Citation Nr: 0811953 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 01-03 712 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to a higher rating for special monthly compensation (SMC) at the "o-rate," based on the loss of use of both hands under the provisions of 38 U.S.C.A. §1114(m). ATTORNEY FOR THE BOARD S. B. Mays, Associate Counsel INTRODUCTION The veteran served on active duty from February 1971 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1999 decision of the No. Little Rock, Arkansas Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to a higher rating for SMC based on the loss of use of both hands. In February 2003, the Board denied the veteran's claim and the veteran subsequently appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In April 2006, the Court issued a Judgment, vacating the Board's February 2003 decision, and remanding the claim to the Board for readjudication consistent with the Court's March 2006 memorandum decision. In October 2006, the Board remanded the case to afford the veteran a VA examination. The case has since returned to the Board. FINDINGS OF FACT 1. Good cause has not been shown for the veteran's failure to report for a VA examination scheduled in March 2007. 2. There is insufficient evidence upon which to render an informed decision as to the issues of entitlement to SMC. CONCLUSION OF LAW The veteran's claim to a higher rating for SMC at the "o- rate," based on the loss of use of both hands under the provisions of 38 U.S.C.A. § 1114(m), is denied as a matter of law, as he failed to report without good cause to a VA examination. 38 C.F.R. § 3.655 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the present case, the unfavorable AOJ decision that is the basis of this appeal were already decided and appealed prior to the enactment of the current section 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the appellant has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of November 2002 and November 2006 letters that fully addressed all four notice elements. These letters informed the veteran of what evidence was required to substantiate his claim and of the appellant's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the AOJ. The veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all available evidence is of record. The record contains service medical records, VA and private medical evidence, and the appellant's contentions. At the outset, the Board notes that despite the fact that VA afforded the veteran a VA examination in March 2007 in conjunction with this claim, he refuses to report for another VA examination. The burden lies on the veteran to cooperate with VA. While VA has a statutory duty to assist the veteran in developing evidence pertinent to a claim, the veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). All necessary development by VA has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Legal Criteria and Analysis The veteran is service-connected for multiple sclerosis (MS), which is currently rated as 100 percent disabling. He also receives SMC for the loss of use of both lower extremities, pursuant to 38 U.S.C.A. § 1114(l). The veteran is seeking a higher rating for SMC, based on the loss of use of both hands. See 38 U.S.C.A. §1114(m) (West 2002). Where there is an original compensation claim or a claim for increase submitted by a veteran, but medical evidence accompanying the claim is not adequate for rating purposes, a VA examination will be authorized, and individuals for whom an examination has been scheduled are required to report for the examination. 38 C.F.R. § 3.326(a) (2007). Provided that it is otherwise adequate for rating purposes, any hospital report or any examination report from any government or private institution may be accepted for rating a claim without further examination. 38 C.F.R. § 3.326(b). Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination. 38 C.F.R. § 3.326(c). 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, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA. 38 C.F.R. § 3.655(a). 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. 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. 38 C.F.R. § 3.655(b). Here, in October 2006, the Board remanded the case to afford the veteran a contemporaneous examination, as required by the Court. A VA examination was scheduled in March 2007, but the veteran failed to report. Review of the record shows that the letter notifying the veteran of his examination scheduled in March 2007 was not returned undeliverable. In apparent response to the notification letter, the veteran essentially indicated that he refuses to report for a VA examination (see March 2007 letter). A supplemental statement of the case (SSOC) denying the claim based on his failure to report to the scheduled examination was issued to the veteran in September 2007, and that SSOC has not since been returned as undeliverable. It is clear that the veteran was well aware of the necessity of reporting for a VA examination, as the Board's October 2006 remand and the RO's November 2006 letter advised him that failure to report for an examination could result in the denial of his claim. Despite VA's notice, the veteran did not report. As the veteran has failed to report for a required VA examination, and has not shown good cause for such failure to report, the Board concludes that the veteran's claim of entitlement to a higher rating for SMC must be denied in accordance with 38 C.F.R. § 3.655(a) and (b). In reaching this conclusion, the Board considered whether the benefit sought on appeal can be awarded without VA examination. However, having reviewed the complete record, and for the reasons and bases set forth below, the Board further finds that, in the absence of such an examination, entitlement to the benefit sought on appeal cannot otherwise be established or confirmed. 38 C.F.R. § 3.655(a); see also Turk v. Peake, No. 06-69 (U.S. Vet. App. Jan. 31, 2008). In this regard, the Board notes that disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2007). As noted, the veteran is seeking a higher rating for SMC, based on the loss of use of both hands. See 38 U.S.C.A. § 1114(m) (West 2002 & Supp. 2007). Loss of use of a hand exists "when no effective function remains other than that which would be equally well served by an amputation stump ... with use of a suitable prosthetic appliance. [A] determination will be made on the basis of the actual remaining function of the hand [and] whether the acts of grasping, manipulation, etc .... could be accomplished equally well by an amputation stump with prosthesis." 38 C.F.R. §§ 3.350(a)(2), 4.63 (2007). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2007); see DeLuca v. Brown, 8 Vet. App. 202 (1995). According to a March 1999 VA examination report, the veteran removed his pants and shoes in AFO braces under his own with no difficulty. Motor examination of the upper extremities did not reveal any atrophy or significant spasticity. Strength of all major muscle groups in the right extremity appeared to be within normal limits. There was no dysmetria of the right upper extremity. Testing of the left upper extremity revealed weakness with proximal left upper extremity strength being approximately 60 percent normal and distal left upper extremity strength being approximately 70 percent normal. There was no dysmetria of the left upper extremity. The examiner indicated that there was no complete loss of use of the hands due to multiple sclerosis at that time. According to a January 2001 private evaluation report, the veteran presented with complaints of left shoulder pain and muscle atrophy. His hand strength was 5/5, and he reported fatigue with active range of motion and dexterity exercises. On October 2005 VA neurological examination, strength and muscle tone of all major muscle groups in the right upper extremity were within normal limits. In the left upper extremity, there was weakness of the muscles by C5 and C6 with residual strength being about 30 percent abnormal. The veteran also had weakness of the intrinsic hand muscles with residual strength being about 50 percent normal. Diagnosis was degenerative disc disease of the cervical spine and lumbar spine with residual left upper extremity weakness, and right upper extremity sensory loss, in pertinent part. According to an August 2006 private evaluation report, Dr. Bash indicated that he had reviewed particular medical records and concluded that the white matter lesions found on MRI of the brain are very consistent with MS, as opposed to ischemic changes. According to a November 2007 evaluation report provided by Dr. Bash, the veteran has atrophy of all muscle groups surrounding his left shoulder and marked atrophy of his right hand. He demonstrated 4/5 strength of his left biceps/triceps and left hand grip. In light of this record, the Board finds that the preponderance of the evidence of record is against granting a higher rating for SMC at the "o-rate," based on the loss of use of both hands. The objective evidence currently of record does not show that the veteran's service-connected disabilities have not resulted in the upper extremities having no remaining effective function other than that which would be equally well served by an amputation stump at the site of election below the elbow with use of a suitable prosthetic appliance. Thus, this claim cannot be established or confirmed without a current VA examination. Having found that the veteran has failed to report for a scheduled VA examination, which is necessary to establish entitlement to a higher SMC rating based on the facts of this case, and that he has failed to demonstrate good cause for his failure to report, the Board further finds that the veteran's claim must be denied in accordance with 38 C.F.R. § 3.655(a) and (b). ORDER The appeal is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs