Citation Nr: 1749114	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  14-01 216	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disability.

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to June 20, 2013 on an extraschedular basis.


REPRESENTATION

Veteran represented by:	Ryan Farrell, Agent


ATTORNEY FOR THE BOARD

M. Bilstein, Associate Counsel



INTRODUCTION

The Veteran served in active duty from October 1986 to March 1987. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from October 2010 and May 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.

In July 2015, the Board remanded the case for further evidentiary development regarding the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disability.  The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).

The July 2015 remand also included the issue of entitlement to service connection for an acquired psychiatric disorder.  In an August 2016 rating decision, the Agency of Original Jurisdiction granted service connection for schizophrenia and assigned an initial disability rating of 50 percent, effective March 31, 2010.  An increased 100 percent rating was later assigned, effective June 20, 2013.  The Veteran has not disagreed with the assigned ratings or effective date of service connection.  As such, the matter is considered fully resolved and the Board will not further address this claim.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997)  (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2017).

The issue of entitlement to a TDIU prior to June 20, 2013 on an extraschedular basis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  A June 1988 rating decision that denied service connection for a back condition was not appealed and no new and material evidence was submitted during the appeal period; the decision is final.

2.  The evidence added to the record since the June 1988 denial, when considered with previous evidence, does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a low back disability.


CONCLUSIONS OF LAW

1.  The June 1988 rating decision that denied the claim of entitlement to service connection for a back condition is final.  38 U.S.C.S. § 7105(c) (LexisNexis 2017); 38 C.F.R. §§ 3.156(b), 20.1103 (2017).

2.  New and material evidence has not been submitted, and the claim of entitlement to service connection for a low back disability is not reopened.  38 U.S.C.S. § 5108 (LexisNexis 2017); 38 C.F.R. § 3.156(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

New and Material Evidence

The Veteran's claim seeking service connection for a low back disability was previously denied in a June 1988 rating decision.  Because the Veteran did not appeal the decision to the Board, and new and material evidence was not submitted within the one-year period after the decision was issued, the decision became final.  38 U.S.C.S. § 7105 (LexisNexis 2017); 38 C.F.R. §§ 20.302, 20.1103, 3.156(b) (2017.)

Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C.S. § 5108.

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.

The basis of the June 1988 rating denial of service connection for a back condition was that there was no evidence of a current back disability.  Specifically, the RO found that the low back condition the Veteran was treated for in service was acute and transitory.  The evidence considered at the time of the June 1988 rating decision included the Veteran's service treatment records.  

Newly submitted evidence includes Social Security Administration records and VA medical records.  However, these records do not document treatment for or a diagnosis of a low back disability.  Although this evidence is new, it is not material since it does not relate to an unestablished fact necessary to substantiate the claim.

The Veteran also failed to report to his June 2013 VA examination to obtain an opinion on the nature and etiology of his claimed low back disability.  As good cause was shown, in July 2015, the Board remanded the claim and requested that the Veteran be scheduled for another VA low back examination.  The Veteran was scheduled for the VA low back examination in August 2016, to which he also failed to report.  The file contains an internal VA report for the scheduled low back examination and a VA mental disorders examination, which lists the Veteran's current address.  There is no evidence of returned mail.  While review of the electronic file does not reveal a copy of a letter notifying the Veteran of these scheduled examinations, neither the Veteran nor his representative has asserted that the failure to appear was due to a lack of advance notice of the scheduled low back examination.  The Veteran's representative has not raised such a contention and in fact, the Veteran did attend his August 2016 VA mental disorders examination for which notification was provided to the same address.  The Veteran has not provided good cause for his failure to report to the August 2016 VA low back examination, requested another examination, or argued that he did not receive notice of the examination.  Under these circumstances, the Board finds that the Veteran failed to report to the August 2016 VA low back examination without good cause.  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 his claim.  Wood v. Derwinski, 1 Vet. App. 406 (1991).  In view of the foregoing, the Board concludes that there is no duty to attempt to provide another examination or medical opinion.  As VA has fulfilled the duty to notify and assist to the extent possible, the Board can consider the merits of this appeal without prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Kyhn v. Shinseki, 26 Vet. App. 371, 374 (2013) (noting that the "Secretary correctly states that Baxter 'holds that the Board need not examine whether the presumption of regularity has been rebutted unless and until an appellant, at a minimum, alleges that he did not receive the document in question'").  

Where entitlement to a benefit cannot be established or confirmed without a VA examination and the Veteran fails to report for an examination scheduled in conjunction with an original compensation claim or a reopened claim for a benefit which was previously disallowed, the claim shall be rated based on the evidence of record.  38 C.F.R. §§ 3.655(a)-(b) (2017).  Due to the Veteran's lack of cooperation in appearing for a scheduled VA examination, the Board was unable to obtain medical evidence that is relevant to the claim.  Based on the foregoing, as the newly submitted evidence does not relate to an unestablished fact necessary to substantiate the claim, namely, the presence of a current low back disability, the Board concludes that the additional evidence received since the June 1988 denial is not new and material.  As such, the claim for service connection for a low back disability is not reopened.

As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim for service connection for a low back disability, the benefit-of-the-doubt doctrine is not applicable as to that claim.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).


ORDER

As new and material evidence has not been received, the claim of entitlement to service connection for a low back disability is not reopened and the appeal is denied.


REMAND

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 (2017).  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."  38 C.F.R. §§ 3.340(a)(1), 4.15 (2017).

A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more.  38 C.F.R. § 4.16(a).

The Veteran is service connected for schizophrenia, rated as 50 percent disabling prior to June 20, 2013, and has no other service-connected impairments.  Prior to June 20, 2013, the Veteran's combined schedular rating was 50 percent; thus, the Veteran does not meet the schedular requirements for a TDIU prior to June 20, 2013 as set forth in 38 C.F.R. § 4.16(a).  Additionally, the Board notes that the Veteran is currently in receipt of a 100 percent rating for schizophrenia effective from June 20, 2013.  The grant of a schedular 100 percent disability evaluation moots the issue of any entitlement to TDIU after the effective date of that rating.  Herlehy v. Principi, 15 Vet. App. 33, 35 (2001).  While VA has a duty to maximize a claimant's benefits, the Veteran is already in receipt of the maximum benefits available for the period after June 20, 2013.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).  Thus, in the current appeal, the claim for TDIU is moot from June 20, 2013.

Even when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, TDIU may be granted on an extraschedular basis in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability.  38 C.F.R. §§ 3.321(b), 4.16(b).  In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the AOJ first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration.  Here, the evidence reflects that the Veteran's schizophrenia symptoms may have prevented his ability to obtain or maintain substantially gainful employment prior to the assignment of the 100 percent rating.  The Board notes that the Veteran was given a 50 percent rating based on the findings of the August 2010 VA examination, in which the examiner found the Veteran did not have schizophrenia and was malingering.  However, prior and later findings throughout the pendency of the appeal confirm the Veteran's symptoms of schizophrenia, including persistent hallucinations and delusions, impaired judgment, memory and abstract thinking, and anxiety, that diminished the Veteran's ability to secure and follow a substantially gainful occupation prior to the grant of a 100 percent schedular rating.  In this case, the Board concludes that referral for extraschedular evaluation under 38 C.F.R. § 4.16(b) is warranted because the Board finds that the preponderance of the evidence shows that the Veteran's service-connected schizophrenia renders him unemployable.  Therefore, referral to the Director, Compensation Service, for extraschedular consideration prior to June 20, 2013 is warranted.

Accordingly, the case is REMANDED for the following action:

1. Refer the case to the Director, Compensation Service for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b) prior to June 20, 2013.

2. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claim of entitlement to a TDIU on an extraschedular basis.  If the benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  The case should then be returned to the Board for further appellate consideration, if in order. 

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.S. §§ 5109B, 7112 (LexisNexis 2017).



______________________________________________
S.C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s