Citation Nr: 1342091 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 07-36 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for an acquired mental disorder. 2. Entitlement to service connection for muscle pain, to include as due to an undiagnosed illness. 3. Entitlement to service connection for joint pain, to include the fingers, knees, back and arms, to include as due to an undiagnosed illness. 4. Entitlement to service connection for migraine headaches, to include a due to an undiagnosed illness in-service traumatic brain injury (TBI). 5. Entitlement to service connection for a sleep disorder, to include as due to an undiagnosed illness or in-service TBI. 6. Entitlement to service connection for memory loss, to include as due to an undiagnosed illness or in-service TBI. 7. Entitlement to service connection for chronic fatigue, to include as due to an undiagnosed illness or in-service TBI. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty from June 1992 to March 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran had a hearing before a Decision Review Officer (DRO) at the RO in January 2008 and the transcript is of record. The Veteran has not requested a hearing before the Board. In October 2011, the Board remanded the Veteran's claim for development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND In the October 2011 Remand, the Board requested that the AMC provide the Veteran with VA medical examinations to determine the natures and etiologies of his claimed disorders. At the AMC's request, the Saginaw VA Medical Center (VAMC) scheduled the Veteran for VA medical examinations on eight separate occasions from February 2012 through July 2012. In each instance, the VAMC issued notice of the time and place of the scheduled examination to the Veteran's address of record. However, the Veteran failed to appear at any of these examinations. In October 2012, the AMC issued a Supplemental Statement of the Case (SSOC), denying the Veteran's claims to the Veteran's address of record and, subsequently, recertified his appeal to the Board. In November 2012, the Veteran's representative issued a letter to the AMC, indicating that the Veteran had contacted him after receiving the November 2012 SSOC. The representative indicated that the Veteran had moved several times within the previous year as his life had become unstable. The representative stated that his organization was "going to stay in regular contact" with the Veteran "to ensure his claim is successfully completed." The representative requested that VA reschedule the Veteran's examinations so that he might have a chance to attend. On this letter, the representative included an updated address of record for the Veteran. Given these circumstances and the Veteran's representative's assurance that it will remain in contact with the Veteran, the Board will direct another attempt to schedule the Veteran for the examinations requested in the October 2011 Remand. However, given the history of this matter, the Board ADVISES THE VETERAN THAT IT IS HIS RESPONSIBILITY TO REPORT FOR THE EXAMINATIONS. The Veteran is specifically advised that, under 38 C.F.R. § 3.655 (2012), when a claimant fails to report for an examination scheduled in conjunction with a claim such as this, the failure often results in the denial of the claim. The Veteran is advised that it is his personal responsibility to keep VA advised of his current address of record and to update his address every time he moves. The Veteran's failure to appear at an examination scheduled as a result of this Remand due to his failure to update his address of record may result in a finding of insufficient cause for failing to cooperate, and may lead to the denial of the claim or claims without further action. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of his claimed psychiatric disorder. The AMC/RO should put all notification regarding this examination appointment in written form and associate it with the claims file. The Veteran is advised that it is his personal responsibility to keep VA advised of his current address of record and to update said address with each move. The Veteran's failure to appear at an examination scheduled as a result of this Remand due to his failure to update his current address of record will not be considered good cause for the rescheduling of the appointment or for the Veteran's failure to appear. The following considerations will govern the examination: a. The claims folder and a copy of this remand will be made available to the examiner, who must specifically acknowledge receipt and review of these materials in any reports generated. b. Although the examiner is obligated to review the claims folder, the examiner's attention is specifically called to the following: i. the 1983 private treatment records indicating the Veteran's visits to a psychiatrist during childhood; ii. the service treatment records indicating treatment for an adjustment disorder; iii. the service personnel records indicating a lack of combat experience during service; iv. the post-service psychiatric treatment records. c. The VA examiner is asked to provide an opinion