Citation Nr: 1636305 Decision Date: 09/16/16 Archive Date: 09/27/16 DOCKET NO. 10-30 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tension headaches, to include as due to an undiagnosed illness. 2. Entitlement to service connection for joint pain, to include as due to an undiagnosed illness. 3. Entitlement to service connection for neurologic symptoms, to include as due to an undiagnosed illness. 4. Entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1990 to November 1991. These matters come to the Board of Veterans' Appeals (Board) from a December 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a May 2013 Travel Board hearing at the local RO, and a copy of the transcript has been associated with the claims file. These matters were previously remanded by the Board in November 2013. As discussed below, the appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted above, these matters were previously remanded by the Board in November 2013 in order to provide the Veteran with a VA medical examination to determine the etiology of his claimed tension headaches, joint pain, neurological symptoms, and sleep apnea, pursuant to VA's duty to assist and the decision of the United States Court of Appeals for Veterans' Claims (Court) in McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record indicates that the Veteran failed to appear for the scheduled medical examinations in January 2014. Thereafter, the denial of the Veteran's claim was confirmed in a March 2014 supplemental statement of the case (SSOC), and the matters were returned to the Board. The Board is unable to find within the record a copy of the notice letter to the Veteran informing him that he was scheduled for VA medical examinations in January 2014 and of his obligation to appear. Regardless, in the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)). (Notification for VA purposes is a written notice sent to the claimant's last address of record.) See 38 C.F.R. § 3.1 (q). Despite the Veteran's failure to report, he will be given another opportunity to present for a VA examination given that his prior October 2008 VA opinion is inadequate to adjudicate his claims. On remand, the AOJ must schedule the Veteran for the previously requested medical examinations, provide him with adequate prior notice of the examination date(s) and location(s) (to be sent to his last known mailing address of record), and allow him an additional opportunity to appear for an examination. The Veteran is hereby advised, however, that he is legally obligated to report for such medical examinations. 38 C.F.R. § 3.655 (2015). The consequences of his failure, without good cause, to appear for an examination ordered in conjunction with his original compensation claim is that his claim shall be rated on the evidence of record. 38 C.F.R. § 3.655 (b) (2015). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for appropriate VA examinations to determine the etiology of his claimed tension headaches, joint pain, neurological symptoms, and sleep apnea. Properly advise the Veteran that failure to appear for any examination as requested, and without good cause, could adversely affect his appeal. 38 C.F.R. § 3.655 (2015). The AOJ must ensure that the Veteran is provided with timely notice of the date, time, and location of the scheduled medical examinations and document that such notice is sent to his correct last known mailing address of record. A copy of VA's correspondence notifying the Veteran of such examinations must be associated with the claims file. The VA examiner(s) are specifically requested to review the entire claims file, including this remand, and to conduct any relevant examination or testing of the Veteran, as deemed necessary by the examiner. Following the requested review and examinations, the examiner is asked to answer the following, including a complete and thorough rationale including reference to relevant evidence of record as appropriate: (a) Whether there is clear and unmistakable evidence that tension headaches preexisted the Veteran's active service. (i) If it is determined that tension headaches preexisted active service, an opinion should be provided as to whether tension headaches were clearly and unmistakably aggravated beyond normal progression during active service. (ii) If it is determined that tension headaches did not preexist active service, an opinion should be provided as to whether it is at least as likely as not (a 50 percent probability or greater) that tension headaches had onset in service or are otherwise etiologically related to active service, to include as due to undiagnosed illness or a medically unexplained chronic multi symptom illness as a result of active service during the Persian Gulf War. (b) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep apnea is etiologically related to active service, to include as due to undiagnosed illness or a medically unexplained chronic multi symptom illness as a result of active service during the Persian Gulf War. (c) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's claimed joint pain is etiologically related to active service, to include as due to undiagnosed illness or a medically unexplained chronic multi symptom illness as a result of active service during the Persian Gulf War. (d) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's claimed neurological symptoms are etiologically related to active service, to include as due to undiagnosed illness or a medically unexplained chronic multi symptom illness as a result of active service during the Persian Gulf War. In rendering the above opinions, the examiner should comment on the Veteran's competent and credible lay statements regarding the onset of relevant symptoms during active service and thereafter. The examiner is advised that the mere absence of any actual treatment in the immediate post-service period cannot be the sole reason for disassociating any current disorder from the Veteran's active service; rather, the examiner should comment on the likelihood that the Veteran's claimed disabilities and reported post-service symptoms are consistent with the current disabilities shown. 2. Following the above, review the resulting opinions to ensure their adequacy. If any opinion is inadequate, take appropriate corrective action. 3. Thereafter, readjudicate the Veteran's claims on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with an SSOC and a reasonable opportunity to respond, after which the matters should be returned to the Board for further adjudication, if otherwise in order. The Veteran 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). _________________________________________________ K. PARAKKAL 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).