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