Citation Nr: 1120137 Decision Date: 05/24/11 Archive Date: 06/06/11 DOCKET NO. 06-14 014A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a disability rating in excess of 20 percent for residuals of a fracture to the third metacarpal bone of the right hand, with associated arthritis of the right hand. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran had active military service from September 1958 to September 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the benefit sought. In December 2009 the Board remanded the case to the RO for further development. FINDINGS OF FACT 1. The Veteran was scheduled for VA examinations to be conducted in February 2006 and January 2010, and the VA examinations were necessary to decide the issue of entitlement to an increased evaluation for the service-connected residuals of a fracture to the third metacarpal bone of the right hand, with associated arthritis of the right hand. 2. The Veteran failed to appear at the examinations and he has not presented good cause for the failure to appear. CONCLUSION OF LAW The claim for an increased rating for the service-connected residuals of a fracture to the third metacarpal bone of the right hand, with associated arthritis of the right hand, must be denied as a matter of law. 38 C.F.R. § 3.655 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking an increased disability rating in excess of 20 percent for his service-connected residuals of a fracture to the third metacarpal bone of the right hand, with associated arthritis of the right hand. Because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is required. See Mason v. Principi, 16 Vet. App. 129 (2002). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The present matter was previously before the Board in December 2009. At that time the Board remanded the matter based on a determination that an examination was necessary to establish entitlement to the benefit sought, and that the Veteran previously failed to report for a VA examination scheduled in February 2006 and the record showed that he had notice of that examination. However, given there were VA records not associated with the claims file, a remand was necessary to obtain those records and give the Veteran another opportunity to report for a VA examination. On remand the Veteran was scheduled for a VA examination in January 2010, but that he failed to report to the examination. Although the Veteran reported having transportation problems, he did not indicate a willingness to be rescheduled, and he indicated that there was sufficient evidence of record to evaluate the claim.. When entitlement to a benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(a), (b). The Board must determine "(1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the veteran lacked good cause to miss the scheduled examination." Turk v. Peake, 21 Vet. App. 565, 569 (2008). The December 2009 Board remand contains notice of the provisions of 38 C.F.R. § 3.655, which are material to this case. Here, the Board in December 2009 found that a VA examination was necessary. The Medical Administration Service (MAS) of VA cancelled a scheduled examination in December 2009 and rescheduled that examination to be conducted in January 2010. The Veteran received notice of the scheduled examination and that he called and cancelled that examination stating there was adequate medical evidence on file for his case and stated that he would not report for the examination. In sum, the record shows that he failed to report for the January 2010 examination. Subsequent to his failure to appear, the Veteran has not submitted any correspondence requesting to reschedule the missed examination. In short, the Veteran was scheduled for a VA examination that was necessary to decide his claim for an increased evaluation. He failed to appear at the examination, and he has not presented good cause for the failure to appear. Thus, the claim must be denied. 38 C.F.R. § 3.655. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An increased disability rating in excess of 20 percent for the service-connected residuals of a fracture to the third metacarpal bone of the right hand, with associated arthritis of the right hand, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs