Citation Nr: 22047331 Decision Date: 08/19/22 Archive Date: 08/19/22 DOCKET NO. 18-39 596 DATE: August 19, 2022 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a disability manifested by right elbow pain, to include as due to a service-connected disability, is remanded. Entitlement to service connection for a disability manifested by left elbow pain, to include as due to a service-connected disability, is remanded. Entitlement to service connection for a disability manifested by right shoulder pain, to include as due to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 2002 to April 2006, to include service in the Southwest Asia theater of operations during the Persian Gulf War. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In December 2019, the Board, among other actions, denied the issues on appeal. Subsequently, the Veteran appealed the Board's denial of these appealed issues to the United States Court of Appeal for Veteran's Claims (the Court). In a June 2021 Memorandum Decision, the Court vacated and remanded it to the Board for further development and adjudication. In February 2022, the Board, among other actions, remanded the issues on appeal to the AOJ for development congruent with the Court's guidance in the June 2021 Memorandum Decision. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appealed issues have been returned to the Board for further appellate consideration. 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability, is remanded. 2. Entitlement to service connection for a disability manifested by right elbow pain, to include as due to a service-connected disability, is remanded. 3. Entitlement to service connection for a disability manifested by left elbow pain, to include as due to a service-connected disability, is remanded. 4. Entitlement to service connection for a disability manifested by right shoulder pain, to include as due to a service-connected disability, is remanded. In pertinent part, the Board's February 2022 remand directed the AOJ to obtain a medical nexus opinion regarding the etiology of the Veteran's obstructive sleep apnea and provide the Veteran a VA examination to determine the nature and etiologies of his claimed disabilities of the elbows and right shoulder. In response, the AOJ requested the Veterans Health Administration (VHA) to schedule the requested that VA examinations for all of the Veteran's claimed disabilities, to include obstructive sleep apnea, in February 2022 through a VA-contractor QTC Services. Chronologically, the next record in the Veteran's file reflects that the requested VA examinations were cancelled by the VA contractor on March 28, 2022, because the "Claimant [was] unavailable." On January 7, 2022, the Veteran was notified that the VA examinations outlined in the July 2020 remand were scheduled to be completed in the afternoon of January 19, 2022, and he was provided the address of the mobile examination unit. It appears that the VA contractor (LHI) contacted the Veteran via telephone to confirm his availability to participate in the examinations on January 19, 2022; however, there is no record of this conversation. On April 11, 2022, the AOJ sent the Veteran and his private attorney a letter reflecting that VA had been "informed that [he] refused [his] exam[inations.]" He was notified that his failure to report for these examinations and/or provide good cause for such may result in a negative outcome of his appealed issues, and he should contact the AOJ with a request to reschedule such in a timely manner. A May 2022 Report of Contact reflects that an AOJ employee attempted to contact the Veteran via telephone for the purpose of rescheduling these VA examinations; however, the Veteran did not answer, and a voicemail was left. The AOJ subsequently continued to deny the Veteran's appealed issues in a June 2022 Supplemental Statement of the Case, and such were returned to the Board. The Board cannot find that there has been substantial compliance with the Board's February 2022 remand directives regarding obtaining a medical nexus opinion and providing the Veteran with the necessary VA examinations. First, the Veteran's VA file is devoid of evidence that any party notified him of the time and place to report for the March 2022 VA examinations. Second, while the Board notes that the VA contractor conveyed to the AOJ that the Veteran was "unavailable" for the scheduled March 2022 VA examinations, there is no other evidence that this accurately characterizes the present situation or that the Veteran had any contact with the VA contractor regarding the scheduled March 2022 VA examinations. In sum, there is no evidence that the Veteran was notified of the March 2022 VA examinations or that he "refused" to participate in such as stated by the AOJ in the April 2022 letter. In passing, the Board observes that the AOJ's April 2022 letter did not convey the one-year period for the Veteran's response prior to application of the cited regulation, General Counsel opinion and case law. Further, it is unclear why a VA examination was scheduled regarding the Veteran's obstructive sleep apnea claim, as the Board's remand only directed that a medical nexus opinion be obtained. Curiously, the requested opinion (without completion of a VA examination) was not requested or obtained prior to readjudicating this appealed issue. Based on the evidence outlined above regarding the lack of the notice provided to the Veteran regarding these examinations, the Board concludes that another remand is necessary to ensure substantial compliance with the Board's prior remand directives in this regard. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Notwithstanding the above, the Board observes that neither the Veteran nor his private attorney have replied to the AOJ's April 2022 letter in any way. To this point, the Veteran is reminded that VA's duty to assist him is not a one-way street, and he is encouraged to cooperate with the AOJ's efforts to substantially complete the Board's prior remand directives. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all update records of VA and private treatment, with the Veteran's assistance regarding the latter. 2. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to determine the nature and etiology of his claimed disabilities of the elbow and right shoulder. The Veteran's electronic file must be made available to, and reviewed by, the VA clinician prior to the examination. All necessary clinical testing, to include x-ray testing of the Veteran's elbows and right shoulder, must be completed. Thereafter, the clinician is asked to address the following: a. Identify each disability present during the appeal period which may be manifested by left elbow pain. b. Identify each disability present during the appeal period which may be manifested by right elbow pain. c. Identify each disability present during the appeal period which may be manifested by right shoulder pain. d. If the Veteran's reported elbow and/or right shoulder pain is/are not found to be a manifestation of any disability, please describe the functional impairment resulting from the Veteran's elbow and right shoulder pain. In doing so, the examiner is requested, to the extent possible, to describe any and all effects of the Veteran's pain on his ability to reach, push, pull, lift with his arms, and carry objects. e. For each disability identified in parts a c or functional impairment resulting from the Veteran's elbow and/or right shoulder pain in part (d), provide an opinion regarding whether such is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) proximately due to or the result of any incident of service. All rendered opinions must be accompanied by a fully stated rationale which cites to known medical principles and evidence congruent with that in the Veteran's electronic file. *The Veteran is encouraged to cooperate with the AOJ's efforts to complete the Board's remand directives, as his failure to do so may result in an unfavorable outcome of his appeal. 38 C.F.R. § 3.655; Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 3. Thereafter, the AOJ must transfer the Veteran's electronic file to an appropriate clinician for the purpose of determining the etiology of the Veteran's obstructive sleep apnea. After review of the file, the VA clinician is asked to address the following: -Did the Veteran's obstructive sleep apnea at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) initially manifest during active duty? *In addressing the above, the examiner must consider and discuss that a prior VA examiner found that the Veteran was obese during active duty, and his in-service roommate reported in a January 2021 buddy statement that the Veteran often snored and choked in his sleep to the point where he woke himself up. *If the VA clinician believes that a physical examination or an in-person interview are necessary to address the above, such must be scheduled, and the Veteran must be provided ample notice of the time and place to report. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of the evidence. If any benefit is not granted to the fullest extent, the AIOH must provide the Veteran and his private attorney a copy of the readjudication and afford them an appropriate period to respond. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.