Citation Nr: 1315563	
Decision Date: 05/10/13    Archive Date: 05/15/13

DOCKET NO.  09-22 282	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a total disability rating based upon individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. D. Simpson






INTRODUCTION

The Veteran served on active duty from March 17, 1970 to April 21, 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), which, inter alia, denied the benefit sought on appeal.  The Veteran submitted a notice of disagreement with this determination in August 2008, and timely perfected his appeal in June 2009.

This claim came before the Board in September 2010 and January 2011.  In September 2010, the Board remanded the claim to the Appeals Management Center (AMC) in order to readjudicate the issue of TDIU in light of the grant of entitlement to service connection for peptic ulcer disease.  In January 2011, the Board again remanded the claim to the AMC, as it was inextricably intertwined with other issues, as well as to obtain a new VA examination to determine whether the Veteran's service-connected disabilities rendered him unemployable. 

In January 2012, the Board denied the Veteran's claim of entitlement to TDIU.  The Veteran subsequently submitted a notice of appeal to the United States Court of Appeals for Veterans Claims (Court), indicating his disagreement with the denial of his claim for TDIU.  The Court issued a July 2012 Order vacating the January 2012 Board decision and remanding the appeal for readjudication consistent with the parties' Joint Motion for Remand (JMR).

Following the JMR, the Board remanded the claim for additional development in November 2012.  The appeal has returned to the Board for review.  

A review of the Virtual VA paperless claims processing system shows that VA treatment records from September 2011 to December 2012 are of record.  The RO considered these updated VA treatment records in the February 2013 Supplemental Statement of the Case.  

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).


FINDINGS OF FACT

1.  The Veteran failed to report for his VA TDIU examination, without good cause, scheduled during the pendency of this appeal in December 2012 for the purpose of determining the current occupational impairment caused by service connected disabilities. 

2.  The examination was necessary to determine whether the Veteran's service-connected disabilities alone render him incapable of obtaining and maintaining substantially gainful employment.


CONCLUSION OF LAW

Entitlement to a TDIU is denied due to failure to report to a VA examination without good cause.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.655(b) (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Proper VCAA notice must inform the claimant of any information and 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) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. 

For a TDIU claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim.  This includes 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).  The March 2008 letter provided him with the necessary information prior to the initial adjudication in June 2008.  The duty to notify has been met. 

The Board further concludes that the duty to assist has also been met.  The Veteran's service treatment records, VA treatment records, Social Security Administration (SSA) records, and private medical records have been obtained, in addition to various written statements by the Veteran himself.  

Unfortunately, the Veteran failed to report for his scheduled examination without good cause.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (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).  He was specifically advised of the potential outcome of his claim in the event he failed to report to the scheduled VA examination.  See December 2012 letter.  Nonetheless, he has informed VA that he refuses to report for an examination.  See December 2012 report of contact.  It is the Veteran's responsibility to cooperate with VA, including when there is a need to have him examined.  See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992).  The Board concludes above 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 his claim and that any further attempts to assist him in developing his claim would result in needless delay, and are thus unwarranted.  As explained below, the claim is being denied due to the Veteran's failure to report for a scheduled VA examination.  38 C.F.R. § 3.655.

The Board finds that there has been substantial compliance with prior remand directives from the Court and Board.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  The July 2012 JMR instructed the Board to provide an adequate statement of the reasons and bases to reconcile the seemingly inconsistent findings in the March 2011 VA examination reports.  To this end, the Board remanded the claim in November 2012 to obtain additional records and afford the Veteran a VA examination specifically for his TDIU claim.  As noted, the Veteran has been uncooperative in VA's efforts to fully develop his claim and the provisions of 38 C.F.R. § 3.655 mandate denial of his claim.  

In summary, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of appeal has been obtained.  The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal.  The Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the claims.  No further assistance with the development of evidence is required.

Analysis

The provisions of 38 C.F.R. § 3.655(b) govern failure by a claimant to report for a VA examination without good cause.  The Veteran has an obligation to assist in the adjudication of his claim.  He must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination and submit to the Secretary all medical evidence supporting his claim.  Olson v. Principi, 3 Vet. App. 480 (1992).  Individuals for whom examination has been authorized and scheduled are required to report for the same.  38 C.F.R. §§ 3.326, 3.327 (2012).  

As noted, the Veteran's TDIU claim was remanded by the Board in November 2012 so that he could attend a VA TDIU examination to determine the current level of occupational impairment posed by service connected disabilities.  In December 2012, the Veteran cancelled his examination and expressed an unwillingness to attend any examination.  To date, he has not asserted good cause or expressed willingness to report for a future examination.  

In such cases, where the scheduled VA examination was in conjunction with a claim for increase and not an original compensation claim, the claim shall be denied.  38 C.F.R. § 3.655.  This TDIU claim is an increased-rating claim.  See March 2008 claim; See generally Rice v. Shinseki, 22 Vet. App. 447 (2009); Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009); see also Hurd v. West, 13 Vet. App. 449 (2000).  It therefore falls within the purview of this regulation requiring summary (mandatory) denial of the claim in this circumstance. 

In summary, the criteria for a summary denial based on application of 38 C.F.R. § 3.655 have been met, and the claim for TDIU must be denied.  


ORDER

Entitlement to TDIU is denied.  



____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs