ANKLE IMPAIRMENT OF

JARRETTE A. MARLEY · 2024 · Case ID: 24006234

DENIED

Summary

The veteran, who served in the U.S. Army from September 2003 to January 2004 and August 2004 to August 2005, including service in Afghanistan, appeals the denial of increased ratings for his service-connected left ankle disability and entitlement to Total Disability based on Individual Unemployability (TDIU). The Board previously remanded these claims for additional development, including a new VA examination and updated forms. The veteran failed to appear for scheduled VA examinations in December 2022 and October 2023, and did not provide any explanation or good cause for his absences. The Board found that the veteran's failure to report for these examinations, without good cause, necessitates denial of the increased rating claims for his left ankle, citing regulations requiring cooperation and the presumption of regularity for VA notices. For the TDIU claim, the veteran was repeatedly requested to submit updated VA Forms 21-4192 and 21-8940 to assess his employability. Despite multiple opportunities and clear notification that failure to cooperate would result in abandonment of the claim under 38 C.F.R. § 3.158(a), the veteran did not submit the required information. Consequently, the Board concluded that the TDIU claim must be considered abandoned and the appeal denied. Service connection for the left ankle disabilities and TDIU are denied due to the veteran's failure to cooperate with necessary development.

Rationale

Veteran failed to report for scheduled VA examination; No good cause shown for failure to report; Claim denied per 38 C.F.R. § 3.655(b)

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

12-24 313

Full Decision Text

Citation Nr: 24006234
Decision Date: 02/05/24 Archive Date: 02/05/24

DOCKET NO. 12-24 313
DATE: February 5, 2024

ORDER

Entitlement to a rating in excess of 10 percent for left ankle sprain based on limitation of motion prior to June 24, 2015, is denied.

Entitlement to a rating in excess of 20 percent for left ankle sprain since June 24, 2015, is denied.

Entitlement to a rating in excess of 10 percent for left ankle instability prior to June 24, 2015, is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.

FINDINGS OF FACT

1. The Veteran, without good cause, failed to appear for VA examinations necessary to decide his claims for an increased rating for his left ankle disability.

2. By September 2022 and May 2023 letters, the Veteran was asked to provide information necessary to adjudicate his claim of entitlement to TDIU, to include submitted a completed VA Form 21-4192 and VA Form 21-8940; more than a year has lapsed since the initial request, and he has not submitted the requested evidence and information.

CONCLUSIONS OF LAW

1. The claim for a rating in excess of 10 percent for left ankle sprain based on limitation of motion must be denied. 38 U.S.C. § 1155; 38 C.F.R. § 3.655(b).

2. The claim for a rating in excess of 20 percent for left ankle sprain since June 24, 2015, must be denied. 38 U.S.C. § 1155; 38 C.F.R. § 3.655(b).

3. The claim for a rating in excess of 10 percent for left ankle instability prior to June 24, 2015, must be denied. 38 U.S.C. § 1155; 38 C.F.R. § 3.655(b).

4. By failing to submit the requested information and/or forms for critical evidence needed to properly adjudicate his claim of TDIU, the Veteran has abandoned such claim, and his appeal in this matter must also be considered abandoned. 38 U.S.C. §§ 5107, 7105(d)(5); 38 C.F.R. § 3.158(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 2003 to January 2004 and from August 2004 to August 2005, including service in Afghanistan.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before a Veterans Law Judge (VLJ) in October 2013. In June 2019, he was advised that the VLJ who took his testimony was no longer employed by the Board and given 30 days to request a new hearing. In July 2019 correspondence, the Veteran requested another hearing before a VLJ. He was scheduled for a hearing in July 2022 but failed to appear. Therefore, the Board deemed his request for a hearing to be withdrawn. 38 C.F.R. § 20.704(d).

These matters were previously before the Board in November 2014, September 2022, and May 2023, when they were remanded for additional development.

Increased Rating

1. Entitlement to a rating in excess of 10 percent for left ankle sprain based on limitation of motion prior to June 24, 2015.

2. Entitlement to a rating in excess of 20 percent for left ankle sprain since June 24, 2015.

3. Entitlement to a rating in excess of 10 percent for left ankle instability prior to June 24, 2015.

The Veteran seeks increased ratings for his service-connected left ankle sprain limitation of motion and left ankle instability disabilities.

In its September 2022 decision, the Board determined that a contemporaneous examination was necessary in order to assess the current nature, extent, and severity of the Veteran's left ankle disability as the most recent VA examinations of record were provided more than seven years ago. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Further, the Board found that the record lacked sufficient medical or lay evidence to evaluate the Veteran's disability under the amended criteria for rating musculoskeletal disabilities effective February 7, 2021. The RO was directed to schedule the Veteran for a VA examination while on remand. The Board also directed the RO to obtain any outstanding VA treatment records, particularly those beginning in June 2018 to the present, as well as request that the Veteran submit an updated VA Form 21-8940 to reflect his employment since January 2015.

In December 2022, the RO was informed by the VA contract examiner that the Veteran's examinations were cancelled due to the Veteran being "unavailable." However, the record does not indicate how the Veteran's unavailability was determined nor whether the Veteran was actually contacted prior to the examinations being cancelled. In December 2022 correspondence, VA requested that the Veteran respond and express whether he intended to attend an examination. The Veteran did not respond to the December 2022 correspondence, nor did he submit an updated VA Form 21-8940 as requested by the RO.

In May 2023, the Board reminded the Veteran that although VA has a duty to assist him in substantiating his claims, that duty is not a one-way street, and it is important that he make efforts to assist VA in gathering evidence relevant to his claims. See Wood v. Derwinski,1 Vet. App. 190 (1991.) Further, the Board instructed the RO to advise the Veteran that failure to cooperate will result in the denial of the claim. See 38 C.F.R. § 3.158(a); see also Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). The Board again remanded the claims to afford the Veteran another opportunity to attend a VA examination and submit an updated VA Form 21-8940.

A VA examination was scheduled for the Veteran's service-connected left ankle disabilities for October 28, 2023. The Veteran subsequently failed to report to his scheduled examination, and neither he nor his representative have provided an explanation for his failure to attend. The evidence reflects that an appointment notification was delivered to the Veteran via courier on October 20, 2023, regarding the scheduled VA examination.

Under VA regulations, it is incumbent upon the Veteran to submit to a VA examination regarding VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). When necessary or requested, the Veteran must cooperate with the VA in obtaining evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not a one-way street). When a claimant, without showing good cause, fails to report for an examination scheduled in conjunction with a claim for an increased rating, the claim shall be denied. See 38 C.F.R. § 3.655(b) (emphasis added). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a).

There is a presumption of regularity with regard to processes and procedures throughout the VA administration process. Mindenhall v. Brown, 7 Vet. App. 271 (1994). Here, although the file does not contain the actual letter informing the Veteran of the time and date of the examination, the address of record at this time appears to be correct, and there is no indication that the Veteran's address had changed or that any mail was returned to the VA for failure to deliver. Without an indication that the notice letter, which was sent to the Veteran's correct address, was returned to VA as undeliverable, there is insufficient evidence to rebut the presumption. See, e.g., Davis v. Principi, 17 Vet. App. 29, 37 (2003); Clark v. Principi, 15 Vet. App. 61, 63 (2001).

4). Here, although the file does not contain the actual letter informing the Veteran of the time and date of the examination, the address of record at this time appears to be correct, and there is no indication that the Veteran's address had changed or that any mail was returned to the VA for failure to deliver. Without an indication that the notice letter, which was sent to the Veteran's correct address, was returned to VA as undeliverable, there is insufficient evidence to rebut the presumption. See, e.g., Davis v. Principi, 17 Vet. App. 29, 37 (2003); Clark v. Principi, 15 Vet. App. 61, 63 (2001).

Thus, the presumption of regularity would apply in this situation. Additionally, the Veteran did not assert that he did not receive the notifications in question, and the November 2023 supplemental statement of the case informed him of his failure to report. Baxter v. Principi, 17 Vet. App. 407 (2004). Moreover, as noted above, in the January 2024 Informal Hearing Presentation, his representative also does not offer an explanation for the Veteran's failure to report for the VA examination.

In summary, the record indicates that the Veteran failed to report for scheduled VA examinations in December 2022 and October 2023, and to date, he has not provided any explanation or other indication of good cause for his failure to report for the examinations. The Veteran's representative also has not offered an explanation of good cause for Veteran's failure to report to the examinations.

Absent a showing of good cause, the Veteran's appeal seeking increased ratings for his service-connected left ankle disabilities must be denied. The Board finds entitlement to this benefit cannot be established without a current VA examination or re-examination, and the Veteran, without good cause, failed to report for such examinations or re-examinations. The claim therefore must be denied. See 38 C.F.R. § 3.655(b); see also Kyhn v. Shinseki, 24 Vet. App. 228, 238 (2011); Engelke v. Gober, 10 Vet. App. 396, 399 (1997).

4. Entitlement to TDIU.

When evidence requested in connection with an original claim or a claim for increase is not furnished within a year of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a).

In September 2022, the Board notes that the Veteran submitted a VA Form 21-8940 in January 2015. The Board found that the Veteran should be asked to submit another VA Form 21-8940 to reflect any changes to his employability since that date. Because the Veteran's TDIU claim was inextricably intertwined with the claims remaining on appeal, appellate consideration of entitlement to a TDIU rating was deferred pending resolution of the remaining claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1993); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim).

In a September 2022 letter, the RO informed the Veteran that he may be entitled to compensation at the 100 percent rate if he was unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. The letter further directed the Veteran that "[i]f you believe you qualify, complete, sign, and return the enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability."

In May 2023, the Board remanded the matter of entitlement to TDIU to request the Veteran submit an updated VA Form 21-8940 to reflect his employment since January 2015. The Board noted that the Veteran did not respond to the September 2022 correspondence and did not submit an updated VA Form 21-8940. The Veteran was notified that under 38 C.F.R. § 3.158(a) his claim for TDIU will be considered abandoned if he fails to cooperate by providing the updated VA Form 21-8940.

In a May 2023 letter, the RO again requested that the Veteran complete and return the enclosed VA Form 21-8940 and VA Form 21-4192 to provide employment information for any employment he has had during the appeal period.

In offering the Veteran additional opportunities to complete and submit a VA Form 21-8940, the Board emphasizes that the Court has repeatedly held that
did not respond to the September 2022 correspondence and did not submit an updated VA Form 21-8940. The Veteran was notified that under 38 C.F.R. § 3.158(a) his claim for TDIU will be considered abandoned if he fails to cooperate by providing the updated VA Form 21-8940.

In offering the Veteran additional opportunities to complete and submit a VA Form 21-8940, the Board emphasizes that the Court has repeatedly held that it is well established in their caselaw that determining whether entitlement to TDIU is warranted requires an individualized assessment of each veteran and their service-connected disabilities to determine whether he or she is unable to secure or follow a substantially gainful occupation as a result of those service-connected disabilities. See Withers v. Wilkie, 30 Vet. App. 139, 146 (2018); Todd v. McDonald, 27 Vet. App. 79, 85 (2014).

The critical facts at this stage are clear. The Veteran has not provided the information or VA forms necessary for VA to adjudicate his claim of entitlement to TDIU. Although the record contains some information regarding his employment history, the Veteran has not provided all of the information necessary to adjudicate his claim for TDIU. The Board also notes that a May 2015 VA PTSD examination concluded that while the Veteran's psychiatric symptoms would impair interaction with co-workers and supervisors, the Veteran could work in a loosely supervised environment where he is given specific tasks to perform and then "left alone." The Board is presented with a less-than-complete-evidentiary picture, made so by the Veteran's failure to cooperate. See Martinez v. Wilkie, 31 Vet. App. 170, 178 (2019) (quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("[t]he duty to assist is not always a one-way street."); see also Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc). In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one-year of the request, the RO is required, by VA regulations, to consider the claim abandoned). The Board is satisfied that there has been substantial compliance with its remand directives as the May 2023 notice letter informed the Veteran of the provisions of 38 C.F.R. § 3.158(a).

Hence, the Board has no recourse but to conclude that because of his failure to cooperate the Veteran has abandoned his claim. As such, the Board finds that the appeal must be denied.

Jarrette A. Marley

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Ahmed, Zarar

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.

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