Citation Nr: 1237271 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 05-27 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to service connection for anemia. 2. Entitlement to service connection for lymphoma, to include as secondary to anemia. 3. Entitlement to service connection for residuals of a splenectomy, to include as secondary to anemia. 4. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected right biceps tendonitis. 5. Entitlement to a right knee disability, to include as secondary to service-connected left knee disability. 6. Entitlement to service connection for carpal tunnel syndrome of the left wrist, to include as secondary to service-connected carpal tunnel syndrome of the right wrist. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and J.B. ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from November 1948 to August 1969. This matter comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from an April 2004 rating decision of the VA Special Processing Unit at the Regional Office (RO) in Cleveland, Ohio. In that decision, in pertinent part, the RO denied service connection for anemia, lymphoma, residuals of splenectomy, a left shoulder disability, a right knee disability, and carpal tunnel syndrome of the left wrist. The Veteran resides within the jurisdiction of the Anchorage, Alaska VA RO. The appellant was afforded a personal hearing at the RO in May 2008 before a Veterans Law Judge. During the hearing, he withdrew the claims of entitlement to service connection for migraine headaches and residuals of valley fever that had also been on appeal. The case was remanded for further development by Board decision in October 2008. The Veteran was informed by letter dated in September 2010 that the Veteran's Law Judge who conducted the May 2008 hearing was no longer employed at the Board. In September 2010, the Board dismissed the appeals of entitlement to service connection for migraine headaches and residuals of valley fever and remanded the case to schedule the Veteran for another hearing. The Veteran was afforded a hearing in June 2011 before the undersigned Veterans Law Judge sitting at Anchorage, Alaska. The transcript is of record. The case was remanded for further development in October 2011. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Without good cause, the Veteran has failed to report for VA examination that was required to properly adjudicate the claims of entitlement to service connection for anemia, lymphoma, residuals of splenectomy, a left shoulder disability, a right knee disability, and carpal tunnel syndrome of the left wrist. 2. Entitlement to service connection for anemia, lymphoma, residuals of splenectomy, a left shoulder disability, a right knee disability, and carpal tunnel syndrome of the left wrist cannot be established without the scheduled examination. 3. The claims of entitlement to service connection for anemia, lymphoma, residuals of splenectomy, a left shoulder disability, a right knee disability, and carpal tunnel syndrome of the left wrist are not initial original claims. CONCLUSION OF LAW The Veteran's claims of entitlement to service connection for anemia, lymphoma, residuals of splenectomy, a left shoulder disability, a right knee disability, and carpal tunnel syndrome of the left wrist are denied based on failure to report for a VA medical examination. 38 C.F.R. § 3.655(a)(b) (2012); Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and to assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 38 U.S.C.A. § 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.App. 112 (2004). The notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id at 486 Here, adequate notice was sent to the appellant by letter dated in March 2003 prior to the initial unfavorable decision on the claims, supplemented by additional correspondence thereafter, that informed him of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. Notification that included information pertaining to a disability rating and an effective date for the award if service connection were granted has also been sent to the appellant. In this case, however, the claims are being denied. Therefore, no rating or effective date will be assigned with respect to the claims. The Board finds that all necessary development has been accomplished to the extent possible and that appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet.App. 384 (1993). Extensive VA and private clinical records have been submitted and reviewed. The Veteran has been afforded the benefit of two personal hearings over the course of the appeal. The case was remanded for further development in October 2008, September 2010, and most recently in October 2011 to request an examination, to include clinical opinions. The Veteran did not report for VA examination in February 2012 and has not indicated his willingness to appear for further examination. The appellant's statements in the record and the whole of the evidence have been carefully considered. The record does not otherwise indicate any additional evidence that is necessary for a fair adjudication of the claims that has not been obtained. The Board is satisfied that VA has complied with the duty-to-assist-requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. No further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet.App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet.App. 143 (2001); see also Quartuccio v. Principi, 16 Vet.App. 183 (2002). As such, the issues of entitlement to service connection for anemia, lymphoma, residuals of splenectomy, a left shoulder disability, a right knee disability, and carpal tunnel syndrome of the left wrist are appropriately for disposition. Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp 2012); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service or aggravated by service. 38 C.F.R. §§ 3.303, 3.306 (2012). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2012.). The Court of Appeals for Veterans Claims (Court) has held that the term "disability" as used in 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.310(a) should refer to "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service- connected condition." Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc) (additional disability resulting from aggravation of a nonservice- connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310. Where a veteran served continuously 90 days or more during a period of war or during peacetime service after December 31, 1946 and a malignancy becomes manifest to a degree of at least 10 percent within one year from the date of termination of service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such a disorder during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Factual Background and Legal Analysis The appellant seeks service connection for anemia, lymphoma, residuals of splenectomy, a left shoulder disability, a right knee disability, and carpal tunnel syndrome of the left wrist. In the claim received in November 2002, he asserted that the claimed disorders were of service onset which service connection should be granted. Several of the claims were subsequently developed to encompass service connection secondary to already service-connected disease or injury. By remand in October 2011, the Veteran was requested to report for VA examination in order to determine whether the claimed disabilities were related to service or secondary to or had been aggravated by service-connected disease or injury. The record documents that the appellant did not report for VA examination scheduled in February 2012. A note on the RO's cancellation record sheet on that date indicates that the Veteran and his wife called to inform the office that their car was inoperable, that they had no means of transportation at that time, and would inform VBA [Veterans Benefits Administration] when they were able to report for examination. In an April 2012 file record, it was noted that a staff person from the Anchorage compensation and pension office spoke with J.B. who said that the Veteran had no transportation and would not take a cab. There is no indication in the record since February 2012 that the appellant has attempted to reschedule the requested VA examination, or any notation that he has contacted the RO to explain why he has not been able to report for examination. 38 C.F.R. § 3.655(b) clearly specifies that when a claimant fails to report for an examination [without good cause] scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit that was previously disallowed, or a claim for increase, the claim shall be denied. A claimant failing to report for a scheduled examination must show good cause for not doing so. See 38 C.F.R. § 3.655; see also Engelke v. Gober, 10 Vet.App. 396, 399 (1997); Ashley v. Derwinski, 2 Vet.App. 307, 311 (1992). Review of the record discloses that the Veteran first filed a claim of service connection for various disabilities in October 1969 whereupon service connection was established for multiple disorders by rating action dated in July 1970. As such, the claim received in November 2002 for the currently claimed disorders is not the original compensation claim. An original claim is defined as the initial formal application on a form prescribed by the Secretary. See 38 C.F.R. § 3.160 (2012). In this instance, the Board points out that the Veteran's claim received in November 2002 falls squarely within the purview of an examination scheduled in conjunction with any other original claim. See 38 C.F.R. § 3,655(b). The record does not indicate that the Veteran has contacted since February 2012 when he stated that he would inform the RO when he was able to report for examination. Accordingly, the Board finds that the Veteran has provided no justifiable reason for his failure to appear for examination after February 2012. As good cause is not demonstrated for his failure to report, and a VA examination was necessary in conjunction with an other original claim, the claim for service connection must be denied by express VA regulation. See 38 C.F.R. § 3.655(b). This action is nondiscretionary on the Board's part as evidenced by use of the word "shall" in the regulation. The Court of Appeals for Veterans Claims has held, that "The duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet.App. 517, 522 (1996). "If a [claimant] 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." Wood v. Derwinski, 1 Vet.App. 190, 193 (1991); See also Olson v. Principi, 3 Vet.App. 480, 483 (1992). The Board acknowledges the appellant's long history of meritorious military service. However, in this situation, it is necessary to establish whether the claimed disabilities are related to service or are secondary to or aggravated by service-connected disease or injury by scheduling a VA examination. Without such, the evidence is not adequate to make a determination. In short, the current claim is not the original claim for compensation; it is a new claim for different disabilities or an other original claim. As such, the claim is denied pursuant to 38 C.F.R. § 3.655(b). Where, as here, the regulation is dispositive, the claim must be denied because of lack of entitlement under the law. See Sabonis v. Brown, 6 Vet.App. 426 (1994). ORDER Service connection for anemia, lymphoma, residuals of splenectomy, a left shoulder disability, a right knee disability, and carpal tunnel syndrome of the left wrist is denied. _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans Appeals Department of Veterans Affairs