Citation Nr: 1620095 Decision Date: 05/17/16 Archive Date: 05/27/16 DOCKET NO. 12-30 983 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to service connection for a sleep disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran had active service from February 24, 1967 to April 28, 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 decision by the RO in Detroit, Michigan that determined that new and material evidence had not been received to reopen previously denied claims of service connection for headaches, a psychiatric disorder, and a sleep disorder. A videoconference hearing was held in October 2013 before the undersigned Veterans Law Judge (VLJ) of the Board, and a transcript of this hearing is of record. In a January 2015 decision, the Board determined that new and material evidence had been received, reopened these three claims, and then remanded them to the Agency of Original Jurisdiction (AOJ) for additional development. The case was subsequently returned to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, another remand is required prior to appellate review. A Board remand confers upon the appellant the right to compliance with that order. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). In January 2015, the Board remanded the appeal to the AOJ partly to obtain ongoing VA treatment records. Unfortunately, this was not done, and another remand is required. Id.; see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Moreover, as noted in the prior Board remand, although the claims file contains letters from private physicians in support of the claims (including multiple letters from Dr. F., most recently in October 2015), it does not contain any records of actual treatment by most of these physicians. Another attempt should be made to obtain such private medical records, especially from Dr. F., after obtaining any necessary releases from the Veteran. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board notes that the Veteran did not respond to the AOJ's April 2015 letter requesting that he identify his treatment providers and submit release forms for each treatment provider. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not always a one-way street and if a Veteran desires help with his claim he must cooperate with VA's efforts to assist him). In his October 2015 letter, Dr. F. diagnosed posttraumatic stress disorder (PTSD) and anxiety. The scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that in January 2010, Dr. F. found no current psychiatric disorder, but diagnosed dementia secondary to head trauma, while in September 2011 he diagnosed depression and sleep walking. Records from the Social Security Administration reflect that he was diagnosed with somatoform disorder in 1998. The Veteran's claim of service connection for an acquired psychiatric disorder therefore includes all of these diagnosed psychiatric disorders. The Board also remanded this appeal in January 2015 for VA compensation examinations as to the claimed disabilities. Although these examinations were scheduled, the Veteran failed to report for such examinations. As noted by the Veteran's representative, it is unclear from the record whether the Veteran received adequate notice of these examinations. In this regard, the record reflects that some VA letters to the Veteran were returned by the post office as undeliverable, and other records indicate that the Veteran is homeless. However, the claims file also contains a January 2016 report of contact showing that a VA employee spoke with the Veteran on the telephone and advised him of his upcoming examinations, and the Veteran responded that he did not see the need for the examinations. Subsequent reports of contact in January and February 2016 reflect that VA was unable to contact the Veteran or his relatives by telephone, and that his prior telephone number had been disconnected. The Veteran's representative has contended that VA should make another attempt to arrange for VA examinations. See April 2016 written brief. To afford the Veteran every consideration, the AOJ should make another attempt to schedule such examinations. The Veteran has a responsibility to keep VA informed of changes of address and, if he does not, VA is not obligated to turn up heaven and earth to find him. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). While VA has a duty to ensure adequate notice is provided, this duty does not extend to providing unlimited opportunities to appear for a medical examination. Therefore, the Veteran is cautioned that he has a duty to keep VA apprised of his current address and to cooperate by appearing for his examinations, once scheduled. See also 38 C.F.R. § 3.655(b) (2015). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. With any necessary releases, obtain any VA or private medical records of treatment or evaluation of service-connected disabilities dated since separation from service that are not already on file, and associate them with the electronic claims file. In particular, attempt to obtain private medical records of treatment from Dr. S.F. of Comprehensive Psychiatric Services, dated from 2009 to the present. If the records are not obtainable (or none exist), the Veteran must be notified and the record clearly documented. 2. Then, schedule the Veteran for examinations by appropriate examiners regarding the nature and etiology of any headaches, psychiatric disorder, or sleep disorder. The claims file must be made available to and reviewed by the examiners. Regarding any headaches, the examiner MUST provide an opinion, based on the record, regarding: a) whether it is at least as likely as not that the Veteran's headaches are etiologically related to an in-service injury, disease, or event; or, b) Whether it is at least as likely as not that the Veteran's headaches are proximately due to or, in the alternative, chronically aggravated by service-connected disability. Regarding any psychiatric disorder present since the Veteran's July 2011 petition to reopen, the examiner MUST provide an opinion, based on examination results and the record, regarding: a) Whether any such psychiatric disorder clearly and unmistakably (it is medically undebatable) preexisted the Veteran's February 1967 enlistment into service. The examiner must point to specific instances in the record that support this opinion. If the answer to (a) is yes, then the examiner should provide an opinion regarding: b) Whether any preexisting psychiatric disorder was clearly and unmistakably (it is medically undebatable) not permanently aggravated by the Veteran's active service (i.e., worsened in service to a permanent degree beyond that which would be due to the natural progression of the disorder). c) If a personality disorder is also diagnosed, the examiner should discuss whether there is any evidence of a superimposed acquired psychiatric disorder in service that resulted in a current acquired psychiatric disorder. d) If the examiner does not find clear and unmistakable evidence that any currently diagnosed psychiatric disorder preexisted service and was not aggravated in service, the examiner MUST provide an opinion regarding whether it is at least as likely as not that the Veteran has any acquired psychiatric disorder that is etiologically related to an in-service injury, disease, or event. Regarding any sleep disorder, the examiner MUST provide an opinion, based on the record, regarding: a) whether it is at least as likely as not that any sleep disorder present since the Veteran's July 2011 petition to reopen is etiologically related to an in-service injury, disease, or event; or, b) Whether it is at least as likely as not that the Veteran's sleep disorder is proximately due to or, in the alternative, chronically aggravated by service-connected disability. The examiners MUST also comment on whether a relationship exists between the Veteran's headaches and any psychiatric or sleep disorder. See January 2010 Dr. F. treatment records (noting that the Veteran's sleep aids may be contributing to his headaches); November 2010, November 2011, January 2012 Dr. F. letters (noting difficulty sleeping due to enuresis); see also April 1967 Urology Consultation (reporting improvement in enuresis for a period of three years prior to enlistment, with a worsening upon enlistment); Transcript of Record p. 8 (reporting that Dr. F. stated that sleep difficulties were due to a combination of in-service head trauma and a psychiatric diagnosis); April 1967 Discharge Medical Examination (revealing abnormal psychiatric evaluation); July 2008 statement (reporting sleep difficulties sometimes because head hurt so badly). Please provide the basis for any medical determination and a rationale or medical explanation for the opinion. If medical literature is used, please provide a citation. Any opinion MUST consider the Veteran's reports regarding the onset and duration of his symptoms. If the examiner finds that an opinion cannot be rendered without resorting to speculation, the examiner MUST state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or by the examiner (does not have the knowledge or training). 3. Then readjudicate these claims in light of all additional evidence. If the claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to respond before returning the file to the Board for further appellate consideration of these claims. 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). _________________________________________________ S. L. Kennedy 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) (2015).