Citation Nr: 0813872 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 94-47 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The veteran served on active duty from November 1975 to June 1992. This appeal comes before the Board of Veterans' Appeals (Board) from a February 1994 rating decision of the San Diego, California Regional Office (RO) of the United States Department of Veterans Affairs (VA). The veteran relocated during the pendency of this appeal and his claims file was transferred to the Nashville, Tennessee RO. The Board remanded this case in March 2000, July 2003, and in September 2005, for further development. The case has now been returned to the Board. The veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing convened at the Nashville RO in January 2000. He was scheduled for an April 2003 another hearing before the Board in Washington, DC, for which he failed to report. He also failed to report for a personal meeting at the RO in November 2002. FINDINGS OF FACT 1. The veteran failed without good cause to report for VA examinations scheduled for the purpose of evaluating his claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. 2. VA has made all reasonable efforts to assist the veteran in the development of his claim and has sufficiently notified him of the information and evidence necessary to substantiate the claim. CONCLUSION OF LAW Entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is denied as a matter of law. 38 C.F.R. § 3.655 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing the information and evidence necessary to substantiate a claim. In this case, VCAA notice is not required because the issue presented must be decided on a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); Mason v. Principi, 16 Vet. App. 129, 132 (2002).. As will be discussed in greater detail, the veteran in this case failed to report for VA examinations scheduled in March 2007. In light of the veteran's failure to cooperate with VA's attempts to generate evidence necessary to adjudicate the claim, no further notice or assistance to the veteran is required to fulfill VA's duty to assist. 38 C.F.R. § 3.655. Background A total disability rating for compensation may be assigned when a person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (2007). The veteran's service- connected disabilities are tophacious gouty arthritis, evaluated as 40 percent disabling; lumbar hypertrophic degenerative joint disease, evaluated as 20 percent disabling; a left knee disability, status post medial meniscus tear and arthroscopy, evaluated as 10 percent disabling; a hiatal hernia, evaluated as 10 percent disabling; and hypertension, evaluated as 10 percent disabling. The combined rating is 70 percent. In the July 2003 remand, the Board indicated that the veteran should receive VA orthopedic and neurological examinations, and that the examiners should provide an opinion as to whether the appellant's service-connected disabilities alone render him unable to obtain and maintain substantial gainful employment. The veteran had VA examinations in March 2004 and March 2005, but the examination reports did not contain any opinion on this issue. The Board again remanded this case in September 2005 to obtain the previously requested medical opinion. Comprehensive VA examinations were scheduled for March 2007 however the veteran failed to report for his examinations. In March 2007, the Nashville VA Medical Center sent the veteran a letter and notified him that he failed to report for the examinations scheduled to evaluate his service connected disabilities for his claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. The veteran was provided with a list of phone numbers to call if he wished to reschedule his examinations. The veteran has made no attempt to show good cause or explain why he missed his examinations. The AMC sent him correspondence which was returned as undeliverable in March 2008. The January 2008 Supplemental Statement of the Case informed the veteran and his representative of his failure to report for his examinations. Whenever VA determines that there is a need to verify either the continued existence or the current severity of a disability, reexamination will be requested. Individuals for whom reexaminations have been authorized and scheduled are required to report for such reexaminations. 38 C.F.R. §§ 3.326, 3.327(a) (2007). When a claimant fails to report for an examination scheduled in conjunction with an a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). When a veteran fails without good cause to report for a VA examination requested by VA in conjunction with a claim, VA is not obliged to attempt to provide another. 38 C.F.R. § 3.655(a). VA offered the veteran an opportunity to have several VA examinations in March 2007 to obtain medical opinion evidence regarding the current level of disability of his gouty arthritis, lumbar degenerative joint disease, left knee disability; hiatal hernia, and hypertension. The veteran, however, failed to appear for any VA examination. His failure to cooperate in attending the examination has left the record devoid of any competent opinion addressing his level of disability. 38 C.F.R. § 3.655(b). Given that the veteran failed to report for any of his scheduled examinations, and given that he has not provided good cause for his failure in this regard, his claim must be denied. 38 C.F.R. § 3.655(b). The duty to assist is not always a one-way street. If he wishes help, the veteran cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). While VA has a duty to assist the veteran in the development of a claim, that duty is not limitless. In the normal course of events, it is the burden of the veteran to appear for VA examinations. If he does not do so, there is no burden on the VA to "turn up heaven and earth" to find him. Hyson v. Brown, 5 Vet. App. 262 (1993). The claim is denied. ORDER Entitlement to a total disability rating based on individual unemployability is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs