Citation Nr: 21001322 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-08 974 DATE: January 7, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s PTSD began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran does not meet the percentage requirements for TDIU, as there are no service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 to October 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded in February 2019 for additional development. The Board noted that the Veteran had failed to confirm her appointment for a July 2018 VA examination and the examination was canceled; however, the record did not contain any of the correspondence sent to the Veteran to confirm the appointment and it was not clear from the record whether the examination notice was sent to the correct address. Therefore, remand was necessary to afford the Veteran another opportunity to appear for an examination. The TDIU claim was remanded as inextricably intertwined with the claim for entitlement to service connection for PTSD. See February 2019 Board Decision. The case has since been returned to the Board for appellate review. Law and Analysis With regard to the duty to assist, subsequent to the Board’s earlier February 2019 remand, neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist for either of the issues on appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that the Board has an obligation to read filings in a liberal manner, but that obligation does not require the Board to “search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). However, the Board will discuss one salient aspect of the duty to assist in the present case. See generally 38 U.S.C. § 5103A (2012). Pursuant to the instructions of the February 2019 Board remand, the AOJ scheduled the Veteran for a VA examination to determine the nature and etiology of any mental health disability to include PTSD. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). But the Veteran did not report to the VA examination scheduled on her behalf. Another examination was scheduled, which was canceled at the Veteran’s request. The action to be taken in instances where the veteran fails to report for a VA examination depends on whether the examination was scheduled in connection with a service connection/initial rating claim or a claim for an increase. A service connection claim or an initial rating claim is classified as an original compensation claim under 38 C.F.R. § 3.655(b) (2019), so where the veteran fails to report for such an examination, the case shall be rated on the evidence of record. Fenderson v. West, 12 Vet. App. 119, 125 (1999); Turk v. Peake, 21 Vet. App. 565, 568-70 (2008). On that point, the PTSD issue on appeal is a service connection issue. In contrast, where the veteran fails to report for an examination scheduled in connection with a claim for an increase or any other original claim, the claim shall be denied. 38 C.F.R. § 3.655(b). Also, as a threshold matter, 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 38 C.F.R. § 3.655(a); Turk, 21 Vet. App. at 569. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a). As to the necessity of a VA examination, the Board finds that a VA examination for the PTSD issue on appeal was necessary in order to establish service connection. This is the precise reason why the Board remanded this claim in February 2019. The reasons and bases for the denial of service connection are explained in detail below. As to the issue of good cause for failure to appear to the VA examinations, the Veteran has not offered any explanation for her failure to appear for purposes of determining the etiology of any current psychiatric disability. Indeed, the record indicates that she refused the second examination. The claims file includes several relevant documents regarding the Veteran’s failure to appear: a December 23, 2019 Exam Scheduling Request with the Veteran’s most recent address of record; a December 24, 2019 letter to the Veteran advising her that an examination had been requested through a private medical facility which would soon advise her of the date, time, and place of the examination, and informing her of the consequences for failing to report without good cause; a January 5, 2020 Exam Request indicating that the scheduled examination was canceled because the Veteran was a “no show”; a January 6, 2020 Exam Scheduling Request with the Veteran’s most recent address of record; and a January 30, 2020 Exam Request indicating that the scheduled examination was canceled at the Veteran’s request. In this regard, the Board is relying upon the presumption of administrative regularity in finding that the Veteran was properly notified of the scheduled January 2020 VA examinations. On this issue, in the absence of clear evidence to the contrary, it is presumed that VA properly mailed notice of a rating decision to an appellant in care of his representative in the normal course of business. See, e.g., Kuo v. Derwinski, 2 Vet. App. 662, 665 (1992). The Court has applied the presumption of regularity to various processes and procedures throughout the VA administrative process, including the AOJ’s mailing of notice of a VA medical examination. Jones v. West, 12 Vet. App. 98, 100-02 (1998). But in order for this presumption to attach, VA must provide notice to the latest address of record for the claimant. Crain v. Principi, 17 Vet. App. 182, 186 (2003). In addition, according to VA regulation, notification for VA purposes is written notice sent to the claimant’s last address of record. 38 C.F.R. § 3.1(q). This presumption of regularity is not absolute and may be rebutted with “clear evidence that VA did not follow its regular mailing practices or that its practices were not regular.” Crain, 17 Vet. App. at 186. However, an appellant’s bare statement of non-receipt of mail, without more, is not the type of “clear evidence” that can rebut the presumption of regularity. See Butler v. Principi, 244 F.3d. 1337, 1340 (Fed. Cir. 2001). While review of the record does not reveal a copy of a specific letter notifying the Veteran of her January 2020 VA examinations, the Veteran has not asserted that her failure to report to the VA examinations was due to a lack of notice. There is no evidence of returned mail by the U.S. Postal Service. There is no evidence an incorrect or misspelled address was used. In fact, both prior to and after the scheduling of the January 2020 VA examinations, the Veteran was sent various VA correspondence to the same home address without it being returned as undeliverable. Moreover, the Veteran was informed in the September 2020 supplemental statement of the case (SSOC) that she failed to report for the earlier January 2020 VA examination, and had refused the second examination. To date, neither the Veteran nor her representative has requested that the VA examination be rescheduled, nor have either claimed that the Veteran did not receive notice of the VA examination. Neither provided good cause for her failure to report. Indeed, neither the Veteran nor her representative has commented at all on her failure to report for the scheduled VA examinations. In fact, the Veteran has indicated that she has submitted all her evidence and wants a decision. See September 2020 statement in support of claim; September 2020 correspondence; October 2020 VCAA notice acknowledgement. Accordingly, absent any other evidence to the contrary, the Board concludes that the Veteran was properly notified of the scheduled VA examinations. In reaching this conclusion, the Board acknowledges the holding in Kyhn v. Shinseki, in which the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) struck down the holding of the lower court, the Court of Appeals for Veterans Claims (Court), which relied on the presumption of regularity in a case in which the notification letter for the scheduling of a VA examination was not of record. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) (reversing Kyhn v. Shinseki, 23 Vet. App. 335 (2010)). Notably, the appellant in Kyhn expressly argued that he failed to attend the scheduled VA examination because he was not provided advance notice. The Federal Circuit ruled that, in such an instance, VA could not rely on evidence outside the record that was before the agency, specifically, the post-hoc affidavits of AOJ employees in establishing that the agency “had a regular practice of providing [advance] notice of VA examinations.” Kyhn, 716 F.3d at 577. However, the Board finds that the facts of the instant case are distinguishable from the facts considered in Kyhn. In the present case, even though the September 2020 SSOC notified the Veteran of her failure to report for the VA examinations, neither the Veteran nor her representative has asserted that she did not receive notice of the VA examinations, and there is no indication of any returned mail in the record. Instead, the facts of the Veteran’s present case are more analogous to the facts of Baxter v. Principi, 17 Vet. App. 407 (2004), in which the appellant “assiduously avoided” raising the question of whether VA had properly discharged its official notification duties. Baxter, 17 Vet. App. at 410. The Court in Baxter held that “the Board need not examine whether the presumption of regularity has been rebutted unless and until an appellant, at a minimum, alleges that he did not receive the document in question.” Id. at 411. Significantly, the Court cited Baxter approvingly when it revisited the Kyhn case at the direction of the Federal Circuit. See Kyhn v. Shinseki, 26 Vet. App. 371, 374 (2013) (“the Secretary correctly states that Baxter ‘holds that the Board need not examine whether the presumption of regularity has been rebutted unless and until an appellant, at a minimum, alleges that he did not receive the document in question’”). Cf. Romero v. Wilkie, No. 19-3687, 2020 U.S. App. Vet. Claims LEXIS 2104 (Nov. 20, 2020) (holding that rebuttal of the presumption of regularity requires clear evidence that VA failed to properly discharge its duty, but such evidence need not be claimant-specific). Therefore, applying Baxter to the facts of the Veteran’s case, the Board finds no need to consider whether the presumption of regularity has been rebutted. This is because neither the Veteran nor her representative has even argued that there was a lack of advance notice, or insufficient notice, of the scheduled VA examinations for the service connection issue on appeal. To the contrary, the record indicates that the Veteran affirmatively refused to attend the second scheduled examination. The Board also emphasizes that the duty to assist is not a one-way street; a claimant cannot remain passive when he or she has relevant information. See Wamhoff v. Brown, 8 Vet. App. 517 (1996) (VA has duty to assist the veteran, not a duty to prove his claim while the veteran remains passive). In fact, most recently, in Martinez v. Wilkie, 31 Vet. App. 170, 178 (2019), the Court reaffirmed that the duty to assist was not a one-way street and the Veteran must cooperate with the development and adjudication of his or her claim. Therefore, in accordance with the applicable VA regulation, when the veteran does not appear for a scheduled examination in conjunction with an original claim for service connection, the claim will be rated on the evidence of record. 38 C.F.R. § 3.655(b). Accordingly, despite the absence of a VA examination addressing the etiology of the service connection claim at issue, the Board will continue to adjudicate the PTSD claim on the record before it. The Board finds that VA’s duty to assist with respect to attempting to obtain a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board also notes that on remand, the AOJ was directed to attempt to obtain any outstanding relevant treatment records. Several VA Form 21-4142 authorizations were sent to the Veteran; however, they were returned with deficiencies including missing signatures and illegible handwriting. See June 2020, July 2020, August 2020 development letters. Attempts to reach the Veteran were unsuccessful and she indicated that she had no additional evidence to submit. See September 2020 correspondence, October 2020 VCAA notice acknowledgement, October 2020 report of general information. Therefore, the Board finds the duty to assist has been met in this regard also. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Generally, service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s). 38 C.F.R. § 3.304(f) (2019). Regarding the second PTSD element as set forth in 38 C.F.R. § 3.304(f) (2019), evidence of an in-service stressor, the evidence necessary to establish that the claimed stressor actually occurred varies depending on the circumstances of the stressor and the nature of a Veteran’s service. In order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support the veteran’s assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). 38 C.F.R. § 4.125 (2019) requires PTSD diagnoses to conform to the Diagnostic and Statistical Manual of Mental Disorders-V (DSM-V) as the governing criteria for diagnosing PTSD. The law provides that if a PTSD claim is based on an in-service personal assault, which includes military sexual trauma (MST), a veteran is required to provide corroborating evidence to substantiate the occurrence of the stressor. 38 C.F.R. § 3.304(f)(5) (2019); Gallegos v. Peake, 22 Vet. App. 329 (2008). Examples of such corroborating evidence include but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found in these alternate sources. Examples of behavioral changes that may constitute credible evidence of a stressor include but are not limited to: request for transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavioral changes. 38 C.F.R. § 3.304(f)(5) (2019). In cases involving personal assault, the existence of a stressor in service does not have to be proven by the “preponderance of the evidence” because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107(b) (2012). YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). Additionally, under 38 C.F.R. § 3.304(f) (2019), VA can submit any evidence, including alternate source evidence, to a medical or mental health professional for interpretation. Bradford v. Nicholson, 20 Vet. App. 200 (2006). Most significantly, for claims involving an in-service personal assault, after-the-fact medical evidence can be used to establish a stressor. See id.; see also Patton, 12 Vet. App. at 278. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019). 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran has PTSD of service origin, to include as a result of in-service MST. In assessing the evidence of record, the Board acknowledges the Veteran is competent to provide evidence regarding the lay observable symptoms associated with her claimed PTSD. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, she is not competent to render a medical diagnosis of PTSD or an opinion on such a complex matter as the etiology thereof. Id. Therefore, in this regard, the Board must rely on the medical evidence of record. The service treatment records are silent for complaints, diagnosis or treatment of PTSD or any other psychiatric disorder. The August 1971 separation examination was normal and on the accompanying report of medical history, the Veteran specifically denied any past or present nervous trouble of any sort, depression or excessive worry. See August 1971 reports of medical examination and medical history. The service personnel records indicate that the Veteran went AWOL from April 5, 1971 to May 3, 1971 and was dropped from the rolls on May 4, 1971. She returned to military control in August 1971 and indicated her desire to be separated from service. Although she stated that she had personal and family problems, a psychiatric evaluation found no disability. See September 1971 psychiatric report. The Veteran has alleged that she was sexually assaulted during military service in 1970. See June 2014 statement in support of claim; December 2014, December 2016, October 2019 lay statements. She has also reported stressors in connection with her duties as an Army nurse, including treating badly wounded soldiers returning from Vietnam. See September 2015 private treatment records. In addition, the post-service medical records document diagnosis and treatment for PTSD. See September 2015 private treatment records. Therefore, the Board will consider the first element of service connection for PTSD, a current diagnosis to be satisfied. However, there is insufficient evidence of a nexus, or link, between the Veteran’s PTSD and an in-service stressor. As set forth above, her separation examination was normal, which is actually affirmative evidence showing that she did not have a psychiatric disability at time of separation. There is no evidence of any mental health treatment until May/June 1986, when she was treated for nervousness and prescribed Centrax. A March 1994 VA general medical examination found no evidence of any psychiatric disorder. The Veteran stated that she received psychiatric treatment at Fitzsimmons General Hospital following the incident, but those records are unavailable. See February 2015 correspondence. The Veteran has reported a date of onset of her PTSD symptoms in 2009, many years after service. See September 2015 private treatment records. She explained that she has experienced symptoms since service but managed to cope, however after her son died in 2009 then it “really kicked in.” She also reported several stressors unrelated to service including “intense and unresolved grief regarding the deaths of her two sons within one year of each other,” domestic violence resulting in the loss of consciousness and a possible cervical spine fracture, chronic back pain, and raising her deceased son’s young daughter on her own. Id. The available medical evidence is insufficient to confirm a nexus, or link, between the Veteran’s PTSD and any alleged in-service stressor. The post-service medical records note her report of continuing symptoms since being sexually assaulted in service. However, these treatment notes do not constitute competent nexus evidence, as they are merely a restatement of medical history provided by the Veteran rather than medical conclusions. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). As detailed above, the case was remanded in an attempt to obtain a VA medical opinion on causation and the Veteran failed to cooperate. In the absence of a positive nexus opinion, the Veteran’s claim must be denied. The Board has considered the lay statements that the Veteran has presented in this claim. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, an etiology of PTSD, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). To the extent that the Veteran believes that she has PTSD due to in-service MST, she is not competent to give such diagnosis. In rendering this finding the Board recognizes that the Veteran last worked as a licensed practical nurse in Trinidad in 1999 and has medical training. See an October 2003 VA treatment record. However, the record does not indicate that she has experience or training opining on the etiology of psychiatric disabilities. As noted above, the Veteran has also experienced several other stressors which include the deaths of her two sons within a short period of time, domestic violence, and chronic pain. An opinion from someone trained in the etiology of psychiatric disabilities is necessary to determine if the Veteran’s disability is related to service or another stressor. In summary, the Board finds that the preponderance of the evidence weighs against finding in favor of service connection for PTSD. Because the evidence fails to establish that PTSD was incurred in or caused by military service, the Veteran’s claim does not satisfy the criteria for service connection. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim for PTSD must be denied. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) With respect to the claim for TDIU, the Veteran claims that her disabilities prevent her from securing and maintaining gainful employment. (Continued on the next page)   VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more service-connected disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran does not have any service-connected disabilities. Therefore, entitlement to TDIU must be denied as there are no service-connected disabilities which could be found to be causing individual unemployability. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Chilcote, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.