Citation Nr: 21030652 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-49 150 DATE: May 19, 2021 REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for skin cancer, to include as secondary to herbicide exposure and/or sun exposure, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from January 1970 to February 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal of a February 2017 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In February 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript from that proceeding is associated with the claims folder. 1. Entitlement to service connection for a back disorder is remanded. 2. Entitlement to service connection for a right ankle disorder is remanded. 3. Entitlement to service connection for a right knee disorder is remanded. 4. Entitlement to service connection for skin cancer, to include as secondary to herbicide exposure and/or sun exposure, is remanded. With respect to the Veteran's claims of entitlement to service connection for a back disorder, a right knee disorder, and a right ankle disorder, the Board observes that the Veteran has not yet been afforded VA examinations in connection with his claims. In this regard, the Board notes that the Veteran has not been diagnosed with a back disability, a right knee disability, or a right ankle disability. However, the Veteran testified that he injured his back while working on a vehicle in service, and that he injured his right knee and right ankle during training exercises; the Veteran also testified that he has experienced chronic back, right knee, and right ankle since his service. The United States Court of Appeals (Court) has held that pain in the absence of a presently diagnosed condition can cause functional impairment, which may qualify as a disability for VA purpose. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). In addition, the Veteran has not yet been afforded a VA examination in connection with his claim of entitlement to service connection for skin cancer. In this regard, the Board observes that the Veteran testified that he was treated for suspicious lesions but that he was unsure whether he had been diagnosed with melanoma or "benign melanoma." The Veteran also testified that he was told that his skin disorder, however diagnosed, may be related to excessive sun exposure or herbicide exposure during his service in Vietnam. The Board notes that the Veteran's DD 214 confirms that the Veteran had service in Vietnam from June 1970 to October 1970; as such, the Veteran is presumed to have been exposed to Agent Orange during active duty, and the presumptions outlined in 38 C.F.R. § 3.309(e) are applicable. 38 C.F.R. § 3.307(a)(6)(iv). The Board also observes that VA treatment records reflect a diagnosis of actinic keratosis but do not show a diagnosis of melanoma or basal cell carcinoma. Accordingly, the Board finds that the Veteran should be afforded VA examinations regarding these claims for service connection. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). When determining service connection, all theories of entitlement, direct and secondary, must be considered if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). 5. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. The Board notes that the Veteran asserts that he has an acquired psychiatric disorder, to include PTSD, related to his service in Vietnam. The Board observes that the Veteran was afforded a VA PTSD examination in February 2017. The VA examiner found that the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD or another mental health disorder, but he failed to provide any explanation as to why the Veteran did not meet the diagnostic criteria for PTSD or other mental health disorder. In addition, he did not address the Veteran's contentions that he had nightmares and intrusive thoughts about his experiences in Vietnam, and abused alcohol in an effort to deal with his memories of Vietnam. In addition, the VA examiner did not address the Veteran's history of treatment for depression, or the Veteran's contention that his depression is related to his military service; VA treatment records reflect a diagnosis of and treatment for depression. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992). All available VA treatment records for the claims on appeal should be associated with the Veteran's claims file. The Board notes that additional relevant VA medical evidence was received and uploaded into the Veteran's claims file prior to the transfer of the case to the Board. See VA Treatment Records dated June 2009 to December 2020 and December 2020 to April 2021. A review of the electronic claims folder does not show that that the Veteran or his representative waived consideration of that evidence by the AOJ in the first instance. See 38 C.F.R. §§ 19.37(a), 20.1305(c). As a result, the Veteran's claims must be remanded so that the AOJ can consider all evidence pertaining to the Veteran's claims on appeal in the first instance. See 38 C.F.R. § 19.31(c) (the agency of original jurisdiction is to issue a supplemental statement of the case when, pursuant to a Board remand, it develops evidence or cures a procedural defect). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his claims on appeal. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. After any additional records are associated with the claims file, the RO should schedule the Veteran for appropriate VA examinations in order to determine the nature and etiology of the Veteran's claimed back, right knee, and right ankle disorders, if any. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiners should identify all back, right knee, and/or right ankle disorders that may be present. For any identified back, right knee, and/or right ankle disorders, the examiners should indicate whether the Veteran's back, right knee, and/or right ankle disorders, if any, are at least as likely as not (50 percent probability or more) related to any event, illness, or injury during service. In the event that the criteria for diagnoses of back, right knee, and/or right ankle disorders are not met, the examiner should specifically state whether there is any functional impairment caused by the Veteran's reported back, right knee, and/or right ankle pain, to include any functional impairment caused by the Veteran's reported back, right knee, and/or right ankle pain during flare-ups. Evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes. If there is functional impairment, please offer an opinion as to whether is at least as likely as not (50 percent probability or more) that the Veteran's functional impairment due to back, right knee, and/or right ankle pain began in or is related to any event, illness, or injury during service. The examiner is advised that the Veteran is competent to report symptoms, including continuity of symptoms, treatment, and diagnoses and the examiner must take into account, along with the other evidence of record, the Veteran's statements in formulating the requested opinions. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. 3. After any additional records are associated with the claims file, the RO should schedule the Veteran for a VA skin examination to assess the nature and etiology of his skin disorder, if any. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiners should identify all skin disorders that may be present. For any identified skin disorders, the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that any identified skin disorder is related to any event, illness, or injury during service, to include exposure to herbicides in Vietnam or excessive sun exposure consistent with the circumstances of the Veteran's service in Vietnam. The VA examiner must discuss the Veteran's medical, occupational, and recreational history prior to, during, and since his military service, as well as the Veteran's assertions. The examiner is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. 4. After any additional records are associated with the claims file, the RO should schedule a VA examination to determine the presence and etiology of an acquired psychiatric disorder, to include PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran has PTSD which is caused or aggravated by his service. The examiner is requested to identify the stressor that serves as the basis for any PTSD diagnosis and note the diagnostic criteria utilized to support the diagnosis under DSM-V. If the VA examiner finds the diagnostic criteria is not met, the VA examiner is to provide an explanation for such a finding. If the Veteran does not have PTSD, the VA examiner is requested to provide any opinion as to whether it is as least as likely as not (50 percent probability or more) that the Veteran has an acquired psychiatric disorder (i.e., depression) which was caused or aggravated by his service. The requested determination should consider the Veteran's medical history prior to, during, and since his military service. The VA examiner is advised that the Veteran is competent to report symptoms, treatment, events, and injuries in service, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. 5. After completing all indicated development, the AOJ should readjudicate the remaining claims on appeal, in light of all of the evidence of record. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hallie E. Brokowsky, 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.