Citation Nr: 0603591 Decision Date: 02/08/06 Archive Date: 02/22/06 DOCKET NO. 04-25 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased disability rating for service-connected post-traumatic stress disorder (PTSD), currently rated as 50 percent disabling. 2. Entitlement to service connection for a thyroid disorder, claimed as Graves' disease, to include as secondary to service-connected PTSD. 3. Entitlement to service connection for a stomach condition, to include as secondary to service-connected PTSD. 4. Entitlement to service connection for drug and alcohol abuse as secondary to service-connected PTSD. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Richard A. LaPointe, Attorney at Law ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The veteran served on active duty from December 1967 to April 1970. He served in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Procedural history In a January 1996 rating decision, service connection was granted for PTSD; a 50 percent disability rating was assigned. In a June 2003 rating decision, the RO denied the veteran's claims for service connection for Graves' disease and a stomach condition, an increased rating for PTSD and TDIU. The veteran filed a timely notice of disagreement (NOD) in June 2003, and the RO issued a statement of the (SOC) in May 2004. The veteran perfected his appeal by way of a substantive appeal (VA Form 9) received later in May 2004. In a May 2004 rating decision, the RO denied service connection for drug and alcohol abuse. The veteran filed a timely NOD in July 2004 , and the RO issued a SOC in October 2004. The veteran perfected his appeal by way of a substantive appeal (VA Form 9) received later in October 2004. The issues of service connection for a thyroid disorder, a stomach condition, and drug and alcohol abuse, as well as the issue of the veteran's entitlement to TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT The veteran failed, without good cause, to report for two VA psychiatric examinations, which were scheduled to be conducted in April 2003 and December 2003 and which were necessary for an informed adjudication of his claim for an increased rating for PTSD. CONCLUSION OF LAW Because the veteran failed, without good cause, to report for VA psychiatric examinations which were scheduled in connection with his claim of entitlement to an increased evaluation for service-connected PTSD, that claim is denied. 38 C.F.R. § 3.655 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to an increased disability rating for PTSD. The veteran seeks entitlement to an increased disability rating for his service-connected PTSD. In the interest of clarity, the Board will initially review various laws generally pertaining to the issues on appeal. The Board will then move on to an analysis of the issues. Although all of the evidence in the claims file may not be specifically cited in the Board's decision, the Board has reviewed and considered all of the evidence in the claims file in reaching its conclusion. The Veterans Claims Assistance Act of 2000 The Board has considered VA's duty to inform the veteran of the evidence needed to substantiate his claim and to assist him in obtaining the relevant evidence. See, in general, the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA) [codified at 38 U.S.C.A. §§ 5103, 5103A (West 2002)]; 38 C.F.R. § 3.159 (2005). The VCAA provides that VA 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 of VA, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In part, the VCAA specifically provides that VA is required to make reasonable efforts to obtain relevant governmental and private records that the claimant adequately identifies to VA and authorizes VA to obtain. The VCAA further provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A (West 2002). Regulations have been implemented in support of the VCAA. 66 Fed. Reg. 45,620 (August 29, 2001) [codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)]. In this case, as will be discussed further below, VA attempted to provide assistance to the veteran, to include furnishing a psychiatric examination. Through no fault of VA, those efforts were unsuccessful. Specifically, the RO requested an examination twice. QTC Medical Services and a VA medical center scheduled VA psychiatric examinations in April and December 2003, respectively, to determine the severity of the veteran's service-connected PTSD. However, the veteran failed to appear without showing good cause therefor. The United States Court of Appeals for Veterans Claims (the Court) has held that VA's duty to assist the veteran in developing the facts and evidence pertinent to a veteran's claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). The Board concludes that in light of the veteran's disinclination to fully cooperate with the process, all reasonable efforts were made by VA to obtain evidence necessary to substantiate the veteran's claims and that any further attempts to assist the veteran in developing his claims would result in needless delay, and are thus unwarranted. In this case, the VA adjudicators determined that the record in this case is incomplete and attempted to supplement the record by obtaining additional medical evidence. This supplementation of the record was required by the mandate contained in the statute and regulation. See, in particular, 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The consequences of the veteran's refusal to report for the scheduled VA examinations will be discussed below. Because the increased rating claim is being denied as a matter of law, the VCAA is inapplicable. See Manning v. Principi, 16 Vet. App. 534 (2002) [the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter]. The Board additionally observes that VA in fact complied with the provisions of the VCAA as to notice as well as duty to assist. See VCAA letters dated July 27, 2004, and March 12, 2003. To the extent necessary, VA also attempted to assist the veteran in the development of his claims. For example, the RO obtained VA medical records. However, VA's efforts were ultimately thwarted by lack of cooperation on the part of the veteran with respect to the crucial matter of submission to a medical examination. The Board further notes that the veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. The veteran has not expressed a desire to have a personal hearing. The Board notes that in the May 2004 VA Form 9, the veteran's attorney made generalized statements as to possible procedural deficiencies, without specifically describing any such. The Board has carefully reviewed the file and can detect no due process deficiencies. Pertinent law and regulations When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Examples of "good cause" include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. See 38 C.F.R. § 3.655 (2005); see also Engelke v. Gober, 10 Vet. App. 396, 399 (1997); Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992). Factual background In a February 2003 statement, the veteran's representative requested a VA examination. In a March 2003 VCAA letter notifying the veteran that he would be scheduled for an examination to be done by QTC Medical Services, the RO advised the veteran that "[i]t is essential that you report for your scheduled examination." The RO also stated that "[t]he findings of the examination are very important in making a decision in your claim" and that "[w]ithout it, we may have to deny your claim, or you might be paid less than you otherwise would." The RO added that "[i]f you are unable to keep your scheduled appointment, contact QTC immediately, as instructed in their letter" and that "[i]f you wish to be rescheduled, they will do their best to accommodate your schedule." See the RO's March 12, 2003 letter, page 5. In a March 19, 2003, letter, QTC Medical Services informed the veteran that he was scheduled for an examination on April 1, 2003. See March 19, 2003, letter, page 1. The veteran failed to report for that scheduled examination. Neither he or his attorney have provided any adequate reason or good cause for his failure to report for that examination A VA medical center scheduled the veteran for a VA psychiatric examination in December 2003. The veteran failed to report for that scheduled examination. He and his attorney have not provided any adequate reason or good cause for his failure to report for that examination. Analysis It is clear that the veteran failed without explanation to report for two VA psychiatric examinations which were scheduled to evaluate his service-connected PTSD. It is plain from the record before the Board that the veteran has been advised of what was required of him to adjudicate this claim, but he has failed to comply. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991); see also Wood, 1 Vet. App. at 193. There is of record no correspondence or report of contact from the veteran or his attorney which would explain his failure to report for the examinations, even though the RO told him that he should contact QTC Medical Services if he cannot report for the QTC examination as scheduled. In Hyson v. Brown, 5 Vet. App. 262, 265 (1993), the Court pointed out that VA must show that a claimant lacked "adequate reason" [see 38 C.F.R. § 3.158(b) (2005)], or "good cause" [see 38 C.F.R. § 3.655 (2005)] for failing to report for a scheduled examination. In this case, as discussed above, neither the veteran nor his attorney has provided an "adequate reason" or "good cause" for the veteran's failure to report to be examined when VA so requested. It is the responsibility of VA to obtain sufficient evidence to render an informed decision in a case. The Court has impressed upon VA the seriousness of this responsibility in cases too numerous to mention. See, e.g., Green v. Derwinski, 1 Vet. App. 121, 124 (1991) [VA's duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"]. VA's responsibility was both clarified and amplified through the enactment of the VCAA. The responsibility that the evidentiary record be developed to its fullest possible is not, however, unilateral; as noted above, the veteran must cooperate in this development, and his failure to cooperate may precipitate action adverse to the interests of his claims. The Board is mindful of the provision contained at the outset of 38 C.F.R. § 3.655: "When entitlement . . . to a benefit cannot be established without a current VA examination or reexamination . . . ." In this case, as determined by the RO pursuant to the veteran's request, a VA examination was indeed necessary to grant the benefits sought by the veteran, namely an increased rating for his service-connected PTSD. Cf. 38 C.F.R. § 3.159(c)(4) (2005). The veteran's last and only VA psychiatric examination was in December 1995. Current VA treatment records do not show any mental status examinations. In fact, while VA treatment records reflect regular treatment for a myriad of other conditions, to include substance abuse, these same records are for the most part notably silent regarding PTSD. The recent VA treatment reports are unclear as to two critical points: (1) the current level of the veteran's disability; and (2) what symptoms are due to the service- connected PTSD and what symptoms may be due to other causes, in particular his documented substance abuse. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) [the Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so]. In other words, a VA examination was necessary to accurately assess the appropriate psychiatric diagnoses, as well as symptoms attributable to such diagnoses. Such delineation through an examination was and is clearly necessary for an informed decision as to the veteran's increased rating claim. Furthermore, there is of record no other evidence which would substitute for the VA examination. See 38 C.F.R. § 3.326 (2005). Indeed, this is acknowledged by the veteran's own attorney who specifically requested that such an examination be scheduled. The veteran's attorney's February 24, 2003, communication to the RO regarding an increased rating for PTSD could not be more clear: In accordance with 38 U.S.C. § 5103A, please do the following: a) Conduct an examination of the veteran's service- connected condition to ascertain its present status and how this condition affects the veteran in his everyday activities. . . . . It would be disingenuous, to say the least, for the veteran or his attorney to now contend that the examination the veteran's attorney himself requested was not necessary. The facts in this case are clear. The veteran failed to report twice for a VA examination which was necessary to decide his claims and which was scheduled by the RO for that purpose. No good cause or adequate reason has been demonstrated for his failure to be examined. It is clear that VA has done its utmost to develop the evidence with respect to the veteran's claims. Any failure to develop these claims rests with the veteran himself. It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). The Board therefore concludes that entitlement to an increased rating for PTSD cannot be established or confirmed without a current VA examination. The Board is aware that the veteran has significant psychiatric and substance abuse problems. However, the veteran's problems do not excuse him from reporting for scheduled examinations. In any event, neither the veteran or his attorney have indicated that he was unable to report for VA examination for any particular reason. It appears that nothing has been heard directly from the veteran since he signed a July 2004 Notice of Disagreement as to the denial of his claim for service connection for drug and alcohol abuse. There is nothing in the record which indicates that he is not receiving communications from VA, either directly or through his attorney. In any event, it is incumbent upon the veteran to keep VA apprised of his whereabouts. The Court has held that VA may rely on the "last known address" shown of record, see Thompson v. Brown, 8 Vet. App. 169, 175 (1995). The burden is on the appellant to keep VA apprised of his or her whereabouts; if he or she does not do so, there is no burden on the part of the VA to "turn up heaven and earth to find [the appellant]". See Hyson v. Brown, 5 Vet. App. 262 (1993). The Board is of course aware of due process concerns that may arise in connection with cases, such as this, in which a veteran's claims are being denied based on his failure to adhere to VA regulations rather than the Board considering evidentiary merits of the issues on appeal. Cf. Swan v. Brown, 9 Vet. App. 450 (1996) and cases cited therein. When the Board addresses in a decision a question that has not been addressed by the RO, it must be considered whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384 (1993). With respect to this case, the Board concludes that the veteran has not been prejudiced by the decision herein. In this case, as discussed above, the veteran was fully apprised by the RO via the March 12, 2003 letter of the consequences of his failure to report for a scheduled VA examination. Thus, any due process concerns have been satisfied. In short, 38 C.F.R. § 3.655 provides that when an examination is scheduled in conjunction with a claim for increase or any original claim other than an original compensation claim, the claim shall be denied. The claim for an increased disability rating for service-connected PTSD is therefore denied. See 38 C.F.R. § 3.655 (2005); see also Sabonis v. Brown, 6 Vet. App. 426 (1994) [where the law and not the evidence is dispositive, the claim must be denied because of a lack of entitlement under the law]. ORDER An increased disability rating for service-connected PTSD is denied. REMAND 2. Entitlement to service connection for a thyroid disorder, claimed as Graves' disease, to include as secondary to service-connected PTSD. 3. Entitlement to service connection for a stomach condition, to include as secondary to service-connected PTSD. 4. Entitlement to service connection for drug and alcohol abuse as secondary to service-connected PTSD. The veteran also seeks entitlement to service connection for Graves' disease, a stomach condition, and drug and alcohol abuse. After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that these claims must be remanded for further evidentiary development. Reasons for Remand VA examination The veteran is claiming service connection for drug and alcohol abuse secondary to his service-connected PTSD. In general, service connection may not be established for alcohol or drug abuse. However, the United States Court of Appeals for the Federal Circuit has held that there can be service connection for compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). See also VAOPGCPREC 7-99 [holding that a substance abuse disability caused by a service-connected disability can be service connected under section 3.310(a) for purposes of VA benefits]. The Court has held that, in situations in which there is competent evidence of a current disability and either (1) evidence indicating an association between the claimant's disability and his active service or (2) a service-connected disability, is to obtain a medical opinion as to whether there is a nexus between the claimed disability and his active service and/or the service-connected disability. See Charles v. Principi, 16 Vet. App. 370 (2002). Although it appears that the thrust of the veteran's claims for service connection for Grave's disease and a stomach condition is secondary service connection, the RO also considered the claims of service connection for Graves' disease and a stomach condition on a direct basis. In regard to direct service connection, the Board notes that service medical records reflect that the veteran had viral enteritis in August 1968 and complaints of malaise in March 1969. In light of the veteran's November 2002 statement, the veteran may be claiming that these disorders are secondary to exposure to herbicides in service. In any event, VA must ascertain whether there is any other basis to conclude that the disorder was incurred by any incident of military service. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000). In this case, the veteran has residuals of a perforated diverticulum and a history of cocaine and alcohol abuse. While thyroid disease was diagnosed in May 1989, a report of a June 1991 VA general medical examination shows that the veteran had a history of hyperthyroidism, surgical ablation of the thyroid, and that he was now hypothyroid on replacement therapy. The report of the December 1995 VA general medical examination reflects a diagnosis of a history of hyperthyroidism that was currently asymptomatic. More recent VA treatment records note that the veteran has a hypothyroid, but the discharge summary from an October to November 2001 VA hospitalization reflects a diagnosis of a history of hypothyroidism. Thus, the exact nature of the veteran's drug and alcohol abuse and thyroid disorder are extremely unclear. There is no medical nexus opinion of record. Under the circumstances here presented, the Board believes that a medical examination and opinion is necessary in order to answer the questions regarding the thyroid disorder, gastrointestinal condition, and drug and alcohol abuse. VCAA notice Although the RO sent VCAA letters to the veteran concerning direct service connection for his various disabilities, the RO did not send a letter to the veteran which complies with the notice provisions of the VCAA as to secondary service connection. The Board has been prohibited from itself curing these defects. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Social Security Records It appears from the evidence of record that the veteran may be in receipt of Social Security benefits. Medical records associated with any such decision may shed light on the nature of the claimed disabilities. An effort should therefore be made to obtain such records. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). Board action as to the TDIU claim is deferred, pending resolution of the service connection claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. Accordingly, this case is REMANDED to the Veterans Benefits Administration (VBA) for the following actions: 1. A VCAA letter addressing the issues of secondary service connection for a thyroid disorder, a stomach condition, and drug and alcohol abuse must be provided to the veteran, with a copy to his attorney. 2. VBA should contact the Social Security Administration in order to obtain, if available, any records pertaining to a disability determination made by that agency. Any such records so obtained should be associated with the veteran's VA claims folder. 3. VBA must arrange for the veteran to undergo an examination to determine the nature and etiology of his thyroid disorder, claimed as Graves' disease, and the claimed stomach condition. All efforts to contact the veteran should be documented in the claims folder. After examination of the veteran and review of all pertinent medical records, the examiner should determine whether the veteran has a current thyroid condition and if so, the diagnosis. If a current thyroid disorder is diagnosed, the examiner should provide an opinion as to whether it is as least as likely as not that it is related to the veteran's military service, including complaints of malaise in service and exposure to herbicides while serving in the Republic of Vietnam, and as to whether it is as least as likely as not that the veteran's PTSD caused or aggravated the thyroid condition. The examiner should also provide an opinion as to whether it is as least as likely as not that any currently diagnosed gastrointestinal disability is related to the veteran's military service, including the diagnosis of viral enteritis in service and exposure to herbicides while serving in the Republic of Vietnam, and as to whether it is as least as likely as not that the veteran's PTSD caused or aggravated any current gastrointestinal disorder. If specialist consultations are required, such should be scheduled. A report of the examination should be associated with the veteran's VA claims folder. 4. The veteran should be scheduled for a psychological examination in order to determine the etiology of his drug and alcohol abuse. All efforts to contact the veteran should be documented in the claims folder. After administering any diagnostic tests deemed to be appropriate, reviewing the veteran's medical records and interviewing the veteran (not necessarily in that order), the examiner should render an opinion as to whether it is as likely as not that the drug and alcohol abuse is due to or is the result of the veteran's service-connected PTSD. The report of the examination should be associated with the veteran's VA claims folder. 5. After the development requested above has been completed to the extent possible, and after undertaking any additional development it deems necessary, VBA should again review the record and readjudicate the issues on appeal. If the decision remains unfavorable to the veteran, a supplemental statement of the case (SSOC) should be prepared. The veteran and his attorney should be provided with the SSOC and an appropriate period of time should be allowed for response. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). Finally, the veteran's cooperation as to any future medical examination is expected. See 38 C.F.R. § 3.655 (2005), which has been discussed in extensive detail above; see also Wood, supra. ______________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs