Citation Nr: 1116632 Decision Date: 04/28/11 Archive Date: 05/05/11 DOCKET NO. 03-33 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial compensable rating for bilateral chronic otitis externa. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from February to August 1958 and from October 1961 to August 1962. This case comes to the Board of Veterans' Appeals (Board) from a rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Montgomery, Alabama dated in May 2006. A travel Board hearing was held in June 2008, in Montgomery, Alabama, before the undersigned who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. A transcript of that hearing is on file. In September 2008 and October 2009, the Board remanded the Veteran's claim. The Appeals Management Center (AMC) continued the previous denial of the claim in August 2009 and February 2011 supplemental statements of the case (SSOC). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. FINDING OF FACT The Veteran failed, without good cause, to report for a VA ear diseases examination which was scheduled to be conducted in January 2011, which was necessary for an informed adjudication of his claim for an initial compensable rating for bilateral chronic otitis externa. CONCLUSION OF LAW Because the Veteran failed, without good cause, to report for a VA examination which was scheduled in connection with his claim of entitlement to an initial compensable evaluation for service- connected bilateral chronic otitis externa, that claim is denied. 38 C.F.R. § 3.655 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking entitlement to an initial compensable rating for service-connected bilateral chronic otitis externa. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. Stegall concerns In September 2008 and October 2009, the Board remanded the issue of the Veteran's entitlement to an initial compensable evaluation for bilateral chronic otitis externa to either the agency of original jurisdiction (AOJ) or the AMC for a VA examination. As will be described in more detail below, the Veteran failed to report for his scheduled VA examination regarding his service-connected bilateral chronic otitis externa which was scheduled to be conducted in January 2011. The claim was readjudicated via August 2009 and February 2011 SSOC's. Thus, there is compliance with the directives of the September 2008 and October 2009 Board remands to the extent possible. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ["[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."]. The VCAA The Board has considered VA's duty to inform the Veteran of the evidence needed to substantiate his claim and to assist him in obtaining the relevant evidence. See, in general, the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA) [codified at 38 U.S.C.A. §§ 5103, 5103A (West 2002)]; 38 C.F.R. § 3.159 (2010). The VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by VA, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In part, the VCAA specifically provides that VA is required to make reasonable efforts to obtain relevant governmental and private records that the claimant adequately identifies to VA and authorizes VA to obtain. The VCAA further provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A (West 2002). VA attempted to provide assistance to the Veteran regarding his claim for an initial compensable rating for his service-connected bilateral chronic otitis externa, to include furnishing an examination. Through no fault of VA, those efforts were unsuccessful. Specifically, the RO requested an examination, and a VA medical center scheduled a VA examination in January 2011 to determine the severity of the Veteran's service-connected bilateral chronic otitis externa. However, the Veteran failed to appear without showing good cause therefor as to the January 2011 VA examination. It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). The Board concludes that in light of the Veteran's disinclination to fully cooperate with the process, all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim for an initial compensable rating for service-connected bilateral chronic otitis externa and that any further attempts to assist the Veteran in developing his claim would result in needless delay, and are thus unwarranted. In this case, the Board determined that the record in this case is incomplete and remanded the claim in October 2009 to supplement the record by obtaining additional medical evidence. This supplementation of the record was required by the mandate contained in the statute and regulation. See, in particular, 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The consequences of the Veteran's refusal to report for the scheduled VA examination will be discussed below. Because the increased rating claim is being denied as a matter of law, the VCAA is inapplicable. See Manning v. Principi, 16 Vet. App. 534 (2002) [the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter]. See also Holliday v. Principi, 14 Vet. App. 280 (2000) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. The Board additionally observes that VA in fact complied with the provisions of the VCAA as to notice as well as duty to assist in connection with this claim. See VCAA letters dated in July 2005 and December 2010. Higher evaluation for Bilateral Chronic Otitis Externa Pertinent law and regulations 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. Examples of "good cause" include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. See 38 C.F.R. § 3.655 (2010); see also Engelke v. Gober, 10 Vet. App. 396, 399 (1997); Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992). Factual background In October 2009, the Board remanded this increased rating claim for a VA examination because the evidence of record at the time, to include hearing testimony provided by the Veteran in 2008, showed that the Veteran's bilateral chronic otitis externa symptomatology worsened since his last VA examination in February 2006. See the October 2009 Board decision, pgs. 13-14. A letter from a VA medical facility indicates that the Veteran would be scheduled for a VA ear diseases examination in January 2010. The Veteran failed to report for the scheduled examination. However, a memorandum in the Veteran's claims folder dated in December 2010 indicates that the Veteran was not provided proper duty to assist requirements and would therefore be scheduled for another VA ear diseases examination. In a December 2010 letter notifying the Veteran that he would be scheduled for an examination, the AMC advised the Veteran under the heading "Important Information", that "[i]f you can't keep the appointment or want to be re-scheduled, contact the medical facility on the appointment notice as soon as possible." The AMC added that "[w]hen a claimant, without good cause, fails to report for an examination or reexamination, the claim shall be rated based on the evidence of record, or even denied." The RO also provided examples of good cause for failure to report: "illness or hospitalization, death of a family member, etc." A letter from a VA medical facility dated on January 10, 2011 reflects that the Veteran was scheduled for an ear diseases examination on January 20, 2011. The Veteran failed to report for that scheduled examination. Neither he nor his representative has provided any adequate reason or good cause for his failure to report for that examination. The Board observes that the Veteran's representative stated in a March 2011 Informal Hearing Presentation (IHP) that the Veteran failed to report for his January 2011 VA ear diseases examination because he was provided "limited time" from the date he received notification of the examination and the date of the examination. Specifically, the Veteran's representative indicated that 10 days' notice of the VA examination was inadequate notice, and therefore requested that another VA ear diseases examination be scheduled for the Veteran. Analysis It is clear that the Veteran failed without good cause to report for the VA ear diseases examination which was scheduled in January 2011 to evaluate his service-connected bilateral chronic otitis externa. It is plain from the record before the Board that the Veteran has been advised of what was required of him to adjudicate this claim, but he has failed to comply. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991); see also Wood, 1 Vet. App. at 193. Although the Veteran's representative indicated in the March 2011 IHP that the Veteran failed to report for his scheduled VA examination because he was provided insufficient notice, there is of record no correspondence or report of contact from the Veteran between the time he received notice of the examination and the date of the examination. Pertinently, as discussed above, the AMC informed the Veteran in the December 2010 letter that he should contact the VA medical facility if he could not report for the VA examination as scheduled. In Hyson v. Brown, 5 Vet. App. 262, 265 (1993), the United States Court of Appeals for Veterans Claims (the Court) pointed out that VA must show that a claimant lacked "adequate reason" [see 38 C.F.R. § 3.158(b) (2010)], or "good cause" [see 38 C.F.R. § 3.655 (2010)] for failing to report for a scheduled examination. In this case, neither the Veteran nor his representative has provided an "adequate reason" or "good cause" for the Veteran's failure to report to be examined when VA so requested in January 2011. The Board observes statements from the Veteran's representative in the March 2011 IHP that the Veteran failed to report for his VA examination because he was provided inadequate notice, specifically only 10 days' notice. However, as noted above, "good cause" for failure to report for a VA examination under 38 C.F.R. § 3.655 include illness or hospitalization, death of a family member, etc. The fact that the Veteran was provided notice of his scheduled VA examination 10 days prior to the date of the examination does not meet these criteria. It is the responsibility of VA to obtain sufficient evidence to render an informed decision in a case. The Court has impressed upon VA the seriousness of this responsibility in cases too numerous to mention. See, e.g., Green v. Derwinski, 1 Vet. App. 121, 124 (1991) [VA's duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"]. VA's responsibility was both clarified and amplified through the enactment of the VCAA. The responsibility that the evidentiary record be developed to its fullest possible extent is not, however, unilateral; as noted above, the veteran must cooperate in this development, and his failure to cooperate may precipitate action adverse to the interests of his claims. The Board is mindful of the provision contained at the outset of 38 C.F.R. § 3.655: "When entitlement . . . to a benefit cannot be established without a current VA examination or reexamination . . . ." In this case, as determined by the Board in its October 2009 remand, a VA examination was indeed necessary to grant the benefits sought by the Veteran, namely an increased rating for his service-connected bilateral chronic otitis externa. Cf. 38 C.F.R. § 3.159(c)(4) (2010). There is of record no other evidence which would substitute for the VA examination requested by the Board in its remand. See 38 C.F.R. § 3.326 (2010). The facts in this case are clear. The Veteran failed to report for a VA examination which was necessary to decide his claim and which was scheduled by VA for that purpose. No good cause or adequate reason has been demonstrated for his failure to be examined. 38 C.F.R. § 3.655 provides that when an examination is scheduled in conjunction with a claim for increase or any original claim other than an original compensation claim, the claim shall be denied. The Veteran's claim is one for an increased rating, not an original compensation claim. [Service connection for bilateral chronic otitis externa was granted in May 2006, effective December 27, 2004.] The claim for an increased disability rating for service-connected bilateral chronic otitis externa is therefore denied. See 38 C.F.R. § 3.655 (2010); see also Sabonis v. Brown, 6 Vet. App. 426 (1994) [where the law and not the evidence is dispositive, the claim must be denied because of a lack of entitlement under the law]. The Board is of course aware of due process concerns that may arise in connection with cases, such as this, in which a veteran's claim is being denied based on his failure to adhere to VA regulations rather than the Board considering evidentiary merits of the issue on appeal. Cf. Swan v. Brown, 9 Vet. App. 450 (1996) and cases cited therein. When the Board addresses in a decision a question that has not been addressed by the RO, it must be considered whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384 (1993). With respect to this case, the Board concludes that the Veteran has not been prejudiced by the decision herein. In this case, as discussed above, the Veteran was fully apprised by the AMC via the December 2010 letter of the consequences of his failure to report for a scheduled VA examination. Thus, any due process concerns have been satisfied. ORDER Entitlement to an initial compensable rating for bilateral chronic otitis externa is denied. ____________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs