Citation Nr: 21029124 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-36 288 DATE: May 12, 2021 ORDER 1. Entitlement to service connection for multiple sclerosis is denied. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran without good cause shown, failed to appear at a February 2020 VA contracted examination related to his original compensation claim of service connection for multiple sclerosis, and the evidence of record fails to demonstrate a nexus between a current diagnosis and service. 2. Service connection is not in effect for any disability. CONCLUSIONS OF LAW 1. The criteria for service connection for multiple sclerosis are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.655. 2. TDIU is not warranted as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from June 1977 to June 1981. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision. In October 2019, the Veteran withdrew his request for a hearing. In December 2019, the matters were remanded for additional development. 1. Entitlement to service connection for multiple sclerosis is denied. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (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. 38 C.F.R. § 3.655(b). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran contends that service connection is warranted for multiple sclerosis, to include radiation exposure. On a 1977 report of medical history (for entrance to service) the Veteran reported that he was in good health. An October 1980 service treatment record notes the Veteran was seen with complaints of a headache and weakness in extremities and neck. His temperature was measured at over 101 degrees and he was initially diagnosed with the onset of a viral syndrome. On the May 1981 report of medical history, the Veteran reported that he was in good health. He reported swollen or painful joints, frequent or severe headaches, dizziness or fainting spells, shortness of breath, pain or pressure in chest, "trick" shoulder or elbow, "trick" or locked knee, frequent trouble sleeping, and depression or excessive worry. On the August 2014 private medical DBQ report, a diagnosis of multiple sclerosis was noted. The provider opined that the Veteran's neurologic symptoms related to multiple sclerosis were ongoing for almost 30 years. The provider does not offer an opinion which relates the Veteran's multiple sclerosis to the Veteran's service. In May 2016 and December 2019 correspondences, the Veteran was asked to send any treatment records related to his claimed condition. It was noted that a VA Form 21-4142a was enclosed for the Veteran to complete. In February 2020 the Veteran submitted a radiation risk activity information sheet. In February 2020, the Veteran was scheduled for a physical examination and failed to report for such examination. The August 2020 Supplemental Statement of the case sent to the Veteran and his representative noted that the QTC contractor indicated that the Veteran did not show to the appointment. Lastly, in the October 2020 Informal Hearing Presentation, the Veteran's representative noted that the purpose for which this claim was remanded by the decision dated August 18, 2020 has been accomplished, and to please proceed with appellate review. As noted above, on an original claim of compensation when the Veteran fails to report for an examination (and evidence of good cause is not shown), the law is dispositive. The claim is to be decided on the evidence of record. See 38 C.F.R. § 3.655. Additionally, it is noted that although medical records were requested from the Veteran, such have not been provided. It is therefore necessary to adjudicate this matter based on what evidence has been submitted, or associated with the record. Whether currently diagnosed multiple sclerosis is etiologically related to service (was incurred therein) is a medical question, beyond the scope of common knowledge or capability of resolution based on lay observation; it requires medical expertise. While the Veteran is competent to describe symptoms, he has experienced. He is not competent to relate such symptoms to his currently diagnosed multiple sclerosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In support of his claim, the Veteran has submitted an August 2014 private medical DBQ. The examination identifies multiple sclerosis as a current diagnosis, and opines that symptoms related to multiple sclerosis existed for 30 years. However, the examination does not offer an opinion which relates the Veteran's multiple sclerosis to his service. Notably, while the Veteran reported an increased history of conditions at separation compared with his entrance report of medical history, such evidence alone (without a competent medical opinion addressing the issue) is not sufficient to demonstrate a nexus in this matter. Under such circumstances where the Veteran has failed to report for examination in an original claim for compensation, and the evidence of record fails to establish a nexus between a current diagnosis and service the law is dispositive. See 38 C.F.R. § 3.655(b). The preponderance of the evidence is against the Veteran's claim, and the appeal in this matter must be denied. 2. Entitlement to a TDIU is denied. VA regulations allow for the assignment of a TDIU when a Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, and the Veteran has certain combinations of ratings for service-connected disabilities. 38 C.F.R. § 4.16 (a). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), referral to the Director of the VA Compensation Service for extraschedular consideration of a TDIU is warranted if the Veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (b). In the Veteran's case, service connection has not been granted for any disability. The above decision denies the Veteran's claim for service connection for multiple sclerosis, and the Veteran is not separately service connected for any other disability. Without a service-connected disability, TDIU cannot be granted. As it is not shown that the Veteran is unemployable due to service-connected disabilities, a TDIU is not warranted and the claim of entitlement to TDIU is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). A. J. Spector Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.