Citation Nr: 21074250 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-48 142A DATE: December 14, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent for service-connected depressive disorder is remanded. Entitlement to service connection, to include on a secondary basis, for obstructive sleep apnea is remanded. Entitlement to service connection for a migraine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1993 to November 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from November 2015 and March 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decision Review Officer (DRO) in April 2018. The hearing transcript is associated with the claims file. The appeal was last remanded by the Board in April 2019 for additional development. Regrettably, more development is still necessary. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an initial rating in excess of 30 percent for service-connected depressive disorder is remanded. The Veteran's claim was last remanded in April 2019 to obtain additional private and VA medical records and to afford the Veteran a new VA examination in support his claim for an increased initial rating. A November 2019 subsequent development letter requested that the Veteran assist in identifying outstanding private and VA medical records and provided the Veteran with VA Forms 21-4142 and 21-4142a to complete and return to VA. To date, the Veteran has not completed and returned the requested forms nor has the Veteran provided a copy of the requested private and VA medical records relevant to his claim. The Board emphasizes that the duty to assist a claimant is not a one-way street, and in the instant case, the Veteran has failed to cooperate to the full extent in the development of his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A veteran must cooperate when he is asked for information that is essential in obtaining the evidence to substantiate his claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Nonetheless, the Board finds that remand is required to afford the Veteran another opportunity for a VA examination. December 2019 and January 2020 VA records note that January 2020 VA examinations were cancelled twice at the Veteran's request and due to his unavailability. A subsequent January 2020 Report of General Information documented that the Veteran made phone contact with VA and clarified his availability. He explained that he could not attend the January 2020 VA examinations due to work conflicts because he started a new career. The Veteran requested that the VA examinations be rescheduled and was informed that the examinations would be rescheduled. Subsequent VA records are unclear whether the examinations were rescheduled. In addition, the Veteran provided good cause for having missed the January 2020 VA examinations due to starting a new career. The Board finds that remand is warranted because the Veteran was informed in January 2020 that his VA examinations would be rescheduled and the record is unclear whether the examinations were rescheduled. Accordingly, remand is required to afford the Veteran an additional opportunity for a VA examination for his claim for an increased initial rating for his service-connected depressive disorder. Since the Veteran's claim is being remanded to afford him an additional opportunity for a VA examination, the Board finds that an additional opportunity to provide relevant private and VA treatment records and to complete and return VA Forms 21-4142 and 21-4142a should also be afforded to the Veteran. 2. Entitlement to service connection, to include on a secondary basis, for obstructive sleep apnea is remanded. 3. Entitlement to service connection for a migraine disability is remanded. As discussed above, the Veteran's claims were last remanded in April 2019 to afford the Veteran an opportunity for additional VA examinations. December 2019 and January 2020 VA records note that January 2020 VA examinations were cancelled twice at the Veteran's request and due to his unavailability. A subsequent January 2020 Report of General Information documented that the Veteran made phone contact with VA and clarified his availability. He explained that he could not attend the January 2020 VA examinations due to work conflicts because he started a new career. The Veteran requested that the VA examinations be rescheduled and was informed that the examinations would be rescheduled. Subsequent VA records are unclear whether the examinations were rescheduled. In addition, the Veteran provided good cause for having missed the January 2020 VA examinations due to starting a new career. The Board finds that remand is warranted because the Veteran was informed in January 2020 that his VA examinations would be rescheduled and the record is unclear whether the examinations were rescheduled. Accordingly, remand is required to afford the Veteran an additional opportunity for a VA examination for his claimed obstructive sleep apnea and migraine disabilities. The Board again notes that the duty to assist a claimant is not a one-way street, and the Veteran is advised that he must cooperate to the full extent in the development of his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Make one additional attempt to contact the Veteran, and with his assistance, identify any outstanding records of pertinent medical treatment from VA or private healthcare providers. In particular, obtain any outstanding treatment records from Drs. D.S. and J.B. in Bellingham, Dr. M.B. in Lake City Clinic, and Dr. M. J. from 2013 to 2018. 2. Arrange for a VA examination from an appropriately qualified examiner to determine the nature and etiology of the Veteran's migraine headaches. The claims file, including a copy of this remand, must be made available to be reviewed by the examiner. A record of the review of the claims file should be documented in the examination report. All indicated diagnostic tests should also be completed. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's migraine headaches had their onset in service or are otherwise etiologically related to service. The examiner should address the service treatment records that noted that the Veteran had four days of dizziness, lightheadedness, and headache in February 1994; a one-day weather related headache in October 1994; and 25 days of lightheadedness in March 1996. See November 1997 service treatment record. The examiner must also address the August 2016 medical opinion from Dr. V. See August 2016 private treatment record. A detailed rationale for all opinions must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Arrange for a VA examination from an appropriate qualified examiner to determine the nature and etiology of the Veteran's sleep apnea. The claims file, including a copy of this remand, must be made available to be reviewed by the examiner. A record of the review of the claims file should be documented in the examination report. All indicated diagnostic tests should also be completed. Based on claims file review and examination of the Veteran, the examiner should provide opinions responding to the following: (a.) Opine as to whether it is at least as likely as not (50% or better probability) that the service-connected depressive disorder caused the Veteran to become obese, to include as due to any side effects from psychotropic medications. (b.) Opine as to whether it is at least as likely as not (50% or better probability) that the obesity was a substantial factor in causing sleep apnea. (c.) Opine as to whether it is at least as likely as not (50% or better probability) that the Veteran would not have sleep apnea if he were not obese. A detailed rational for all opinions must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After the development instruction 1 has been completed, schedule the Veteran for a VA examination to evaluate the current severity of his service-connected depressive disorder. 5. Then, readjudicate the claim. If the determination of the claim remains unfavorable to the Veteran, then issue a Supplemental Statement of the Case and afford him a reasonable period of time to respond before returning the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi, 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.