Citation Nr: 1128077 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 06-06 947A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from August 1967 through July 1969. This matter comes before the Board of Veterans' Appeals (Board) from a November 2004 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied entitlement to a TDIU rating. By way of history, the claim for a TDIU rating came before the Board in November 2008, at which time the Board found that the TDIU claim was inextricably intertwined with the other issues on appeal, and the Board could not fairly proceed to adjudicate the TDIU claim until the other outstanding matters were resolved. There were no specific remand directives set out by the Board in November 2008 pertaining to the TDIU claim, thus there are no compliance issues to address. Stegall v. West, 11 Vet. App. 268 (1998). In August 2010, this issue again came before the Board, and was remanded to the Appeals Management Center (AMC), in Washington, DC, for further evidentiary development. The Board directed that (1) the Veteran be sent a new VA Form 21-8940 and also be asked to identify any treatment providers who treated him for his service-connected disabilities from July 2009 to the present; (2) that the AMC obtain treatment records from any named providers; (3) that the VA eye examiner from June 2009 be asked to provide an addendum with regard to the overall effect of the Veteran's service-connected eye disabilities on his ability to obtain and retain any substantially gainful employment; and (4) that if the June 2009 examiner is unavailable, afford the Veteran a new VA eye examination by an appropriate specialist. For reasons set forth below, with regard to the Board's August 2010 remand, it appears that there was substantial compliance with the first two directives listed above, however, there has not been substantial compliance with the second two remand directives set out above. Stegall v. West, supra. The appeal is therefore REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND As noted above, in August 2010, the Board remanded the TDIU claim for further evidentiary development. The Board directed that the Veteran be sent a VA Form 21-8940 and asked to identify any providers who treated him for his service-connected disabilities from July 2009 to the present; that the AMC obtain records from any named treatment providers; that the VA eye examiner from June 2009 be asked to provide an addendum with regard to the effect of the Veteran's service-connected eye disabilities on his ability to obtain and retain any substantially gainful employment; and that if the June 2009 examiner is unavailable, afford the Veteran a new VA eye examination by an appropriate specialist. The record reflects that in September 2010, the AMC sent a letter to the Veteran notifying him that they would be developing additional evidence concerning his appeal that had been remanded by the Board. Therein, the Veteran was requested to provide information regarding any treatment he had obtained (on the enclosed VA Form 21-4142 and VA Form 21-4138) , as well as to complete the enclosed VA Form 21-4138, if he believed he was unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. A review of the record shows that there was no response to this letter received, nor was this letter returned as undeliverable. By letter dated in November 20, 2010, the AMC notified the Veteran that they were continuing to process his appeal for a TDIU, and notified him that they had asked the VA medical facility nearest him to schedule him for a VA examination in connection with his claim, and that they would notify him of the date, time, and place of the examination. The Veteran was also advised that when a claimant, without good cause, fails to report for an examination, the claim show be rated based on the evidence of record or even denied. A review of the record shows that no response to this letter received, nor was this letter returned as undeliverable. A VISTA record (which was printed on November 20, 2010) shows that on November 20, 2010 the AMC requested a general medical examination for the Veteran from the Jesse Brown VAMC. It was also noted under the subheading "Future C&P Appointments" that an appointment was scheduled for November 22, 2010, at 9:30. In a handwritten note on the VISTA record, dated December 9, 2010, an employee (apparently at the Jesse Brown VAMC) indicated that they had "called the [V]eteran several times, and the phone just rings". Another VISTA record, which was printed on December 9, 2010, showed that the date of the examination was November, 24, 2010, that the examining physician's name was other than the VA examiner from June 2009, and that the Veteran "failed to report on 11/22/10". The Veteran's representative, in the informal hearing presentation dated in May 2011, indicated that there are irregularities in the record regarding notifying and scheduling the Veteran for the requested VA examination. The representative noted that the AMC sent a letter to the Veteran on November 20, 2010 - a Saturday - and that, thereafter, the Veteran was noted to have failed to report for an examination on November 22, 2010. The representative indicated that it was impossible for the Veteran to receive this notification as there was no mail delivery on Sundays. The representative also noted that in the VISTA documentation, the Veteran's failure to report was listed as November 22, 2010, but the