Citation Nr: 20028126 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 14-25 028 DATE: April 22, 2020 REMANDED Entitlement to service connection for lumbar spine disability is remanded. Entitlement to service connection for bilateral heel spurs is remanded. Entitlement to service connection for bilateral leg pain, to include varicose veins, is remanded. Entitlement to service connection for headaches, claimed as migraines, is remanded. Entitlement to service connection for chronic fatigue syndrome (CFS), also claimed as sleep problems and low energy, is remanded. Entitlement to service connection for dizziness/vertigo is remanded. Entitlement to service connection for skin problems/disorder, to include a rash and sun spots, is remanded. Entitlement to an initial rating in excess of 30 percent for generalized anxiety disorder (GAD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from July 1976 to March 1988 and in the United States Army from September 1990 to April 1991. He also had additional service in the Delaware Air National Guard and South Carolina Army National Guard. He had documented active service in Southwest Asia from November 5, 1990, to April 14, 1991. These matters were previously before the Board in July 2016 at which time they were remanded for further evidentiary development. As discussed below, the Board finds that additional remand is needed before decisions may be rendered on the claims. Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. See 38 C.F.R. § 3.655. 38 C.F.R. § 3.655(b) provides that 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. A claim for a higher initial rating is an “original compensation claim” and not a “claim for increase” for purposes of 38 C.F.R. § 3.655(b). Turk v. Peake, 21 Vet. App. 565, 570 (2008). The United States Court of Veterans Affairs (Court) has held that the burden is upon VA to demonstrate that notice was sent to the claimant’s last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 265 (1993); see also Connolly v. Derwinski, 1 Vet. App. 566 (1991). Although, in dicta, the Court stated that in the normal course of events, it was the burden of the appellant to keep the VA apprised of his whereabouts, and that if he did not do so there was no burden on the VA to turn up heaven and earth to find him before finding abandonment of a previously adjudicated benefit. Id. The Court has also held that VA’s “duty to assist is not always a one-way street.” See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 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 relevant evidence. Id. 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). In this case, in January 2017, VA sent to the Veteran at his address of record a letter informing him that in accordance with the July 2016 remand, examinations would be scheduled regarding his claims. The letter was not returned as undeliverable. A week later, there was a notification that all of the scheduled examinations were cancelled because “Veteran refused exam.” No further communications regarding the examinations were received or noted in the claims file. Additional mailings from VA were sent to the Veteran’s address of record in March 2018 which were returned as undeliverable. VA attempted to confirm the Veteran’s current address and identified a new address confirmed by credit bureaus as of April 2019. The last confirmation by credit bureaus of the previous address was in April 2015. A letter sent to the current address attempting to confirm its accuracy was not returned nor was any response received. Despite finding the new address, VA continued to send subsequent mailings to the prior address of record which were not returned. When new VA examinations were scheduled for November 2019, the address on the examination request was to the earlier address of record. The Veteran did not show up for any of the scheduled examinations and there are no communications in the claims file providing any reason for missing the examinations. The Veteran’s representative also changed addresses during this time, however the examination request contained his current address. The Supplemental Statement of the Case (SSOC) was sent to the representative’s old address and was returned as undeliverable. Another copy of the SSOC was mailed to the representative’s new address in March 2020. Despite the notation in the claims file after the cancellation of the January 2017 examinations that the Veteran refused the examinations, there is some confusion as to whether the Veteran received notification of the November 2019 examinations, given that an address which had been returned as undeliverable was continued to be used by VA despite finding a more current address. Because the SSOC also did not reach the Veteran’s representative until less than one month ago and prior communications were sent to an outdated address, it is reasonable to find that the Veteran and his representative may not have received notification of the November 2019 examinations. Given these irregularities, and in order to ensure that the duty to assist has been adequately fulfilled, the Board finds that remand is needed to confirm the Veteran’s current address and contact information, to schedule new examinations, and to provide adequate notification of the rescheduled examinations. The Board has generally reproduced the examination requests from the July 2016 remand below. Further, several of the requests in the July 2016 remand need further development. As noted above, the Veteran served on active duty in the Air Force from July 1976 to March 1988. However, there is no DD-214 in the claims file confirming his service from July 1976 to March 1984. There is a DD-214 covering the dates from March 1984 to March 1988 which indicated the prior active service, but no DD-214 addresses the first portion of that period of active duty. As such, another attempt should be made to obtain the Veteran’s DD-214 for the July 1976 to March 1984 period. Following the July 2016 remand, the Agency of Original Jurisdiction (AOJ) requested the Veteran’s active duty service treatment records (STRs) and personnel records and his National Guard STRs and personnel records from all periods of duty. Records were obtained and associated with the claims file and a PIES response confirmed that all available records had been added to the claims file. However, the Veteran indicated on an April 1999 National Guard report of medical history that he had undergone a varicose vein operation in 1978 at England Air Force Base (AFB) in Alexandria, Louisiana. There are no records of treatment from England AFB in the claims file. Despite the fact that the base has since closed, upon remand, attempts should be made to obtain any relevant treatment records from 1978 which were generated at England AFB. Updated VA treatment records were added to the claims file as recently as January 2020 which reflected no VA treatment since March 2011. The Veteran attempted to schedule an appointment in December 2016 but was told there would be a long wait time and he indicated that he instead would use his private insurance to see non-VA clinicians. As such, the Veteran should be afforded the opportunity to identify and/or submit any relevant private treatment records to support his claims. Regarding the claim for a TDIU, the Board notes that, inasmuch as resolution of the service connection and higher rating claims may well have a bearing on the claim for a TDIU, the claims are inextricably intertwined with the TDIU claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Any action on the TDIU claim, at this juncture, would be premature; hence, this matter must be remanded, as well. Additionally, the Veteran submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability in December 2010 indicating that he ceased employment in August 2010. However, he stated to Social Security Administration (SSA) officials in April 2011 that he was discontinuing an SSA disability claim because he had returned to full-time work. Also, in the Veteran’s request in December 2016 for a VA appointment, he stated that he was a truck driver, indicating he was currently employed. As such, the Veteran should be provided a new VA Form 21-8940 to verify his employment history and current employment status. The matters are REMANDED for the following action: 1. Attempt to contact the Veteran to confirm his mailing address, telephone number, and any other pertinent contact information. 2. Obtain through official sources the Veteran’s DD-214(s) from his period of active duty dating from July 2, 1976, to March 27, 1984. All records/responses received should be associated with the claims file. 3. Obtain through official sources any relevant treatment/clinical records relating to the Veteran from former England AFB in Alexandria, Louisiana, in 1978, and particularly any related to varicose vein surgery. All records/responses received should be associated with the claims file. 4. Afford the Veteran the opportunity to identify and/or submit any relevant private treatment records and assist him in obtaining such records. All records/responses received should be associated with the claims file. 5. After all available records and/or responses from each contacted entity are associated with the claims file, arrange for the Veteran to undergo VA examinations of his lumbar spine, legs (varicose veins) and heel spurs, each by an appropriate physician. The entire electronic claims file should be made available to each designated examiner and each examination report should include discussion of the Veteran’s documented medical history and assertions. All examination findings/testing results, along with complete, clearly stated rationale for the conclusions reached, should be provided. Lumbar Spine: (a.) The examiner should clearly identify all disability(ies) of the lumbar spine currently present, or present at any point pertinent to the current claim (even if now asymptomatic or resolved). (b.) With respect to each such diagnosed disability, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability is the result of disease or injury incurred in or aggravated by the Veteran’s military service. The examiner should specifically address the Veteran’s allegations that his lumbar spine disability is related to carrying heavy equipment through the sand while stationed in Southwest Asia. Heel Spurs: (a.) The examiner should clearly identify all disability(ies) of the feet, specifically including heel spurs, currently present, or present at any point pertinent to the current claim (even if now asymptomatic or resolved). (b.) With respect to each such diagnosed disability, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability is the result of disease or injury incurred in or aggravated by the Veteran’s military service. The examiner should specifically address the Veteran’s allegations that his heel spur disability is related to carrying heavy equipment through the sand while stationed in Southwest Asia. Varicose Veins: (a.) The examiner should clearly identify all disability(ies) of varicose veins, currently present, or present at any point pertinent to the current claim (even if now asymptomatic or resolved). The Board notes that the Veteran’s June 1976 active service entrance examination report noted varicosities of the left leg, asymptomatic, not disqualifying. (b.) With respect to each such diagnosed disability of the right leg, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability is the result of disease or injury incurred in or aggravated by the Veteran’s military service. (c.) With respect to each such diagnosed disability of the left leg, the examiner should render an opinion, consistent with sound medical judgment, as to whether the preexisting asymptomatic varicosities of the left leg clearly and unmistakably did not undergo an increase in severity beyond the natural scope of the disability during the Veteran’s active service 6. After all available records and/or responses from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA Gulf War examination, by an appropriate physician. As indicated below, additional specialist examination(s) should be conducted as needed. The entire electronic claims file should be made available to each designated examiner and each examination report should include discussion of the Veteran’s documented medical history and assertions. Each physician should provide all examination findings, along with complete, clearly stated rationale for the conclusions reached (to include citation to specific evidence and/or medical authority, as appropriate). (a.) The primary Gulf War examiner should note and detail all reported signs and symptoms of a skin disorder, migraines, vertigo and CFS. The examiner should conduct a comprehensive general medical examination, and provide details about the onset, frequency, duration, and severity of all symptoms of the claimed disabilities. (b.) The examiner should list all diagnosed disabilities related to the Veteran’s claimed skin disorder, migraines, vertigo and CFS and state which symptoms are associated with each disability. The physician should identify all such disability(ies) present at any time (even if currently resolved). If all symptoms are associated with diagnosed condition(s), additional specialist examinations for diagnostic purposes are not needed. (c.) The examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s claimed vertigo was caused or aggravated (worsened beyond natural progression) by his service-connected tinnitus. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from aggravation, to include by establishing the baseline disability prior to aggravation. (d.) If any symptoms of a skin disorder, migraines, vertigo and CFS are not determined to be associated with a known clinical diagnosis, further specialist examination(s) will be required to address these findings and such should be ordered by the primary examiner. (e.) If any specialist examination(s) is/are warranted, the primary examiner should provide the specialist with all examination reports and test results, specify the relevant symptoms that have not been attributed to a known clinical diagnosis and request that the specialist determine which of these, if any, can be attributed in this Veteran to a known clinical diagnosis and which, if any, cannot be attributed in this Veteran to a known clinical diagnosis. (f.) If the Veteran’s symptoms from the claimed conditions during the period on appeal cannot be attributed to any known clinical diagnosis, the examiner should specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that either (1) existed for six months or more, or (2) exhibited intermittent episodes of improvement and worsening over a six-month period. (g.) For each diagnosed disability manifested by skin problems, headaches, dizziness, or symptoms of fatigue/sleep problems/low energy, the physician should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service. (h.) In rendering each requested opinions, the physician should consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions, to include the Veteran’s competent assertions as to nature, onset and continuity of symptoms, as well as his contentions that his conditions are the result of his time in Southwest Asia. 7. After all records and/or responses are associated with the claims file, arrange for the Veteran to undergo a VA psychiatric examination by an appropriate mental health professional. The entire electronic claims file should be made available to the designated examiner and the examination report should include discussion of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. (a.) The examiner should render specific findings with respect to the existence and extent (or frequency, as appropriate) of the Veteran’s psychiatric symptoms, including, but not limited to, depressed mood; anxiety; panic attacks; chronic sleep impairment; impaired memory, judgment, speech, impulse control and/or thought processes; neglect of personal hygiene and appearance; suicidal ideation; and delusions and/or hallucinations. The examiner should also provide comment as to the impact of his psychiatric symptoms on his occupational and social functioning. (b.) Based on current examination findings and consideration of the Veteran’s documented mental health history and lay assertions, the examiner should also indicate which mental health symptoms are attributable to the Veteran’s service-connected GAD and which symptoms are attributable to any other existing psychiatric disability, to include diagnosed dysthymic disorder and his pre-service history of abuse. If any symptoms cannot be distinguished from service-connected and nonservice-connected disability, the examiner should clearly so state. (c.) All examination findings, along with complete, clearly stated rationale for the conclusions reached, should be provided. 8. The Veteran is advised that failure to report for any scheduled examination(s), without good cause, may well result in denial of the claim(s)—in particular, the claim for an increased rating for a GAD. See 38 C.F.R. § 3.655(a), (b) (2018). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. (Continued on the next page)   9. Provide the Veteran with a new VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability to provide his employment history and current employment status. 10. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.