Citation Nr: 1325339 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 97-20 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a psychiatric disability, other than posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a skin disorder, claimed as surgical scars. 3. Entitlement to service connection for a gastrointestinal disorder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to August 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 1994 rating decision by the New York, New York, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In July 1999, the Board remanded the appeals, then characterized as claims for reopening, for further development. (Vol. 4). The Board also determined that a freestanding issue of service connection for PTSD was on appeal, and remanded that matter for development. The Veteran testified at a personal hearing before the undersigned in May 2008; a transcript of the hearing is of record. When the appeal was returned to the Board in August 2008, the previously denied claims of service connection were reopened, and the underlying claims on the merits were remanded for fully compliant notice regarding applicable laws and regulations, and further development. The Veteran objected to the inclusion of a claim of service connection for PTSD in her appeal, and in October 2008, the Board issued a decision vacating that portion of the August 2008 decision addressing PTSD. The remaining issues remained on appeal, and the remand actions required by the Board were to be undertaken. The Veteran also objected to the characterization of the remaining issues on appeal, listed above. She has raised no specific objection however, and instead appears to insist that her own words be used to describe her claims. The Board's action in characterizing the issues as they are is consistent with the evidence and allegations reflected in the records, as well as applicable law and precedent. The broader terms used are designed to encompass all possible diagnoses and conditions, so as to afford the Veteran the fullest consideration. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In June 2012, the Board remanded the matter for further development, which was completed, and the case has been returned to the Board for appellate consideration. As discussed in detail below, the Board specifically remanded this matter to obtain outstanding treatment records; to attempt to schedule the Veteran for examinations at the VA Medical Center (VAMC) in Syracuse, New York; and to readjudicate the claims. Subsequently, additional treatment records were obtained. However, despite the agency of original jurisdiction's (AOJ) attempts to schedule the Veteran for examinations for her claimed disorders, she canceled the examinations. In any case, her claims were readjudicated in a February 2013 supplemental statement of the case (SSOC). Thus, there is compliance with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (finding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. FINDINGS OF FACT 1. In an August 2008 decision, the Board reopened previously disallowed claims for service connection for a psychiatric disability, a skin disorder, and a gastrointestinal disorder. 2. With regard to the issue of entitlement to service connection for a psychiatric disorder, other than PTSD, the Veteran failed, without good cause, to report for a scheduled VA examination which was required to properly adjudicate this claim. 3. With regard to the issue of entitlement to service connection for a skin disorder, claimed as surgical scars, the Veteran failed, without good cause, to report for a scheduled VA examination which was required to properly adjudicate this claim. 4. With regard to the issue of entitlement to service connection for a gastrointestinal disorder, the Veteran failed, without good cause, to report for a scheduled VA examination which was required to properly adjudicate this claim. CONCLUSIONS OF LAW 1. The Veteran's claim for service connection for a psychiatric disorder, other than PTSD, is denied based on failure to report for a VA medical examination. 38 C.F.R. § 3.655(a), (b) (2012). 2. The Veteran's claim for service connection for a skin disorder, claimed as surgical scars, is denied based on failure to report for a VA medical examination. 38 C.F.R. § 3.655(a), (b) (2012). 3. The Veteran's claim for service connection for a gastrointestinal disorder is denied based on failure to report for a VA medical examination. 38 C.F.R. § 3.655(a), (b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In various correspondence, the most recently dated in December 2009, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The December 2009 letter also notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claims were subsequently readjudicated in various SSOCs dated in August 2011 and February 2013. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case). VA has done everything reasonably possible to assist the Veteran with respect to her claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). All identified and available service and post-service treatment records have been secured. As explained below, the Board determined that VA medical examinations were needed to adjudicate these claims. VA complied with its duty to assist by scheduling the Veteran for, and notifying her of, the VA examinations. As noted below the Veteran failed to appear, without good cause, for the necessary VA examinations. Additionally, the Veteran presented testimony in support of her claims before the undersigned. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the May 2008 hearing, the undersigned enumerated the issues on appeal. Information was obtained regarding onset of the Veteran's claimed disabilities, her current symptoms, and any causal link between the claimed disabilities and her active service. The Board observes that the Veteran, through numerous statements over the years and during her hearing, demonstrated that she was aware of the issues and the evidence needed to substantiate her claims. Furthermore, the Board has remanded this matter on several occasions and outlined the issues surrounding the case thereby informing the Veteran of the outstanding evidence in her case. Further, in Bryant, the United States Court of Appeals for Veterans Claims (Court) held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, including the provision of a VA medical examination, and there was no indication that the appellant had any additional information to submit. Id. at 498-99. Similarly, in this case, the Veteran's claims have been fully developed to the extent possible. VA has obtained the Veteran's outstanding treatment records. Additionally, as discussed above, VA also attempted to provide the Veteran with VA examinations on multiple occasions over the years and for which she refused to appear. The Veteran has not identified any additional information or evidence relevant to her claims. Thus, the outcome of the claims has not been affected with respect to any error in explaining the outstanding issue, and therefore no prejudice exists. See id.; see also Shinseki v. Sanders, 556 U.S. 396, 406-07 (2009) (holding that the assessment of whether prejudicial error exists is based on the specific facts of each case); Mayfield v. Nicholson, 19 Vet. App. 103, 121, 122 (2005). As to the duty to suggest evidence that may have been overlooked, the Veteran did not raise any new issues pertaining to her claims at the hearing. See Bryant, 23 Vet. App. at 496-98. There is no indication of any other outstanding evidence that may have been overlooked. See id. Therefore, there was no need to suggest the submission of evidence missing from the record. See id. More importantly with regard to prejudice, as discussed herein, the Veteran's refusal to attend examinations precludes granting service connection as there is not sufficient evidence in the claims folder to address the criteria for service connection. As such, the Board finds that to the extent there was any deficiency in the May 2008 hearing under 38 C.F.R. § 3.103(c)(2), such error was harmless and has not prejudiced the Veteran's claims. See id. The Board has carefully reviewed the Veteran's statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. Analysis The Veteran essentially contends that her current disorders are related to service. She asserts that during her service at Fort McClellan, Alabama she was exposed to toxins, including polychlorinated biphenyls (PCBs), on and off base. (Vol. 7). Upon the Veteran's entrance into active service, she was given a comprehensive medical examination in June 1970. She denied any medical history of nightmares, depression, excessive worry, or nervous trouble. The physician's summary and elaboration section, however, was significant for acne and vitiligo, not considered disabling (NCD). On examination, the Veteran's psychiatric and skin evaluations were normal; clinical findings for her abdomen and viscera were also normal. In January 1971, the Veteran complained of stomach cramps and severe hyperventilation. It was reported that she had been overly tense and under pressure for the last several weeks due to "final exams" and a "security check." Her symptoms included attacks of nausea and labored breathing. On examination, she appeared anxious and worried. The impression was anxiety. In February 1971, the Veteran complained of an inability to move. She reported that earlier she had ingested medication. On examination, she had limited movement under command, but was very stiff. It was reported that she had experienced a poor reaction to her medication. After one to two hours the Veteran was noted to have relaxed. She admitted that she had previously experienced several episodes of vomiting. The Veteran claimed that she had been emotionally upset and that past episodes of stress had led to similar symptoms. In May 1971, it was noted that the Veteran had stayed in bed for the last four days. She also claimed that she had not eaten anything during this period. She had no specific complaints, but did admit to an increased use of alcohol. On examination, she appeared to be very anxious and hyperventilating. The impression was anxiety reaction and hyperventilation. The Veteran was discharged from active duty in August 1972. There is no separation examination of record. Post-service medical records include VA medical records dated in November 1972, which reflect that the Veteran was admitted for excision of a sebaceous cyst on the left cheek and dermabrasion of the face. (Vol. 1). She stated that the cyst had been present on the left cheek since July 1972. She also gave a history of treatment in the past for acne. She complained of vomiting frequently due to smells which she found nauseating or drinking coffee or when she became nervous. Examination revealed bilateral acne scars on both cheeks and a sebaceous cyst on the left cheek. The abdomen was soft and non-tender without organomegaly. After the facial procedures were done she had several episodes of nausea and vomiting. VA examination in December 1991 noted a history of a vagotomy and pyeloroplasty in 1991 for an obstructing duodenal ulcer. (Vol. 1). The diagnoses were acne, status post vagotomy and pyeloroplasty for obstructing duodenal ulcer, and dumping syndrome secondary to status post vagotomy and pyeloroplasty. Subsequent medical evidence reflects a diagnosis of anxiety disorder with depression. The AOJ has attempted to schedule the Veteran for medical examinations on multiple occasions. However, it is clear from the record that the Veteran refuses to attend all scheduled examinations despite the accommodations VA has made for her and she has not provided good cause for her failure to appear for these examinations. Notably, when the Board remanded this matter in June 2012, it specifically noted that there was a long history of conflict between care providers at VAMC Albany, particularly examiners, and the Veteran. As the Veteran appeared to indicate that she could not be fairly and impartially evaluated at VAMC Albany, and she had not stated or indicated that she was unwilling to report for or did not desire the VA examinations but merely stated she did not want to attend such at VAMC Albany, the Board instructed the AOJ to schedule the Veteran at another nearby VA facility, which was identified as the VAMC Syracuse. Pursuant to the Board's instructions, the AOJ scheduled the Veteran for examinations at the VAMC Syracuse in January 2013 and February 2013. However, the Veteran cancelled the examinations. Furthermore, in a March 2013 statement, the Veteran wrote "I will NOT answer to or comply with a Comp and Pen EXAM when I have been under the care of the VA Hospital system for 40 years." Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160 (2012). In this case, the Veteran's current claims for service connection for a psychiatric disability, a skin disorder, and a gastrointestinal disorder are not the original claims for compensation. 38 C.F.R. § 3.160(b). Claims for service connection for each of these disabilities were previously subject to final denials. These claims were all reopened by the Board by an August 2008 decision. The Board finds that the Veteran has provided no justifiable reason for her failure to appear for the scheduled VA medical examinations. As good cause is not demonstrated for her failure to report, and the examinations were scheduled in conjunction with reopened claims for benefits which were previously disallowed, the claims must be denied by express VA regulation. See 38 C.F.R. § 3.655(b). This is nondiscretionary, as evidenced by use of the word "shall" in this regulation. As the Court of Appeals for Veterans Claims has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As indicated above, the current claims are not the original claim for compensation; they are reopened claims for benefits which were previously disallowed. As such, the claims are denied pursuant to 38 C.F.R. § 3.655(b). Where, as here, the regulation is dispositive, the claims must be denied because of lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Service connection for a psychiatric disability, other than PTSD, is denied. Service connection for a skin disorder, claimed as surgical scars, is denied. Service connection for a gastrointestinal disorder is denied. ____________________________________________ ROBERT E. P. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs