Citation Nr: 21040202 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 14-07 794 DATE: July 2, 2021 ORDER Entitlement to an evaluation greater than 10 percent for residuals of a right knee injury is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU), to include on an extraschedular basis is denied. FINDING OF FACT The Veteran without good cause failed to appear at the VA examination for residuals of a right knee injury in April 2021, and the VA examination was necessary to decide both issues on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation greater than 10 percent for residuals of a right knee injury have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.655 (b). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.655 (b). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from May 1963 to May 1965. These matters are on appeal from August 2012 and April 2013 rating decisions, which stem from an October 2011 claim for increase. In March 2015, the Board denied entitlement to a rating in excess of 10 percent for a right knee injury and found that referral to the Director of Compensation Services for evaluation of an extraschedular rating was not warranted. The Board remanded the issue of entitlement to TDIU. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). The Court granted a Joint Motion for Remand (JMR), which vacated and remanded the Board's denial. As will be explained in greater detail below, the matters were remanded by the Board in February 2016, May 2018 and again in December 2020. The appeal has been returned to the Board. Increased rating and TDIU Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with their education and occupational experience. 38 C.F.R. § 4.16. Normally, consideration is given to such an award only if the Veteran has a single service-connected disability ratable at 60 percent or more, or if he has two or more such disabilities with a combined rating of 70 percent or more, with at least one disability ratable at 40 percent or more. 38 C.F.R. § 4.16 (a). However, failure to satisfy these percentage standards is not an absolute bar to an award of TDIU. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). The Board notes that a claim for TDIU is a claim for increased rating. The instant TDIU claim was deemed part of the appeal for the right knee rating in the March 2015 Board decision pursuant to Rice v. Shinseki 22 Vet. App. 447, 453-54 (2009). 38 C.F.R. § 3.321 (b) provides that ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. "[E]xtraschedular consideration is appropriate only after the [AOJ] has exhausted all other schedular tools for a disability rating." Greenfield v. Tran, No. 18-1907, 2021 U. S. App. Vet. Claims LEXIS 107, at *2 (Jan. 29, 2021) (citing Long v. Wilkie, No. 16-1537, 2020 U. S. App. Vet. Claims LEXIS 2371 (Dec. 30, 2020) (en banc). Under 38 C.F.R. § 3.655 (a), when entitlement to a benefit cannot be established 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 38 C.F.R. § 3.655 (b) or (c) as appropriate. Title 38 C.F.R. § 3.655 (b) applies to original or reopened claims or claims for increase, while 38 C.F.R. § 3.655 (c) applies to running awards, when the issue is continuing entitlement. When a claimant fails to report for an examination scheduled in conjunction with a claim for increase or a reopened claim for a benefit which was previously disallowed, the claim shall be denied. 38 C.F.R. § 3.655 (b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, or death of an immediate family member. See 38 C.F.R. § 3.655 (a). 1. Entitlement to an evaluation greater than 10 percent for residuals of a right knee injury is denied. 2. Entitlement to TDIU, to include on an extraschedular basis is denied. In February 2016, the Board remanded the appeal for evidentiary development consistent with the JMR, to include obtaining an adequate knee examination to assess the current severity of the service-connected right knee disability and then for referral of the claim to the Director of Compensation Services for extraschedular consideration under both 38 C.F.R. § 3.3.21 and § 4.16. The resultant examination report was inadequate and non-compliant with controlling law in that it did not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) with regard to passive range of motion measurements and pain on weight-bearing testing. Additionally, the examination did not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26,34-36 (2017). While the examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. Also, the claim was not referred to the Director of Compensation Services for extraschedular consideration. This necessitated another Board remand in May 2018. The Veteran failed to report for examinations scheduled in March and April 2019 in connection with this remand. In August 2020, the Director of Compensation Services issued a negative opinion for extraschedular consideration under both 38 C.F.R. § 3.3.21 and § 4.16. Thereafter, the claim was remanded in December 2020 for an adequate VA examination because the Veteran's representative requested to have the VA knee examination rescheduled. The Board remand was to give the Veteran the full benefit of the doubt, but the Veteran was also reminded that the duty to assist is a two-way street and he cannot wait passively in those situations where his assistance to VA is necessary. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting the duty to assist is a two-way street that requires a claimant's active participation in a claim for VA benefits). He was informed that failure to report for the examination may result in a denial of the claims on appeal. In the 2018 and 2020 remands, the Board explicitly noted that the TDIU claim is inextricably intertwined with the right knee increased rating claim, since the evaluation of the knee could significantly impact a decision on the TDIU claim. We also note that the sole compensable service-connected disability is the right knee disability, rated 10 percent. An April 20201 Exam Scheduling Request Clarification Response in the Veteran's claims folder indicates that the subsequent right knee examination was cancelled at the Veteran's request. It was noted that he wants the case cancelled. In an April 2021 supplemental statement of the case (SSOC), VA (1) informed the Veteran that a request to withdraw an appeal must be submitted in writing, consistent with, 38 C.F.R. § 19.55, and (2) continued to deny the claims. The Veteran was scheduled for and notified of the April 2021 VA examination to determine the current severity of his right knee disability. While he has indicated that he wanted his case cancelled, has not withdrawn this appeal as of this time in writing and there is no valid withdrawal on record as to this issue. The Board must proceed with the appeal. There is no evidence that the notice of the scheduled examination was not received by the Veteran. Indeed, he responded to notification and cancelled the examination. See Ashley v. Derwinski, 2 Vet. App. 62 (1992); Mindenhall v. Brown, 7 Vet. App. 271(1994) (regarding the applicability of the presumption of regularity to RO actions). To date, neither the Veteran nor his representative have provided good cause for why the Veteran failed to attend the scheduled April 2021 examination. 38 C.F.R. § 3.655 (a). Rather, he reports he does not want to attend. The Veteran must cooperate in VA's efforts to obtain evidence needed to adjudicate his claim, including keeping his contact information up-to-date, attending scheduled VA examinations, and promptly communicating with VA why he cannot attend a scheduled VA examination. The Veteran has failed to report, without good cause, for scheduled VA examination in conjunction with the increased rating claim. This is not an original claim, as the original claim was filed in August 1979. As such, pursuant to 38 C.F.R. § 3.655 (b), this increased right knee rating claim must be denied. Also, the TDIU claim must be denied as it is inextricably intertwined with the knee claim. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. RIPPEL, 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.