be unavailable, the Board has a heightened duty to assist the Veteran in the development of his claim. Cuevas v. Principi, 3 Vet. App. 542 (1992). Here, after a careful review of the evidence of record, the Board finds that the evidence of record shows that a nexus may exist between the Veteran’s psychiatric disorder and his period of service, and that a VA examination and medical opinion would be useful for appellate adjudication and to develop the Veteran’s claim, to include with VA’s heightened duty to assist as his STRs are unavailable.. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-86 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Regarding the first McLendon element, VA treatment records contain evidence of treatment for a psychiatric disorder and diagnoses of PTSD and depressive disorder. See 12/31/2019 CAPRI and 08/05/2019 Medical Treatment Record – Government Facility. Regarding the second element, as noted above, the Veteran contends that he began to experience symptoms of a psychiatric disorder while in service and has had continuity of symptomatology ever since. See 07/11/2018 VA 21-4138, Statement in Support of Claim. Additionally, the Veteran’s wife and daughter submitted lay statements in which they likewise assert that the Veteran’s psychiatric disorder symptoms manifested in service and have continued thereafter through the present. See 07/11/2018 Lay Statements. Finally, regarding the third and fourth McLendon elements, the evidence of record indicates that the Veteran’s psychiatric disorder could be related to service, but as there is no medical examination or opinion of record, the Board finds there is insufficient evidence for the Board to render a decision. Here, the Board notes that the record contains a July 2018 PTSD Disability Benefits Questionnaire (DBQ), showing diagnoses of dementia of Alzheimer type and PTSD; however, the DBQ does not contain a clinician’s signature or certification to indicate who completed the PTSD DBQ. Additionally, much of the document has noted been completed. See 07/23/2018 VA Examination. Accordingly, the Board finds the July 2018 PTSD DBQ is entitled to no probative weight, as without a clinician’s signature it is not possible to evaluate the level of training, education, or experience of its author. See Cox v. Nicholson, 20 Vet. App. 563, 568–69 (2007). After a careful review of the evidence of record, the Board finds that the four McLendon elements are satisfied, and further finds that a remand is required to schedule the Veteran for a VA mental health examination and medical opinion in order to develop and adjudicate his claim. 2. Service connection for prostate cancer, to include as due to asbestos exposure, is remanded. The Veteran contends that he developed prostate cancer as a result of his exposure to fumes and chemicals while aboard a Navy aircraft carrier. See 08/05/2019 NOD. The Board finds that the evidence of record shows that a nexus may exist between the Veteran’s prostate cancer and his period of service, and that a VA examination and medical opinion would be useful for appellate adjudication and to develop his claim. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Regarding the first McLendon element, VA treatment records contain evidence of treatment for recurrent prostate cancer. See 12/31/2019 CAPRI, at 5. VA treatment records also contain a May 2019 medical opinion authored by Dr. M.W.R., a VA Occupational and Environmental Physician. See id. at 86. Dr. M.W.R. diagnosed the Veteran with prostate cancer with urinary incontinence, and opined that it is as likely as not that the Veteran’s prostate cancer is related to exposure to asbestos during service. See id. However, the rationale is scant. The Board also notes that the Veteran’s military personnel records show that received training to suggest a military occupational specialty (MOS) of Aviation Structural Mechanic. See 07/27/2018 Military Personnel Record. According to the VA guidance documents, the MOS of Aviation Structural Mechanic is associated with “probable” asbestos exposure. Thus, the Board finds that the second and third McLendon elements are satisfied, as Dr. M.W.R.’s opinion indicates that the Veteran may have been exposed to asbestos in service, which may have caused him to develop prostate cancer. Further, the VA guidance indicates that asbestos exposure is probable for the Veteran’s MOS. The Board further finds that the fourth McLendon element is met here, as the Veteran has not been scheduled for a VA examination to evaluate whether he has a current diagnosis of asbestos-related prostate cancer or its nature and etiology. The Board thus finds it appropriate to remand the Veteran’s claim for further development to obtain a VA examination and medical opinion addressing the nature and etiology of any current diagnosis of asbestos-related prostate cancer, especially in light of VA’s heightened duty to assist.   These matters are REMANDED for the following actions: 1. Contact the Veteran to give him the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding treatment records, to include updated VA treatment records from December 2019 to the present, should be obtained and associated with the claims file. 2. After completing the development requested in #1, schedule the Veteran for a VA mental health examination (or telehealth interview, etc. if an in-person examination is not feasible due to the current pandemic) by an appropriate clinician to determine the nature and etiology of the Veteran’s psychiatric disorder. The entire claims file, including a copy of this remand, is to be made available for the examiner’s review. The psychiatrist or psychologist must provide an opinion on whether it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has an acquired psychiatric disability, to include PTSD, depressive disorder, anxiety, and memory loss, which began in service, within one year of separation from service, or was otherwise caused by his military service. The VA examiner is asked to specifically respond to the following: (a) The VA examiner should discuss whether any of the claimed stressors are adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor(s). (b) If a diagnosis of PTSD is given, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s). (c) If the examiner determines that the clinical evidence does not support a diagnosis of PTSD, to include that the claimed stressors do not support the diagnosis, the examiner should list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not that any diagnosed psychiatric disorder began during or was otherwise caused by the Veteran's military service. The examiner is to provide a comprehensive rationale and to consider and discuss all pertinent evidence of record, to include: the Veteran's military personnel and VA treatment records; and the statements of the Veteran’s wife and daughter regarding the onset and continuity of his psychiatric disorder symptoms. The examiner is advised that the Veteran is competent to report his symptoms and history. 3. After completing #1, schedule the Veteran for a VA examination (or telehealth interview, etc. if an in-person examination is not feasible due to the current pandemic) by an appropriate clinician to determine the nature and etiology of the Veteran’s prostate cancer, to include as due to asbestos exposure. The entire claims file, including a copy of this remand, should be made available for the examiner’s review. The examiner is to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's prostate cancer was manifested to a compensable degree within one year of service discharge in January 1958, or is otherwise related to his military service, to include exposure to asbestos and/or any other chemical compounds. In providing this opinion, the clinician is to note and discuss the following evidence: (a) military personnel records showing the Veteran received training consistent with the MOS of Aviation Structural Mechanic; (b) the Veteran’s contentions that he was exposed to chemicals and fumes in service; (c) the Veteran’s VA treatment records, showing treatment for recurrent prostate cancer; and (d) Dr. M.W.R.’s May 2019 opinion that the Veteran’s recurrent prostate cancer is as likely as not related to exposure to asbestos in service, to include the medical literature referenced in support of the May 2019 opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.