Citation Nr: 21021235 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-19 482A DATE: April 12, 2021 REMANDED Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to May 20, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1966 to September 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019 the Board remanded the Veteran’s claim for additional evidentiary development. The case is once again before the Board. In October 2012, the Veteran filed a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Veteran claimed that he was unable to work due to, in part, his service-connected PTSD. The RO treated the October 2012 application as a claim for an increased rating of PTSD. A March 2020 Board decision granted entitlement to a TDIU and assigned an effective date of May 20, 2016. However, the Board decision did not address whether the Veteran was entitled to a TDIU prior to May 20, 2016. Accordingly, the March 2020 Board decision did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown above. See AB v. Brown, 6 Vet. App. 35 (1993). Entitlement to a rating in excess of 50 percent for PTSD is remanded. The Veteran contends that he is entitled to a rating in excess of 50 percent for his service-connected PTSD. In the June 2019 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to provide the Veteran with a VA examination to determine the nature, extent, and current severity of his PTSD. The Board also noted a discrepancy between the assessments of the severity of the Veteran’s PTSD contained in VA examination reports and the accounts of his symptoms provided by the Veteran and lay observers. The Board asked that the examiner provide a retrospective opinion about the severity of the Veteran’s PTSD during the period from October 2012 to May 2016. The evidence of record contains a December 2019 VA 21-2507a request for VA psychological examination. The record reflects notice of the scheduling of the examination was sent to the Veteran in a letter dated December 10, 2019. See August 2020 Supplemental Statement of the Case. The record also reflects that on January 7, 2020, the AOJ received notification from the VA Medical Center that the Veteran failed to report for his scheduled examination. Id. When a Veteran does not appear at a scheduled VA examination that is required to adjudicate an original claim, without good cause, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. With regard to the missed examination, it is not clear in the evidence of record whether the Veteran was properly notified of his December 2019 or January 2020 VA examination. In a sworn affidavit received in September 2020, the Veteran stated that he did not recall receiving any notice about a VA examination in December 2019 or January 2020. He further indicated that he is willing to reschedule the examination. The Board notes, there is no notice of record instructing him to attend a VA examination in December 2019 or January 2020, in writing, by phone, or otherwise. In the absence of any letter or other indication that the Veteran received sufficient notice of the examination, administrative regularity is not presumed. See Khyn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). Further, in light of the Veteran’s assurances that he is willing to reschedule the VA examination, and given the importance of having a thorough and contemporaneous medical examination in evaluating the current nature and severity of the Veteran’s PTSD, the Board finds that good cause has been shown for failure to report to the VA examination, and that the Veteran should be afforded the opportunity to attend another VA examination. Entitlement to a TDIU prior to May 20, 2016 The claim for a TDIU is inextricably intertwined with the Veteran’s claim for entitlement to a higher disability rating for PTSD. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity and manifestations of his PTSD. The record and a copy of this Remand must be made available to and reviewed by the examiner. The examination must include all testing deemed necessary by the examiner. The examiner should report all manifestations related to the Veteran’s PTSD. 2. Thereafter, to the extent possible, obtain a retrospective medical opinion regarding the functional impairment caused by the Veteran’s PTSD from October 9, 2012 to May 17, 2016. 3. Notify the Veteran of the date, time, and location of the examination. The examination notice should be given at least 30 days in advance of the scheduled examination to afford the Veteran sufficient time in which to contact the AOJ with any issues that may impede his ability to appear for the examination. A copy of the notification letter must be included in the claims file and must reflect that it was sent to the Veteran’s last known address of record. The notice must state that it is the Veteran’s responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that the notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Aston, 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.