Citation Nr: 22016915 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 17-12 219 DATE: March 23, 2022 ORDER Entitlement to a rating in excess of 30 percent for hypothyroidism is denied. Entitlement to a finding of total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran failed to report for a necessary VA examination scheduled in connection with a claim for increased rating. 2. The Veteran did not complete and return an updated VA Form 21-8940 in connection with her claim for a TDIU. 3. The Veteran's service-connected disabilities do not preclude the Veteran from securing or following a substantial gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for hypothyroidism are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.655. 2. The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from September 1997 to September 2000. These matters come before the Board of Veterans' Appeals (Board) from a December 2012 rating decision, by an agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). In September 2019 and August 2021, the Board remanded these matters for further evidentiary development. The matters again are before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). When, as here, evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). Increased Rating In September 2019, the Board remanded the matter of entitlement to a rating in excess of 30 percent for hypothyroidism. The Board noted that during the pendency of the appeal, the rating criteria for hypothyroidism was amended. It further determined that a remand was warranted as an August 2012 VA examiner found that the Veteran's hypothyroidism was not the sole or direct cause of her obesity, notwithstanding a prior February 2006 VA examination (prior to the period on appeal) that suggested that obesity was a residual of her hypothyroidism. The Board also indicated that it was not clear if symptoms of restlessness was due to mental disturbance or a physical symptom of her hypothyroidism, or whether such is associated with her service-connected psychiatric disability. The Board directed that the AOJ schedule a VA examination to resolve such inquiries. Upon return of the appeal in August 2021, the Board noted that the claims file documented attempts to contact and schedule the Veteran for a VA examination. The Board referenced that in November 2019 correspondence, the Veteran was notified that a VA examination would be scheduled. Thereafter, the record contains a January 2020 notation that the VA examination request was cancelled as the Veteran reportedly relocated. VA, in January 2020, left a voice message for the Veteran to verify her address such that a VA examination could be scheduled. Notes located within the Veterans Benefits Management System (VBMS) dated March 2020 reflect that a subsequent attempt was made to contact the Veteran but that both phone numbers reportedly did not receive calls or voice messages. An August 2020 Supplemental Statement of the Case (SSOC) indicated that the Veteran did not report for her scheduled VA examinations in February 2020. The Board determined that it did not find adequate notification to the Veteran of the aforementioned VA examinations, either in writing or by telephone, and remanded the claim to afford the Veteran with a VA examination with proper notice. Subsequent to the Board's August 2021 remand, VA attempted to contact the Veteran, in October 2021, at both telephone numbers of record but was reportedly unsuccessful in speaking to the Veteran or leaving a message on her voicemail. In October 2021, written notice was sent to the Veteran that a VA examination would be scheduled. The Veteran was reminded that when a claimant, without good cause, fails to report for an examination or reexamination, the claim shall be rated based on the evidence of record, or even denied. The Veteran was also notified of examples of good cause, to include, illness or hospitalization, or death of a family member. Thereafter, the record contains November 2021 contact history timelines from the VA's contract examination service provider. The timelines reflects that an attempt was made via telephone in October 2021 to determine the Veteran's availability; appointment notification letters were sent via courier in November 2021; and appointment reminders were made via telephone in November 2021. In December 2021, the record reflects that the VA examination request was cancelled at the Veteran's request. The Board notes the record further contains correspondence (associated with the claims file in December 2021) from VA to the contract examination service provider. It indicated that a cancellation request was received in November 2021, as the Veteran reportedly would not schedule with VA's contract examination service provider as she was "100 [percent] service-connected" and that the Veteran was informed to contact VA. In a December 2021 SSOC, the AOJ noted that the VA examination request was cancelled because the Veteran would not reschedule and reiterated that she was advised to contact VA. The record reflects that the Veteran failed to respond to the scheduling of a VA examination for her thyroid disability. The Veteran also did not provide good cause for her failure to report to the scheduled VA examination directed by the Board's most recent August 2021 remand. The Board notes that in its prior August 2021 remand, a provision was included to utilize alternative means of conducting the VA examination, such as a telehealth interview, if an in-person examination was not feasible. The examination was required to secure updated findings and to determine the relevant residuals associated with her hypothyroidism in order to provide the Veteran with a full and fair adjudication of her claim for increase. Pursuant to 38 C.F.R. § 3.655(b), when a Veteran fails to report for an examination in connection with a claim for increased rating, the claim shall be denied. This claim arises from a June 2012 claim for increased rating. Service connection for hypothyroidism had been granted in a final December 2008 rating decision. Although aware of the failure and that such would impact her claim, the Veteran has not offered a reason for the failure or requested rescheduling. The claim is accordingly denied as a matter of law. 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. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15. In September 2019, the Board remanded the issue of entitlement to a TDIU for further evidentiary development. The Board directed that the Veteran be provided with an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) and that the AOJ request any other information regarding her education and employment history. The Board notes that such was sent to the Veteran in November 2019. Upon return of the appeal, the Board, in August 2021, remanded the claim as inextricably intertwined with the Veteran's claim for increase for her service-connected hypothyroidism. The Board also directed that the Veteran be afforded another opportunity to submit an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) and Request(s) for Employment Information in Connection with Claim for Benefits (VA Form 21-4192) from the Veteran's identified employers. The Veteran did not complete an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) or Request(s) for Employment Information in Connection with Claim for Benefits (VA Form 21-4192), as requested by the Board in its prior September 2019 and August 2021 remands. The Board acknowledges the representative's assertions in the January 2022 brief that the record contains a March 2008 VA Form 21-4192 and June 2012 VA Form 21-8940 and that neither form was indicated to be incomplete. Nevertheless, the most recent VA Form 21-8940 was submitted over seven years prior to certification to the Board. To that end, neither the Veteran nor her representative have indicated that the information contained within March 2008 VA Form 21-4192 and June 2012 VA Form 21-8940 continue to be current. The Board cannot determine whether the Veteran has obtained additional education or training since or attempted to obtain substantially gainful employment since that time. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). The Veteran was provided with a meaningful opportunity to participate in the claims process but was unresponsive. During the relevant period on appeal, the record contains no competent, probative opinions that the Veteran is precluded from all forms of employment due to her service-connected disabilities. The Board concludes that the objective evidence outweighs the Veteran's lay assertions regarding unemployability. The Board acknowledges that the Veteran's service-connected disabilities have some effect on her occupational impairment. However, the combined 80 percent schedular rating recognizes the industrial or commercial impairment resulting from her disabilities. Thus, the most probative evidence of record demonstrates that the Veteran's service-connected disabilities do not preclude her from employment, or even raise the reasonable possibility of such. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.