Clarence W. Kowalski v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 02-1284

CLARENCE W. KOWALSKI, APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided June 8, 2005 )

Antonio E. Bendezu, of Lincoln, Nebraska, was on the brief for the appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Brian

B. Rippel, Deputy Assistant General Counsel; and David J. Lowenstein, all of Washington, D.C.,

were on the brief for the appellee.

Before GREENE, KASOLD, and HAGEL, Judges.

GREENE, Judge: Veteran Clarence W. Kowalski appeals, through counsel, a June 21, 2002,

Board of Veterans' Appeals (Board) decision that denied his claims for VA service connection for

bilateral hearing loss, cold-weather trauma, arteriosclerotic heart disease, and pulmonary disabilities.

Record (R.) at 1-25. On appeal, he raises arguments concerning only his hearing-loss claim, and he

specifically withdraws his appeal of the Board decisions on his claims for cold-weather trauma,

arteriosclerotic heart disease, and pulmonary disabilities. See Appellant's Brief (App. Br.) at 1. Any

issues surrounding those withdrawn claims are deemed abandoned. See Bucklinger v. Brown,

5 Vet.App. 435, 436 (1993). Mr. Kowalski maintains that the Board erred by denying his hearing-

loss claim on the basis that he had abandoned it by refusing to report for a VA medical examination

and by also concluding that a private audiologist's opinion, which stated that his hearing loss "quite

likely" began in service, had no probative weight because it was based solely on Mr. Kowalski's

uncorroborated reports of incidents during his service. App. Br. at 5-13. He contends that the

audiologist's opinion established service connection. Id. He further asserts that because VA gave

him no compelling reason as to why another examination was necessary, he was not required to

report for a scheduled VA medical examination. Id. The Secretary contends that, should the Court

conclude that the Board erred by denying Mr. Kowalski's claim on the basis that he abandoned it by

failing to report for a VA medical examination, that error is harmless because the Board adjudicated

Mr. Kowalski's claim on the evidence of record and had a plausible basis for finding that the

evidence did not support awarding him service connection. Secretary's Brief (Sec. Br.) at 6-15. The

Court has jurisdiction under 38 U.S.C. §§ 7252(a) and 7266. For the reasons set forth below, the

Board's decision will be vacated and the matter remanded.

I. FACTS

Mr. Kowalski served honorably in the U.S. Army from April 1954 to February 1956,

including service in Korea. R. at 28. His military records indicated that his service in Korea began

on December 22, 1954, during the final month of the Korean Conflict period. Id; see also 38 C.F.R.

§ 3.2(e) (2004). In February 1999, he filed with a VA regional office (RO) a claim for VA service

connection for, inter alia, hearing loss from his exposure to heavy-weapons fire while assigned as

a light-truck driver in Korea. R. at 35-39. VA made several requests for Mr. Kowalski's service

medical records from the National Personnel Record Center (NPRC) (R. at 44-46, 93), but those

records were never found (see R. at 1-306). The records were apparently destroyed in a fire at the

NPRC in St. Louis, Missouri in 1973. R. at 15. After he was given a VA respiratory system

examination in December 1999 (R. at 99-101), the RO, in January 2000, denied Mr. Kowalski's

claim for hearing loss after finding that it was not well grounded as there was no medical evidence

that he had a current disability (R. at 104-08). In March 2000, Mr. Kowalski filed a Notice of

Disagreement (NOD) with that RO decision. R. at 114. At that same time, he also applied for

service connection for tinnitus and presented a copy of a letter written by Craig A. Foss, Master of

Communication Disorders (M.C.D.) of the Hearing Clinic, Inc., Grand Island, Nebraska, who is

referred to in the Board decision as a private audiologist. R. at 15, 18, 110-12. That letter included

a copy of an audiogram administered to Mr. Kowalski in February 2000. Id. The letter, addressed

to Mr. Kowalski, stated:

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[Mr. Kowalski has] a moderate bilateral high[-]frequency

sensorineural hearing loss with good discrimination ability.

From [Mr. Kowalski's] history of being exposed to the noise of small

arms and tanks while in the military, during the mid 1950[s], it is

quite likely that this was the beginning of [his] hearing loss. The type

and degree of [his] hearing level on [his] audiogram is consistent with

noise[-]induced hearing loss.

R. at 110-12. In April 2000, Mr. Kowalski appealed to the Board and requested a "thorough and

contemporaneous [medical] examination." R. at 121-22. In May 2000, however, Mr. Kowalski

requested that VA expunge from the record his December 1999 VA medical examination report; he

asserted that the examination was inadequate for rating purposes. R. at 128-30. Mr. Kowalski also

maintained that he would not undergo another VA medical examination. Id. He stated, through

counsel:

Should the [RO] submit to Mr. Kowalski compelling reasons, as

required by [VA Adjudication Procedure Manual M21-1 (M21-1)],

for the scheduled compensation examination . . . he would willingly

comply with the [RO's] request for [an] examination.

R. at 130.

In July 2000, the RO issued a Statement of the Case (SOC) stating, inter alia, that Mr.

Kowalski had not presented evidence of a hearing loss or evidence of a likely connection of any

hearing loss to military service. R. at 138-44. The SOC noted that "the veteran submitted evidence

regarding his hearing loss" but that a VA examination was being scheduled to evaluate that

condition. R. at 143. In August 2000, Mr. Kowalski's counsel advised the RO that Mr. Kowalski

would not attend any scheduled VA examination and reiterated that unless Mr. Kowalski was given

compelling reasons for doing so, he would not attend any VA medical examinations. R. at 152-53.

Mr. Kowalski's counsel also filed a Substantive Appeal and stated:

[Mr. Kowalski] has submitted medical evidence sufficient for

[VA] to rate from.

....

The [December 1999] VA compensation examination is

arbitrary, capricious, and, therefore, clearly and unmistakably

erroneous.

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....

The [RO] has denied benefits by scheduling an improper VA

compensation examination. Denial was further confirmed by the

notification that the adjudication of his claim was solely dependent

upon the outcome of a VA compensation examination.

Due to the clearly adversarial position demonstrated by the

[RO], Mr. Kowalski moves the [Board] to accept jurisdiction of his

case and to make a final decision based upon the evidence currently

of record.

R. at 164-65 (emphasis added). Based on this statement, VA cancelled Mr. Kowalski's scheduled

audiological examination. R. at 176.

In a March 2001 letter to the RO, Mr. Kowalski's counsel asserted:

Mr. Kowalski [has] submitted a proper and timely appeal and

[NOD]. Your blatant refusal to timely promulgate Mr. Kowalski['s]

appeal is an abuse of his rights to a timely appeal. It is without legal

merit and entirely inappropriate that Mr. Kowalski['s] appeal has not

been promulgated.

Mr. Kowalski has been advised to take this matter to the [VA]

Office of Inspector General.

R. at 250. In April 2001, VA provided to Mr. Kowalski a letter notifying him of the information and

evidence necessary to substantiate his claim and indicating which portion of any such information

or evidence he needed to provide and what VA would provide. R. at 252-56. In response, Mr.

Kowalski's counsel asserted:

It has been approximately 20 months since Mr. Kowalski filed

his original claim for benefits. It has been [15] months since he was

first denied these benefits. It has been [12] months since he

submitted his . . . VA [S]ubstantive [A]ppeal. The [RO] has

repeatedly refused to provide deference to submitted private evidence,

instead choosing to schedule Mr. Kowalski for an inappropriate VA

compensation examination. This [is] in direct contradiction to

statute, regulation[,] and [the VA] adjudication manual.

....

Mr. Kowalski moves that his appeal be immediately

promulgated to the [Board] for timely adjudication. Any further

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delay can only be construed as a willful and wanton disregard of Mr.

Kowalski's right to a timely appeal.

R. at 259-60. In August 2001, after Mr. Kowalski refused to report for a VA examination and did

not submit any additional evidence following the April 2001 notification letter, the RO denied his

claim. The RO found that the evidence did not show that his hearing-loss condition was related to

his military service. R. at 270. Mr. Kowalski appealed to the Board, and on June 21, 2002, the

Board found that Mr. Kowalski, without good cause or adequate reason, had refused to report for his

scheduled VA examination, and thus, under 38 C.F.R. § 3.158 (2001), had abandoned his hearing-

loss claim. R. at 2. Alternatively, the Board determined that the preponderance of the evidence of

record was against awarding Mr. Kowalski service connection after finding that the private

audiologist's opinion was based solely on Mr. Kowalski's own unsubstantiated reports of noise

exposure during his service. R. at 18. Relying on Reonal v. Brown, 5 Vet.App. 458 (1993), and

Swann v. Brown, 5 Vet.App. 229 (1993), the Board found:

[The] preponderance of evidence is against the veteran's

claim. The evidence in essence consists of the nexus opinion of an

audiologist based on the veteran's own reports of noise exposure

during service. The Court has held on a number of occasions that a

medical opinion premised upon an unsubstantiated account of a

claimant is of no probative value.

Although the statement from the veteran's audiologist is the

only medical evidence of record pertinent to the question of whether

the veteran's currently-shown hearing loss had its inception during his

period of service, the Board declines to give it probative weight. The

statement was based entirely upon the veteran's own reported history

of having been exposed to noise during service in Korea.

R. at 17-18. Mr. Kowalski appealed to the Court.

On appeal, Mr. Kowalski maintains that VA scheduled a medical examination solely for the

purpose of rebutting his private audiologist's opinion and that VA did not explain what probative

evidence would be gathered from a VA examination. App. Br. at 10. He argues that his audiologist's

examination and opinion complied with the rating requirements in 38 C.F.R. § 4.85 (2001) for

hearing loss, and that, under 38 U.S.C. § 5125, a VA examination was not required to confirm the

findings of his private medical opinion. Id. at 8-9. Thus, he contends, under 38 C.F.R. § 3.326(b)

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and (c) (2004), M21-1, part VI, chapter 1, paragraph 1.07(b)(6) (Insufficient Reports) (2004), and

M21-1, part VI, chapter 1, paragraph 1.13(a) (Canceling Unnecessary Review Examinations) (2004),

he was not required to report for the scheduled VA examination. Id. at 5-13. (Throughout the

appellant's principal and reply briefs he has referred to "M21-1, [p]art VI, [c]hapter 1, [p]aragraph

1.07(a)(6)"; a review of M21-1 reveals that the relevant section is paragraph 1.07(b)(6)). He asserts

that, if there was a medical contradiction concerning his hearing loss, the Board could have requested

an independent medical opinion, which it did not. Id. at 10-11.

In response, the Secretary contends that the Board correctly concluded that Mr. Kowalski's

refusal to be examined by VA was without adequate reason or good cause and that his refusal

constituted an abandonment of his claim under 38 C.F.R. § 3.158. Sec. Br. at 8-11. Alternatively,

the Secretary argues that any error made by the Board in concluding that Mr. Kowalski had

abandoned his claim was harmless because the Board fully adjudicated the claim on the merits and

had a plausible basis for denying the claim. Id. at 6-15.

II. ANALYSIS

A. Abandonment of Claim

The Board found that Mr. Kowalski, without good cause or adequate reason, had refused to

report for his scheduled VA audiological examination, and thus, under 38 C.F.R. § 3.158, that he had

abandoned his claim. R. at 17. Under 38 C.F.R. § 3.158(a), "where evidence requested in

connection with an original claim . . . is not furnished within 1 year after the date of request, the

claim will be considered abandoned." Further, § 3.158(b) provides that if a veteran "fails without

adequate reason to respond to an order to report for [VA] examination within 1 year from the date

of request and payments have been discontinued, the claim for such benefits will be considered

abandoned." 38 C.F.R. § 3.158(b). Mr. Kowalski, through counsel, refused to appear for a VA

medical examination and instead requested an adjudication of the claim based on the evidence then

of record.

First, § 3.158(b) does not apply in this case because it applies to circumstances where a

veteran refuses to report for a VA examination after VA has discontinued the veteran's payments.

38 C.F.R. § 3.158(b). Second, although the refusal to report for a VA examination scheduled in

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connection with an original claim could be construed, under § 3.158(a), as a failure to furnish

evidence requested in connection with an original claim, see Jones v. West, 12 Vet.App. 98, 103

(1998) (suggesting that 38 C.F.R. § 3.158(a) might refer to both documentary evidence and VA

medical examinations), we conclude that such a refusal is addressed more specifically by 38 C.F.R.

§ 3.655(b) (2001). That regulation specifically provides that "[w]hen a claimant fails[, without good

cause,] to report for an examination scheduled in conjunction with an original compensation claim,

the claim shall be rated based on the evidence of record." See 38 C.F.R. § 3.655(a) and (b) (the

Court notes that, although § 3.655 is included in title 38, Code of Federal Regulations, under the

heading "Adjustments and Resumptions," the language of § 3.655 makes clear that that regulation

applies in situations involving original claims). Accordingly, under the canon of interpretation that

the more specific trumps the general, we hold that § 3.655(b) controls when, as here, a claimant

refuses to report for a VA examination scheduled in connection with an original claim. See Zimick v.

West, 11 Vet.App. 45, 51 (1998) ("'a more specific statute will be given precedence over a more

general one . . . . '" (quoting Busic v. United States, 446 U.S. 398, 406 (1980))). Although the Board

erred by concluding that under § 3.158 Mr. Kowalski had abandoned his claim, this error is not

prejudicial because the Board nevertheless addressed the merits of Mr. Kowalski's claim, and thus,

it effectively applied § 3.655(b). See 38 U.S.C. § 7261(b)(2) (providing that the Court shall take due

account of the rule of prejudicial error).

With § 3.655(b) as the controlling regulation in this case, the next question is whether Mr.

Kowalski has demonstrated that his failure to report for a VA examination was based on good cause.

"Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant,

[and] death of an immediate family member, etc." 38 C.F.R. § 3.655(a). Mr. Kowalski argues that

he refused to report for the examination because (1) under 38 U.S.C. § 5125, a VA examination was

not required to confirm the findings of his private audiologist report and (2) the RO had failed to

give him, as he contends is required by certain M21-1 provisions, "compelling reasons" to report for

an examination. For the following reasons, we reject Mr. Kowalski's arguments and conclude that

his refusal to report for a VA examination was not based on good cause.

Concerning Mr. Kowalski's argument that a VA examination was not necessary because,

under 38 U.S.C. § 5125, the letter from his private audiologist should be sufficient for the purposes

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of establishing service connection for his hearing-loss condition, 38 U.S.C. § 5103A provides that

"[t]he Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary

to substantiate the claimant's claim for a benefit under a law administered by the Secretary." The

assistance to be provided includes conducting a medical examination or providing a medical opinion

if necessary. See 38 U.S.C. § 5103A(d)(2). Section 5125 provides:

For purposes of establishing any claim for benefits . . . a report of a

medical examination administered by a private physician that is

provided by a claimant in support of a claim for benefits under that

chapter may be accepted without a requirement for confirmation by

an examination by a physician employed by the Veterans Health

Administration if the report is sufficiently complete to be adequate for

the purpose of adjudicating such claim.

38 U.S.C. § 5125 (emphasis added). There is no indication in the record, nor has Mr. Kowalski

argued, that his audiologist is a physician for the purposes of applying section 5125. Even assuming

that his audiologist is a physician, however, the Court holds that, under the circumstances of this

case, VA had the authority to schedule Mr. Kowalski for a VA hearing examination. In Struck v.

Brown, the Court held that section 5125 is not mandatory but, rather, permissive in nature, but that

it would not permit the Board to act in an arbitrary and capricious manner in not crediting a

claimant's evidence. Struck, 9 Vet.App. 145, 155 (1996). Thus, even if the audiologist's letter was

adequate to support the adjudication of Mr. Kowalski's claim, reliance on such report alone is not

required by VA unless failure to do so would be arbitrary and capricious. Id. Here, the decision to

schedule Mr. Kowalski for a VA examination was a permissible attempt to obtain additional

evidence necessary to decide his claim. See Shoffner v. Principi, 16 Vet.App. 208, 213 (2002)

(holding that VA has discretion to decide when additional development is necessary); 38 C.F.R.

3.304(c) (2001); see also Mariano v. Principi, 17 Vet.App. 305, 312 (2003) (holding that VA may

not order additional development for purpose of obtaining evidence against appellant). The

Secretary's duty to assist under the facts of this case was particularly great in light of the

unavailability of Mr. Kowalski's service medical records. See Cuevas v. Principi, 3 Vet.App. 542

(1992) (stating that when service medical records are presumed destroyed the VA's duty to assist is

heightened); Moore v. Derwinski, 1 Vet.App. 401, 406 (1991) (stating that VA's duty to assist is

particularly great when medical records are unavailable). Indeed, under these circumstances, any

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failure by VA to schedule for him an examination before rejecting his claim could have violated

VA's duty to assist him. 38 U.S.C. § 5103A(d); Moore, supra.

Regarding Mr. Kowalski's reliance upon the M21-1 provisions as a basis to require the RO

to give him compelling reasons to report for an examination, we recognize that, under M21-1,

part IV, chapter 1, paragraph 1.07(b)(6), "the rating activity may request that the claimant be

reexamined by another medical examiner if compelling reasons exist." However, that section applies

only to the sufficiency of a previous VA examination. See generally M21-1, pt. IV, ch. 1, para. 1.07

("Sufficiency of VA Examination"). Mr. Kowalski cites only to M21-1, part VI, chapter 1,

paragraph 1.13(a), concerning the scheduling of VA examinations subsequent to a private

examination, which admonishes the RO "not [to] request an examination solely to confirm evidence

listed in 38 C.F.R. 3.326(c) that is otherwise adequate for rating." Thus, there is no basis for Mr.

Kowalski's argument that there must be "compelling reasons" given by VA before an initial hearing

examination can be scheduled on his behalf. Therefore, the Court holds that the Secretary has the

authority to schedule a veteran for an examination for confirmation purposes without explicitly

advising the veteran of "compelling reasons" for the necessity of the examination.

The Court's caselaw on a claimant's cooperation in the adjudication process is clear: "'If a

veteran wishes help, he cannot passively wait for it in those circumstances where he may or should

have information that is essential in obtaining the putative evidence.'" Dusek v. Derwinski,

2 Vet.App. 519, 522 (1992) (quoting Wood v. Derwinski, 1 Vet.App. 190, 193 (1991)). We also

recognize that a veteran is free to refuse to report for a scheduled VA examination. However, the

consequences of that refusal may result in the adjudication of the matter based on the evidence of

record under § 3.655. Here, Mr. Kowalski refused to appear for his two scheduled VA examinations

on his belief that VA already had sufficient evidence. R. at 130, 152-53,164-65, 259-60. The Board

implicitly invoked § 3.655(a) and correctly found that Mr. Kowalski's refusal was a voluntary

election on his part and that of his counsel and that his failure to appear was not based on good cause

under that regulation. Compare Holland ( Lee) v. Brown, 6 Vet.App. 443, 445, 448-49 (1994)

(refusal to submit to VA examination because of televised reports regarding care at VA Medical

Centers not considered good cause); Olson v. Principi, 3 Vet.App. 480, 482-83 (1992) (financial

hardship associated with traveling to VA examination site not considered good cause for failure to

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appear); Dusek, 2 Vet.App. at 521-22 (veteran's allegation of medical malpractice and racial

discrimination not considered good cause for failure to appear for VA examination).

B. Claim on the Merits

Having resolved that any error by the Board in finding that, under § 3.158, Mr. Kowalski

abandoned his claim was non-prejudicial, we now look to the Board's determination on the merits

of the claim. The Board's determination of service connection is reviewed by the Court under the

"clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). See Rose v. West,

11 Vet.App. 169, 171 (1998). '"A finding of fact is clearly erroneous when although there is

evidence to support it, the reviewing court on the entire evidence is left with a definite and firm

conviction that a mistake has been committed.'" Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990)

(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Service connection is

awarded to a claimant where there is (1) medical evidence of a current disability; (2) medical

evidence or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a

disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or

injury and the present disease or injury. See Hickson v. West, 12 Vet.App. 247, 253 (1999);

38 C.F.R. § 3.303(a) (2003).

When rendering its decision, the Board must consider all relevant evidence of record and

address in its decision all potentially applicable provisions of law and regulation. See Schafrath v.

Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(a)(d)(1). The Board also is required

to include in its decision a written statement of the reasons or bases for its findings and conclusions

on all material issues of fact and law presented on the record; that statement must be adequate to

enable an appellant to understand the precise basis for the decision, as well as to facilitate review in

the Court. See Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. This is

especially true in a case such as this where a veteran's records are lost and the Board has a heightened

duty to provide a full explanation of the reasons or bases for it findings. See Moore, supra;

O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991).

In its adjudication of this matter, the Board, relying upon Reonal and Swann, both supra,

determined that it would not give probative value to the private audiologist's letter. That letter, dated

almost 46 years after Mr. Kowalski's separation from service, provided an opinion based on service

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history related by Mr. Kowalski. Indeed, there was very little detail in that letter, and the Board had

a basis for attributing less probative value to the letter. Cf. Reonal and Swann, both supra. The

Court is not satisfied, however, that the Board accomplished all that it was required to do in this

matter. First, although the Board may reject a medical opinion that is based on facts provided by the

veteran that have previously been found to be inaccurate (Reonal) and may reject such a medical

opinion because other facts present in the record contradict the facts provided by the veteran that

formed the basis for the opinion (Swann), the Board may not disregard a medical opinion solely on

the rationale that the medical opinion was based on a history given by the veteran. See

Wilson v. Derwinski, 2 Vet.App. 614, 618 (1992) (stating Board must evaluate the credibility and

weight of the history upon which medical opinion is predicated). Further, because Mr. Kowalski's

records were lost, the Board had a heightened duty to provide a full explanation of the reasons or

bases for its findings. See Moore and O'Hare, both supra. This duty recognizes the Board's further

obligation to consider "all reasonably raised matters regarding the issue on appeal."

