Citation Nr: 21006534 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 13-09 594 DATE: February 4, 2021 ORDER Vacatur of the June 29, 2020 Board decision denying entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a TDIU is remanded. FINDINGS OF FACT 1. On June 29, 2020 the Board issued a decision denying entitlement to a TDIU based in part on the fact that the Veteran had failed to attend a scheduled April 2019 VA examination for his service-connected psychiatric disorder. 2. In October 2020, the Veteran’s representative filed a motion to reconsider based on due process grounds; he contended that the Veteran was not given proper notice of his scheduled VA examination and that the Veteran’s psychiatric disorder caused memory loss and an inability to attend to daily tasks. CONCLUSION OF LAW The criteria for vacatur of the June 29, 2020 Board decision denying entitlement to a TDIU have been met. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1000(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1973 to January 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board issued a prior remand on this claim in February 2018. Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. 1. Vacatur of the June 29, 2020 Board decision denying entitlement to a TDIU. As noted above, in October 2020, the Veteran’s representative filed a motion to reconsider with the Board, contending that the Veteran was not given proper notice of his scheduled April 2019 VA examination, and that even if he was given proper notice that he suffers from considerable cognitive disorders that rendered him unable to recall such information. The Veteran’s attorney requested that the Board reconsider its June 29, 2020 decision denying entitlement to a TDIU and remand the claim to provide the Veteran another opportunity to attend a VA examination for his service-connected psychiatric condition. A review of the record shows that a request was made for a VA examination for psych/mental disorders on April 26, 2019. Then on May 30, 2019 another document was entered into the Veteran’s electronic file showing that the examination was cancelled due to the Veteran’s failure to appear. The Board notes that the record does not contain any notification to the Veteran of the scheduled examination, indicating a denial of due process. Accordingly, vacatur of the Board’s June 29, 2020 decision denying entitlement to a TDIU is granted. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. As noted above, the Veteran was never properly notified of his scheduled April 2019 VA examination for his service-connected psychiatric disorder. Accordingly, remand is required to provide the Veteran proper notice and an opportunity to attend a VA examination for his service-connected psychiatric disorder to determine whether entitlement to a TDIU is warranted. The matters are REMANDED for the following action: 1. Update the electronic file with any new VA treatment records and private treatment records. 2. Schedule the Veteran for a VA examination to determine the current severity of his acquired psychiatric disorder. The Veteran should be given ample notice of the date, place, and time on which the examination is scheduled and a copy of such notice(s) should be added into the Veteran’s electronic file. The entire claims file must be made available to the examiner, and a note that such was reviewed by the examiner should be included in his or her report. The examiner should address the current severity of the Veteran’s acquired psychiatric disorder, as well as its functional impact on his ability to secure and follow substantially gainful employment. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.