Citation Nr: 21002948 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 08-32 942 DATE: January 19, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1975 to June 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2007 and August 2010 rating decisions issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). These matters were previously addressed by the Board in a January 2019 decision and were remanded for additional evidentiary development. A review of the record demonstrates that the RO has not substantially complied with the Board’s January 2019 remand directives regarding the service connection claim, and as such, remand is warranted for corrective action. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (A remand by the Board confers on a veteran the right to substantial compliance with the remand directives.). The claim seeking entitlement to a TDIU is remanded as inextricably intertwined with the service connection claim, as discussed below. 1. Entitlement to service connection for an acquired psychiatric disability is remanded. In the January 2019 decision, the Board remanded the claim for an addendum VA medical opinion addressing whether the Veteran’s current acquired psychiatric disability (diagnosed by VA and private evaluators as depressive disorder, not otherwise specified; affective disorder; anxiety-related disorder; major depressive disorder, severe, recurrent with psychotic features; and panic attacks, severe with agoraphobia) was proximately due to, the result of, or aggravated by his service-connected knee or back disabilities. In January 2019, the RO initiated a VA examination request and mailed a letter to the Veteran notifying him that a medical facility would be contacting him regarding the date, time, and, place of the examination. The record contains a document indicating that the Veteran failed to appear for his VA examination. The electronic claims file does not contain evidence that the Veteran was given adequate notice of this scheduled VA examination. Given the Veteran’s absence at the scheduled VA examination, the RO readjudicated the matter in an August 2020 Supplemental Statement of the Case based on the evidence of record and returned the matter to the Board for appellate consideration. Pursuant to 38 C.F.R. § 3.655(b), “[w]hen 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.” In Turk v. Peake, 21 Vet. App. 565, 569 (2008), the United States Court of Appeals for Veterans Claims (Court) held that “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.” Here, an in-person examination was not strictly necessary, as the evidence of record already confirms a current disability within the appellate period. Moreover, the January 2019 Board decision did not request an in-person examination; it simply requested a VA addendum medical opinion. Despite the Veteran’s failure to attend the scheduled VA examination, the RO should have obtained the necessary medical nexus opinion based on review of the claims file. Accordingly, the Board finds that there was not substantial compliance with the Board’s January 2019 remand decision, and remand is warranted to obtain the pertinent VA medical nexus opinion. 2. Entitlement to a TDIU is remanded. In the January 2019 Board decision, a claim of entitlement to a TDIU was raised as part and parcel with the increased rating claims adjudicated in that decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the claim for the RO to conduct appropriate development, to include sending the Veteran a copy of VA form 21-8940. The RO mailed the Veteran an appropriate notice letter in January 2019 requesting the completion of VA form 21-8940, as well as completion of VA form 21-4192 by the Veteran’s previous employers. The Veteran did not respond to the notice letter with the requested information. The RO substantially complied with the January 2019 Board remand directives regarding the Veteran’s claim seeking entitlement to a TDIU. Stegall, supra. Currently, the Veteran’s total combined rating of 20 percent prior to April 2, 2008, 40 percent from April 2, 2008 to May 14, 2013, and 50 percent since May 15, 2013 does not satisfy the criteria for schedular TDIU consideration. 38 C.F.R. § 4.16(a). However, the Board is remanding the Veteran’s claim seeking entitlement to service connection for an acquired psychiatric disability for additional evidentiary development, and the outcome of this claim could impact whether the Veteran’s service-connected disabilities meet the schedular TDIU threshold set forth in 38 C.F.R. § 4.16(a). Since this TDIU matter is inextricably intertwined with the service connection claim being remanded, adjudication must be deferred pending completion of the proposed development. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Lastly, the RO is requested to obtain any additional VA treatment records from September 2013 to the present. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2013 to the present. 2. Obtain a VA medical opinion from an appropriate VA examiner regarding the Veteran’s acquired psychiatric disability. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiry: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current acquired psychiatric disability is proximately due to, the result of, or aggravated by the Veteran’s service-connected knee or back disabilities? In answering this question, the VA examiner is reminded of the Court’s recent precedential decision in Ward v. Wilkie, 31 Vet. App. 233 (2019), which held that aggravation under 38 C.F.R. § 3.310(b) does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability—any additional impairment of earning capacity—in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase—regardless of its permanence.” See id. at 239. The addendum VA medical opinion must be supported by a thorough explanatory rationale based on the examiner’s clinical experience and medical expertise; established medical principles; and references to the evidence of record, as appropriate. 3. The RO must adjudicate the Veteran’s pending TDIU claim subsequent to the other claim in remand status. If one or more of the claims remain denied, issue a Supplemental Statement of the Case to the Veteran and his representative. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.