Urban v. Principi, 18 Vet.App. 143, 145 (2004). One matter reasonably raised falls under section

1154(b), which provides:

In the case of any veteran who engaged in combat with the enemy in

active service, . . . the Secretary shall accept as sufficient proof of

service-connection of any disease or injury alleged to have been

incurred in or aggravated by such service satisfactory lay or other

evidence of service incurrence or aggravation of such injury or

disease, if consistent with the circumstances, conditions, or hardships

of such service, notwithstanding the fact that there is no official

record of such incurrence or aggravation in such service, and, to that

end, shall resolve every reasonable doubt in favor of the veteran.

38 U.S.C. § 1154(b).

Mr. Kowalski's report of separation indicated that his service in Korea began on

December 22, 1954. See R. at 28. VA regulations state that the Korean Conflict period extended

from June 27, 1950, through January 31, 1955, inclusive. 38 C.F.R. § 3.2(e). Although the Korean

War Armistice was signed on July 27, 1953, to "insure a complete cessation of hostilities and of all

acts of armed force in Korea until a final peaceful settlement is achieved," Military Armistice In

Korea and Temporary Supplementary Agreement, July 27, 1953, U.N.-N. Korea, 4 U.S.T. 234, Mr.

Kowalski did serve in Korea during a defined period of war under 38 C.F.R. § 3.2(e). Therefore, it

11

is possible that his lay statement concerning his exposure to heavy-weapons fire that he maintains

resulted in his hearing loss (R. at 35-39) could support service connection under 38 U.S.C.

§ 1154(b). See Sizemore v. Principi, 18 Vet.App. 264, 272 (2004) (a determination whether a

veteran was in combat must be made on a case-by-case basis, and the definition of "engaged in

combat with the enemy," as used in 38 U.S.C. § 1154(b), requires that the veteran has "personally

participated in events constituting an actual fight or encounter with a military foe or hostile unit or

instrumentality"). The Board did not address this reasonably raised possibility. Accordingly, until

that matter is discussed adequately, the Court cannot conduct an effective review. See Allday,

Moore, O'Hare, and Gilbert, all supra. Therefore, the matter will be remanded for the Board to

conduct a review of the evidence of record and consider all applicable law and regulations. The

Board should specifically address whether any of Mr. Kowalski's service in Korea falls under the

definition of "engaged in combat with the enemy," which would make him eligible for consideration

under 38 U.S.C. § 1154(b). See Sizemore, supra. Furthermore, the Board must take appropriate

actions consistent with its heightened obligations (i.e. to assist, to provide reasons or bases, and to

consider the rule of benefit of the doubt) that are placed on VA as a result of the loss of military

records, which are critical to the adjudication of Mr. Kowalski's claim, while those records were in

the custody of the government. See Cuevas, Moore, O'Hare all supra.

On remand, the parties are reminded that "[t]he duty to assist is not always a one-way street.

If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or

should have information that is essential in obtaining the putative evidence." Wood, 1 Vet.App. at

193. As we hold above, VA has not only the discretion, but in this case, the duty under 38 U.S.C.

§ 5103A(d) and Moore, supra, to schedule an examination for Mr. Kowalski in order to determine

service connection and a potential rating for any service-connected condition. Mr. Kowalski and his

counsel are expected to cooperate in the efforts to adjudicate his claim for service connection. Their

failure to do so would subject them to the risk of an adverse adjudication based on an incomplete and

underdeveloped record.

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III. CONCLUSION

After consideration of the pleadings and a review of the record, the Court holds that the

Board has committed prejudicial error that warrants remand. Therefore, the June 21, 2002, decision

of the Board is VACATED and the matter is REMANDED to the Board for further adjudication in

accordance with this opinion. On remand, Mr. Kowalski is free to raise additional arguments to the

Board and the Board must address them. See Kay v. Principi, 16 Vet.App. 529 (2002);

Kutscherousky v. West, 12 Vet.App. 369 (1999) (per curiam order).

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