Citation Nr: 1126290	
Decision Date: 07/13/11    Archive Date: 07/19/11

DOCKET NO.  10-02 759	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD). 

2.  Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service- connected disabilities (TDIU).

3.  Entitlement to an increased rating for degenerative joint disease, lumbosacral spine, currently rated as 20 percent disabling.  


REPRESENTATION

Appellant represented by:	John Berry, Attorney at Law


ATTORNEY FOR THE BOARD

T.S. Willie, Associate Counsel


INTRODUCTION

The appellant served on active duty from April 1987 to January 1990.

This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  Jurisdiction rests with the Los Angeles, RO.  

The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The appellant was notified in October 2009 of a VA examination scheduled in connection with her claim for an increased rating for degenerative joint disease, lumbosacral spine.  The same evidence would have been considered in regard to the claim for unemployability.

2.  The appellant failed to appear for the scheduled VA examination and did not show good cause for doing so.


CONCLUSION OF LAW

The appellant's claim is denied on the basis of her failure to report for a VA medical examination.  38 C.F.R. § 3.655(a), (b) (2010); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).






REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004).  The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

The record reflects that the originating agency provided the appellant with the notice required under VCAA by letter dated in December 2007.  The letter informed the appellant of the evidence and information needed to substantiate her claims and of her and VA's respective duties in obtaining evidence.  She was also provided with notice as to how VA assigns an effective date and a disability rating in the event that service connection is established.  

VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010).  In connection with the current appeal, available service and private treatment records have been obtained.  Additionally, while VA afforded the appellant opportunities to present for VA examinations, the record reflects that she failed to report for such examinations in December 2007, February 2008 and November 2009.  With regard to the November 2009 examination, a letter was sent to the appellant informing her of the examination.  Nonetheless, she failed to report for the examination and did so without good cause.  The Board finds that the appellant was given more than one opportunity to present for a VA examination, and therefore VA satisfied its duty to assist.

For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims.  The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained.  No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d).  Accordingly, the Board will address the merits of the claims. 

Legal Criteria and Analysis

Under 38 C.F.R. § 3.655, 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.  38 C.F.R. § 3.655(b) (2010).  VA regulations define an original claim as an initial application on a form prescribed by the Secretary.  38 C.F.R. § 3.160 (2010).

In this case, the claim on appeal is not the original claim for compensation as contemplated by the operative VA regulations.  Rather, the claim is for an increased rating for the appellant's service connected degenerative joint disease, lumbosacral spine.  Similarly, the claim for a total rating is part of the claim for increase as the only service connected disability is the spine.

The record reflects that VA made multiple attempts to provide the appellant with a VA examination to include an examination in November 2009.  Nonetheless, the appellant failed to report for the examination and failed to provide good cause for her absence (a claimant failing to report for a scheduled examination must show good cause for so doing.  See 38 C.F.R. § 3.655; Engelke v. Gober, 10 Vet. App. 396, 399 (1997); Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992)).

As the Court of Appeals for Veterans Claims has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street."  Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996).  "If a [claimant] 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 v. Derwinski, 1 Vet. App. 190, 193 (1991).  See also Olson v. Principi, 3 Vet. App. 480, 483 (1992).  

Again, under 38 C.F.R. § 3.655, when entitlement to a benefit cannot be established without VA examination, and a claimant, without good cause, fails to report for such examination; and the examination was in conjunction with an other original claim, the claim shall be denied.  Here, a VA examination was needed to determine the nature and extent of the appellant's degenerative joint disease, lumbosacral spine disability.  In this case the criteria for a denial based on application of 38 C.F.R. § 3.655 have been met and the claim must be denied pursuant to the operative regulation.  38 C.F.R. § 3.655(b) (2010).


ORDER

A rating higher than 20 percent disabling for degenerative joint disease, lumbosacral spine is denied.  A total rating for compensation based upon individual unemployability is denied.





REMAND

The appellant has appealed the denial of service connection for PTSD.  In her October 2007 claim, it was noted that she was currently receiving Social Security benefits for a mental condition.  The record is devoid of a showing that the RO has requested these records.  As such, a remand is warranted so that they can be obtained.  

Accordingly, the case is REMANDED for the following action:

Request and associate with the claims file the appellant's Social Security records.  

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).


______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs