Citation Nr: 18154182
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 12-12 080
DATE:	November 29, 2018
The claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is remanded.
The Veteran served on active duty from August 2004 to August 2006.
This matter come to the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  The May 2011 rating decision, in part, granted a 100 percent disability rating for the Veteran’s service-connected posttraumatic stress disorder (PTSD) effective March 8, 2010, the date of the grant of service connection, and found that a claim for a TDIU was moot due to the Veteran’s 100 percent rating for PTSD.  Significantly, the Veteran perfected an appeal concerning the effective date assigned for his 100 percent rating but did not perfect an appeal regarding the TDIU claim.  
In February 2015, the Board denied an effective date earlier than March 8, 2010 for the assignment of a 100 percent disability rating for the Veteran’s PTSD.  The Board also took jurisdiction of the TDIU issue pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) noting that, during the pendency of the appeal for a higher initial rating for PTSD, the matter of unemployability due to service-connected disabilities had been raised by the record.  
Based on the Court’s decision in Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC ) under 38 U.S.C. § 1114 (s) by having an “additional” disability of 60 percent or more (“housebound” rate)), the Board found that a remand was necessary in order to adjudicate the Veteran’s claim for a TDIU based on his service-connected disabilities other than PTSD.  In this light, the Board noted that, in addition to being service connected for PTSD, the Veteran was also in receipt of a 40 percent rating for cervical myelopathy of the right upper extremity, a 20 percent rating for lumbago, a 20 percent rating for degenerative disc disease of the cervical spine, a 20 percent rating for cervical myelopathy of the left upper extremity, a 10 percent rating for left and right chronic ankle sprains, a 10 percent rating for tinnitus, and a 10 percent rating for right lower extremity sciatica.  As such, the Board remanded the TDIU issue so that the RO could obtain appropriate medical opinions (retroactive and/or contemporary) from an appropriate VA physician and/or vocational expert.
Unfortunately, the development requested in the Board’s February 2015 remand has not yet been completed.  In June 2015 correspondence, the RO notified the Veteran by mail that the Cheyenne VAMC (VA Medical Center) would notify him of the date, time, and place of examination with regard to his claim.  Significantly, the Veteran attended a VA psychiatric examination in July 2015 and a medical opinion regarding the effects of the Veteran’s PTSD on his ability to work was obtained at that time but the record is negative for a VA examination/opinion regarding the Veteran’s other service-connected disabilities as directed by the February 2015 Board remand.  A review of the record shows that the Veteran failed to report for a scheduled VA examination on August 6, 2015 and this failure to report was the basis for the continued denial of a TDIU in a July 2018 supplemental statement of the case (SSOC).  However, the Board questions whether the Veteran actually received notice of the August 6, 2015 VA examination as the Veteran did report to his July 2015 VA psychiatric examination.  Furthermore, the record does not contain a notification letter notifying the Veteran of the date and time of his VA examination or evidence that the Veteran was notified of the examination in another manner.  
Based on the foregoing, the Board finds that remand is necessary to allow the Veteran another opportunity to appear for examination so that VA may obtain a medical opinion regarding the claim for a TDIU.  By this remand, the Veteran is reminded that VA’s duty to assist in the development and adjudication of a claim is not a one-way street.  Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996).  If a Veteran wishes help, he cannot passively wait for it in circumstances where he may or should have information that is essential in obtaining the putative evidence.  Wood v. Derwinski, 1 Vet. App. 190, 193, recon. denied, 1 Vet. App. 406 (1991) (per curiam).  If he is to have a reasonable opportunity to prevail on his claim, he must report to any scheduled examination or testing.  Otherwise, his claim may be denied.  38 C.F.R. § 3.655.
The matter is REMANDED for the following action:
1. Obtain any outstanding VA treatment records from March 2018 to the present. All attempts to obtain these records should be documented.
2. Thereafter, schedule for the Veteran for a VA general examination and request that the examiner provide an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities other than PTSD, i.e., cervical myelopathy of the right upper extremity, lumbago, a degenerative disc disease of the cervical spine, cervical myelopathy of the left upper extremity, left and right chronic ankle sprains, tinnitus, and right lower extremity sciatica, jointly, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities.
All opinions expressed should be accompanied by supporting rationale.
3. Notify the Veteran that he must report for any scheduled examinations and cooperate in the development of the claim.  Failure to report for a VA examination without good cause may result in denial of the claim.  38 C.F.R. §§ 3.158, 3.655.  If the Veteran fails to report for his scheduled examination, please document the failure to show in the claims file.
4. If, and only if, the Veteran fails to report for his scheduled examination, the claims file should be presented to an appropriate VA examiner for a medical opinion on the Veteran’s ability to secure or follow substantially gainful employment due to his service-connected disabilities, other than PTSD. 
(Continued on the next page)
5. After the above development is completed, readjudicate the claim on appeal.  If the benefit sought is not granted in full, provide the Veteran with an SSOC.  Allow an appropriate opportunity to respond thereto before returning the matter to this Board, if in order.
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. Bristow Williams, Associate Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit:

For More Information on Veterans Disability Compensation Benefits! Visit: ~ A Non-Profit Non Governmental Agency


Leave a Reply

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

You are commenting using your 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

This site uses Akismet to reduce spam. Learn how your comment data is processed.