Citation Nr: 1325341 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-09 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran had active service from June 1969 to June 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran's claim for a TDIU was a claim for increase. 2. Entitlement to a TDIU could not be established without a VA examination of the Veteran that addressed sufficiently the criteria for a TDIU. 3. The Veteran received notice that he was scheduled for such an examination, but did not report for the examination in August 2011. 4. There is no evidence of good cause for the failure to report for the VA examination. 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) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 C.F.R. § 3.159(b)(1). An April 2009 VCAA notice letter explained the evidence necessary to substantiate the claim for a TDIU. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the April 2009 VCAA notice letter from VA was provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c),(d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). With regard to the duty to assist, the claims file contains service treatment records, reports of VA post-service treatment, and reports of VA examinations. See 38 U.S.C.A. § 5103A(a)-(d). The Agency of Original Jurisdiction (AOJ) sought to obtain the Veteran's Social Security Administration (SSA) disability benefits records, but it was determined that he was in receipt of SSA retirement benefits rather than disability benefits. This was confirmed in a letter received from the Veteran in June 2012. The RO's efforts in seeking to obtain SSA records were in compliance with the Board' s June 2012 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998) (claimant's entitlement to remand compliance). With respect to the VA examination, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it should ensure that the examination or opinion is adequate. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). The Veteran was provided a VA examination and opinion regarding his service-connected posttraumatic stress disorder (PTSD) with depression and associated service-connected impotence in May 2009. The examination report is very detailed and well-explained. However, as was noted in the Board's June 2011 decision and remand, in which the Board denied an increased rating for PTSD and remanded the claim for a TDIU to the AOJ for an examination and opinion on the matter of whether the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities has not been obtained. Such an examination would be required to establish entitlement to a TDIU, as there is evidence of current service-connected disability, but not of its impact, from a medical opinion perspective, upon his ability to seek or maintain employment. In compliance with the Board's June 2011 remand instructions, the AOJ scheduled the Veteran for an August 2011 VA examination that addressed the medical criteria for a TDIU. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, the Veteran did not appear for the scheduled examination. The AOJ sent letters to known addresses attempting to contact the Veteran. None of the letters were returned as undeliverable. Letters were sent in July 2011 and August 2011, but the Veteran failed to report for his examination in August 2011. In September 2011 the AOJ sent a letter to the Veteran at the same address seeking the Veteran's current contact information, and no response was received. A new address for the Veteran was obtained by the AOJ in February 2012 through an address search service and a letter was sent to the indicated address that same month, seeking to confirm the Veteran's contact information. The AOJ received no reply to the letter. In June 2012, the Veteran corresponded with VA with an indicated a return address the same as that ascertained by theAOJ in February 2012, and provided attached correspondence from SSA indicating that he was receiving SSA retirement rather than SSA disability benefits. As a result it appears likely that the veteran moved without informing VA of his new address. The United States Court of Appeals of Veterans Claims (Court) has stated that "[i]n the normal course of events, it is the burden of the veteran to keep the VA apprised of his whereabouts. If he does not do so, there is no burden on the part of the VA to turn up heaven and earth to find him." Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Here, the AOJ has made extensive efforts to schedule the Veteran for a VA examination with regard to his claim for a TDIU, but the Veteran has not attended a VA examination of which it appears he received notice, has not kept VA apprised of a change of address in a timely manner, and has not responded to VA requests to confirm his contact information, making it exceedingly difficult to schedule him for a VA examination. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran's failure to attend a scheduled VA examination, or keep VA apprised of his current address, or respond to VA notices requesting that he confirm his current contact information, constituted a failure to cooperate in the development and adjudication of his claim, and, under the law pertaining to this case, is a significant factor in the Board's decision to reach a decision in this case rather than to seek further VA examination and opinion development in this matter. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. To the extent that not all available evidence that could substantiate the claim has been obtained, this is a result of the Veteran's lack of adequate cooperation in development of the claim. Merits of the Claim Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. A TDIU is warranted where the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total and when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided, however, that if there is only one such disability, it must be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the rating to 70 percent or more. 38 C.F.R. § 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Thus, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards of 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran is currently rated as 50 percent disabled due to PTSD and noncompensably disabled due to impotence, so that he has a combined rating of 50 percent. Thus, the provisions of 38 C.F.R. § 4.16(b), pertaining to an extraschedular TDIU, potentially apply under the facts of this case. A request for TDIU is "not a separate claim for benefits," and is best analyzed as a request for an appropriate disability rating, either "as part of the initial adjudication of a claim, or ... as part of a claim for increased compensation." Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim placed in appellate status by disagreement with the initial rating award and not yet ultimately resolved is an original claim as opposed to a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). By contrast, where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the claim is a claim for an increased rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007);Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In this case, service connection for PTSD was granted in connection with the Veteran's original compensation claim in June 2007, and the AOJ assigned an initial rating of 50 percent. A notice of disagreement was not received within one year of that decision, and the decision became final. See 38 U.S.C.A. § 7105. The Veteran's current claim for a TDIU was received in March 2009 and an associated specific claim for an increased rating for PTSD was received in April 2009. Such a claim for TDIU is a claim for an increased rating. See Dalton v. Nicholson, 21 Vet. App. 23, 32-34 (2007) (holding that a TDIU claim based on a condition that has already been service connected is an increased-rating claim); Hurd v. West, 13 Vet. App. 449, 451-52 (2000) (applying law governing increased-rating claims to the award of TDIU); Norris v. West, 12 Vet. App. 413, 420-22 (1999) (finding that TDIU "is in essence a claim for an increased rating" and applying the informal claim provisions of 38 C.F.R. § 3.157 to TDIU claims); Wood v. Derwinski, 1 Vet. App. 367, 369 (1991) (holding that a "claim for unemployability compensation was an application for 'increased compensation' within the meaning of [38 U.S.C.] § [51]10(b)(2)"). In this case, the claim was received as part and parcel of a claim for an increased rating for PTSD, which was denied by the Board in June 2011, with the TDIU component being remanded by the Board to the AOJ in June 2011 for a VA examination and opinion addressing the medical criteria for a TDIU. Pursuant to 38 C.F.R. § 3.655, individuals who are scheduled for an examination are required to report for the examination. 38 C.F.R. § 3.655 provides: (a) General. 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, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. (b) Original or reopened claim, or claim for increase. 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(a),(b). Thus, when a veteran misses a scheduled examination in conjunction with a claim for increased compensation, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the veteran lacked good cause to miss the scheduled examination. Turk v. Peake, 21 Vet. App. 565, 569 (2008). The Board has researched the jurisprudence of the Court of Appeals for Veterans Claims (Court) as to the proper handling of the case before it. Several single-judge non-precedential memorandum decisions provide persuasive, though not binding, reasoning and guidance. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (a single-judge disposition of the Court is not binding; however, it may be cited for any persuasiveness or reasoning it contains). These non-precedential decisions provide persuasive reasoning as to the proper course of action where, (1) without a showing of good cause, a Veteran does not appear for VA examination for a TDIU claim that constitutes a claim for increase rather than an original claim, and (2) the VA examination was needed to establish entitlement to a TDIU. These decisions tend to show that under the applicable laws and regulations the Board should deny such claims pursuant to 38 C.F.R. § 3.655(b). See, e.g., Oliver v. Shinseki, No. 11-3718 (Aug. 31, 2012) (affirming Board's denial of TDIU pursuant to 38 C.F.R. § 3.655 for failure to appear for VA examination, where Veteran had not provided good cause for failure to appear for VA examination or established that a VA examination was not necessary to establish entitlement to a TDIU); Najdowski v. Shinseki, No. 07-0648 (March 17, 2009) ("Because the appellant's claim for TDIU was a claim for an increased rating, the Board was justified in denying-indeed compelled to deny-entitlement under 38 C.F.R. § 3.655(b) for his failure to report for scheduled medical examinations. See 38 C.F.R. § 3.655(b)."); Genereaux v. Mansfield, No. 06-0185 (Oct. 12, 2007) (same holding as Najdowski); Fahie v. Nicholson, No. 00-2286 (Aug. 30, 2005) (affirming Board's denial of TDIU pursuant to 38 C.F.R. 3.665(b) where VA examination was required to adjudicate the claim and Veteran failed to report without good cause). In connection with his earlier claim for service connection for PTSD, the Veteran indicated at an April 2007 VA examination an employment history of having worked at a military base for 20 years without problems with work; after the base closed he worked as day laborer until five years prior to the date of VA examination. Thus, although serious psychiatric impairment was demonstrated, the April 2007 VA examination left open the question of whether the Veteran was unemployable as a result of his service-connected PTSD. In August 2011 the Veteran was scheduled for a VA compensation examination as needed for adjudication of his claim for a TDIU. This was because an April 2009 VA examination conducted in connection with his claim for an increased rating for PTSD did not contain an opinion or findings as to the effect of the Veteran's service-connected disabilities on his employability, and there was no direct medical opinion as to the still unresolved question of whether the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. See 38 C.F.R. § 4.16(b). In June 2011, the Board remanded this matter for the needed VA examination and opinion. In July 2011 the AOJ informed the Veteran that such an examination would be scheduled. The Veteran did not reply to an August 2011 letter informing him of the scheduled examination, and there was no indication that the letter was returned as undeliverable. The Veteran failed to report for the April 2011 VA examination. A September 2011 e-mail indicates that the AOJ attempted to call the Veteran, but he did not answer. The AOJ attempted to confirm the address with SSA, and found that "this seems to be his most recent address." The AOJ sent the Veteran a letter attempting to confirm his address by letter in September 2011, but he did not reply. The RO again researched the Veteran's address in February 2012, found information as to a new address, and sent a letter to confirm the address, but he did not reply. In March 2012 the RO again researched the Veteran's address and determined the address had not changed since February 2012. In May 2012, the RO sent the Veteran a supplemental statement of the case, to the address as ascertained in February 2012, informing the Veteran as to the current address it had ascertained and his failure to report for a VA examination. In June 2012, the Veteran wrote to the AOJ and indicated a return address the same as the address ascertained by the AOJ in February 2012, thus giving the appearance that for the period from August 2011 to June 2012 he had declined to attend the August 2011 VA examination, moved, declined to inform VA of his new address, and declined to respond to VA inquiries as to his new address. The Veteran has provided no reason as to why he did not attend his VA examination in August 2011, inform VA of his change in address, or respond to VA inquiries seeking to confirm his address. Thus, the Board finds that the Veteran did not provide good cause as to why he did not attend the August 2011 VA examination. The July 2011 RO letter informing the Veteran that a VA examination would be scheduled, and the August 3, 2011, VA outpatient clinic letter informing the Veteran of the August 22, 2011, scheduled examination are associated with the claims file and were timely provided and clearly written. In sum, the Veteran's claim for a TDIU was a claim for increase. Entitlement to the benefit sought could not be established without a VA examination of the Veteran that addressed sufficiently the criteria for a TDIU. The Veteran was scheduled for such an examination, but did not report for the examination in August 2011. There is no evidence of good cause for the failure to appear for the VA examination. Accordingly, the claim for a TDIU must be denied. See 38 C.F.R. § 3.655. As this claim is denied by operation of law under facts not disputed by the Veteran, the benefit of the doubt rule is not for application in resolution of this appeal. The claim is denied due to the lack of entitlement under the law. Sabonis v. West, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a TDIU is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs