Citation Nr: 1759965 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 09-30 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for headaches and light sensitivity, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 4. Entitlement to service connection for anger management and memory loss, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 5. Entitlement to service connection for skin rash, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 6. Entitlement to service connection for hair loss, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 7. Entitlement to service connection for fatigue and sleep difficulties, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Samuelson, Counsel INTRODUCTION The Veteran served on active duty in the Army from February 1987 to May 1991, with service in Southwest Asia from September 1990 to April 1991. His decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This case was previously before the Board in June 2014, September 2015, and March 2017 and remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that a remand is warranted to provide the Veteran with VA examinations regarding his claims for service connection for his right shoulder disability, left shoulder disability, headaches, light sensitivity, anger management, memory loss, skin rash, hair loss, fatigue and sleep difficulties. In regard to the Veteran's claims for service connection of the right and left shoulders, the Veteran contended that his shoulder injury occurred during his service in Germany in December 1987. In regard to the Veteran's other service connection claims, he reported exposure to environmental hazards in the Gulf War. On the Veteran's March 2008 application for compensation, he also reported exposure to asbestos and radiation during service in December 1990. The January 2014 VA examinations show diagnoses of left shoulder impingement, tension headaches, and light sensitivity. The August 2014 VA examination report and November 2014 VA addendum opinion provided a diagnosis of migraine headaches. In June 2014, the Board remanded the Veteran's claims for service connection for the bilateral shoulders and an undiagnosed illness as it determined the January 2014 VA examiners did not full address the Veteran's symptoms of memory loss, anger management, light sensitivity, headaches, rashes, hair loss, fatigue, and sleep difficulty. Pursuant to the June 2014 remand directives, the Veteran was afforded a July 2014 VA skin examination, an August 2014 VA mental health examination, an August 2014 VA headache examination with a November 2014 VA addendum opinion, and an August 2014 VA chronic fatigue syndrome examination. In September 2015, the case was remanded by the Board again to afford the Veteran adequate VA examinations. Specifically, the September 2015 Board decision determined that the July, August, and November 2014 medical opinions did not adequately address the issue of whether the Veteran's symptoms constitute an undiagnosed illness or medically unexplained chronic multisymptom illness. The Board also noted that the August 2014 VA examination report and November 2014 VA addendum opinion provided a diagnosis of migraine headaches; however, they did not include an adequate opinion as to whether the headaches were related to service and did not consider the Veteran's statement that he had severe headaches in June 1991, which the Board noted was one month after separation from service. See October 2000 private treatment record. Subsequent to the September 2015 Board remand, VA examinations were scheduled in October 2015 and January 2016. In a November 2015 statement, the Veteran contended that he was unable to attend the October 2015 VA examination because he was out of the country and requested that the examination be rescheduled. An April 2016 note showed the Veteran cancelled the January 2016 VA examination and requested the examination be scheduled at a closer VA medical center. An April 2016 letter to the Veteran from the RO indicated that the VA Medical Center in Washington DC is the closest facility to the Veteran's home address. Pursuant to the March 2017 remand directives, VA shoulder and Gulf War examinations were scheduled in May 19, 2017 and June 26, 2017 at the Martinsburg VAMC and the Veteran failed to attend these examinations. On May 19, 2017, the Veteran reported he was unable to keep his appointment due to a conflict in his schedule. On July 3, 2017, the Veteran reported that he missed his examination at the Martinburg VAMC because he went to Fredricksburg VAMC. He requested that his VA examinations be rescheduled. See July 3, 2017 Report of General Information and October 2017 Informal Hearing Presentation. The Board finds the Veteran has presented good cause for failing to report to the scheduled VA examinations. Accordingly, a remand is warranted to reschedule the VA examinations. See 38 C.F.R. § 3.655 (2017). The VA examinations should address whether the Veteran has a current right shoulder disability and whether his right shoulder disability, left shoulder disability, headaches, light sensitivity, anger management, memory loss, skin rash, hair loss, fatigue and/or sleep difficulties, are related to service, to include as due to an undiagnosed illness, asbestos exposure, and radiation exposure. The AOJ should make every effort to schedule the VA examination at the VA medical center closest to the Veteran's current home address, which is the VA Medical Center in Washington DC. The Veteran is on notice that failure to attend any scheduled VA examination without showing good cause may result in the denial his claims. 38 C.F.R. § 3.655 (2017). The VA examiners should acknowledge the December 1987 service treatment record showing the Veteran's right shoulder popped out and a diagnosis of bicep tendonitis, and the Veteran's contentions that his headaches began shortly after his return from service in May 1991. On remand, the RO should ask the Veteran to identify any additional, pertinent medical treatment that he has received for his right shoulder disability, left shoulder disability, headaches, light sensitivity, anger management, memory loss, skin rash, hair loss, fatigue and/or sleep difficulties, to include as due to an undiagnosed illness, asbestos exposure, and radiation exposure and take appropriate measures to obtain those records. Any additional, pertinent VA or private treatment records should be associated with the file. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). The RO should also ask the Veteran to submit any additional, pertinent lay statements relating to his claims. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify the VA facilities at which he received treatment. Associate with the claims file any identified records that are not already part of the claims file. If no additional records are available, include documentation of the unavailability in the claims file. 2. Afford the Veteran an additional opportunity to submit any treatment records that are not contained in the claims file, to specifically include private treatment for his shoulder disability(ies). Associate any available records with the claims file. Make at least two (2) attempts to obtain records from any private sources. If any records are unavailable, document the unavailability within the claims file and advise the Veteran so he can submit any copies in his possession. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, onset, and etiology of his conditions. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After associating any pertinent, outstanding records with the claims file, schedule the Veteran for a VA examination to determine the nature, onset, and etiology of any left and/ or right shoulder disability(ies) found to be present. Initially, the examiner should determine whether the Veteran has a current right shoulder disability. Then, the examiner should opine as to whether any diagnosed right and/or left shoulder disability(ies) had its onset in service or is at least as likely as not related to service. The examiner should acknowledge the December 1987 service treatment record showing the Veteran's right shoulder popped out during service and a diagnosis of biceps tendonitis. The Veteran is on notice that his failure to report for the examination may result in the denial of his claims. 5. After associating any pertinent, outstanding records with the claims file, schedule the Veteran for a VA Gulf War examination to determine the current nature, onset, and etiology of his symptoms, to include his left and right shoulder symptoms, headaches, light sensitivity, anger management, memory loss, skin rash, hair loss, fatigue, and sleep difficulties. The claims file should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. The examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding his symptomatology, and undertake any indicated studies. Then, based on the results of the examination, the examiner is asked to address each of the following questions: (a) Please state whether the symptoms of each claimed condition are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? (b) Is the Veteran's disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis? (c) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern is either (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to a presumed environmental exposures experienced by the Veteran during service in Southwest Asia. (d) Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War, asbestos exposure, or radiation exposure? In answering questions (a) to (d), please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. The VA examiner should acknowledge the Veteran's contentions that his headaches began shortly after his return from service in May 1991. A report of the examination should be prepared and associated with the Veteran's claims file. The Veteran is on notice that his failure to report for the examination may result in the denial of his claims. 6. Then, the claims should be readjudicated. If any benefit sought on appeal remains denied, the RO should issue the Veteran and his representative an appropriate Supplemental Statement of the Case and afford them appropriate time to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ STEVEN D. REISS 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) (2017).