Citation Nr: 21006496 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 12-08 665 DATE: February 4, 2021 ORDER Entitlement to a disability rating for a low back disability higher than 10 percent prior to July 20, 2001, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran failed without good cause to report for a VA examination that was necessary to decide his claim of entitlement to an increased rating. CONCLUSION OF LAW The criteria for entitlement to an increased rating prior to July 20, 2001, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.655, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, Diagnostic Code (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from June 1968 to June 1988. This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2019 Order of the United States Court of Appeals for Veterans’ Claims (Veterans Court). The appeal originated from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In December 2017, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2019). The Veteran was informed of the basis for the RO’s denial of his claims and he was informed of the information and evidence necessary to substantiate each claim. A transcript of the hearing is associated with the claims file. 38 C.F.R. § 3.103 (2019). In a decision dated in July 2018, the Board denied a rating higher than 10 percent for the service-connected low back disability prior to July 20, 2017; granted a rating of 40 percent, but not higher, for the service-connected low back disability since July 20, 2017; and, denied a compensable rating for the service-connected bilateral hearing loss. The Veteran appealed that decision to the Veterans Court. In an Order dated in August 2019, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board’s decision in part, and remanded the issues of entitlement to a disability rating higher than 10 percent for the service-connected low back disability prior to July 20, 2017; and, the unadjudicated issue of entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) to the Board for additional development consistent with the Joint Motion. The parties to the Joint Motion stipulated that the rating for bilateral hearing loss, and the rating for the service-connected low back disability since July 20, 2017, were not disputed. In March 2020, the Board remanded this appeal for to obtain an updated VA examination to address the items specified in the Joint Motion. The Veteran did not appear for the examination. The appeal has since been returned to the Board for further appellate action. Entitlement to a disability rating for a low back disability higher than 10 percent prior to July 20, 2001 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. 38 C.F.R. § 3.655(a). 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(b). Examinations were necessary in this case to evaluate the Veteran’s increased rating claims because the parties to the August 2019 Joint Motion agreed that the evidence for this period was inadequate, in particular, the October 2009 VA Spine Examination. The parties agreed that remand was necessary for the Board to obtain a medical opinion that assesses the October 2009 examiner’s findings in light of the requirements of Mitchell v. Shinseki, 25 Vet. App. 32, 41 (2011); Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017); and Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The parties also agreed that the Board must determine the ameliorative effects of the Veteran’s medications. A review of the evidence, as noted, reveals that the Veteran failed to report for VA medical examinations. The Veteran has an obligation to cooperate, when required, in the development of evidence pertaining to his claims. The duty to assist is not always a one-way street, nor is it a blind alley. Olson v. Principi, 3 Vet. App. 480, 483 (1992); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA efforts to obtain examinations of the Veteran, in order to evaluate his claims fully and fairly, have been unsuccessful. The evidence of record does not reflect any good cause or justification for his failure to report for VA medical examinations. Accordingly, his claim must be denied. 38 C.F.R. § 3.655. In this case, there is no prejudice in the Board adjudicating the claim under 38 C.F.R. § 3.655 as the Veteran was informed of its provisions in the November 2020 Supplemental Statement of the Case. See Bernard v. Brown, 4 Vet. App. 384 (1993). REASONS FOR REMAND Entitlement to TDIU The Veteran did not specifically file a claim of entitlement to TDIU. The parties to the Joint Motion agreed that, although the Veteran is retired, there is evidence that the Veteran’s work was adversely affected by his service-connected disabilities. The parties agreed that the Board should have adjudicated the issue of TDIU entitlement on the merits despite the fact that the matter was not raised at the Board hearing. As the Veteran never formally filed a claim of TDIU entitlement, the record does not contain adequate evidence of his complete work history and education for the Board to make a reasoned and informed decision as to his ability to secure or follow a substantially gainful occupation. Notably, the record does not contain a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) or similar recordation of the Veteran’s work history, experience, training, and education. While the claim was adjudicated and denied in November 2009, the Veteran had not submitted a VA Form 21-8940 or specifically noted unemployability at that time. Moreover, TDIU was denied by the RO because he was gainfully employed at the time. Accordingly, the Board finds that remand is necessary to fully inform the Board of these crucial elements of TDIU adjudication. This matter is REMANDED for the following action: 1. Obtain from the Veteran a record of his employment history, experience, training, and education, to include obtaining a VA Form 21-8940 or similar record. 2. Readjudicate the remanded TDIU claim. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.