Citation Nr: 0813884	
Decision Date: 04/25/08    Archive Date: 05/01/08

DOCKET NO.  99-08 663A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, 
New York


THE ISSUE

Entitlement to service connection for psychiatric disability.


REPRESENTATION

Appellant represented by:	New York State Division of 
Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Appellant and M.C.


ATTORNEY FOR THE BOARD

T. S. Samadani


INTRODUCTION

The veteran served on active duty from October 1976 to 
February 1977 and May 1979 to November 1979.

This case came to the Board of Veterans' Appeals (Board) on 
appeal of a September 1997 rating decision of the Department 
of Veterans Affairs (VA) Regional Office (RO) in New York, 
New York.  In September 2000, the veteran and M.C. provided 
testimony at a hearing before a Hearing Officer at the RO.  A 
transcript of the proceeding is of record. 

When this case was before the Board in April 2006, the Board 
reopened the veteran's claim and remanded it for further 
development.  It is now before the Board for further 
appellate action.


FINDING OF FACT

The veteran failed, without good cause, to report for or to 
undergo a VA examination which was deemed necessary to 
determine whether the veteran's psychiatric disability was 
incurred in or aggravated by active service. 


CONCLUSION OF LAW

Psychiatric disability was not incurred in or aggravated by 
active military service, and the incurrence or aggravation of 
a psychosis during such service may not be presumed.  38 
U.S.C.A. §§ 1101, 1112, 1131, 1137 (West 2002); 38 C.F.R. 
§§ 3.655(b), 3.303, 3.307, 3.309 (2007).





REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran is seeking service connection for psychiatric 
disability.  The Board will initially discuss certain 
preliminary matters, and will then address the pertinent law 
and regulations and their application to the facts and 
evidence.

The Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & 
Supp. 2007), and the pertinent implementing regulation, 
codified at 38 C.F.R. § 3.159 (2007 ), are not applicable to 
the veteran's claim.  In Manning v. Principi, 16 Vet. App. 
534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 
(Aug. 30, 2001) (en banc), the Court held that the VCAA has 
no effect on an appeal where the law, and not the underlying 
facts or development of the facts, is dispositive in the 
matter.  The Board finds that such is the case as to the 
issue here on appeal.  As explained below, this claim is 
being denied due to the appellant's failure to report for a 
scheduled VA examination.  Therefore, based on the Court's 
decision in Manning, the Board concludes that the appellant's 
claim is not subject to the provisions of the VCAA.

Legal Criteria

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 as set out in the following paragraph.  
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).

Analysis

The evidence shows that the veteran has an acquired 
psychiatric disorder that he contends either originated 
during active duty or was aggravated by active duty.  Private 
treatment records show that the veteran was treated for a 
psychiatric condition prior to his second period of active 
duty.  The Board concluded in April 2006 that entitlement to 
the benefit sought cannot be established without a current VA 
examination to ascertain whether the current disability was 
either incurred in or aggravated by active duty.  
Furthermore, if it was present during either period of 
service, an examination is necessary to determine whether the 
disorder clearly and unmistakably underwent no permanent 
increase in severity during or as a result of the second 
period of active duty.  Therefore, the Board determined that 
such an examination is necessary.

Since the Board's remand, the veteran was afforded an 
opportunity to report for a VA examination.  The RO, however, 
sent the letter informing the veteran of the examination to 
the wrong address.  The RO subsequently corrected its error 
and sent the notification letter regarding the VA examination 
to the veteran's current address of record.  The veteran 
failed to report to this examination.  The RO then mailed the 
veteran a VCAA letter and a supplemental statement of the 
case (SSOC)  to the correct address.  The RO informed the 
veteran in the SSOC, of the consequences of failing to report 
for a scheduled VA examination.  Indeed, the veteran was 
specifically provided with the language of 38 C.F.R. § 3.655, 
and he was informed that his claim could be denied if he did 
not comply with efforts to obtain an examination.  Neither 
the veteran nor his representative has provided any reason 
for the veteran's failure to report for the examination or 
indicated that the veteran is willing to report for an 
examination if it were to be rescheduled.  

In this case, the veteran has failed to report, without good 
cause, for an examination necessary to substantiate his 
claim, and he has submitted no other evidence that would be 
an adequate substitute for the scheduled examination.  
Accordingly, this appeal will be denied in accordance with 
the provisions of 38 C.F.R. § 3.655(b).


ORDER

Entitlement to service connection for psychiatric disability 
is denied.



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs