Citation Nr: 21024458 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-48 036 DATE: April 22, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for peripheral neuropathy is remanded. Entitlement to service connection for skin disorder, to include skin cancer is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1963 to February 1971 and in the United States Air Force from August 1971 to July 1977 and from April 1984 to August 1989. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for an acquired psychiatric disorder to include PTSD is remanded. The Veteran contends that he has PTSD as result of his combat service in the Republic of Vietnam. The Veteran reports that while he was station in Vietnam, he was exposed to combat where he feared for the safety of others and himself. In particular, the Veteran described one incident, when he was on patrol in Vietnam in August 1968, and the enemy ambush them and the fighting lasted until the next morning. In another incident, while on patrol in Vietnam, his unit was ambushed by the enemy and several men died and others were injured, including himself. The Veteran sustained gunshot wound to the left leg. The Veteran also described another stressor incident in Vietnam, when he witnessed a company commander step on a land mine and be blown to pieces. See C&P Exam (February 2015); Medical Treatment Record - Government Facility (Vet Center) (August 2017); and Correspondence (August 2017). The Veteran’s service personnel records show that he received the Combat Infantry Badge and Silver Star Award, which establishes that he engaged in combat with the enemy. The Board finds the claimed combat stressors are consistent with the places, types, and circumstances of the Veteran’s service. As such, the Board believes there is sufficient evidence to concede the Veteran’s in-service combat stressors. See. 38 C.F.R. § 3.304 (f). The Veteran reports that upon his return from Vietnam, he “felt different”, but he dismissed it and he did not seek treatment until later. He reports that his mental health symptomatology includes nightmares about his combat service, hypervigilance, social withdrawal, avoids crowds, feeling anxious, difficulty concentrating, and memory problems. The Veteran believes that his symptomatology supports a diagnosis of PTSD related to his combat service. See Correspondence (April 2016); Affidavit (September 2020); and Third Party Correspondence (September 2020). Service treatment records show that the Veteran received mental health treatment, including evaluation, between March 1975 and June 1976, for symptoms of poor impulse control secondary to marital disorder, rage reactions, temper outburst, and erratic behavior, and he was assessed with situational reaction to adult life, and marital discord. See STR – Medical (September 2014). To ensure that VA has met its duty to assist, remand is necessary for the following reasons. First, the medical evidence of record is inadequate to decide the appeal. In evaluating psychiatric disorders, VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). See 38 C.F.R. § 4.130. Prior to August 4, 2014, VA regulations governing service connection for PTSD reference DSM-IV criteria. See 79 Fed. Reg. 149, 45094 (August 4, 2014). As the Veteran initiated his claim for service connection in July 2014, both DSM-IV and DSM-V criteria will be used to determine the diagnosis of PTSD. See 38 C.F.R. § 4.125 (a). Here, a February 2015 VA PTSD examination report reflects that the Veteran does not meet the DSM-4 or DSM-5 criteria for a diagnosis of PTSD. The examiner found that the Veteran did not meet the criteria for PTSD; however, the examination did not provide sufficient rationale that the Veteran did not meet the diagnostic criteria for an acquired psychiatric disorder to include PTSD. The Veteran argues that the February 2015 VA PTSD examination report is inadequate because the examiner failed to consider all of his reported symptomatology. He has provided competent, credible evidence suggesting he has PTSD symptomatology. See Correspondence (August 2017), and Affidavit (September 2020). In this regard, since the February 2015 VA examination, the Veteran has submitted mental health treatment records from the Vet Center dated from January 2016 to August 2017, and these records show his symptoms as reflective a PTSD diagnosis per DSM-V. However, the Vet Center treatment records do not clearly reflect how the diagnosis was made or whether it was presumed for treatment purposes of the Veteran’s reported symptoms. Given the conflicting evidence, the Board finds that a that remand is necessary to provide the Veteran with a new a VA PTSD examination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”). A new VA examination is necessary to resolve whether the Veteran has a confirmed diagnosis of PTSD related to an in-service stressor, or another mental disorder that is related to an in-service injury or disease. To the extent that the Veteran asserts that the examiner, who conducted the February 2015 VA PTSD examination was bias and prejudicial to Vietnam Veterans, there is no such indication in the examination report. See Correspondence (August 2017). Even though the Veteran was displeased with the attitude of the examiner, the Board finds no shortcomings in the clinical observations or opinions with rationale to suggest inappropriate bias, and a remand is not warranted based on this argument. Lastly, VA has a duty to make reasonable efforts to obtain outstanding private treatment records. 38 C.F.R. § 3.159 (c)(1). Records received from the Vet Center reflect that the Veteran had received treatment from Spruce Multispecialty Group for his mental health complaints. A review of the record shows that no records from Spruce Multispecialty Group have been provided or requested. The Board finds that remand is also needed to obtain these potentially relevant identified outstanding private treatment records. See 38 U.S.C. § 5103A (b), (c); 38 C.F.R. § 3.159 (c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). 2. Entitlement to service connection for peripheral neuropathy is remanded. The Veteran seeks entitlement to service connection for peripheral neuropathy. He asserts that he had developed peripheral neuropathy as a result of his exposure to herbicide agents. See VA 21-526EZ (July 2014). In addition, he contends that his current peripheral neuropathy had an onset during his period of service. He reports that he first experienced problems with feet during basic training. See Form 9 (September 2017). The medical evidence reflects that the Veteran has a current diagnosis of peripheral neuropathy, and he has complained of numbness and weakness in his upper extremities and lower extremities. See CAPRI (March 2016); Medical Treatment Record - Non-Government Facility (January 2017). The Board noted that the Veteran’s military personnel record shows that he served in Vietnam, thereby establishing presumptive exposure to herbicide agents. Early-onset peripheral neuropathy is one of the listed diseases that is presumed to be related to that exposure. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). However, it must manifest to a degree of 10 percent or more within a year after the last date on which a veteran was exposed to herbicide agents. In addition, VA has established certain rules and presumptions for chronic diseases, such as organic diseases of the nervous system. 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. Id. In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Further, the Veteran’s service treatment records show that he complained of foot-related problems shortly after his initial enlistment in October and December 1963, and later service treatment records note a history of foot trouble in 1964. In addition, service treatment records show complaints of bilateral upper extremity numbness for three months in May 1978 and bilateral lower extremity shooting pain in September 1981. Here, entitlement to service connection may be established based on the presumptive for a chronic disease or diseased enumerated as associated with herbicide agent exposure or on direct basis. VA has not yet obtained an examination or medical opinion in this matter, and VA’s duty to obtain a VA examination with a medical opinion has been triggered. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (a VA examination and/or opinion is warranted when there is an indication in the record that a current disability is related to military service; the threshold for an indication is low). Indeed, a remand is needed to provide the Veteran with a VA examination to determine the nature of his peripheral neuropathy, and whether it had an onset during his periods of service or manifested to a compensable degree within the require timeframe, or is otherwise related to his service, to include in-service complaints and/or exposure to herbicide agents. 3. Entitlement to service connection for skin disorder, to include skin cancer is remanded. The Veteran contends that he has a skin disorder, to include skin cancer, as a result of his presumed exposure to herbicide agents. See VA 21-526EZ (July 2014). In addition, he reports that he has had many cancerous lesions removed, which he believes were caused by sun exposure for 25 years, to include during his periods of service. See Form-9 (September 2017). The medical record shows that the Veteran has current diagnosed skin disorders, to include squamous cell carcinoma in situ genitalia, actinic keratosis, and seborrheic keratosis. See CAPRI (March 2016), and Medical Treatment Record - Non-Government Facility (January 2015). To the extent the Veteran argues that his claimed skin disorder is related to herbicide agent exposure, the Board notes that none of the diagnosed skin conditions are among the diseases enumerated as associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). Notwithstanding, the Veteran is not precluded from establishing service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In addition, the Veteran’s service treatment records show that he sought treatment for various skin problems during service, to include contact dermatitis in June 1964, a boil on leg, cellulitis and a large mole in right groin in May 1972, and a cyst on the buttocks in June 1978. Moreover, on his April 1989 examination prior to separation, his skin was evaluated as abnormal and findings of active keratosis on dorsum of hands was noted. See STR-Medical (September 2014). VA has not yet obtained an examination or medical opinion in this matter, and VA’s duty to obtain a VA examination with a medical opinion has been triggered. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). See also McLendon, supra. Indeed, a VA examination and medical opinion should have been obtained prior to the decision on appeal that addressed whether the Veteran has a current skin disorder that had an onset during his period of service, or it otherwise related to his period of service, to include in-service skin problems and/or exposure to herbicide agents. Further, a remand is needed to attempt to obtain outstanding records of pertinent treatment for the Veteran’s skin disorders. See 38 U.S.C. § 5103A (b), (c); 38 C.F.R. § 3.159 (c); see also Sullivan, 815 F.3d at 786. The record indicates that the Veteran had received ongoing treatment from his private dermatologist at West Coast Skin and Cancer Medical Center. See CAPRI (March 2016). The record contains the Veteran’s treatment records from this private facility from dated from November 2010 to October 2014. On remand, VA should seek the Veteran’s assistance in obtaining relevant outstanding private treatment records. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for his mental health and skin symptomatology, to include from Spruce Multispecialty Group and West Coast Skin and Cancer Medical Center. Make two requests for the authorized records from all identified sources unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records dated from March 2016 to the Present. 3. Schedule the Veteran for a psychiatric examination t determine the nature and etiology of any psychiatric disability, to include PTSD. The examiner must review the claims file. Detail the symptoms in service and thereafter, including the nature, onset, progression and severity of the Veteran’s reported symptoms. Then address: (a.) 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 combat stressor. The Board acknowledges that VA has transitioned to use of the DSM-V criteria although regulations governing service connection for PTSD still reference DSM-IV criteria. Therefore, if the examiner applies the DSM-V criteria and a diagnosis of PTSD is not rendered, then the examiner should reevaluate using the DSM-IV criteria. (b.) If any other acquired psychiatric disorders are diagnosed, including unspecified trauma and stressor related disorder, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. Consider the Veteran’s contentions that his mental health symptoms after his return from Vietnam as well as in-service mental health treatment and evaluations in 1975 and 1975. 4. Schedule the Veteran for a VA examination for his peripheral neuropathy. The examiner must review the claims file. Detail the symptoms in service and thereafter, including the nature, onset, progression and severity of the Veteran’s reported symptoms. Then address: (a.) Whether it is at least as likely as not that the Veteran has “early onset” peripheral neuropathy. And if so, whether such peripheral neuropathy manifested to a degree of 10 percent disabling within one year of herbicide agent exposure. (b.) Whether the Veteran’s peripheral neuropathy at least as likely as not related to service, including his presumed exposure to herbicide agents and/or in-service complaints of foot and arm problems. Consider the Veteran’s contentions that his peripheral neuropathy first manifested as foot-related problems during his initial period of service. (c.) Whether it is at least as likely as not that the peripheral neuropathy (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. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings. 5. Schedule the Veteran for a VA examination for his skin disorder, to include skin cancer. The examiner must review the claims file. Detail the symptoms in service and thereafter, including the nature, onset, progression and severity of the Veteran’s reported symptoms. Then address: (a.) Identify the Veteran’s skin disorder(s). (b.) For each diagnosed skin disorder, whether it at least as likely as not (1) began in service, or (2) is related to in-service injury or disease, including his presumed exposure to herbicide agents and/or in-service skin problems. Consider the Veteran’s in-service treatment for various skin problems, as well as assessment of active keratosis at the time of his April 1989 separation examination. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings. 6. 3. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray 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.