as to whether any currently diagnosed psychiatric diagnosis clearly and unmistakably pre-existed service - that is, is it MEDICALLY AND FACTUALLY UNDEBATEABLE THAT THE DISORDER EXISTED PRIOR TO SERVICE. If so, the VA examiner is asked to provide an opinion as to whether it is clear and unmistakable, -that is, is it MEDICALLY AND FACTUALLY UNDEBATEABLE THAT THE PREXISTING DISORDER WAS NOT aggravated by the Veteran's service. d. If the VA examiner opines that a pre-existing disorder did not predate service, the VA examiner is asked to opine as to whether any currently diagnosed psychiatric disorder(s) is related to service or to any incident of service. e. A comprehensive explanation must be provided for any findings rendered. All clinical findings should be reported in detail and correlated to a specific diagnosis. f. If the examiner is unable to provide an opinion requested by this Remand, he or she must so indicate and explain why. g. If the examiner is not a psychiatrist/psychologist, the report must be reviewed and signed by a psychiatrist/psychologist. 2. Schedule the Veteran for a VA medical examination to determine the nature and etiology of his claimed chronic sleep disorder, memory loss, migraine headaches, chronic fatigue, chronic muscle pain, and chronic joint pain. The AMC/RO should put all notification regarding this examination appointment in written form and associate it with the claims file. The Veteran is advised that it is his personal responsibility to keep VA advised of his current address of record and to update said address with each move. The Veteran's failure to appear at an examination scheduled as a result of this Remand due to his failure to update his current address of record will not be considered good cause for the rescheduling of the appointment or for the Veteran's failure to appear. The following considerations will govern the examination: a. The claims folder and a copy of this remand will be made available to the examiner, who must specifically acknowledge receipt and review of these materials in any reports generated. b. Although the examiner is obligated to review the claims folder, the examiner's attention is specifically called to the following: i. a January 1992 service treatment record in which the Veteran complained of dizziness after hitting his head on a steel frame and blacking out for five seconds; ii. the November 1992 in which the Veteran reported injuring his left ear after after slipping and hitting a drinking fountain; iii. the December 1993 service treatment record in which the Veteran reported having experienced a skull fracture at age 10 when he was hit by a hammer and having used psychedelic drugs 20 to 30 times before entry into service; iv. the post-service treatment records, indicating muscle/joint pain after a 1998 slip and fall injury, a 2004 motor vehicle accident, and a June 2005 lifting accident. c. The VA examiner is asked to provide an opinion as to whether any found sleep disorder, memory loss, headaches, chronic fatigue, chronic joint or muscle pain clearly and unmistakably pre-existed service - that is, is it MEDICALLY AND FACTUALLY UNDEBATEABLE THAT THE DISORDER EXISTED PRIOR TO SERVICE. If so, the VA examiner is asked to provide an opinion as to whether it is clear and unmistakable, -that is, is it MEDICALLY AND FACTUALLY UNDEBATEABLE THAT THE PREXISTING DISORDER WAS NOT aggravated by the Veteran's service. d. The VA examiner is asked to determine whether any found sleep disorder, memory loss, headaches, chronic fatigue, chronic joint or muscle pain can be attributed to diagnosable medical conditions or whether they are evidence that the Veteran suffers from a chronic disability due to an undiagnosed illness secondary to his service in Southwest Asia. e. If any found sleep disorder, memory loss, headaches, chronic fatigue, chronic joint or muscle pain can be attributed to diagnosable medical conditions, the VA examiner is asked to provide an opinion as to whether any found sleep disorder, memory loss, headaches, chronic fatigue, chronic joint or muscle pain is at least as likely as not related to service, to include any incident of TBI. e. A complete explanation must be provided for any findings rendered. All clinical findings should be reported in detail and correlated to a specific diagnosis. f. If the examiner is unable to provide an opinion requested by this Remand, he or she must so indicate and explain why. g. If the examiner is not a physician, the report must be reviewed and signed by a physician. 3. After the above has been completed, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner (and reviewing physician, if any) for corrective action. 4. Thereafter, consider all of the evidence of record and re-adjudicate the Veteran's claims. The Veteran must be provided an SSOC. The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, if indicated, the case should be returned to the Board for appellate disposition. 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). These claims 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 Supp. 2012). _________________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).