Citation Nr: 21030318 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 09-42 111 DATE: May 18, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to a disability rating in excess of 30 percent for anxiety disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's psychiatric condition has been diagnosed as an anxiety disorder. 2. The Veteran failed to appear to her scheduled VA examination and good cause for her failure to report was not shown. 3. The Veteran's anxiety condition has not prevented her from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for an increased disability rating of 70 percent for a psychiatric condition have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9413. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2000 to November 2000 and from August 2004 to October 2005, with additional periods of active and inactive duty for training. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of August 2008 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Following the rating decision on appeal, the Veteran timely filed her notice of disagreement (NOD) in May 2009. The RO issued a statement of the case (SOC) in September 2009 and the Veteran's timely appeal to the Board followed in October 2009. The record reflects that the Veteran initially requested a hearing in her appeal to the Board. See October 2009 VA Form 9. A hearing was subsequently scheduled in January 2016. See January 2016 Correspondence. After finding that the Veteran had not received notice of these hearings due to a change of address, the Board remanded this case to reschedule a hearing opportunity accordingly. See March 2016 Board Decision at 3-4. As a result, an additional hearing opportunity was scheduled for October 2017 at the Chicago, Illinois Regional Office. This hearing opportunity was subsequently rescheduled for October 2018 at the St. Louis, Missouri Regional Office at the Veteran's request. See March 2018 Appellate Brief; see also September 2018 Correspondence. However, the record does not reflect that the Veteran attended this hearing opportunity or that the notification of this opportunity was sent to an expired address. Accordingly, the Board finds that the Veteran's request for a hearing has been withdrawn. See 38 C.F.R. § 20.704(d) (providing that where a veteran "fails to appear for a scheduled hearing and a request for postponement has not been received or granted, the case will be processed as though the request for a hearing had been withdrawn"). The Board remanded the Veteran's appeal for further development, to include an updated VA examination, in December 2018. The RO issued its most recent supplemental statement of the case (SSOC) in January 2020. 1. Entitlement to service connection for PTSD. Generally, service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In its December 2018 remand, the Board noted that the evidence of record addressing whether the Veteran's psychiatric condition supports a diagnosis of PTSD is mixed. See December 2018 Board Decision at 5-6 (noting that treatment records of February and March 2008 had diagnosed PTSD, but that a June 2008 VA examiner had not); see also id. at 6 (noting that the June 2008 VA examiner had not adequately addressed the February and March 2008 diagnoses or prior evidence of suicidal ideation in her rationale). A subsequent VA examination of February 2013, in addition to noting symptoms of anxiety and irritability, noted that the Veteran had been arrested in 2009 after physically assaulting a roommate. See February 2013 VA Examination Report at 8. The Board therefore sought a new VA examination "to clarify whether the Veteran currently suffers from PTSD" and noted that "if service connection is granted for... PTSD, it may impact the disability rating assigned for the Veteran's psychiatric symptoms, including for [her] anxiety disorder[.]" See December 2018 Board Decision at 6. The record reflects that this examination was requested, but not conducted. See September 2019 Development Letter (notifying the Veteran that "[a] private facility will soon advise you of the date, time, and place of this medical examination... in writing, by telephone, or perhaps both"). The Board particularly notes that phone contact could not be established with the Veteran in October 2019. See October 2019 VA Form 27-0820. Accordingly, the examination appears to have been canceled. See November 2019 Examination Request Modification. The Board notes that "[the] duty to assist is not always a one-way street" and that "there is no burden on the part of the VA to turn up heaven and earth to find [a veteran]." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Where a veteran fails to report for a medical examination without good cause, claims dependent upon such examinations may be denied or otherwise rated on the available evidence of record. See 38 C.F.R. § 3.655(b). Neither the Veteran nor her representing Veterans Service Organization (VSO) have provided an explanation for the Veteran's unavailability. See March 2021 Appellate Brief. Accordingly, the Board must adjudicate this claim based on the evidence of record. "[Most] of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight... if it contains only data and conclusions." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The diagnoses of PTSD in the Veteran's medical treatment records do not incorporate the same degree of reasoning as that provided by the June 2008 and February 2013 VA examiners. See August 2009 Medical Treatment Records at 4 (providing treatment note of February 2008); see also March 2008 Medical Treatment Records at 2; cf. June 2008 VA Examination Report at 16-19 (reviewing criteria for PTSD diagnosis and opining that the Veteran's psychiatric condition is more accurately described as an anxiety disorder because "she does not meet the criteria for avoidance and hyperarousal"). The Board therefore assigns greater weight to the diagnosis of anxiety disorder provided by the June 2008 VA examiner than to the diagnoses of PTSD reflected in the Veteran's treatment notes. A lay witness is generally competent, and the Board finds the Veteran credible, to report symptoms capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). However, the Veteran is not competent to attribute her symptoms to PTSD as opposed to an anxiety disorder because diagnosing such conditions requires medical expertise. "Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board[.]" Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The assignment of service connection for PTSD is therefore not warranted. 38 C.F.R. § 3.303. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against the Veteran's claim. 38 U.S.C. § 5107. 2. Entitlement to a disability rating in excess of 30 percent for an anxiety disorder. 3. Entitlement to a TDIU. The Veteran's anxiety disorder is currently evaluated as 30 percent disabling from March 2008 under Diagnostic Code (DC) 9413. See January 2013 Rating Codesheet. The evidence also reasonably raises a claim for entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also May 2009 NOD at 1 (asserting that "I have not been able to maintain gainful employment" and that "I am once again unemployed" due to psychiatric symptoms). In December 2018, the Board remanded the Veteran's appeal for further development, to include an updated VA examination. The record reflects that this examination was requested, but not conducted. See September 2019 Development Letter (notifying the Veteran that "[a] private facility will soon advise you of the date, time, and place of this medical examination... in writing, by telephone, or perhaps both"). The Board particularly notes that phone contact could not be established with the Veteran in October 2019. See October 2019 VA Form 27-0820. Accordingly, the examination appears to have been canceled. See November 2019 Examination Request Modification. The RO issued its most recent SSOC in January 2020 to the Veteran, noting that she did not report for the examination as the QTC contract facility was unable to contact her. She also did not offer any reason for why she did not report for this examination. Therefore, showing good cause for not reporting is not established. Additionally, the Veterans representative submitted a subsequent March 2021 Appellate Brief, and noted that the Veteran had not responded to the attempts made to schedule the new mental health examination. The representative also did not provide any good cause for the Veteran not reporting to the examination. 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; and the examination was scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655. (Continued on the next page) The Veteran's claim for a higher evaluation for an anxiety disorder and her claim for entitlement to TDIU are claims for increase. 38 C.F.R. § 3.655(b); see Turk v. Peak, 21 Vet. App. 565, 568 (2008); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). As the Veteran has not alleged good cause for the cancellation of her VA examination, the Board finds that good cause is not shown. See 38 C.F.R. § 3.655. Further, the Veteran has made no effort to formally withdraw her claims. Therefore, the claims must be denied pursuant to 38 C.F.R. § 3.655(b). See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim must be denied due to a lack of legal merit). The Board notes that the duty to assist a claimant is not a one-way street, and in the instant case, the Veteran has failed to cooperate to the full extent in the development of her claims. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the Veteran failed without good cause to appear for her VA examination in the context of increased rating claims, denial of an increased rating for anxiety disorder, and TDIU, based on the application of 38 C.F.R. § 3.655(b) is warranted. A. J. Spector Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, 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.