Citation Nr: 21073890 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 16-13 847 DATE: December 13, 2021 REMANDED Service connection for an acquired psychiatric disorder is remanded. Service connection for a headache condition is remanded. Service connection for a nasal condition, to include rhinitis, is remanded. Service connection for a throat condition is remanded. Service connection for a prostate condition is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1963 to January 1965. This matter comes before the Board of Veterans' Appeals (Board) from July 2014 and January 2018 rating decisions issued by Department of Veterans Affairs (VA) Regional Offices (ROs). This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). The Board finds the Veteran's hearing request withdrawn due to the receipt of correspondence from the Veteran's representative stating that the Veteran wished to withdraw his hearing request. See 38 C.F.R. § 20.704; September 2021 Statement in Support of Claim. The Board notes the Veteran's representative's argument that a submitted March 2015 VA cardiology consultation was a claim under 38 U.S.C. § 1151 and was a claim for pension. See October 2021 Appellate Brief. Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits. From that date, claims have been required to be made on a specific claim form prescribed by the Secretary (available online or at the local Regional Office). It appears that the March 2015 VA cardiology consultation was not received by VA until after March 24, 2015. As such, the Veteran is invited to submit a claim under 38 U.S.C. § 1151 and a claim for pension via the proper form. 1. Service connection for an acquired psychiatric disorder and service connection for a headache condition are remanded. The Veteran believes that service connection for an acquired psychiatric disorder and service connection for a headache condition are warranted. See October 2021 Appellate Brief. The Board initially notes that the Veteran's service connection claims for these issues were initially denied in a November 2013 rating decision. See November 2013 Rating Decision Narrative. The Board construes correspondence received in February 2014 as a notice of disagreement with that rating decision concerning these issues. See February 2014 Fully Developed Claim; 38 U.S.C. § 7105 (2014). As such, there has been no final rating decision for these issues, and thus, there is no need to determine whether new and material evidence has been received to reopen the claims. Generally, a VA medical examination is required for a service connection claim 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; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service; but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran has current diagnoses of major depressive disorder, anxiety, somatic symptom disorder with predominant pain, headaches, and migraines, among others. See July 2021 CAPRI; December 2016 CAPRI. As such, the Board finds that the first prong is met for both issues. The Veteran has reported that he witnessed assaults during service, was bullied during service, and believed that he was going to die due to airplane problems during a flight during service. See October 2021 Appellate Brief; January 2018 CAPRI. The Veteran has also reported that he started having migraines/headaches during service, received treatment for them during service, and has had them ever since service. See October 2021 Appellate Brief. As such, the Board finds that the second and third prongs of the McLendon test are met for both issues. Throughout the appeal period, no VA examinations were conducted for the Veteran's acquired psychiatric disorder or headaches. Given these facts, the Board finds that a remand is needed to obtain VA examinations to determine the etiology of these conditions. See McLendon, 20 Vet. App. at 83. 2. Service connection for a nasal condition, to include rhinitis; service connection for a throat condition; and service connection for a prostate condition are remanded. The Veteran believes that service connection for a nasal condition, service connection for a throat condition, and service connection for a prostate condition are warranted. See October 2021 Appellate Brief. VA examinations for these conditions took place in January 2018. See January 2018 C&P Exam. The nasal and throat examination noted diagnoses of status post infectious pharyngitis without residuals in 1964 and non-allergic rhinitis in 2017. The examination found, among other things, that the Veteran's non-allergic rhinitis was not related to service because the upper respiratory infection and the infectious pharyngitis during service were acute only and because there was no evidence of chronicity of care. The Board finds the nasal and throat examination inadequate, among other reasons, because it did not consider/was unable to consider all the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, among other things, the examination did not consider/was unable to consider medical records throughout the appeal period showing a diagnosis of allergic rhinitis but never seeming to show a diagnosis of non-allergic rhinitis; medical records from 2000 to 2020 showing sinus problems, allergic rhinitis as early as 2000, numerous throat problems, GERD, posterior rhinorrhea, upper respiratory infections, and rhinitis/chronic sinusitis; a service separation examination showing that the Veteran had throat trouble consisting of a frequent sore throat; and the Veteran's report of a continuity of symptoms since service, along with multiple other lay reports. See July 2021 CAPRI; January 2020 CAPRI; January 2018 CAPRI; December 2016 CAPRI; January 2016 Medical Treatment Record; December 2015 CAPRI; September 1976 STR Medical; October 2021 Appellate Brief. The prostate examination noted diagnoses of status post prostatitis in 1963 and prostate hypertrophy (BPH) in 2007. The examination also found, among other things, that the Veteran did not have erectile dysfunction and that the Veteran's BPH was not related to service because the prostatitis during service was acute and there was no evidence of chronicity of care. The Board finds the prostate examination inadequate, among other reasons, because it did not consider/was unable to consider all the relevant evidence of record. See Nieves-Rodriguez, 22 Vet. App. at 295. Specifically, among other things, the examination did not consider/was unable to consider medical records from 1999 showing an impression and assessment of prostatitis and possibly BPH, medical records from 2000 showing BPH, medical records from 2002 showing an assessment of BPH and possibly chronic prostatitis, medical records from 2004 showing a past history of BPH with urinary tract infections and prostatitis, medical records from 2015 showing erectile dysfunction, and medical records from 2016 showing problems with prostatitis. See December 2016 CAPRI; January 2016 Medical Treatment Record; December 2015 CAPRI. Additionally, the examination's negative nexus opinion did not appear to consider the Veteran's report of continuity of symptoms since the incurrence of prostatitis during service. See January 2018 C&P Exam. Therefore, a remand is needed for new VA examinations. The matter is REMANDED for the following action: 1. Update VA and private treatment records. VA treatment records appear current up to July 2021. 2. Schedule one or more appropriate VA examinations for the Veteran's acquired psychiatric, headache, nasal, throat, and prostate conditions. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file and a copy of this Remand, the reviewing examiner is requested to furnish an opinion with respect to the following questions (as applicable): (A) Identify all acquired psychiatric, headache, nasal, throat, and prostate related disorders/disabilities that at least as likely as not (a 50 percent or greater probability) existed at any point during the pendency of the appeal (i.e., since November 2012 for the acquired psychiatric disorder and headache issues and since November 2017 for the nasal, throat, and prostate issues), even if they are currently asymptomatic or have resolved during the pendency of the appeal. (B) For each identified disorder/disability other than PTSD, is it at least as likely as not (a 50 percent or greater probability) that the disorder/disability is related to service, including but not limited to, if it had its onset during service? (C) For any PTSD, is it at least as likely as not (a 50 percent or greater probability) that there is a link between the PTSD and a claimed in-service stressor? If so, which stressors? (D) Is it at least as likely as not (a 50 percent or greater probability) that any migraines or psychoses manifested to a compensable degree within one year from separation from active service? If yes, which ones? (E) Is it at least as likely as not (a 50 percent or greater probability) that any migraines or psychoses was noted during service/within one year following the Veteran's separation from active service, with continuity of symptomatology since? If yes, which ones? In addition to the other relevant evidence of record, the examiner is asked to consider and address as appropriate the following information with a caution that this list is not a substitute for a review of the record: Acquired psychiatric disorder (1) The Veteran's report that during service, he witnessed assaults and had a rough airplane landing. He had received VA treatment since at least 2006. See October 2021 Appellate Brief. (2) Medical records from 2020 showing a nightmare disorder, diagnoses of PTSD and depressive disorder, and anxiety. A history of present illness showed a chronic history of depression and mood disorder related to bullying while on active duty. The Veteran reported that he was exposed to bullying by an enlisted man in his unit and had had chronic nightmares and night fights because of the things that the bully did. The Veteran reported anxiety since his last encounter with the bully. Medical records from 2021 showed the Veteran's report of still having violent nightmares and diagnoses of PTSD and anxiety. There was a history of major depressive disorder. See July 2021 CAPRI. (3) Medical records from 2013 showing that the Veteran met the DSM-V criteria for depression and PTSD. See April 2021 Medical Treatment Record. (4) Medical records from 2018 showing assessments of major depressive disorder, generalized anxiety disorder, and anxiety disorder. Having lots of dreams and nightmares was depressing and was a stressor for major depressive disorder and anxiety disorder. See January 2020 CAPRI. (5) Medical records from 2017 showing the Veteran's report that his PTSD was related to being bullied during service. He reported that he was physically abused during service and just had to take it. See January 2018 CAPRI. (6) The Veteran's report that some of the private medical records had been destroyed. The Veteran only came to VA for treatment after he could no longer afford private doctors. See January 2018 Correspondence; January 2018 NOD. (7) Medical records from 2011 to 2016 showing a DSM-V diagnosis of somatic symptom disorder with predominant pain. The Veteran reported bad dreams about the military. The dreams were about violence and military/combat related events and had been going on for several years. The Veteran dreamed about the war and dead people. He witnessed a person drown while in Italy and had dreams about fighting while training in the military. He reported fighting someone off. The Veteran also reported that he and his spouse had not slept in the same bed since about one year after leaving service. There was possibly a history of psychosocial trauma. During service, the Veteran appeared to have been physically abused. It was unclear whether the Veteran was sexually abused because he did not want to discuss the abuse during service. See December 2016 CAPRI. (8) The Veteran's report that his acquired psychiatric disorder was due to the fear and dread caused by someone that he served with. The individual had a very bad reputation for doing terrible things to anyone who crossed him. The Veteran feared for his life because the individual threatened him on several occasions with a razor blade. The Veteran thought that the fear would go away when he left service, but it did not. He had frequent dreams of the individual hurting him badly. See January 2016 Statement in Support of Claim. (9) The Veteran's report that while being on a flight over the water during service, one of the engines went out and they were all told to fasten their seatbelts. The Veteran was afraid for his life. The timeframe that the Veteran gave for this incident aligned with service records showing he was going to Europe at the time. See January 2016 Email Correspondence. (10) The Veteran's report that during service, he witnessed a service member start a fight, break a bowl against the wall, hit a soldier, and hit another soldier with a knife. The individual later stood over the Veteran with a shaving razor and said that he would cut the Veteran's throat. The Veteran was afraid of the individual and for his life because he had seen the previous incidents involving the individual. The individual eventually was gone, but that was not the end of the Veteran's troubles. By this time, the Veteran would lay awake at night, worrying and hoping that he would be gone before the individual got back. The Veteran still had sleep problems, nightmares, and all kinds of thoughts because of it. That is why the Veteran believes that his acquired psychiatric disorder is service connected. Also, during service, the Veteran was flying over the ocean when the airplane's engine went out. The Veteran thought that they were going to die. See January 2016 VA 21-0781. (11) The Veteran's spouse's report that the Veteran's acquired psychiatric disorder had existed since he left service. The Veteran was constantly acting paranoid and was afraid that someone was chasing him. Sometimes the Veteran thought that he was a prisoner. Further information is provided. See January 2016 Buddy / Lay Statement. (12) The Veteran's report that shortly after service, he began having a sleeping disorder, bad dreams, and nightmares. See March 2015 Statement in Support of Claim. (13) Medical records from 2013 showing that the Veteran had been treated for PTSD and depressive disorder since 2006 by a certain individual. See October 2013 VAMC Other Output. (14) All other relevant lay and medical evidence. Headache condition (1) The Veteran's report that migraines began during service and have continued since. Going to the doctor for every headache was not done by migraine suffers under medical treatment. See October 2021 Appellate Brief. (2) Medical records from 2020 showing chronic headaches and tension headaches. Medical records from 2021 showed that headaches had been going on for years. See July 2021 CAPRI. (3) Medical records from 2018 showing a headache history of migraines in the past and an assessment of migraine headaches. See January 2020 CAPRI. (4) Medical records from 2017 showing that the Veteran had a headache all the time and the Veteran's report that his doctor told him that the headaches were related to stress. See January 2018 CAPRI. (5) The Veteran's report that some of the private medical records had been destroyed. The Veteran only came to VA for treatment after he could no longer afford private doctors. See January 2018 Correspondence; January 2018 NOD. (6) Medical records from 2006 showing headaches for a long time. The Veteran reported that he was seen during service by a doctor several times for headaches and was given medication for it. Medical records from 2011 showed headaches for years. Medical records from 2013 showed an assessment of mixed headaches. Medical records from 2015 showed a history of chronic headaches and an impression that the headaches were migraines. Medical records from 2016 showed the Veteran's report that his headaches began while on active duty. See December 2016 CAPRI. (7) Medical records from 2007 showing the Veteran's report of headaches with a buzzing noise in the right ear. The Veteran was being evaluated for migraines. Id. (8) Medical records from 2000 showing headaches. See January 2016 Medical Treatment Record. (9) Medical records from 2006 showing that the Veteran was encouraged to file a service connection claim for headaches due to his report of a long history of headaches with treatment while in the military. See December 2015 CAPRI. (10) The Veteran's report of severe headaches during service, mostly at night. Shortly after service, he began to get headaches more often. See March 2015 Statement in Support of Claim. (11) Service records with a possible separation examination possibly showing that the Veteran had frequent or severe headaches. See September 1976 STR Medical. (12) All other relevant lay and medical evidence. Nasal condition (1) The Veteran's report of continuity of symptoms since service. It was not unusual not to go to the doctor for every problem. Alabama, where the Veteran received VA treatment, was also the sight of the Tuskegee study. It was understandable that the Veteran avoided doctors. See October 2021 Appellate Brief. (2) Medical records from 2020 showing allergic rhinitis and posterior rhinorrhea. See July 2021 CAPRI. (3) A medical record from 2018 showing that there was an upper respiratory infection in 1963 and infectious pharyngitis in 1964. There was a diagnosis of non-allergic rhinitis from 2017. The Veteran reported that during service, he was part of a missile crew. He had exposure to fumes from trucks, burn pits, and had frequent exposure to fuels. He reported the onset of a persistent runny nose with clear drainage and an intermittent sore throat soon after beginning military training. He had current symptoms. See January 2018 C&P Exam. (4) The Veteran's report that some of the private medical records had been destroyed. The Veteran only came to VA for treatment after he could no longer afford private doctors. See January 2018 Correspondence; January 2018 NOD. (5) Medical records from 2003 showing an assessment of allergic rhinitis. Medical records from 2006 showed the Veteran's report of treatment for sinus issues. Medical records from 2007 showed the Veteran's report of sinus problems. See December 2016 CAPRI. (6) Medical records from 2000 showing an assessment of rhinitis/chronic sinusitis. See January 2016 Medical Treatment Record. (7) Service records showing sore throats, coughs, chest pain, trouble with the ears and throat, an upper respiratory infection, possibly an infectious pharynx, difficulty swallowing food, throat tightness, post-nasal drip, red and edentulous nasal mucosa, and apparently alpha and beta strep. Throat problems had been bothering the Veteran for about six months at one point and had just worsened. The separation examination showed the doctor's report that the Veteran had throat trouble consisting of a frequent sore throat. There was possibly another separation examination possibly showing runny ears, chronic or frequent colds, sinusitis, hay fever, etc. Further information is provided. See September 1976 STR Medical. (8) All other relevant lay and medical evidence. Throat condition (1) The Veteran's report of continuity of symptoms since service. It was not unusual not to go to the doctor for every problem. Alabama, where the Veteran received VA treatment, was also the sight of the Tuskegee study. It was understandable that the Veteran avoided doctors. See October 2021 Appellate Brief. (2) Medical records from 2020 showing esophageal reflux and posterior rhinorrhea. See July 2021 CAPRI. (3) Medical records from 2018 showing a sinus throat issue. There was throat congestion. See January 2020 CAPRI. (4) Medical records from 2017 showing a sore throat. There was an assessment of GERD/throat congestion. See January 2018 CAPRI. (5) A medical record from 2018 showing that there was an upper respiratory infection in 1963 and infectious pharyngitis in 1964. The Veteran currently had a larynx or pharynx condition. The Veteran reported that during service, he was part of a missile crew. He had exposure to fumes from trucks, burn pits, and had frequent exposure to fuels. He reported the onset of a persistent runny nose with clear drainage and an intermittent sore throat soon after beginning military training. He had current symptoms. See January 2018 C&P Exam. (6) The Veteran's report that some of the private medical records had been destroyed. The Veteran only came to VA for treatment after he could no longer afford private doctors. See January 2018 Correspondence; January 2018 NOD. (7) Medical records from 2016 showing the Veteran's report of his throat feeling hoarse, that there was a feeling like phlegm in his throat, and that the Veteran was constantly clearing his throat. See December 2016 CAPRI. (8) Medical records from 2002 possibly showing recurring laryngitis. See January 2016 Medical Treatment Record. (9) Medical records from 2000 showing a red and congested throat with an assessment of an upper respiratory infection. See December 2015 CAPRI. (10) Service records showing sore throats, coughs, chest pain, trouble with the ears and throat, an upper respiratory infection, possibly an infectious pharynx, difficulty swallowing food, throat tightness, post-nasal drip, red and edentulous nasal mucosa, and apparently alpha and beta strep. Throat problems had been bothering the Veteran for about six months at one point and had just worsened. The separation examination showed the doctor's report that the Veteran had throat trouble consisting of a frequent sore throat. There was possibly another separation examination possibly showing runny ears, chronic or frequent colds, sinusitis, hay fever, etc. Further information is provided. See September 1976 STR Medical. (11) All other relevant lay and medical evidence. Prostate condition (1) The Veteran's report of continuity of symptoms since service. It was not unusual not to go to the doctor for every problem. Alabama, where the Veteran received VA treatment, was also the sight of the Tuskegee study. It was understandable that the Veteran avoided doctors. See October 2021 Appellate Brief. (2) Medical records from 2020 showing BPH. Medical records from 2021 showed the Veteran's report that he was told that he had an enlarged prostate. See July 2021 CAPRI. (3) A medical record from 2018 showing the Veteran's report that he developed prostatitis during service, that it was treated with antibiotics during service, and that he had ongoing symptoms. See January 2018 C&P Exam. (4) The Veteran's report that some of the private medical records had been destroyed. The Veteran only came to VA for treatment after he could no longer afford private doctors. See January 2018 Correspondence; January 2018 NOD. (5) Service records appearing to show an impression of prostatitis with an unknown etiology. See November 2017 STR Medical Photocopy. (6) Medical records from 1999 showing the Veteran's report of blood in his urine and the need for something to be done for his prostate. There was an impression of prostatitis. Medical records from 2004 showed a history of BPH with urinary tract infections and prostatitis. Medical records from 2016 showed problems of BPH and prostatitis. See December 2016 CAPRI. (7) Medical records from 1999 apparently showing BPH and an assessment of prostatitis. Medical records from 2002 possibly showed an assessment of chronic prostatitis. There was also an assessment of BPH. See January 2016 Medical Treatment Record. (8) Medical records from 1999 showing an impression of prostatitis. Medical records from 2000 showed BPH. See December 2015 CAPRI. (9) All other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. The Veteran and others are competent to attest to factual matters of which they have first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran and/or others, the examiner should provide a fully reasoned explanation. 3. Readjudicate the issues on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, Associate Counsel 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.