Citation Nr: 1534632 Decision Date: 08/13/15 Archive Date: 08/20/15 DOCKET NO. 09-02 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD) currently rated as 50 percent disabling. 2. Entitlement to service connection for a prostate disorder claimed as benign prostatic hypertrophy, due to Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kimberly A. Mitchell, Associate Counsel INTRODUCTION The Veteran had active service from January 1971 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. In April 2012, the appellant testified during a travel board hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record. In December 2012, the Board remanded the claim for further development, to include a VA examination. The case has been returned to the Board for further development. This appeal includes documents contained in the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of all of these records. The Board further notes that, in a timely July 2015 notice of disagreement, the Veteran indicated his disagreement with a December 2014 rating action's denial of a rating in excess of 50 percent for PTSD with anxiety. Pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), this matter must be remanded to the originating agency for the preparation of a Statement of the Case (SOC). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets any additional delay, the issues of entitlement to an increased rating for PTSD, currently rated as 50 percent disabling and benign prostatic hypertrophy, to include as due to Agent Orange exposure, must be remanded for further development. Increased Rating for PTSD A December 2012 rating decision denied an increased rating for PTSD with anxiety. In July 2015, the Veteran filed a notice of disagreement with the denial stating that the problems associated with his PTSD had not been sufficiently addressed. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Benign Prostatic Hypertrophy, to Include as Due to Agent Orange Exposure The Veteran contends that his benign prostatic hypertrophy is due to his Agent Orange Exposure. In a January 2013 VA prostate examination report, the examiner opined that the Veteran's benign prostatic hypertrophy was less likely than not incurred in or caused by the claimed in-service injury. The rationale provided was that the examiner was unaware of any clinical study which has found a causal relationship between herbicides used in Vietnam and benign prostatic hypertrophy. A May 2013 addendum opinion, from a different examiner, reiterated the fact that there is no evidence in medical literature that Agent Orange exposure causes benign prostatic hypertrophy to be more prevalent in exposed individuals than in the normal population. In a July 2015 brief, the Veteran through his representative submitted two clinical studies that discuss the relationship between benign prostate hypertrophy and exposure to Agent Orange/dioxins. The first study was conducted by UT Southwestern Medical Center and published in 2006. See EXPOSURE TO DIOXINS INFLUENCE MALE REPRODUCTIVE SYSTEM, STUDY OF VIETNAM VETERANS CONCLUDES, http://www.utsouthwestern.edu/newsroom/news-releases/year-2006/exposure-to-dioxins-influences-male-reproductive-system-study-of-vietnam-veterans-concludes.html (last visited August 11, 2015). The second study was conducted by the National Institute of Health and published in 2006. See SERUM DIOXIN, TESTOSTERONE, SUBSEQUENT RISK OF BENIGN PROSTATIC HYPERPLASIA: A PROSPECTIVE COHORT STUDY OF AIR FORCE VETERANS, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1665407/ (last visited August 11, 2015). Based on this new evidence the Board finds that a remand is necessary to obtain an addendum opinion, which takes into account these studies, and opines as to whether the Veteran's benign prostatic hypertrophy is at least as likely as not (50 percent probability or more) related to Agent Orange exposure. Accordingly, the case is REMANDED for the following actions: 1. Issue a statement of the case with regard to the issue of entitlement to an increased rating for PTSD with anxiety. Inform the Veteran of his appeal rights and that he must perfect an appeal if he desires appellate review of that issue. 2. Return the claims file, to include a complete copy of this REMAND, to the May 2013 examiner for an addendum opinion. If the examiner who drafted the May 2013 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. Following a review of the claims file, and a review of the articles listed below, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e. 50 percent probability or greater) that the Veteran's benign prostatic hypertrophy is related to the Veteran's exposure to Agent Orange. (a) Study conducted by UT Southwestern Medical Center and published in 2006. See EXPOSURE TO DIOXINS INFLUENCE MALE REPRODUCTIVE SYSTEM, STUDY OF VIETNAM VETERANS CONCLUDES, http://www.utsouthwestern.edu/newsroom/news-releases/year-2006/exposure-to-dioxins-influences-male-reproductive-system-study-of-vietnam-veterans-concludes.html. (b) Study conducted by the National Institute of Health and published in 2006. See SERUM DIOXIN, TESTOSTERONE, AND SUBSEQUENT RISK OF BENIGN PROSTATIC HYPERPLASIA: A PROSPECTIVE COHORT STUDY OF AIR FORCE VETERANS, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1665407/. The examiner must explain the rationale for all opinions given, citing to supporting factual data and medical literature as deemed appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. 3. Thereafter, the AOJ should readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered, and they should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).