Citation Nr: 25000636 Decision Date: 01/16/25 Archive Date: 01/16/25 DOCKET NO. 16-47 962 DATE: January 16, 2025 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), previously rated as anxiety disorder, not otherwise specified is denied. FINDINGS OF FACT 1. By a June 2024 submission, the Veteran clarified that he was seeking TDIU effective from January 21, 2015. 2. The Veteran has been granted TDIU effective from January 21, 2015. 3. Despite adequate notice, the Veteran failed to report for an official examination for his claimed PTSD, and he has not offered good cause for failing to appear for an examination. CONCLUSIONS OF LAW 1. Because no case in controversy remains for Board review, the criteria for dismissal of the claim for TDIU have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.104(a). 2. The claim for an increased rating for PTSD is denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.655(a), (b), Part 4. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1968. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran testified before the undersigned Veterans Law Judge at a Board of Veterans' Appeals (Board) hearing conducted in October 2021. A transcript of the hearing is of record. The Board remanded the appealed claims in February 2022, September 2022, May 2023, and April 2024, and they now return to the Board for further review. 1. Entitlement to TDIU By a Supplemental Claim, VA Form 21-5266, filed on January 21, 2015, the Veteran claimed entitlement to an increased rating for PTSD and also then claimed entitlement to TDIU. In a June 2024 submission the Veteran clarified that he was seeking an increased rating for PTSD and TDIU back to "the claim filed in 1/2015." The supplemental claim the Veteran filed on January 21, 2015 was the only claim the Veteran filed in January 2015. Thus, the Veteran sought TDIU from January 21, 2015. By a March 2023 decision, the Decision Review Operations Center in Washington DC (DROC DC) granted TDIU effective November 2, 2022. By a November 2024 decision, the DROC DC granted an earlier effective date for TDIU of January 21, 2015. Because TDIU as granted to the Veteran is the full extent of the benefit sought as the Veteran as clarified in his June 2024 submission, there remains no case in controversy for appellate consideration as to the claim for TDIU, and it is properly dismissed. Because there are not disputed facts relevant to the dismissal of the claim, the claim is dismissed as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). To the extent TDIU might be claimed based solely on PTSD, it is part of the PTSD increased rating claim the subject of appeal, and that increased rating claim is herein denied, below. Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the agency of original jurisdiction (AOJ) for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). 2. Entitlement to an increased rating for PTSD As discussed below, a VA examiner in November 2023, including in a January 2024 addendum, failed to address statements the Veteran made at his October 2021 hearing which suggested conflicts in work settings unrelated to his PTSD or anxiety disorder, and failed to address prior examination reports including a March 2018 private psychological assessment as specifically instructed by the Board's May 2023 remand. The examiner also failed to distinguish functional difficulties including work difficulties due to service-connected psychiatric disability from that due to other causes including behavioral or personality issues that appear unrelated to service-connected PTSD and anxiety disorder. Statements by former co-workers added to the record in March 2016 reflect that the Veteran always did things his own way, flagrantly disobeyed workplace rules and instructions of supervisors, and was racist and confrontational at work and potentially violent. One of these co-workers then stated, [The Veteran] has serious issues; anger and hate issues, very racist and rude. He did not adhere to our company policies and was always getting written up. Would not adhere to the dress policy of his uniform. [...] He made it impossible for his supervisors to deal with him anymore. Eventually he was fired!! [...] He was rude and nasty to the hotel Limo drivers. He hated them and told them so. They would come into the lobby and kneel in a corner to pray. He always freaked out and caused a scene and more problems. His coworkers hated working w/ him because he made up his own rules and followed them. He constantly complained and said horrible rude things to so many people. [...] [The Veteran] has serious violent tendencies and people were afraid of him. It is apparent from this co-worker's statements that the Veteran would be unwelcome in virtually any workplace setting due to unacceptable attitudes and behaviors which appear to have no relationship to PTSD or anxiety disorder. Failure to recognize these issues and distinguish them from symptoms of service-connected PTSD or anxiety disorder which may impact work functioning rendered the most recent examination and addendum inadequate because they were based on inaccurate facts. The prior examiner in July 2016 noted, "[The Veteran] continues to endorse symptoms of anxiety meeting criteria for Unspecified Anxiety Disorder. Symptoms of anxiety do not cause defiant or confrontational behavior and typically result in avoidant behavior." Thus, the July 2016 examiner identified work dysfunction at odds with anxiety-related work impairment, and that examiner implicitly questioned the Veteran's endorsement of anxiety-type symptoms which appeared contradicted by his witnessed work behaviors involving confrontation and defiance, with these confrontations and defiance and associated behaviors reportedly (according to his co-worker) leading to his being fired. The November 2022 and November 2023 VA examiners entirely failed to note these issues and failed to grasp why the July 2016 examiner found the Veteran not significantly impaired by his service-connected anxiety disorder. The November 2023 VA examiner attributed employment incapacity to "interpersonal difficulties, avoidance of co-workers, terminated due to personality factors, concentration difficulties." In a January 2024 addendum to address impact on work functioning of service-connected psychiatric disability, the November 2023 examiner stated, "He recently attacked someone at a bar who startled him. [The Veteran] is very anxious outside his home and does not relate well to other people. He would likely struggle significantly with relationships with coworkers and supervisors. He has been unable to get a job at Target due to inappropriate behaviors during interviews. He reports crying spells and occasionally panic attacks that would likely increase in the stress of a work setting." This addendum entirely failed to recognize or distinguish behaviors, documented by co-worker statements, apparently unrelated to anxiety disorder which caused the Veteran to be feared, disliked, and ultimately fired at his prior workplace. The Veteran's rule defiance in the workplace as observed over a prolonged period called into question the validity of the Veteran's statements in furtherance of his claims, including statements about panic, anxiety outside the home, or crying spells, statements which the most recent VA examiner accepted in furtherance of her assessment of the nature and severity of the Veteran's service-connected psychiatric disability. It was also notable that at the November 2023 examination the Veteran reported that panic attacks occurred rarely, yet the VA examiner in her addendum characterized these as "occasional" and hence over-emphasized their frequency in support of her assessment. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In its April 2024 remand, the Board, accordingly, concluded that there were significant questions regarding the validity of the Veteran's self-reports of symptoms of anxiety disorder and impacts on functioning which were alluded to by the July 2016 VA examiner but which the subsequent examiners in November 2022 and November 2023 entirely failed to consider, failing also to attempt to distinguish impaired functioning due to attitudes and behaviors reported by co-workers and to some degree testified to by the Veteran himself at his October 2021 hearing. Failure to consider these behaviors and attitudes and associated personality issues, which the July 2016 VA examiner suggested were contrary to reported anxiety-related impairments, significantly called into question the validity and adequacy of the November 2022 and November 2023 examiners' evaluations of the Veteran's service-connected PTSD and anxiety disorder. Hence, the Board in its April 2024 remand required psychological testing with validity testing to better ascertain the nature of the Veteran's psychiatric disability and whether reported symptoms were likely to be valid. The November 2023 VA examiner's failure to address adequately the Veteran's testimony, the March 2018 private psychological assessment, and past examination findings, and the Veteran's current work-like activities caring for his ailing spouse and multiple grandchildren in his home, also rendered the November 2023 examination and January 2024 addendum inadequate, as based on inadequate facts. A medical opinion is inadequate if it relies on an inaccurate factual basis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The examiner also failed to substantially fulfill the Board's remand instructions, which included considering these issues and distinguishing personality impacts on work functioning from impacts of the Veteran's anxiety disorder, which the November 2023 examiner did not attempt to do. For these reasons, the Board in April 2024 remanded for an examination by a different examiner. In the April 2024 remand, the Board identified another potential problem, as reflected by an above-noted former co-worker statement that "[the Veteran] has serious violent tendencies and people were afraid of him," namely that the Veteran may exhibit bullying or threatening behavior at examinations. The Veteran reported at his November 2023 examination that last year he had attacked someone at a drinking establishment, "He threw the kid over the bar." Hence, in its April 2024 remand, the Board requested an examination by someone who would not be readily intimidated by the Veteran. Following the Board's April 2024 remand, the Veteran was scheduled for a new examination in October 2024 to address his claimed PTSD. He and his authorized representative were provided appropriate notice of the scheduled examination, and they were informed by a September 2024 letter of the consequences of failing to appear for the scheduled examination without good cause shown. The Veteran declined to attend another examination. An examination scheduling cancellation document informs that an examination scheduled in October 2024 was cancelled at the Veteran's request. In a November 2024 submitted statement, the Veteran's representative requested that the Veteran be excused from examination, explaining, "Veteran is highly upset at the process and doesn't understand why he had to attend yet another psych exam, so he cancelled." The Veteran was provided a copy of the Board's April 2024 remand, and hence was informed why a new examination was required prior to the Board's adjudication of his claim for increased rating for PTSD. Disagreement with the reasons provided by the Board in its April 2024 remand or with the need for a new examination is not good cause for failure to attend an examination. The Veteran's cancelling of the examination also verifies that the Veteran was provided notice of the pending examination. Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (a), (b). However, when the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Id. The Veteran and his representative were informed of the scheduled examination in October 2024, and the Veteran requested that the examination be cancelled. The Veteran failed to report for the examination and failed to provide good cause for failure to report for the examination. The examination was required to ascertain the nature and severity of the claimed disability. Accordingly, because the claim is one for increased rating, the claim must be denied based on the Veteran's failure to report for the examination without good cause shown for failure to report. 38 C.F.R. § 3.655. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.