Citation Nr: 21032814 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 17-53 094 DATE: May 28, 2021 REMANDED Service connection for any acquired psychiatric condition, to include posttraumatic stress disorder (PTSD) and alcohol use disorder, is remanded. Service connection for basal cell carcinoma skin cancer, to include as a result of herbicide agent exposure, is remanded. Service connection for residuals of squamous cell carcinoma of the right temple, to include as a result of herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1966 to March 1968 with additional service in the Reserves. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO). The Board notes the Veteran's VA Form 9 requested a hearing before the Board. The Veteran's representative subsequently withdrew said hearing request in a July 2019 correspondence. As such, his hearing request is considered withdrawn. 38 C.F.R. § 20.704. Additionally, the Veteran included in his Notice of Disagreement contentions regarding enlarged prostate as well as tumors in the prostate, bladder, lungs, and throat while also submitting related evidence in support thereof. The Board does not have jurisdiction of these matters as a claim has not been filed. The Veteran is invited to file a claim for benefits should he wish to do so under 38 C.F.R. § 3.155. 1. Service connection for any acquired psychiatric condition, to include PTSD and alcohol use disorder, is remanded. The Veteran contends he has an acquired psychiatric condition, including PTSD, that was caused by service. The Board finds the evidence of record is insufficient to resolve the Veteran's claim. Initially, the Board notes that the Veteran has contended two different in-service stressors that he claims are responsible for his acquired psychiatric condition, to include PTSD. One stressor relates to coming under enemy fire and the other stressor is related to witnessing the death of a helicopter pilot and co-pilot during a crash landing despite his rescue efforts. The helicopter crash was said to occur sometime between June 1967 and March 1968. The Veteran was afforded a VA examination in September 2016 during which the examiner found inconsistent findings. On the one hand, the examiner found the Veteran's in-service stressful incidents had a "powerful impact" on him and were "more likely than not" the cause of many of his symptoms, such as his exaggerated startle response, intrusive memories, and other "psychiatric symptoms." On the other hand, the examiner found that the symptomatology did not warrant a PTSD diagnosis under the DSM-V criteria, but rather that he had a current diagnosis of alcohol use disorder. The examiner recognized the Veteran's in-service stressful incidents were productive of symptoms but found his overall mental health functioning had "mild symptomatology." The examiner stated that it is more likely than not the Veteran's current symptoms are a function of non-service-related biopsychosocial factors including genetic predisposition and a family history of alcohol abuse. VA outpatient treatment records further raise ambiguities showing ongoing treatment references of trauma/stressor-related disorder, depression, and anxiety. Treatment records following the September 2016 VA examination note that the Veteran reported being unable to sleep because his memories of trauma typically occur at night which has led to him consuming alcohol to aid with sleep for years. A provider noted that the Veteran "appears to be using alcohol as a means of avoidance." The Board concludes that the evidence is inconclusive and further clarification is required regarding the Veteran's current psychiatric diagnosis/diagnoses and the likely etiology of any and all conditions found. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination, the examination provided must be an adequate one). The Board also notes the Veteran's service connection claim has been recharacterized as "any acquired psychiatric condition" under Clemons. The Veteran's treatment records reference depression, anxiety, trauma/stressor-related disorder, PTSD, and alcohol use disorder. To date, however, a VA examination has only been offered in relation to PTSD and alcohol use disorder. As this claim is being remanded, the Veteran shall be provided a VA examination for any acquired psychiatric condition, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Accordingly, remand is necessary to afford the Veteran another VA examination. 2. Service connection for basal cell carcinoma skin cancer, to include as a result of herbicide agent exposure, is remanded. 3. Service connection for residuals of squamous cell carcinoma of the right temple is remanded. The Veteran contends that he has basal cell carcinoma and residuals of squamous cell carcinoma that were caused by or incurred during service, to include as a result of herbicide agent exposure. The Board finds the evidence of record is insufficient to resolve the Veteran's claims. The Veteran is in receipt of the Vietnam Campaign Medal and Vietnam Service Medal. He contends he served aboard a US Navy or Coast Guard ship on the offshore "blue waters" of Vietnam. See August 2016 Correspondence. The Blue Water Navy Vietnam Veterans Act of 2019 allows diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam that became manifest in a Veteran who, during active military, naval, or air service, served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, to be considered to have been incurred in or aggravated by such service. 38 U.S.C. § 1116A. To date, however, development has not been completed to determine whether the Veteran may have been exposed to herbicides agent during service. Thus, remand is necessary for the RO to obtain competent evidence of the Veteran's service in Vietnam, including on river boats or ships in the eligible offshore waters of Vietnam, and to request verification from the U.S. Department of Army, Records Management and Declassification Agency (RMDA) as to whether the Veteran may have been exposed to herbicide agents during service. The Veteran's treatment records reference basal cell carcinoma and treatment of squamous cell carcinoma. The Veteran contends these conditions were caused or incurred during service. More specifically, the Veteran contends these conditions were caused by herbicide agent exposure. In support thereof, the Veteran has submitted a medical article discussing an association between exposure to herbicide agents and the development of squamous cell carcinomas. Additionally, service treatment records note multiple spots on the face an upper lip with discoloration in 1982 which the Veteran contends is related to his current basal cell carcinoma skin cancer and residuals of squamous cell carcinoma. There is insufficient competent evidence of record, however, to determine whether the Veteran's said conditions are related to service, to include contended herbicide agent exposure. Thus, remand is necessary to afford the Veteran a VA examination regarding these claims. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (holding that even if a disease is not included on the list of presumptive diseases, a nexus opinion must still consider direct causation considering a veteran's particular medical and military history, relevant medical literature, whether he/she has other risk factors, and whether the condition manifested itself in an unusual manner). The matters are REMANDED for the following action: 1. Complete all necessary development to determine whether the Veteran entered the twelve nautical mile territorial sea of the Republic of Vietnam during the period when the Veteran stated he was onboard US Navy ships. All attempts to retrieve this information must be documented in the claims file. 2. Attempt to corroborate the Veteran's in-service stressor regarding the helicopter crash incident and being part of a rescue mission for the pilot and co-pilot of the helicopter. If more details are needed, contact the Veteran to request the information. 3. 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 alcohol use 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 a verified in-service stressor or his in-service fear of hostile attack / description of being under enemy fire. 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, to include the described helicopter crash and/or being under enemy fire. In so opining, the examiner is directed to address and consider the Veteran's recent treatment records referencing PTSD, trauma/stressor-related disorder, depression, alcohol use disorder, and anxiety including treatment for PTSD following a positive PTSD screening. The examiner is further directed to address and consider the Veteran's recent treatment records referencing the Veteran's use of alcohol as a "means of avoidance" and the Veteran's lay statements of relying upon alcohol to fall asleep because his military related memories prevent sleeping. The examiner is directed to address and consider the Veteran's lay statements of symptoms in his recent treatment records. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner 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. 4. After the above development, schedule the Veteran for a VA examination to determine the nature and etiology of any basal cell carcinoma skin cancer and/or residuals of squamous cell carcinoma and any residuals related thereto. The entire claims file and this remand should be made available for review. The examiner should render an opinion, including rationale, addressing the following: (a.) Whether the Veteran has basal cell carcinoma skin cancer that is at least as likely as not (50 percent or greater probability) caused by or incurred during service, to include as a result of contended herbicide agent exposure and/or documented discoloration spots in 1982. (b.) Whether the Veteran has residuals of squamous cell carcinoma that is at least as likely as not (50 percent or greater probability) caused by or incurred during service, to include as a result of contended herbicide agent exposure and/or documented discoloration spots in 1982. In so opining, the examiner is directed to address and consider the medical articles of record discussing an association between herbicide agent exposure and squamous cell carcinomas. The examiner is reminded that even if the Veteran's diagnosed conditions are not on the presumptive list of conditions due to herbicide agent exposure cannot, by itself, be the sole basis for a negative nexus opinion. Rather, the examiner should consider the Veteran's specific military history, medical history, risk factors, and any other circumstances deemed relevant by the examiner in rendering an opinion. The examiner should consider all medical and lay evidence of record and offer a complete rationale for each opinion expressed. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner 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. 5. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS 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.