Citation Nr: 1321014 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 09-04 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to total disability based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION The Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2007 of a Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In January 2013, the Board remanded the Veteran's claim for entitlement to TDIU so that the Veteran should be provided a new VA examination regarding the combined effect of the Veteran's service connected disabilities has upon his employability. The RO scheduled a VA examination pursuant to the remand in February 2013 but the Veteran did not report for the examination. The Veteran and his representative advised VA that the Veteran now spends the winter months in Arizona and the examination was scheduled to occur in Iowa. The Veteran contacted VA and understood that an examination would be scheduled at a location near his winter residence. The RO did not reschedule the VA examination. The provisions of 38 C.F.R. § 3.655 state that when a claimant fails to report for an examination in conjunction with a claim for an increased rating of a service connected disability, or an original claim for service connection, the claim shall be denied unless good cause is established as to why the claimant failed to appear. The Board finds that as the Veteran has shown good cause for not reporting for the VA examination. The Veteran spends part of the year, at least the winter months, in Arizona. The VA examination was scheduled at a time and location such that it was not feasible for him to attend when and where scheduled. The Board also notes that the Veteran attempted to rectify the problem but was unsuccessful. The Board therefore is of the opinion that the VA's duty to assist includes affording the Veteran another chance to participate in the VA examination under the circumstances of this case. Upon remand, VA should contact the Veteran before scheduling the examination and learn from the Veteran where he will be residing at the time for a proposed examination. If the Veteran is at his usual residence in Iowa, an examination shall be scheduled at a VA facility within a reasonable distance to that residence. Likewise, if the Veteran is at his winter residence, VA shall schedule an examination at a VA facility within a reasonable distance to the winter residence. The Veteran is advised that he has an obligation to assist VA in the development of his claim, to include reporting for examination, and that failure to do so may result in an adverse decision. 38 C.F.R. § 3.655. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be notified to provide VA to provide the addresses for both his main residence and his winter residence and the dates he is located at each residence. He should also be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. 2. After the foregoing development is completed, schedule the Veteran for a VA examination at a location within a reasonable distance to the residence identified by the Veteran as his residence for the time in question. The VA examination should ascertain whether he is unable to secure or follow a substantially gainful occupation due to the combined effects of all of his service-connected disabilities. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The rationale for all opinions should be provided. The examiner must determine whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. Following the examination and a review of the service and post service medical records, the VA examiner must state whether the Veteran is unable to obtain or retain employment due solely to his service-connected disabilities, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disabilities, to include the approximate date of onset of such unemployability. If the examiner determines that no single service connected disability precludes him from securing and maintaining gainful employment, then the examiner should determine whether two or more of the disabilities together so preclude him from securing and following substantially gainful employment. Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). When offering the opinion, the examiner is instructed to ignore the effects of age or any non-service connected disabilities. The examiner is also asked to specifically comment on a letter dated in January 2009 by the Veteran's treating physician stating that the Veteran is unemployable due to diabetes and recurring skin cancer. 3. If the Veteran does not report for an examination, a copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder, and must indicate that it was sent to his last known address of record or the address provided by the Veteran as the location of his winter residence. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 4. After the development requested has been completed, adjudicate the claim for TDIU. If the benefit sought is denied, furnished the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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. 2012). _________________________________________________ ROBERT C. SCHARNBERGER 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) (2012).