Citation Nr: 21011992 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 18-09 759 DATE: March 3, 2021 REMANDED Entitlement to service connection for a back disability, upper and lower, so affecting the cervical and lumbar segments of the spine with associated radiculopathy of the upper and lower extremities, is remanded. Entitlement to service connection for a stomach disorder, to include hiatal hernia, ulcers, and gastroesophageal reflux disease (GERD), is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1987 to November 1988. This appeal to the Board of Veterans’ Appeals (Board) is from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran more recently testified in support of these claims during a hearing in October 2020 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record.   The Board held the record open for an additional 90 days after the hearing to allow the Veteran time to obtain and submit additional supporting evidence, specifically, medical nexus opinions concerning the causes of his back disability, stomach pain, and acquired psychiatric disorder in terms of being the result of his service. He submitted an additional opinion in December 2020 for his back condition only; however, as will be discussed, still more medical comment is needed concerning all his claims, so the Board is remanding them back to the Agency of Original Jurisdiction (AOJ). The Veteran has several mental health disorder diagnoses, including depression, and anxiety. In determining the scope of a claim, the Board must consider his description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Given the holdings in Clemons and the uncertainty of the Veteran’s specific diagnosis, or whether some versus all are warranted, the Board has expanded his claim to include all diagnoses to date and recharacterized the claim more generally as for an acquired psychiatric disorder, inclusive of but not limited to his depression and anxiety. 1. Entitlement to service connection for an acquired psychiatric disorder, including depression and anxiety, is remanded. 2. Entitlement to service connection for a back disability, upper and lower, so affecting the cervical and lumbar segments of the spine with associated radiculopathy of the upper and lower extremities, is remanded. 3. Entitlement to service connection for a stomach disorder, including hiatal hernia, ulcer and GERD, is remanded. The Veteran filed his claims in January 2015 and, to try and assist him in substantiating them, the RO attempted to schedule him for VA examinations in June 2015 and December 2017. However, he failed to respond to multiple requests concerning that effort and failed to appear for his VA examinations in June 2015 and December 2017, without providing any justifiable reason or explanation (good cause). According to 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with an original claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). However, the Veteran more recently testified under oath during his October 2020 hearing before this Board that he missed those examinations owning to his then homelessness and being transient at the time with lack of resources – such as money or a phone. See October 2020 Board hearing transcript at page 3. He also explained that he since had moved from New York to Florida, where he is currently residing. Id. Prior to May 2013, the Veterans Court (CAVC) had held that VA was entitled to the presumption of administrative regularity that VA employees had properly discharged their official duty to notify a Veteran, as an example, of a scheduled VA examination. This presumption of administrative regularity could be rebutted by clear evidence to the contrary. The Court also had held that the absence of a copy of the notice letter in the claims file did not constitute clear evidence to rebut this presumption of administrative regularity. See Kyhn v. Shinseki, 24 Vet. App. 228, at 236 (2011) (Kyhn II). However, while that appeal was pending, the higher Federal Circuit Court issued Kyhn v. Shinseki, 716 F.3d 572 (2013). In Kyhn the Federal Circuit Court vacated the lower Court's Kyhn II decision, holding that the Court had relied upon extra-record evidence to make a finding of fact in the first instance. The lower Court (CAVC) had allowed VA to submit an affidavit of a manager from the VA Medical Center (VAMC) involved establishing the regular practice of mailing such notices. But the Federal Circuit Court held the CAVC could not consider such evidence because judicial notice does not extend to affidavits from "a party's employees regarding otherwise unknown internal procedures." Id. at 576. The Federal Circuit Court went on in Kyhn to further hold that the CAVC had done impermissible fact-finding in the first instance. The Federal Circuit Court essentially drew a distinction between "instances where the presumption of regularity was premised upon independent legal authority" and instance where it was based upon "evidentiary findings." Id. at 577. Rebutting the presumption of administrative regularity usually requires more than a mere allegation of defective process or procedure, nonreceipt of a communication, or other failing, etc. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Schoolman v. West, 12 Vet. App. 307, 310 (1999). Moreover, this presumption of administrative regularity does not diminish the claimant's responsibility to keep VA informed of changes of address and, if he does not, VA is not obligated to turn up heaven and earth to find him. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). But this presumption is nonetheless as also mentioned rebuttable, notably as an example when there is clear evidence of non-delivery (as confirmed by the U.S. Postal Service returning the mail as undeliverable) and if there is another address on file at which the appellant perhaps could be located. 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). The Board must also remain mindful, however, of the fact that, in some circumstances, the burden is on VA to demonstrate that notice is sent to the Veteran at his correct (i.e., current) address. Hyson v. Brown, 5 Vet. App. 262 (1993). And, in this instance, this does not appear to have been done, albeit seemingly because the Veteran was homeless at the time of trying to schedule his prior VA examinations or certainly transient with no permanent home. The Veteran’s electronic (paperless) VA claims file contains multiple letters that were returned as undeliverable to an address in New York. He indicated during his recent hearing that he was homeless and relocated from New York to Florida without the means to communicate with VA or even his representative. As such, he has shown the required good cause for failing to attend the previously scheduled examinations and, therefore, he should be given another opportunity to appear for the needed VA examinations to determine the nature and etiology of his claimed back condition, acquired psychiatric disorder, and stomach issues. That said, in having these needed examinations rescheduled, the Board reminds the Veteran that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, it is incumbent upon him to cooperate with VA in developing his claims, consistent with the directives discussed below. To reiterate, the pertinent VA regulation, 38 C.F.R. § 3.655, expressly directs the Board to decide a claim based on the available evidence already of record if a Veteran fails to report for an examination scheduled in response to a claim of entitlement to service connection and directs the Board to summarily deny an increased-rating claim when this happens. See Moody v. Wilkie, 30 Vet. App. 329, 336 (2018); Olson v. Principi, 3 Vet. App. 480, 482-83 (1992); Turk v. Peake, 21 Vet. App. 565, 568 (2008) (also noting that the Veteran has a duty to cooperate in VA's development of his claim). Regarding his back pain and associated impairment, within the allotted 90-day stay after his hearing, the Veteran submitted a January 2021 medical opinion from his treating private physician. This physician opined that it is at least as likely as not the Veteran’s back and neck condition with radiculopathy were caused by the stresses and strains of his military service. This physician did not provide any rationale for this opinion, however, only instead a mere conclusory statement that the Veteran’s spine disability was caused by his injury at his military drill. Most of the probative value of a medical opinion comes from discussion of its underlying reasoning or rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, this medical opinion is insufficient basis to grant these claims, but it is all the more reason to again try and have the Veteran examined for the needed medical opinions concerning his claims. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Accordingly, these claims are REMANDED for the following action: 1. Again, schedule the Veteran for a VA examination to determine the nature and etiology of his cervical and lumbar spine disorders and any associated radiculopathy of his upper and lower extremities. The claims file must be made available to and reviewed by the examiner to assist in making this determination, including a complete copy of this remand and supporting medical statement recently submitted in January 2021 from the Veteran’s treating private physician. Also, all necessary diagnostic testing and evaluation, including X-rays, should be done. After reviewing the claims file and examining the Veteran, the examiner should indicate the following: (a) List all current diagnoses referable to the Veteran's cervical spine, lumbar spine, and indicate whether there is radiculopathy of his upper and lower extremities. (b) If it is confirmed the Veteran has cervical and/or lumbar spine disability, indicate whether it at least as likely as not (i.e., 50 percent or greater probability) the disability is related or attributable to his military service, including especially to his duties and responsibilities in service that he says involved carrying heavy equipment for training as a medic and physical activity intrinsic to a soldier. (c) Also, if confirmed he has upper and/or lower extremity radiculopathy, indicate whether it is as likely as not caused OR aggravated, i.e., secondary to, his cervical and/or lumbar spine disorders. 2. As well, again schedule the Veteran for a VA examination to determine the nature and etiology of his stomach condition, including hiatal hernia, ulcers, and GERD. The claims file must be made available to and reviewed by the examiner, including a complete copy of this remand. After reviewing the claims file and examining the Veteran, the examiner should indicate the following: (a) List all current diagnoses involving the Veteran's stomach (i.e., hiatal hernia, ulcers, GERD). (b) For each current diagnosis, provide an opinion on whether the disorder at least as likely as not (i.e., 50 percent or greater probability) was incurred during his service or is otherwise related or attributable to his service   3. Lastly, again schedule the Veteran for an examination with an appropriate clinician for his claimed acquired psychiatric disorders to include depression and anxiety. The examiner must provide opinions on the following: (a) Determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder began during his active military service, or manifested within a year of his discharge (if a psychosis), or is otherwise related or attributable to his service. (b) Alternatively, it is at least as likely as not (50 percent or greater probability) that pain or other symptoms attributable to the Veteran's physical disabilities (cervical and lumbar spine disorders and any associated radiculopathy of his upper and lower extremities) or the pain and discomfort from his stomach disorder (hiatal hernia, ulcers, and GERD) are causing OR aggravating his acquired psychiatric disorder. *The examiners must provide rationale for all opinions, preferably citing to specific evidence in the file supporting conclusions and/or accepted medical authority. The mere absence of treatment for these claimed disabilities in the Veteran's service treatment records (STRs) or even diagnosis cannot, alone, be reason for disassociating these claimed conditions from his service. This is a permissible consideration, however, at least as pertaining to direct incurrence of a condition in service (though not also secondary service connection), but if noteworthy the examiner must explain why it is reasonable to have expectation of documentation of the condition in the STRs. The examiner is also advised that the Veteran is competent to report his symptoms and history, and his reports must be specifically considered in formulating all opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.