Citation Nr: 21042798 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-30 637 DATE: July 13, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for a cognitive disability is remanded. Entitlement to service connection for a chronic fatigue disability is remanded. Entitlement to service connection for a skin disability, claimed as recurring bumps on both hands and discoloration of the underarms and groin, is remanded. Entitlement to service connection for a gastrointestinal disability is remanded. Entitlement to service connection for a neurological disability, claimed as tingling all over the body, is remanded. Entitlement to service connection for an excessive sweating disability is remanded. Entitlement to service connection for a headache disability is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Navy from December 1993 to December 1997. He had another period of service from December 1997 to April 2004 that is deemed not honorable for VA purposes. This appeal comes to the Board of Veterans Appeals (Board) from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In April 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In September 2019 and in January 2021, the Board remanded the claims for further development. 1. Entitlement to service connection for an acquired psychiatric disability is remanded. 2. Entitlement to service connection for a cognitive disability is remanded. 3. Entitlement to service connection for a chronic fatigue disability is remanded. 4. Entitlement to service connection for a skin disability, claimed as recurring bumps on both hands and discoloration of the underarms and groin, is remanded. 5. Entitlement to service connection for a gastrointestinal disability is remanded. 6. Entitlement to service connection for a neurological disability, claimed as tingling all over the body, is remanded. 7. Entitlement to service connection for an excessive sweating disability is remanded. 8. Entitlement to service connection for a headache disability is remanded. Issues 1-8. The Veteran, and his representative, contends that his disabilities, or signs or symptoms of a disability, stem from his service. Specifically, the Veteran argues that his disabilities are related to in-service exposure to environmental contaminants during service at Naval Air Facility (NAF) Atsugi in Atsugi, Japan. See generally Hearing Transcript (April 2019) & Form 9 (June 2016). The Department of Defense has indicated that during the years between 1985 and 2001, personnel at NAF Atsugi, Japan, were exposed to environmental contaminants. See VA Memo (April 2016). Thus, VA has conceded that, from 1985 to 2001, personnel at NAF Atsugi, Japan, were exposed to environmental contaminants from off-base waste incinerators. See Correspondence (April 2013). The Veteran's service records show that he served at Atsugi NAF in April 1996, during honorable military service. Therefore, in-service exposure to environmental contaminants is conceded on that basis. Next, as noted above, the Board remanded the claims in January 2021 for, among other things, VA examinations and medical opinions. The record shows that a VA examination and medical opinions were obtained for the Veteran's claims for entitlement to service connection for (1) an acquired psychiatric disorder and (2) a cognitive disability. See C&P Exam (March 2021). The record also shows that other VA examinations were initiated in February 2021, in which, the Veteran did not attend. The record, however, does not show or indicate that VA tried to contact the Veteran for the other examinations. Indeed, there is no documentation or other indication in the claims file that reflects that the Veteran was provided notice, by telephone or mail, of his scheduled remaining examinations. As the record raises the issue of whether the Veteran was provided with timely notice of his VA examinations, the Board finds that the Veteran should be afforded new VA examinations. Accordingly, to this extent, the Board finds that remand is necessary for new VA examinations and medical opinions. Furthermore, the Board observes that the March 2021 supplemental statement of the case (SSOC) mailed to the Veteran, and his representative, was returned as undeliverable. The representative's address on the SSOC, however, was the incorrect mailing address. Compare SSOC (March 2021) & VA Form 20-21a (February 2018). It is noted that an appellant's authorized representative, as defined by 38 C.F.R. § 14.629, must be supplied with a copy of each notice to the claimant respecting the adjudication of the claim. See 38 C.F.R. § 1.525(d); Carter v. McDonald, 794 F.3d 1342, 1344 (Fed. Cir. 2015). VA regulations also provide that the statement of the case "will be forwarded to the appellant at the latest address of record and a separate copy provided to his or her representative (if any)." 38 C.F.R. § 19.30(a). The regulatory requirement of notice can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed. Moreover, an appellant will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person. 38 C.F.R. § 20.5. Here, this defect has not been cured because the Veteran's representative has not yet had the opportunity to review all relevant actions. As such, because this has effectively denied the Veteran his right to representation at all stages of the appeal, these matters must be returned to the agency of original jurisdiction to cure this due process defect. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following actions: 1. Attempt to contact the Veteran, or his representative, and obtain his most up-to-date address and contact information. 2. Ask the Veteran to complete a VA Form 21-4142 for all private medical providers seen for signs and symptoms for his claimed disabilities, to include completing a SPECIAL RELEASE form available through KAISER PERMANENTE. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran's VA treatment records for the period from March 2021 to the Present. 4. Then arrange for his VA examinations, associate any Report of Contact with the claims file. Prior written notice must be provided to the Veteran informing him of the date, time, and location of his scheduled examination. The prior written notice should be mailed to the Veteran's updated address of record. A copy of the mailed examination notice must be associated with the claims file. 5. Schedule the Veteran for VA examinations by an appropriate clinician(s) to determine the nature and etiology of any (1) chronic fatigue disability, (2) skin disability, claimed as recurring bumps on both hands and discoloration of the underarms and groin, (3) gastrointestinal disability, (4) neurological disability, claimed as tingling all over the body, (5) excessive sweating disability, and (6) headaches disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician(s). Based on examination and review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with any of the above disabilities. The medical opinions should also reflect consideration of VA Memo (FACT SHEET on exposure to environmental contaminants at the Atsugi NAF), and reference materials from the Veteran (e.g., VA's public health website, Wikipedia, Stars and Stripes and the Japan Times) in addition to the relevant history and medical records. NOTE (1): The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE (2): A negative medical opinion may not be predicated solely on the absence of in-service documented complaints, findings, or treatment. NOTE (3): A negative medical opinion may not dismiss the Veteran's competent report of symptoms in service and since without providing an explanation as to why. For example, if the Veteran's reports about his symptoms do not align with how the currently diagnosed disability is known to develop, explain; or if the Veteran's reports are generally inconsistent with medical knowledge or implausible, explain. The clinician must opine on: Chronic Fatigue Disability (a) Whether it is at least as likely as not that the Veteran has, or has had, a chronic fatigue disability at any time during the pendency of the claim or recent to the filing of the claim. Explain. (b) If the Veteran is diagnosed with any chronic fatigue disability, then the clinician must opine on whether it at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that his disability stems from conceded in-service exposure to environmental contaminants from off-base waste incinerators. Explain. Skin Disability (c) Whether it is at least as likely as not that the Veteran has, or has had, a chronic skin disability at any time during the pendency of the claim or recent to the filing of the claim. Consider an August 2014 VA treatment note indicating that the Veteran has little bumps on his hands that come and go, assessment as rash on hands; an August 2014 VA treatment note showing complaints of itchy hands and palms; and a September 2014 VA annual examination showing "some lesions on the palms of both hands." Explain. (d) If the Veteran is diagnosed with any chronic skin disability, then the clinician must opine on whether it at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that his disability stems from conceded in-service exposure to environmental contaminants from off-base waste incinerators. Explain. Gastrointestinal Disability (e) Whether any gastrointestinal disability, to include diverticulosis, at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that his disability stems from conceded in-service exposure to environmental contaminants from off-base waste incinerators. Explain. Neurological Disability (f) Whether it is at least as likely as not that the Veteran has, or has had, a chronic neurological disability, manifested by episodic symptoms of tingling all over the body, at any time during the pendency of the claim or recent to the filing of the claim. Explain. (g) If the Veteran is diagnosed with any chronic neurological disability, then the clinician must opine on whether it at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that his disability stems from conceded in-service exposure to environmental contaminants from off-base waste incinerators. Explain. Excessive Sweating Disability (h) Whether it is at least as likely as not that the Veteran has, or has had, a chronic excessive sweating disability at any time during the pendency of the claim or recent to the filing of the claim. Explain. (i) If the Veteran is diagnosed with any chronic excessive sweating disability, then the clinician must opine on whether it at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that his disability stems from conceded in-service exposure to environmental contaminants from off-base waste incinerators. Explain. Headache Disability (j) Whether it is at least as likely as not that the Veteran has, or has had, a chronic headaches disability at any time during the pendency of the claim or recent to the filing of the claim. Explain. (k) If the Veteran is diagnosed with any chronic headaches disability, then the clinician must opine on whether it at least as likely as not (1) began during active service or (2) manifested to a compensable degree within one year after service, or (3) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that his disability stems from conceded in-service exposure to environmental contaminants from off-base waste incinerators. Explain. 6. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include 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. (Continued on the next page) 7. If the benefits sought remain denied, provide an additional SSOC to the Veteran and his representative and afford them an opportunity to respond. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.