Citation Nr: 21008585 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 12-27 037A DATE: February 17, 2021 REMAND Entitlement to service connection for chronic bronchitis is remanded. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected bilateral hammer toes, is remanded. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected bilateral hammer toes, is remanded. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected bilateral hammer toes, is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected bilateral hammer toes, is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from June 1985 to November 1985 active duty from May 1986 to December 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board first addressed these claims in a September 2016 decision. The Board remanded all the claims finding that opinions from December 2010 all were inadequate. The Board specifically noted in its remand that failure to report for the examinations would result in adjudication of these claims based on the evidence of record. The series of events that transpires next form the basis for much of what will be discussed herein. A January 2017 deferred rating decision notes that the Veteran was scheduled for examinations on January 18, 2017, at the Kansas City, Missouri, location. A response from that center on January 30, 2017, stated that the Veteran failed to RSVP, resulting in cancellation. The deferred decision indicated that VA personnel would attempt to reach the Veteran and that, if the Veteran agreed to attend, his examinations would be rescheduled. A January 31, 2017, VA Form 27-0820 notes that VA attempted to contact the Veteran to no avail. VA left a message with R.C. and asked that the Veteran please contact VA regarding rescheduling his examinations. On February 2, 2017, VA spoke with the Veteran. The Veteran indicated that he was willing to attend examinations anywhere but the Kansas City VA medical center (VAMC) because his “li[f]e would be at risk if he went there.” The Veteran indicated he strongly preferred the Joplin location as an alternative. See February 2, 2017, VA Form 27-0820. Examination requests were made on February 22, 2017, with examinations scheduled for March 8, 2017. On March 7, 2017, the Veteran called the National VA Call Center, and the following IRIS was created regarding his examinations: Veteran states: STRL RO Claims Department I tried to call you to cancel the Compensation and Pension Hearing because I am in Washington DC to meet with our Senators [sic] Office about the VA. I cannot be seen in VISN 15 because of the retaliation for Whistle Blower Actions in 2010. I have been seen by VISN 16 since 2010, and I am demanding that any comp and pension exam be done in that VISN by a NON VA Doctor so please contract out my Compensation and Pension Exam done by any VISN 15 location. Also, I am not in Missouri and I will not be back before any comp and pension exam date of March 8th. You need to reschedule exam at a Non VA doctor because of the retaliation from VISN 15 and STL RO. Please schedule outside VA Comp and Pension exam after March 15th when I return to Missouri. I cannot make your appointment and refuse to be seen in the VISN 15. March 8, 2017, VA From 27-0820. VISN stands for “Veteran Integrated Service Network.” There currently are twenty-three different VISNs across the country with each VISN covering multiple states. The VISN 15 network consists of seven health care systems, with nine VAMCs and sixty-three Community Based Outpatient Clinics (CBOCs), within the states of Kansas, Missouri, Illinois, Kentucky, Indiana, and Arkansas. See https://www.va.gov/directory/guide/map.asp?dnum=1; https://www.visn15.va.gov/about/index.asp. The Veteran failed to appear for his rescheduled examinations. VA contacted the Veteran, who reiterated that he wanted his examinations performed by non-VA doctors. The VA representative said that he would forward this information along. March 9, 2017, email correspondences between VA employees show that the Veteran was scheduled for examinations at the Fayetteville VAMC location, acquiescing to his request that he not be sent to the Kansas City VAMC location. A March 21, 2017, email indicates that, because the Veteran is refusing to attend a VA examination unless it is performed by a contracted examiner, his examination request was being cancelled and closed out. Email communications over April 3–4, 2017, between the Veteran and K.S.—a scheduler with the Veteran Evaluation Services (VES)—show that the Veteran was unwilling to attend any examination other than one by a non-VA doctor. An April 5, 2017, Centralized Administration Accounting Transactions System (CAATS) note indicates that the Veteran declined a VES evaluation and that his claim was being returned. An April 19, 2017, CAATS entry notes that the Veteran refused to schedule an examination. In a May 2017 correspondence, the Veteran expressed, in pertinent part, his general distrust for the VAMC locations in St. Louis and Fayetteville. In an August 2018 Informal Hearing Presentation (IHP), the Veteran’s former representative (Vietnam Veterans of America (VVA)) stated the following: Veteran has informed the undersigned via phone that he is willing, and would very much like to, attend examinations. He is currently in the Baltimore area and would like examinations to be scheduled near him and to be scheduled with appropriate examiners. Veteran has been concerned that he will not receive full examinations by appropriate doctors because his previous examiners have merely had him fill out surveys and have not actually examined him. Veteran argues that good caused existed for not attending previous examinations based on his concern regarding his past examinations. See 38 C.F.R. § 3.655(a). The undersigned has spoken with Veteran and discussed his claims and the importance of obtaining proper examinations, and Veteran very much would like examinations to be scheduled and is very willing to attend such examinations. In an October 2018 correspondence, the Veteran wrote to the Board, requesting service connection for these various conditions and stated, in pertinent part, the following: I am asking that if you are going to send me to compensation and pension exams can you not make one decision for me based on the record, if not and you order examinations I can under stand [sic] why it is just that some of these claims are over 12 years old and still not service connection or operations and soon I will not be able to walk and provide for my family. As it is I lost my job due to ADA reasons and my PTSD caused me to make some bad decision. In an October 2018 decision, the Board denied these claims. At the outset, the Board discussed the regulations pertaining to a veteran’s failure to appear for a scheduled examination. The Board disagreed with VVA’s prior argument that the Veteran’s past bad experiences with certain VA facilities constituted good cause under 38 C.F.R. § 3.655(a), thereby excusing the Veteran’s failure to appear. See October 31, 2018, Board Decision at 3. In discussing the factors that do constitute good cause, the Board stated that “What is clear in these examples is that factors outside a veteran’s control are at work. This is not the case here where the Veteran freely decided not to report.” The Board then evaluated the claims based on the evidence of record, denying them all. The Veteran appealed those determinations to the United States Court of Appeals for Veterans Claims (CAVC). On appeal, and for the first time, the Veteran’s attorney advanced the theory that the Veteran’s psychiatric condition is what prevented him from attending the various appointments made throughout this appeal. See October 21, 2019, Brief of Appellant at 4–6. In a June 25, 2020, Memorandum Decision (Mem. Dec.), the CAVC agreed with the Veteran. Specifically, the CAVC held that the Board provided an “inadequate statement of reasons or bases for determining that no good cause existed for the [Veteran’s] missed examinations.” The CAVC noted that the Board failed to consider the Veteran’s service-connected PTSD and whether that condition contributed to the reasons for failing to attend the appointments. To support its determination, the CAVC noted that the Board should have considered, inter alia, statements from the Veteran that he feared being arrested if he went to the Leavenworth facility, developing cancer from x-rays, that his life was at risk at the Kansas City location, and that he ultimately could not attend an examination at any facility for fear of retaliation for being a whistleblower. Mem. Dec. at 6. In the CAVC’s own words, Given the appellant’s PTSD diagnosis, history of mental illness, and his history of and reasons for canceling the examinations, it is unclear why these factors would not fall under the good cause exemption in § 3.655(a). Remand of all matters on appeal is required for the Board to provide an adequate statement of reasons or bases as to whether the appellant’s history of mental illness falls under the good cause exemption provided in 38 C.F.R. § 3.655(a), thus allowing him another opportunity to attend VA examinations for his claims. Given the arguments advanced before the CAVC and its ruling, the Board finds that manifestations/symptoms of the Veteran’s psychiatric condition may prevent him from attending his schedule examinations, thereby constituting good cause under the regulations. See 38 C.F.R. § 3.655(a). Nevertheless, and as explained below, the facts of this case lead the Board to find that any further attempt to reschedule the Veteran for examinations would be futile and that VA’s duty to assist has been fulfilled in this regard. VA has expended significant resources over the course of a year trying to schedule the Veteran for examinations. VA has attempted to work with the Veteran in reasonably accommodating his requests, but the adjudication of the Veteran’s claims cannot be stayed indefinitely because his demands – however influenced they may be by his service-connected mental disorder – cannot be met. In this regard, the Board acknowledges the CAVC’s observations that the Veteran’s concerns/fears about certain VAMCs appear to be the irrational product of his psychiatric condition. However, these claims are about a decade old now; to this extent, it is futile for VA to fruitlessly expend VA resources to schedule examinations that will not be attended by the Veteran. The CAVC noted that the Board failed to provide an adequate statement of reasons or bases for addressing whether the Veteran’s psychiatric condition impeded him from attending an examination. It is true that the Board did not explicitly conduct an analysis as to this point. However, over the course of a year, VA worked with the Veteran, attempting to accommodate all his requests within reason, but the Veteran has refused to appear for at least two examinations and refused on multiple occasions to schedule more. While his former VVA representative assured the Board that the Veteran now knows the importance of a VA examination for his claims, the Veteran since has discharged that representative, potentially indicating further distrust of VA processes. See January 6, 2021, Correspondence. The duty to assist the Veteran is not a one-way street, see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), and the Veteran’s prior failures to appear for his multiple rescheduled examinations cannot vitiate VA’s compliance with the Board’s September 2016 remand directives. Cf. Kyhn v. Shinseki, 24 Vet. App. 228, 239 (2011) (“In accordance with the Board’s instructions, VA made arrangements for [the veteran] to be examined at an appropriate VA facility. [The veteran’s] failure to report for that examination, without a demonstration of good cause, does not negate VA’s compliance with the Board’s remand orders.”). The Board cannot force the Veteran to attend an examination, and VA’s duty to assist certainly has its limits. It does not require that VA expend resources ad infinitum, especially if it is undeterminable that the Veteran would ever attend an examination. There is no indication in the record that the Veteran’s psychiatric condition is any less severe now than it was when he was refusing to attend the scheduled examinations. The record reflects that the Veteran made previous demands as to the locations of his examinations, and VA complied with most of those requests; yet, the Veteran still did not appear. What is to say that the same will not happen again? How many more times must the Board remand his claims to make additional attempts? The Board does not propose a hard and fast rule and acknowledges that such efforts on the part of VA require a case-by-case analysis. In this case, the Board finds that the symptoms of the Veteran’s psychiatric condition amount to good cause for failure to appear for his scheduled examinations; however, considering the resources and time already spent on attempting to schedule the Veteran, in conjunction with any underlying uncertainty regarding his condition and likelihood that the Veteran similarly will not attend future examinations, the Board finds that any future efforts to schedule additional examinations will be futile. Thus, VA’s duty to assist has been satisfied. Despite the Board’s finding that it will not require VA to schedule the Veteran for another examination, remand still is warranted. In October 2020, the Veteran submitted private medical records. The attached coversheet for his submission states, in pertinent part: “Enclosed you will find [e]vidence by my Office of Community Care Primary Care Doctor Dr. [J.D.] DO. The letter states that my Ankles, Knees, back and neck claims are service related being a Non VA Doctor he did not mention the term Secondary to my Service Connected Hammertoes.” The records, however, contain no such statement from Dr. J.D. Thus, the Board, in wishing to afford the Veteran every possibly avenue to substantiate his claims, will remand them so that the Veteran has an additional chance to submit the referenced medical nexus opinion from Dr. J.D. or one from any other competent and credible medical professional. The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Send to the Veteran a notice stating that VA is affording him the opportunity to submit a private medical opinions to substantiate his claims in lieu of a VA provided examinations and opinions. 3. After the above development has been completed, conduct any other development deemed necessary and then readjudicate the Veteran’s claims. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or CAVC must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.