examination was listed as scheduled for November 24, 2010. The Board agrees that there appear to be irregularities in the notification and scheduling of the Veteran for a VA examination. This should be clarified on remand. In addition, while it appears that the VA examiner from June 2009 was not available to review the record and provide the requested opinion, and that this is the reason that there was an attempt to schedule the Veteran for a VA general medical examination with another provider in November 2010, this matter should also be clarified on remand. Thus, the Board concludes that another remand is warranted, and that if the VA examiner from June 2009 is unavailable, either the VAMC or the AMC should so specify, and thereafter, the Veteran should be scheduled for the requested VA examination. The Veteran should also be provided adequate notification of the examination prior to the scheduled date. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, shall result in denial of the claim for a TDIU (which is considered a claim for increase). See 38 C.F.R. § 3.655(b) (2010). The Board acknowledges the representative's contention that the AMC failed to provide the Veteran a new VA Form 21-8940. A review of the September 2010 letter from the AMC to the Veteran, however, shows that not only was such form referenced in the letter, there is also notation that such form was an enclosure with the letter. In addition, with regard to the request (in the August 2010 remand) that the Veteran submit any additional information regarding medical providers who may have treated him, the Board notes that the Veteran was provided adequate notification of this, to include the necessary forms, in a letter dated in September 2010, and has apparently not responded to this letter in any way. The Board notes that while the United States Court of Appeals for Veteran's Claims (Court) has held that the burden was upon VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination, the Board also notes that the duty to assist is not always a one-way street, and that 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. Hyson v. Brown, 5 Vet. App. 262, 265 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the Board concludes there has been substantial compliance with the portion of the Board's August 2010 remand which directed that the Veteran be sent a new VA Form 21-8940 and also be asked to identify any treatment providers who treated him for his service-connected disabilities from July 2009 to the present. Because the Veteran did not respond to this request, the AMC was unable to obtain any additional treatment records for the Veteran. Thus, no additional action or notification need be provided to the Veteran in this regard. Stegall v. West, supra. Accordingly, the case is REMANDED for the following action: 1. Forward the claims folder, including a copy of this remand, to the June 2009 VA October 2010 eye examiner to provide a supplemental opinion with regard to the overall effect of the Veteran's service-connected superior oblique palsy of the left eye, with right lateral rectus palsy of the right eye, resulting in constant vertical and horizontal diplopia in the primary gaze on the Veteran's ability to obtain and retain any substantially gainful employment, that is, whether it would preclude an average person from obtaining, or retaining, substantially gainful employment. Consideration should be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice- connected disabilities. A complete rationale for any opinion given should be provided, without resorting to speculation, resolving any conflicting medical opinions rendered. If the June 2009 examiner is unavailable, a notation to this effect should be included in the claims folder. Thereafter, arrangements should be made to afford the Veteran a new VA eye examination by an appropriate specialist to determine the severity of his service-connected disabilities, to include superior oblique palsy of the left eye, with right lateral rectus palsy of the right eye, resulting in constant vertical and horizontal diplopia in the primary gaze. The claims folder must be made available to, and pertinent documents therein reviewed by, the examiner(s) in connection with the examination(s), and it should so be indicated in the report(s). The examiner(s) should perform any tests or studies deemed necessary for an accurate assessment. The examiner(s) should give detailed clinical findings of the symptomatology attributable to the Veteran's service-connected disabilities and render an opinion as indicated above as to the Veteran's ability to obtain or retain substantial gainful employment. If a new examination is undertaken, the examiner should also reconcile his/her opinion with those rendered by the June 2009 and August 2009 VA examiners. 2. In addition, if a new VA examination is undertaken, the Veteran should be provided adequate and timely notification of the scheduled examination. In addition, and if feasible, the medical facility that schedules the examination should be asked to place a copy of any examination notification letters sent to the Veteran, in the claims folder, prior to returning it to the AMC. 3. Once the above-requested development has been completed, the claim must be readjudicated. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) which addresses all evidence submitted, and be afforded the appropriate opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).