Citation Nr: 0812217 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 96-37 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a psychiatric disorder, claimed as secondary to a service-connected headache disorder. (The issue of entitlement to a total rating based on individual unemployability due to service-connected disability is the subject of a separate decision of the Board of Veterans' Appeals (Board).) REPRESENTATION Appellant represented by: Roger W. Rutherford, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The appellant is a veteran who served on active duty from March 1966 to March 1968. This matter initially arose from a February 1996 rating decision by the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 1999, a Travel Board hearing was held before the undersigned. A transcript of that hearing is of record. In August 1999 the case was remanded to the RO. In July 2002, the Board issued a decision that denied service connection for a psychiatric disability. The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In April 2003, the Court issued an order that vacated the Board's July 2002 decision and remanded the matter on appeal for readjudication consistent with a joint motion by the parties. In July 2003 and April 2007, the Board remanded the matter on appeal for additional development. FINDING OF FACT The veteran failed to report for a November 2007 VA examination scheduled in conjunction with his claim for secondary service connection for a psychiatric disorder; good cause for his failure to appear is not shown. CONCLUSION OF LAW The veteran's claim seeking service connection for a psychiatric disorder, claimed as secondary to a service- connected headache disorder, must be denied because he failed (without good cause) to report for a VA examination scheduled to determine his entitlement to secondary service connection. 38 C.F.R. §§ 3.326(a), 3.655 (2007); Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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 matter being addressed. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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 VCAA notice 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 his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding timing of notice, in Pelegrini, at 120, the Court held that where notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing the notice prior to the initial AOJ adjudication; instead, the claimant has the right to timely content-complying notice and proper subsequent VA process. Regarding the issue decided herein, the initial adjudication in February 1996 preceded enactment of the VCAA. The veteran was provided content-complying notice by letters in May 2004 and July 2007. He was given ample time to respond. The claim was then readjudicated. See December 2007 Supplemental Statement of the Case (SSOC). The May 2004 and July 2007 letters explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the veteran was responsible for providing. The May 2004 and July 2007 letters specifically informed the veteran to submit any pertinent evidence in his possession. In the July 2007 letter, the veteran was given notice regarding ratings and effective dates of awards. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). He has had ample time to respond to these letters or supplement the record. VA also 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. Specifically, 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 CFR § 3.655 (italics added). The Board notes that the veteran's claim for secondary service connection is not an original compensation claim. An original claim is an initial formal application on a form prescribed by the Secretary. 38 C.F.R. § 3.160 (italics added). The veteran filed his original compensation claim in May 1972, and a rating decision pertaining to that claim was issued in October 1972. The current appeal arose out of an August 1995 claim to reopen a previously denied claim for service connection for a psychiatric disability on a secondary basis. This claim on appeal was not the veteran's original claim for compensation within the meaning of section 3.160. An original claim for compensation must clearly be distinguished from subsequent claims for service connection for different disabilities. Otherwise, 38 C.F.R. § 3.160 and the terms compensation versus service-connection have no meaning. To assist the veteran with the development of evidence to support his claim seeking a secondary service connection and to comply with the mandates of the Joint Motion and the Court, the RO arranged for the veteran to be scheduled for a VA examination in November 2007. However, the veteran failed to report for the examination. The veteran has failed to provide any reasons, let alone those that could be found of good cause, for his failure to report for the November 2007 VA examination. In a December 2007 SSOC, the RO advised the veteran and his attorney of the consequences of a failure to report, i.e., that the claim would be denied. The governing regulation in such circumstance, 38 C.F.R. § 3.655(b), is clear, unequivocal, and dispositive. It mandates that the claim shall be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for a psychiatric disorder, claimed as secondary to a service-connected headache disorder, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs