Citation Nr: 0811626 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 01-03 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a rating in excess of 20 percent for hypertension. 2. Entitlement to a rating in excess of 20 percent for urinary frequency, post-operative ureterotomy. 3. Entitlement to an effective date prior to July 12, 1998 for the grant of a total rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD M. Sorisio, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from January 1943 to December 1945. These matters are before the Board of Veterans' Appeals (Board) on appeal from December 1999 (hypertension), October 2002 (urinary frequency), and November 2004 (TDIU) rating decisions of the Los Angeles, California Department of Veterans Affairs (VA) Regional Office (RO). The veteran’s claims file is now in the jurisdiction of the San Diego RO. The Board notes that the veteran initially appealed the December 1999 rating decision's denial of service connection for vision problems and edema of the legs. A December 2005 rating decision granted service connection for chronic venous insufficiency (claimed as edema of the legs), right and left leg (assigning separate ratings for each leg), as secondary to hypertension, while a December 2007 rating decision granted service connection for hypertensive retinopathy. Additionally, the veteran completed an appeal of an October 2002 rating decision that, in pertinent part, granted service connection for coronary artery disease (CAD), rated 30 percent, effective from July 12, 1998. A December 2005 rating decision granted a 100 percent rating for CAD, effective October 7, 2005. In connection with each of these decisions, the RO informed the veteran that the decisions constituted full grants of the benefits sought on appeal and that his appeals on these issues had been withdrawn. The veteran has not indicated that he has further disagreement with the above decisions; hence, these issues are not before the Board. [The Board notes that he submitted correspondence in February 2008 indicating he wanted to respond to the December 2007 rating decision and supplemental statement of the case (SSOC) (on the issue of the rating for hypertension), but he did not know when he would be able to reply because of his ailing health. He did not provide a time limit for when he planned to respond and the Board cannot wait indefinitely for a response.] The veteran also appealed the December 1999 rating decision's denial of a rating in excess of 40 percent for gunshot wound (GSW), Muscle Group XVII, with palsy, 4th and 5th sacral nerves, right and of service connection for low back pain. The GSW was originally rated under 38 C.F.R. § 4.124a, Diagnostic Code (Code) 8520 for neurological impairment. A subsequent October 2002 rating decision recharacterized the veteran's rating under 38 C.F.R. § 4.73, Code 5317, for muscle injuries. A May 2003 rating decision granted service connection for arthritic changes with degenerative disc disease, lumbar spine, L4-S1 and neurological deficit, right leg, rated 60 percent under 38 C.F.R. § 4.71a, Code 5293 (effective prior to Sept. 25, 2003) for intervertebral disc syndrome and under Code 8520 for sciatic nerve impairment. As a result of the May 2003 rating decision, it appears that the veteran's claims for an increased rating for service- connected GSW and of service connection for low back pain have been resolved. Since these diagnoses arise out of the same disability, his symptoms could not be rated twice; hence, in order to avoid a violation of restrictions against pyramiding in 38 C.F.R. § 4.14, the RO resolved the matter by providing separate ratings for muscle impairment, degenerative/arthritic changes, and neurological deficits. However, the Board notes that in a September 2004 statement, the veteran indicated that the RO had not addressed the "sciatic nerve issue." In response, the RO sent out a letter notifying the veteran of the Veterans Claims Assistance Act (VCAA) and included, in pertinent part, claims for an increased evaluation for GSW and service connection for low back pain. The Board invites the veteran's attention to the rating he has assigned for scitic nerve impairment under diagnostic code 8520 and, in view of his statement and the RO's less than clear VCAA letter refers such matters to the RO for clarification of the veteran's wishes and any appropriate action in response. The Board also refers for clarification and any appropriate action a letter from the veteran received by the RO on June 1, 2004 that indicates he disagrees with the rating decision dated May 20, 2004. Notably, there was no rating decision issued on that date. The matters of the rating for urinary frequency and the effective date of the grant of TDIU are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. FINDING OF FACT The veteran failed to report for a VA examination scheduled in conjunction with his claim for an increased rating for hypertension; good cause for his failure to appear is neither shown nor alleged. CONCLUSION OF LAW The veteran's claim seeking a rating in excess of 20 percent for hypertension must be denied because he failed (without good cause) to report for a VA examination scheduled to determine his entitlement to an increased rating. 38 C.F.R. §§ 3.326(a), 3.327(a), 3.655 (2007); Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim and the Board finds that the mandates of the VCAA and implementing regulations are satisfied. VA has a duty to assist the veteran in the development of facts pertinent to his claim. See 38 U.S.C.A. § 5107(a); 38 C.F.R. §§ 3.103, 3.159. VA's duty to assist includes obtaining medical records and medical examinations where indicated by the facts and circumstances of the case. Littke v. Derwinski, 1 Vet. App. 90 (1990). Individuals for whom reexaminations have been authorized and scheduled are required to report for such examinations. 38 C.F.R. §§ 3.326(a), 3.327(a). VA regulations also address the consequences of a failure to report for a scheduled VA medical examination and provide that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination in a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655. To assist the veteran with the development of evidence to support his claim seeking an increased rating for hypertension, the RO arranged for him to be scheduled for a QTC-VA examination in April 2007. In a subsequent April 2007 letter, the veteran requested that his examination be postponed until he had received a copy of his entire claims file, pursuant to an earlier Freedom of Information Act request for these records. An April 30, 2007 notation indicates a RO employee spoke to the veteran and that he said he had received a copy of the claims file. A VA examination at the Long Beach VA Medical Center was scheduled for May 2007. A computer record indicates that the veteran cancelled this appointment and that another examination was scheduled in June 2007. The veteran failed, without giving cause, to report for this VA examination. A copy of an August 2007 email between RO employees notes that the veteran has not tried to reschedule the appointment. There is nothing in the record to suggest that the veteran did not receive notice of the examination; subsequent correspondence reflects his awareness the examination had been scheduled. Specifically, in an October 5, 2007 letter, the RO informed him the VA medical center had said he did not appear for his examination and that he had indicated he was withdrawing his claim. This letter asked him if he was withdrawing his claim, told him the importance of the examination, and asked him to provide just cause for not appearing for the examination if he wanted to have it rescheduled. In a letter received by VA on October 9, 2007, the veteran stated that he did not want to withdraw his claim and that he was preparing a comprehensive response to the RO's letter. Subsequent correspondence from the veteran has not explained why he failed to report for the examination to evaluate hypertension. The Board notes that a letter from the veteran dated October 16, 2007 states he had been told by a QTC representative on October 11, 2007 that he had been scheduled for an eye examination. He stated he wanted this exam to be cancelled because he believed it was grossly inadequate for vision compensation rating purposes. However, this letter did not provide any reason why he did not appear for the previously scheduled hypertension examination. Hence, he has not alleged that there is good cause for the failure to report for the scheduled hypertension examination. Under 38 C.F.R. § 3.655 in such circumstances the claim must be denied. The law is dispositive. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER A rating in excess of 20 percent for hypertension is denied. REMAND Under 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case (SOC) is furnished to the appellant. In essence, the following sequence is required: There must be a decision by the RO, the claimant must express timely disagreement with the decision (by filing the NOD within one year of the date of mailing of notice of the RO decision), VA must respond by explaining the basis of the decision to the claimant (in the form of a SOC), and finally, the appellant, after receiving adequate notice of the basis for the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. Here, an October 2002 rating decision granted service connection for urinary frequency, post-operative ureterotomy, rated 20 percent, effective from July 12, 1999. In a timely received October 2003 statement, the veteran indicated that he disagreed with this decision. A subsequent September 2004 statement continued to indicate that he did not agree with the rating assigned to his genitourinary condition. Hence, the October 2003 statement can be reasonably construed as a NOD on the rating assigned for the service-connected genitourinary condition. A November 2004 rating decision granted TDIU, effective from July 12, 1998. The veteran was notified of this decision by letter dated December 16, 2004. In a statement received at the RO on December 19, 2005 and postmarked on December 15, 2005, the veteran stated that he disagreed with the effective date assigned for the grant of TDIU. 38 C.F.R. § 20.305 states that a response postmarked prior to the expiration of the applicable time limit will be accepted as having been timely filed. As the veteran's NOD was postmarked on December 15, 2005, within one year from the date the November 2004 rating decision was mailed to him, his NOD was timely filed. SOCs have not been issued in these matters. Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), when this occurs the Board must remand the case and instruct the RO that the issues remain pending in appellate status (see 38 C.F.R. § 3.160(c)) and require further action. See 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26. In this regard, it is noteworthy that these claims are not before the Board at this time, and will only be before the Board if the appellant files timely substantive appeals after the SOC is issued. Accordingly, the case is REMANDED for the following: The RO should issue an appropriate SOC in the matters of the effective date for the grant of TDIU and entitlement to a rating in excess of 20 percent for urinary frequency. The appellant must be advised of the time limit for filing a substantive appeal, and that, in order for the Board to have jurisdiction in these matters, he must submit a timely substantive appeal. If he timely perfects an appeal of any issue[s], the matter[s] should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs