Citation Nr: 1416618 Decision Date: 04/15/14 Archive Date: 04/24/14 DOCKET NO. 09-32 139A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling prior to January 28, 2010, and 70 percent disabling as of January 28, 2010. REPRESENTATION Appellant represented by: John V. Tucker, Attorney ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. During the pendency of the appeal, the RO issued a June 2012 rating decision that granted a staged rating of 70 percent for PTSD effective from January 28, 2010. Applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to an increased evaluation for PTSD remains on appeal. The Board also notes that the rating period at issue in this appeal excludes a period of a temporary total rating from April 7, 2010, to May 31, 2010, pursuant to 38 C.F.R. § 4.29 (providing for temporary total ratings for service-connected disabilities requiring hospital treatment or observation). The Virtual VA paperless claims processing system includes 16 pages of electronic records of VA treatment for the period from September 2009 to February 2012, received into the Virtual VA system in September 2012, none of which are relevant to the nature and severity of the Veteran's service-connected PTSD. The Virtual VA file also includes 25 pages of VA treatment records received into the claims file in June 2012, many of which are relevant to his claim for a higher rating for PTSD, and which were considered in the RO's June 2012 Supplemental Statement of the Case issued in this matter. The VA electronic Veterans Benefit Management System (VBMS) contains no documents relevant to the current appeal. A previously appealed issue of entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) has been rendered moot by ratings actions that have resulted in assignment of an overall schedular disability rating of 100 percent effective from April 26, 2003, and the award of TDIU, based on large part on disability attributable to service-connected coronary artery disease, for the period from November 14, 1988, to April 25, 2003. FINDINGS OF FACT 1. The Veteran's January 30, 2008, claim currently on appeal, for an increased rating for PTSD, is a claim for increase rather than an original claim. 2. A new VA psychiatric examination was necessary to establish the Veteran's entitlement to the claim for increase currently on appeal. 3. The Veteran failed to report for a VA examination on May 17, 2012, which was scheduled for the purpose of his claim for an increased rating for PTSD, and he has not asserted or provided evidence of good cause for his failure to attend. CONCLUSION OF LAW The claim for an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling prior to January 28, 2010, and 70 percent disabling since January 28, 2010, is denied for failure to report for a May 17, 2012, VA psychiatric examination. 38 C.F.R. § 3.655 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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) (2013). 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). A March 2008 VCAA notice letter explained the evidence necessary to substantiate the claim for an increased rating for PTSD. 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 March 2008 VCAA notice letter from VA was provided prior to initial adjudication of the Veteran's claim in October 2008 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 post-service treatment, and reports of VA examinations. See 38 U.S.C.A. § 5103A(a)-(d). Here, an August 2008 VA psychiatric examination report is not adequate for adjudication of the Veteran's claim (1) because Veteran received in-patient psychiatric care in 2010, indicating a material change in his condition and because there is an insufficient rationale for the examiner's findings that there was not total occupation and social impairment due to PTSD signs and symptoms and that PTSD signs and symptoms did not result in deficiencies in the areas of judgment, thinking, family relations, work, mood, or school. However, as will be discussed below, the Veteran failed to report for a VA psychiatric examination on May 17, 2012, which was needed for purposes of the current appeal, and there is no indication of good cause for his failure to appear. As a result, VA's duty to provide a new examination and opinion no longer applies as the Veteran's failure to appear, without a showing of good cause, for a VA examination scheduled in connection with the current claim for increase, requires that his claim for increase be denied. 38 C.F.R. § 3.655(a). 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. Law and Analysis The Veteran was granted service connection for PTSD in a rating decision dated on August 31, 2001. The grant of service connection was effective from November 27, 2000, and the initial rating assigned was 50 percent. Generally, following notification of an initial review and adverse determination by the Regional Office (RO), a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final. 38 U.S.C.A. § 7105(c). One exception to this general rule is set forth at 38 C.F.R. § 3.156(b) (new and material evidence--pending claim), which provides that new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. In this case, the Veteran was notified of the August 31, 2001, rating decision by a letter dated on September 18, 2001. In October 2001, the Veteran submitted an application for TDIU; however, no new evidence was received with the claim. In April 2002, the RO denied the Veteran's claim for TDIU (a benefit that has since been granted effective from November 14, 1988, to April 25, 2003, based largely on longstanding coronary artery disease, and after which a schedular combined 100 percent rating is in effect). On May 7, 2002, the Veteran appointed Disabled American Veterans as his representative before VA (an appointment that his since been revoked). On July 8, 2002, the Veteran requested a copy of his claims file. Evidence was received from the Veteran's former spouse in a claim for apportionment, which was denied by the RO in October 2003. A statement as to the severity of the Veteran's PTSD was received with the spouse's claim for apportionment on August 23, 2002; however, the RO had received the same written statement from the spouse on August 2, 2001, in connection with the Veteran's claim for service connection for PTSD, prior to issuance of the August 31, 2001, rating decision granting service connection for PTSD and assigning an initial rating of 50 percent. Thus, the spouse's statement, having been previously of record, cannot constitute new and material evidence received within the one-year period after September 18, 2001, notice of the August 31, 2001, rating decision. A certificate of completion of a 16-week course for treatment for PTSD was likewise received prior to the August 31, 2001, rating decision that granted service connection for PTSD; the certificate is date-stamped as having been received by the RO on August 6, 2001. In sum, there was no notice of disagreement or new and material evidence with respect to the award of a 50 percent rating for PTSD received within one year after the September 18, 2001, letter notifying the Veteran of the August 30, 2001, rating decision that granted service connection for PTSD and assigned an initial rating of 50 percent. Accordingly, the rating decision became final. See 38 C.F.R. § 3.156(b) (new and material evidence-pending claim); 38 U.S.C.A. § 7105 (filing of notice of disagreement and appeal). Because the August 30, 2001, rating decision is final, subsequent claims for higher ratings for PTSD are to be considered claims for increase rather than original claims. See Turk v. Peake, 21 Vet. Ap. 565 (2008); Fenderson v. West, 12 Vet. App. 119, 125 (1999); 38 C.F.R. § 3.655. The claim for increase currently on appeal was received by the RO on January 30, 2008, and denied by the RO in October 2008. As will be discussed at length below, the Veteran failed to report for a VA psychiatric examination for purposes of adjudication of this claim on May 17, 2012, and has not provided good cause for failing to report for the examination. 38 C.F.R. § 3.655 provides, in pertinent part, as follows: Failure to report for Department of Veterans Affairs examination. (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. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA. (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. Thus, when a Veteran misses a scheduled VA examination, 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. See Turk v. Peake, 21 Vet. Ap. 565 (2008); 38 C.F.R. § 3.655(a). As noted, a new VA examination was necessary to adjudicate the Veteran's claim on appeal, i.e., to establish entitlement to an increased rating for PTSD because a prior VA examination report was insufficient for adjudication of the claim on appeal. Specifically, the August 2008 VA psychiatric examination report is not adequate for adjudication of the Veteran's claim (1) because in 2010, subsequent to the August 2008 VA examination, the Veteran had undergone in-patient psychiatric care, indicating a material change in his condition, and (2) because there is an insufficient explanation for the August 2008 VA examiner's findings that there was not total occupation and social impairment due to PTSD signs and symptoms and that PTSD signs and symptoms did not result in deficiencies in the areas of judgment, thinking, family relations, work, mood, or school. The Board also finds that documentation in the claims file regarding whether notice of the VA examination scheduled on May 17, 2012, was provided to the Veteran is consistent with the presumption of regularity of the administrative process. See Matthews v. Principi, 19 Vet. App. 23, 27 (2005); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (quoting Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)). Here, the documentation in the claims file includes a March 7, 2012, letter informing the Veteran that he would be scheduled for an examination in connection with his current appeal; a March 7, 2012, VA Medical Center report indicating that the Veteran was scheduled for multiple VA examinations on March 7, 2012, including a VA psychiatric examination; a May 16, 2012, VA examination report indicating that the Veteran did report for a VA examination (for the purpose of adjudicating claims other than the currently appealed claim) on that day, illustrating that the Veteran was actually notified of and able to attend VA examinations; and a May 17, 2012, VA Medical Center report indicating that a VA psychiatric examination scheduled for that day was cancelled by reason of the Veteran's failure to report for the examination. Moreover, the March 2012 letter to the Veteran informed the Veteran that, if he did not report for the VA examination VA may have to deny his claim, or he might be paid less than he otherwise would. In June 2012, the RO issued a Supplemental Statement of the Case to the Veteran and his attorney indicating that the RO had received notice from the VAMC that the Veteran had failed to report for his May 17, 2012, VA psychiatric examination. The Veteran and his attorney did not respond to the Supplemental Statement of the Case or dispute that the Veteran received notice of the examination or failed to report. Nor have they asserted or provided evidence of good cause for the Veteran's failure to report for the VA examination. The Board has also reviewed the addresses to which correspondence was sent during this time frame and all correspondence was sent to the Veteran's latest address of record, with no indication of any correspondence being returned as undeliverable. Thus, the evidence in the claims file is consistent with the presumption of regularity of the administrative process with respect to sending the Veteran the required notice as to the scheduling of the May 17, 2012, VA examination, and there is no indication of good cause for failure to report for his May 17, 2012, VA examination. Furthermore, the preponderance of the evidence in the claims file shows, without any evidence or contention to the contrary, that the Veteran failed to report for the examination without good cause. Cf. Khyn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) (Court of Appeals for Veterans Claim improperly relied upon extra-record evidence to make a finding of fact of adequate notice of VA examination in the first instance, and, in so doing, acted outside its statutorily-granted jurisdiction to review Board of Veterans' Appeals' decision based upon the record before the Board). As noted above, VA regulation provides that, when the examination was scheduled in conjunction with a claim for increase, the claim shall be denied. See 38 C.F.R. § 3.655. Accordingly, an increased rating for PTSD, currently evaluated as 50 percent disabling prior to January 28, 2010, and 70 percent disabling since January 28, 2010, is not warranted. ORDER The appeal for an increased rating for posttraumatic stress disorder, currently evaluated as 50 percent disabling prior to January 28, 2010, and 70 percent disabling from January 28, 2010, is denied. ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs