Citation Nr: 1127332 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 06-04 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a rating in excess of 10 percent for cephalgia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Armstrong, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1946 to December 1946 and from November 1948 to April 1949. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Oakland, California Department of Veterans Affairs (VA) Regional Office (RO), that granted service connection for cephalgia rated 10 percent, effective September 9, 1996 (the date of the filing of the reopened claim). In his February 2006 VA Form 9 (substantive appeal), the Veteran requested a video-conference hearing; by correspondence of June 2009, he withdrew that request. In August 2009 and August 2010 the Board remanded the case for additional development. In the August 2009 and August 2010 remands, the Board referred to the RO a claim service connection for sinusitis (raised by October 1997 correspondence). The claim has still not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is once again referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT By June 2006, December 2009, and August 2010 letters, the Veteran was asked to provide identifying information and releases needed to secure pertinent outstanding evidence necessary to adjudicate his claim for a rating in excess of 10 percent for cephalgia; he was advised of the consequences of a failure to co-operate with the requests; more than a year has lapsed since the December 2009 request; he has not responded. CONCLUSION OF LAW By failing to submit identifying information and releases for critical evidence requested in connection with his claim for a rating in excess of 10 percent for cephalgia within a year following the date of the request, the Veteran has abandoned the claim, and his appeal in this matter must also be considered abandoned. 38 U.S.C.A. §§ 5107, 7105(d)(5) (West 2002); 38 C.F.R. § 3.158(a) (2010). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to this claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A January 2006 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating; and an August 2008 supplemental SOC (SSOC) readjudicated the matter after the Veteran and his representative had an opportunity to respond. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Regarding VA's duty to assist, the Veteran's service treatment records (STRs) are associated with the claims file and the RO sought updated VA treatment records (since May 2009); no records were found (See April 2011 SSOC). As explained below, further pertinent (and perhaps critical) evidence is outstanding. However, such evidence cannot be obtained without the Veteran's cooperation (by providing identifying information and authorizations for releases of records). The RO attempted to secure outstanding postservice treatment records from the Veteran on multiple occasions through repeated requests. He did not respond, and further development could not proceed without his response. The Board has also considered whether a VA examination is necessary, and finds that under the circumstances of this case an examination is not necessary. Given that the Veteran has failed to cooperate in the development of evidence pertinent to this matter, any opinions offered would be based on a less than complete record, and would be lacking in probative value. Furthermore, because pertinent treatment records remain outstanding, even if an examination were conducted, the record would be incomplete and inadequate for rating purposes. Given the circumstances, VA has met its assistance obligations. No further assistance is required. B. Legal Criteria, Factual Background, and Analysis When evidence requested in connection with an original claim or a claim for increase is not furnished within 1 year of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a). The Board's August 2009 remand noted that the Veteran had identified a private provider who had treated him for headaches (S.H.L., M.D.) As records of the treatment were not associated with the claims file (and would likely contain pertinent information regarding entitlement to a rating in excess of 10 percent), the Board's August 2009 remand sought such records and advised the Veteran of the provisions of 38 C.F.R. § 3.158(a). He was also advised that he must assist in the matter by providing any releases necessary and that if any records or releases were not received pursuant to the RO's request, it would ultimately be his responsibility to ensure that the records are associated with the claims file. The case was prematurely returned to the Board (without a response from the Veteran) and in August 2010 was again remanded to afford the Veteran full period of time provided in § 3.158(a) to respond. He was again advised that the evidence sought was pertinent (and possibly critical), and that if he did not respond by December 23, 2010 the claim would be processed under 38 C.F.R. § 3.158(a). The June 12, 2006, December 23, 2009, and August 17, 2010, letters to the Veteran (asking him to complete and return enclosed VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs) so that VA could secure records of his treatment for headaches during the evaluation period) were mailed to his current address, and were not returned as undelivered. He did not respond. More than a year has passed since the latter request in December 2009. A February 9, 2011 letter informed the Veteran that a year had elapsed without a response and that his claim would be processed under 38 C.F.R. § 3.158(a) (a copy of which was attached to the letter). The critical facts at this stage are clear. The Veteran has not provided VA with releases necessary for VA to secure critical information and evidence pertaining to his claim for an increased rating for his service-connected cephalgia. The regulation governing in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned. Hence, the Board has no recourse but to conclude that the Veteran has abandoned his claim. See Hyson v. Brown, 5 Vet. App. 262 (1993). The duty to assist is not a one-way street. A veteran cannot passively wait for assistance in those circumstances where his cooperation is needed for evidentiary development (see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991)), nor can he deliberately choose to ignore requests for a release for pertinent (and perhaps critical) evidence, as appears to be the case here. As the Veteran has abandoned his claim for an increased rating for cephalgia, there remains no allegation of error of fact or law for appellate consideration in this matter. Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. ORDER The appeal seeking a rating in excess of 10 percent for cephalgia is dismissed. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs