Citation Nr: 21069483 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 19-28 615 DATE: November 18, 2021 REMANDED Service connection for bilateral hearing loss is remanded. Service connection for a skin condition is remanded. Service connection for prostate cancer is remanded. Service connection for a bladder condition is remanded. Service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1967 to March 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2015 and December 2017 rating decisions issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). 1. Bilateral hearing loss As a preliminary matter, the Board notes that the AOJ initially denied the claim for service connection for bilateral hearing loss in a December 2013 rating decision. The Veteran submitted correspondence containing new and material evidence within one year of the December 2013 rating decision. See August 2014 Correspondence. This appeal followed. As such, the issue remained pending and any discussion regarding reopening of the claim was unnecessary. 38 C.F.R. § 3.156(b); Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). The Veteran contends his hearing loss had onset in active service due to noise exposure during training exercises without hearing protection. See May 2015 Correspondence. He reported problems with his right ear ever since separation from service. He also described noise exposure during weapons training at Fort Riley as deafening and reported being unable to hear out of his right ear for two days after a training exercise. See August 2014 Correspondence. The Veteran's representative contends that the Veteran's audiology test at separation from service was only a whisper test. The Board finds remand is warranted to obtain a VA medical opinion that addresses all relevant evidence of record. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (the Veteran is competent to testify to facts he personally observed, including recall of what he personally felt, saw, smelled, heard, or tasted). A December 2013 VA examination report diagnosed bilateral sensorineural hearing loss and found the Veteran's June 1967 induction examination and March 1969 separation examination indicated normal hearing with no changes when comparing the two tests. A February 2019 VA examination also found hearing loss unrelated to active service because the entrance and separation examinations were normal and the Veteran was exposed to excessive occupational noise after his military service. The examiner concluded that a nexus could not be made because the Veteran's hearing remained normal during his active service. Neither VA medical opinion considered the Veteran's statements regarding in service noise exposure or the onset of his right ear problems. Id. Remand for another medical opinion is warranted. 2. Skin condition The Veteran claims he has a skin condition due to exposure to chemicals, solvents, or herbicides in service that he believed to be Agent Orange. See September 2016 Correspondence. Specifically, he observed hair loss, thickening of his skin, and flaking, peeling skin during basic training and contended that skin conditions intermittently affected different parts of his body. Development by the AOJ has indicated that tactical herbicides were not utilized or stored at the named locations during the Veteran's active service. However, the Veteran's representative provided an article on contaminants in the soil at Fort Benning and Fort Riley to support the contention that the Veteran was exposed to other chemicals in service. Further, the representative referenced an article on chemicals used at Fort Riley and argued that the Veteran's occupational specialty as an equipment repairment would have regularly exposed him to chemicals that led to his medical conditions. See September 2021 Informal Hearing Presentation. The Board remands the issue to afford the Veteran a VA examination in response to his claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (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.). There is no factual dispute over whether the Veteran has a skin condition; VA treatment records diagnosed chronic actinic keratosis in response to the Veteran's reports of lesions on his head. See October 2019 VA treatment records. Further, he is competent to report observed changes to his skin and the smell of chemicals on his clothing in service. Layno, 6 Vet. App. at 469. The Board finds the Veteran's report that he first observed a skin condition in active service with recurrence since service along with the articles relating to chemicals, solvents, and pesticides indicate that the Veteran's current skin condition may have begun in active service or is otherwise related to his exposure to chemicals in service. Remand for a VA examination is warranted. 3. Prostate cancer and a bladder condition The Veteran contends that his prostate cancer and a bladder condition are related to in-service exposure to chemicals, solvents, or herbicides that he believed to be Agent Orange. The Board finds McLendon elements are again satisfied. 20 Vet. App. at 83. Private treatment records include August 2014 operative notes for diagnoses of prostate cancer and a bladder mass. Further, the Veteran submitted internet articles noting the correlation between prostate cancer and herbicide exposure and indicated his health has suffered since his claimed exposure. As explained above, the Veteran is competent to attest to the smell of chemicals that clung to his clothing in service. Layno, 6 Vet. App. at 469. Further, the Board finds the articles referenced by the Veteran's representative relating to the use of chemicals, solvents, and non-tactical pesticides at Fort Benning and Fort Riley to be sufficient to meet the low threshold for providing a medical examination in response to the Veteran's prostate cancer and bladder condition claims. McClendon, 20 Vet. App. at 83. Remand for a VA examination is warranted. 4. An acquired psychiatric disorder The Board remanded this issue in May 2020. Remand is again required to ensure compliance with prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran filed a claim for posttraumatic stress disorder (PTSD) that he contends is related to a stressful incident with superior officers when he applied for a hardship discharge so that he could help with his family's farm. See November 2017 Correspondence. He also reported feeling tormented and depressed due to memories of a Fort Riley training program for combat in Vietnam that taught soldiers how to kill people. See October 2017 VA psychiatry progress note; January 2018 Notice of Disagreement. The May 2020 Board remand expanded the Veteran's claim to include any acquired psychiatric disorder and directed the AOJ to obtain a medical opinion for each acquired psychiatric diagnosis present during the appeal period that addressed the Veteran's contentions. This has not yet been accomplished. The November 2020 VA examiner concluded that the Veteran did not meet the diagnostic criteria for PTSD, his psychiatric symptoms were explained by a diagnosis of unspecified depressive disorder, and that unspecified depressive disorder is related to his diagnosis of prostate cancer. See November 2020 Medical Opinion Disability Benefits Questionnaire, at 2. The November 2020 medical opinion provided no rationale. Remand is again required. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for hearing loss, a skin condition, prostate cancer, a bladder condition, and an acquired psychiatric disability that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After completing the directive above, obtain an opinion from an appropriately qualified VA clinician to determine the nature and etiology of the Veteran's bilateral hearing loss. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran (if deemed necessary by the reviewing clinician), the reviewing clinician must opine on whether it is at least as likely as not that bilateral hearing loss was incurred in active service or otherwise related to an in-service injury, event, or disease. The reviewing clinician is advised that the Veteran is competent to report his symptoms and history, such as noise exposure and the onset of right ear problems in service. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. 3. After completing any record development, schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of his skin condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, the examiner must opine on whether it is at least as likely as not that the Veteran's skin condition was incurred in active service or otherwise related to an in-service injury, event, or disease. The examiner is advised that the Veteran is competent to report his symptoms and history, such as observing a chemical smell on his clothing and changes to his skin in service. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. 4. After completing any record development, schedule the Veteran for an examination by an appropriately qualified VA clinician to determine the nature and etiology of his prostate cancer and a bladder condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, the examiner must opine on: a) Whether it is at least as likely as not that the Veteran's prostate cancer was incurred in active service or otherwise related to an in-service injury, event, or disease. b) Whether it is at least as likely as not that the Veteran's bladder condition was incurred in active service or otherwise related to an in-service injury, event, or disease. The examiner is advised that the Veteran is competent to report his symptoms and history, such as observing a chemical smell on his clothing in service. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. 5. After completing any record development, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's acquired psychiatric disorder. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran (if deemed necessary by the reviewing clinician), the reviewing clinician must opine on the following for each acquired psychiatric diagnosis, to include PTSD, present during the appeal period: a) Whether it is at least as likely as not that the disorder was incurred in active service or otherwise related to an in-service injury, event, or disease. b) If a diagnosis of PTSD is confirmed, the reviewing clinician should identify the specific stressor(s) that led to the condition. The reviewing clinician is advised that the Veteran is competent to report his symptoms and history, such as his reported in-service stressful events and ongoing feelings of torment and depression related to combat training. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. 6. After completing the directives to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Odya-Weis 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.