Citation Nr: 21076055 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-22 980 DATE: December 22, 2021 REMANDED Entitlement to service connection for any acquired psychiatric condition, to include posttraumatic stress disorder (PTSD) and / or depressive disorder, is remanded. Entitlement to service connection for residuals of venereal disease is remanded. Entitlement to service connection for prostatitis, claimed as residuals of venereal disease, is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to an initial compensable disability rating for pleural plaques is remanded. Entitlement to service connection for double hernias is remanded. Entitlement to service connection for bulging disc / spinal injury is remanded. Entitlement to service connection for a bilateral knee condition is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1968 to April 1970 with additional Reserve service. These matters come to the Board of Veterans' Appeals (Board) on appeal from February 2015, April 2015, October 2015, and February 2016 rating decisions issued by the Department of Veterans' Affairs (VA) Regional Office (RO). Preliminary matters The Veteran requested, and was scheduled for, a hearing with the Board in November 2021. However, he did not request postponement of the hearing, did not appear for the hearing, and did not request for the hearing to be rescheduled. As such, the hearing request is deemed withdrawn, and the Board will proceed to adjudication of the claims. 38 C.F.R. § 20.704(d). Regarding service connection for prostate cancer, this was first denied in an April 2015 rating decision. Within the year following, the Veteran submitted additional evidence as well as a supplemental claim. The RO, once again, continued the denial of the claim in a February 2016 rating decision finding that the evidence was not new and material. Thereafter, the Veteran perfected appeal to the Board. Pursuant to 38 C.F.R. § 3.156(b), as new evidence pertinent to this claim and a Notice of Disagreement were both received within one year of the initial denial, the claim remained open. 38 C.F.R. § 3.156(b). Thus, a discussion of new and material evidence is not necessary for this claim. Duty to Assist for All Claims At the outset, the Board notes the Veteran's military personnel and treatment records reference the Veteran has Reserve service. The VA has a duty to assist claimants to obtain evidence necessary to substantiate a claim, including military records and service treatment records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Upon review, the Veteran's claims file lacks any reference to the RO's attempts to obtain military personnel records and / or service treatment records (STRs) from the Veteran's service in the Reserves. Said records are necessary to substantiate the Veteran's claims. The Board finds additional efforts are needed to obtain complete service personnel records and STRs. 38 C.F.R. § 3.159. Additionally, the record only contains VA treatment records through February 2017. In light of VA's duty to assist, the Board finds remand is necessary for all claims to obtain outstanding VA treatment records through the present. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for double hernias is remanded. 2. Entitlement to service connection for bulging disc / spinal injury is remanded. A decision regarding these claims cannot be rendered until the duty to assist development noted above is completed. As such, these claims are remanded for the additional development under the duty to assist. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 3. Entitlement to service connection for any acquired psychiatric condition, to include PTSD and / or depressive disorder, is remanded. The Veteran seeks service connection for PTSD. The Board finds the evidence of record is insufficient to resolve his claim. The Veteran was afforded a VA examination in September 2015 during which the examiner found that he did not have a diagnosis of PTSD but did have a diagnosis of depressive disorder. The examiner offered a negative nexus opinion to service based on the reasoning that the Veteran did not report any symptoms or receive any treatment during service. The Board finds this rationale is insufficient because it was based entirely on the lack of in-service complaints / treatment. The examiner did not consider whether there is a causal connection between the Veteran's post-service diagnoses and in incident, injury, or event from service. As such, remand is necessary to obtain another VA opinion considering whether the Veteran's current psychiatric condition is related to service. The Board notes the Veteran's service connection claim has been recharacterized as "any acquired psychiatric condition, to include PTSD and / or depressive disorder" under Clemons. The Veteran's VA examination for PTSD referenced depressive disorder. To date, however, a VA opinion regarding the nature and etiology of the Veteran's depressive disorder has not been obtained. As this claim is being remanded, the Veteran shall be provided a VA examination for any acquired psychiatric condition, to include PTSD and / or depressive disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). In addition to the duty to assist development mentioned above, this claim is remanded to afford the Veteran another VA examination. 4. Entitlement to service connection for residuals of venereal disease is remanded. 5. Entitlement to service connection for prostatitis, claimed as residuals of venereal disease, is remanded. 6. Entitlement to service connection for prostate cancer is remanded. The Veteran contends he has prostate cancer, prostatitis, and residuals of venereal disease related to service. The Board finds the evidence of record is insufficient to resolve the Veteran's claim. To date, the Veteran has not been afforded a VA examination to determine the nature and etiology of any prostate cancer, prostatitis, and / or residuals of venereal disease and the relation, if any, to service. The Veteran's post-service treatment records reference prostate cancer and prostatitis. The Veteran's STRs reference complaints of symptoms, with subsequent diagnosis and treatment for gonorrhea in 1969. The competent medical evidence of record, however, is insufficient to resolve the Veteran's claims. Thus, remand is necessary to afford the Veteran a VA examination. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes the Veteran indicated experiencing painful urination in the report of medical history upon entrance. See December 1966 report of medical history. Upon entrance, however, the Veteran was clinically evaluated as normal without any noted conditions. See December 1966 entrance examination. Thus, the examiner is reminded when no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. See 38 U.S.C. § 1111; see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Accordingly, these claims are remanded to afford the Veteran a VA examination and to satisfy the duty to assist. 7. Entitlement to an initial compensable disability rating for pleural plaques is remanded. The Veteran's service-connected pleural plaques were last evaluated at a VA examination in 2015. The Veteran has contended his pleural plaques disability should be re-examined and warrant a compensable disability rating. Given the lapse in time since the last evaluation of the extent and severity of the Veteran's service-connected pleural plaques disability and his contention of worsened symptoms, the Board finds that a contemporaneous examination is needed. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 8. Entitlement to service connection for a bilateral knee condition is remanded. The Veteran contends he has a bilateral knee condition related to service. The Board finds the evidence of record is insufficient to resolve the claim. To date, he has not been afforded a VA examination to determine the nature and etiology of any knee condition and the relation, if any, to service. In 1969, the Veteran's STRs noted weakness in the right knee with pain on and off and the use of a wrap. While current treatment records lack reference to a diagnosis for the right knee, there are notes indicating the Veteran uses a soft brace on the right knee. See August 2015 VA treatment records. The competent medical evidence of record, however, is insufficient to resolve the claim. Thus, remand is necessary to afford the Veteran a VA examination. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. at 79. Based on the foregoing, this claim is remanded for a VA examination and development under the duty to assist as mentioned above. The matters are REMANDED for the following action: 1. Request complete service personnel records and service treatment records for the Veteran's periods of service in the United States Navy Reserve with a period of active duty service from September 1968 to April 1970. If the AOJ concludes, after continued efforts to obtain said records, that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA shall provide the Veteran with oral or written notice of that fact. Said notice shall be documented in the claims file and specifically include: (a) a notification to the claimant of the specific records that VA is unable to obtain; (b) an explanation of the efforts VA has made to obtain that evidence; and (c) a description of any further action VA will take with respect to the Veteran's claim. The claimant must then be given an opportunity to respond. 2. Obtain any of the Veteran's outstanding VA treatment records after February 2017 and associate them with the claims file. 3. After the development in paragraphs 1 and 2 is completed and records are obtained to the extent possible, schedule the Veteran for a VA examination before an appropriate examiner to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD and / or depressive disorder. The entire claims file and this remand should be made available for review. - If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to his contended in-service stressors. - If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. In so opining, the examiner is directed to address and consider the Veteran's treatment records referencing positive depressive screens as well as any other noted diagnoses of record. The examiner is cautioned that any opinion offered cannot be based solely on a lack of treatment for / diagnosis of a condition during service. Rather, the examiner is asked to render an opinion as to whether it is at least as likely as not the Veteran's psychiatric disability(ies) are related to service. 4. After the development in paragraphs 1 and 2 is completed and records are obtained to the extent possible, schedule the Veteran for a VA examination before an appropriate examiner to determine the nature and etiology of any prostate cancer, prostatitis, and / or residuals of venereal disease. The entire claims file and this remand should be made available for review. The examiner should render an opinion, including rationale, addressing the following: - Whether the Veteran has a diagnosis of prostate cancer, prostatitis, and / or residuals of venereal disease. In so opining, the examiner is directed to address and consider the Veteran's treatment records referencing diagnosis of and treatment for prostate cancer and prostatitis. - For each diagnosis, whether it is at least as likely as not related to service, to include the noted diagnosis of and treatment for gonorrhea in 1969. In so opining, the examiner is directed to address and consider the Veteran's service treatment records referencing symptoms that led to diagnosis of and treatment for gonorrhea in 1969 spanning multiple months. 5. After the development in paragraphs 1 and 2 is completed and records are obtained to the extent possible, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected pleural plaques. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 6. After the development in paragraphs 1 and 2 is completed and records are obtained to the extent possible, schedule the Veteran for an examination before an appropriate examiner to determine whether he has a bilateral knee disability that is related to service. The entire claims file and this remand should be provided to the examiner for review. The examiner should render an opinion, including rationale, addressing the following: - Whether the Veteran has a bilateral knee disability? In so opining, the examiner is directed to address and consider the Veteran's treatment records including the notation of use of a right knee brace in 2015. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. - For any diagnoses of an arthritic knee disability, is it at least as likely as not that the disability (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? - For any non-arthritic diagnosis(es), whether each diagnosis is at least as likely as not related to service, to include the noted right knee complaints in 1969. In so opining, the examiner is directed to address and consider the Veteran's STRs referencing right knee pain in 1969 and use of a wrap. (Continued on the next page) 7. After the above development, and any other development deemed necessary, readjudicate the claims. RACHEL E. JENSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.