Citation Nr: 23022809 Decision Date: 04/18/23 Archive Date: 04/18/23 DOCKET NO. 17-66 005 DATE: April 18, 2023 ORDER Service connection for heat stroke, to include any residuals, is denied. FINDING OF FACT The Veteran, without good cause, failed to report for a VA examination scheduled in conjunction with his reopened claim. CONCLUSION OF LAW The criteria for a grant of service connection for heat stroke, to include any residuals are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.326, 3.655. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1982 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). That rating decision declined to reopen a June 2015 Board decision that denied service connection for heat stroke residuals. The claim to reopen was filed in December 2015. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in September 2021. In November 2021, the Board issued a decision that, in pertinent part, reopened the claim of service connection for residuals of heat stroke, granted a 40 percent rating for the low back and TDIU, and remanded the claims for a rating in excess of 40 percent for a low back disorder, a rating in excess of 10 percent for 'left hip disability' and service connection for residuals of heat stroke, to the RO for additional development. In November 2022, the Board issued a decision that denied a rating in excess of 40 percent for the low back and a rating in excess of 10 percent for 'left hip disability' and again remanded the issue of service connection for residuals of heat stroke, to the RO for additional development, specifically for examination to address whether there are psychological/psychiatric residuals of in-service heat stroke episodes as contended by the Veteran. He failed to report for the examination. The remanded claim has been returned to the Board. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for heat stroke, to include any residuals, is denied. The Veteran testified in 2021 that he experienced heat stroke while training with his unit in July 1982 and again during training in Germany. The Veteran stated that every summer since the in-service episodes, he has experienced problems with dizziness, confusion, difficulty speaking, signing his name, and problems with memory. The Veteran testified that he lives alone and tries to conceal his symptoms when around others because he is embarrassed. Lay testimony dating from many years following service generally asserts that the Veteran succumbed to heat exhaustion during active duty and was treated at a field medical facility. In November 2021, the Board promulgated a decision which, in pertinent part, reopened the previously denied claim of service connection for heat stroke, and remanded the underlying service connection claim for further development to include competent medical examination. The VA neurological examination was conducted in June 2022. The VA examining physician rendered a negative opinion, finding that it was less likely than not that there were current heat stroke residuals incurred in or caused by service. This physician noted that he had rendered the 2012 VA medical opinion, and he reviewed the claims folder and medical record. The examiner stated that, as noted in his initial opinion, STRs do no confirm a diagnosis of heat stroke in service, and symptoms reported in service are not consistent with this diagnosis. The examiner referenced the findings of the October 2011 non-VA physician in support of the negative opinion. The examiner also stated that a review of VA treatment records does not indicate any psychiatric diagnoses or evaluation for any mental health conditions. He wrote that the Veteran has not submitted any private medical records indicating any psychiatric diagnosis or psychiatric impairment related to heat exhaustion in service. Although the Veteran has provided statements regarding symptoms experienced in service and subsequently, the medical evidence of record does not support a diagnosis of heat stroke or any medical or psychiatric conditions that are likely due to heat exhaustion in service. Thereafter, the Board remanded the matter again in November 2022, finding that another examination was required to specifically consider psychiatric symptoms described by the Veteran, particularly at the September 2021 Board hearing. The examiner was also asked to address the October 2011 non-VA examiner's impression. A close look at this opinion reflects that the non-VA examiner suspected any mental changes were due to something other than reported heat stroke in the 1980's and more recent concussions. While it was conceivable, the doctor pointed out that the prior test results were negative and the reported heat strokes were not associated with multiorgan failure or prolonged coma. A review of the record reflects the Veteran was sent correspondence in November 2022 informing him that examination for his condition was scheduled by the local VA Regional Office/QTC. His scheduled examination was ultimately cancelled in December 2022 after the Veteran was a no show for the examination. As noted in 38 C.F.R. § 3.326 (a) individuals for whom examinations have been authorized and scheduled are required to report for such examinations. Under 38 C.F.R. § 3.655 (b), when a claimant fails without good cause to report for an examination scheduled in conjunction with a reopened compensation claim, the claim shall as a matter of law. Kyhn v. Shinseki, 24 Vet. App. 228, 240 (2011) reversed on other grounds, Kyhn v. Shinseki, 716 F.3d 572, 574-76 (Fed. Cir. 2013); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board notes that the Veteran has not contacted VA to provide a reason or explanation for missing the examination or request to reschedule the examination. Further, nothing in the record reflects that the Veteran did not receive notice of his scheduled examination. It is relevant to note that the June 2022 VA medical opinion from a competent, VA examiner is highly probative and is wholly against the claim as to heat stroke residuals other than any possible psychiatric residuals, which was the reason for remand for the additional examination. In view of the foregoing, the Board finds the Veteran, without good cause, failed to report for the VA examination scheduled in conjunction with his reopened claim. Therefore, his claim of entitlement to service connection for heat stroke residuals must be denied as a matter of law. Kyhn, 38 C.F.R. § 3.655. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.