Citation Nr: 1301871	
Decision Date: 01/16/13    Archive Date: 01/23/13

DOCKET NO.  07-09 607	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Brooks McDaniel, Agent


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. P. Simpson, Counsel

INTRODUCTION

The appellant is a Veteran who served on active duty from June 1944 to June 1946.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  In February 2007, a hearing was held before RO personnel.  A transcript of the hearing is associated with the claims file.  This matter was before the Board in July 2008 when it was remanded to schedule a hearing before the Board.  In February 2009, the Veteran's agent withdrew the hearing request due to the Veteran's health.  In May 2009 the Board remanded the matter for due process reasons; in December 2010 for further development; and in June 2012 and September 2012 for due process reasons.

The Board has reviewed the Veteran's claims file and the record maintained in Virtual VA (VA's electronic data storage system) (which now includes a copy of a June 2012 supplemental statement of the case (SSOC), which was sought by the Board's September 2012 remand).  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran has repeatedly failed to report for VA examinations scheduled in connection with his claim for a TDIU rating; good cause for his failure to appear for the last such appointment (in April 2012) is not shown.


CONCLUSION OF LAW

The Veteran's claim seeking entitlement to a TDIU rating must be denied because he has failed (without good cause) to report for a VA examination scheduled to determine his entitlement to such benefit.  38 C.F.R. §§ 3.326(a), 3.655 (2012); Sabonis v. Brown, 6 Vet. App. 426 (1994).


REASONS AND BASES FOR FINDING AND CONCLUSION

A. Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

Here, the RO provided the Veteran with pre-adjudication VCAA notice by letter, dated in April 2006.  That letter informed the Veteran of the criteria needed to obtain a TDIU rating on both a schedular basis and an extraschedular basis.  The letter also informed the Veteran of how disability evaluations and effective dates are assigned.  It is not alleged that notice in this case was less than adequate.  See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error).

In July 2008, the Board remanded the matter to afford the Veteran a videoconference hearing before the Board; in February 2009, he withdrew his request for such hearing.  In May 2009, the Board remanded the matter for readjudication in light of an inextricably intertwined award of service connection (for adjustment disorder with emotional features).  In December 2010, the Board remanded the matter for a medical opinion regarding the impact of the Veteran's service-connected disabilities on his employability.  He has not cooperated in this endeavor, which is addressed in more detail below.

VA provided the Veteran with a hearing before a Decision Review Officer (DRO) in February 2007.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the provisions of 38 C.F.R. § 3.103(c)(2) require that the hearing officer who conducts a hearing fulfill two duties to comply with such the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  The DRO fulfilled these duties.  See transcript on page 2.   While the DRO did not suggest the submission of evidence that may have been overlooked, the Board finds there was no prejudice from any such omission, as the Veteran had actual knowledge of the evidence lacking to substantiate his claim; e.g., his representative acknowledged at the hearing that the Veteran did not meet the schedular criteria for a TDIU rating and that they were looking to have the benefit awarded on an extraschedular basis, as the Veteran had an "exceptional or unusual disability picture."  Id. on page 3.  

The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met.  

B. Legal Criteria, Factual Background, and Analysis

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  

VA's duty to assist includes obtaining medical records and medical examinations where indicated by the facts and circumstances of the case.  Littke v. Derwinski, 1 Vet. App. 90 (1990).  Individuals for whom re-examinations have been authorized and scheduled are required to report for such examinations.  38 C.F.R. §§ 3.326(a), 3.327(a).  VA regulations also address the consequences of a failure to report for a scheduled VA medical examination and provide that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination in a claim for increase (including for a TDIU rating), the claim shall be denied.  38 C.F.R. § 3.655.  Good cause includes, but is not limited to, illness or hospitalization of the claimant, death of an immediate family member, etc.  Id.  

In December 2010, the Board remanded the matter to the RO to obtain a medical opinion, with examination if deemed necessary by the consulting physician, to determine whether the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities.  

The Veteran was scheduled for VA examinations in March 2011.  A notation shows that he called on March 30, 2011, to say he could not make any appointments due to his illness.  It was noted that the Veteran said he was housebound and could not travel.  

A July 2011 VA Form 21-6789, Deferred Rating Decision, shows that a DRO requested that the Veteran be contacted to determine if he was now able to report for a VA examination in connection with his appeal.  VA contacted the Veteran, and he stated he was too sick to attend the examination and would not be able to attend "anytime soon."  He indicated he did not want to withdraw his appeal.  The VA employee wrote, "Explained to [V]eteran we really needed to get VA[ examination] completed to assist with our decision[.  H]e understands[;] however[,] he is too sick to make app[ointmen]t."  

While the claim for a TDIU rating has been pending, the Veteran has also had pending a claim for an increased rating for residuals of a head injury.  The examinations scheduled were to asses this service-connected disability and to determine whether he is unable to engage in substantially gainful occupation due to his service-connected disabilities (he also has a service-connected adjustment disorder with emotional features).  

The VA Medical Center (VAMC) scheduled the examinations in December 2011; the Veteran contacted them to request a cancelation of the examination "due to not being able to make any appointments at all."

The Veteran was again scheduled for examinations in April 2012.  He failed to report.  In contrast to previous occasions when he canceled the examinations indicating he was too ill to attend, this time he merely did not report (and did not notify VA of any cause as to his failure to report).   The June 2012 SSOC which subsequently readjudicated the claim informed the Veteran that he could provide evidence of good cause for his failure to report for the scheduled examination; he has not done so (creating the inference that there was no such cause).    

The regulation governing in the circumstances outlined, 38 C.F.R. § 3.655(b), is clear and unequivocal.  It mandates that when a claimant fails to report for a VA examination in connection with a claim for increase (TDIU is such a claim) the claim "shall be denied".  Id. [emphasis added].  Accordingly the law is dispositive in this matter.  Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

The appeal seeking entitlement to a TDIU rating is denied.


________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs