Citation Nr: 1317352 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 07-15 826 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected residuals of a fractured right distal fibula. 2. Entitlement to service connection for a right knee disability, claimed as secondary to service-connected residuals of a fractured right distal fibula. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from August 1972 to February 1974. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2005 rating decision of the VARO in Los Angeles, California, that, in pertinent part, denied entitlement to the benefits sought. In his April 2007 Substantive Appeal (VA Form 9), the Veteran requested a travel board hearing, and one was scheduled for September 2009. In August 2009 correspondence, the Veteran's family and his representative indicated that he could not attend the hearing because of a brain injury sustained in a May 2007 accident. Another travel board hearing was scheduled in June 2012. The Veteran did not appear for the rescheduled hearing, and has not presented good cause for such failure. Accordingly, the Veteran's travel board hearing request will therefore be considered withdrawn. 38 C.F.R. § 20.704 (d) (2012). The case was previously before the Board in September 2012 at which time it was determined the Veteran had submitted sufficiently new and material evidence to warrant reopening of his claim of entitlement to service connection for a left spine disability. To that extent, the appeal was allowed. The issues of entitlement to service connection for a lumbar spine disability and to a right knee disability were then remanded to the RO for further development. The requested actions have been accomplished to the extent possible and the case has been returned to the Board for appellate review. FINDINGS OF FACT 1. Without good cause, the Veteran failed to report for a VA examination that was required to properly adjudicate the claims of entitlement to service connection for a lumbar spine disability and for a right knee disability. 2. Entitlement to service connection for a lumbar spine disability and a right knee disability cannot be established without a scheduled examination. 3. The claims of entitlement to service connection for a lumbar spine disability and a right knee disability are not initial original claims. CONCLUSION OF LAW The Veteran's claim of entitlement to service connection for a lumbar spine disability and a right knee disability is denied based on failure to report for a VA medical examination. 38 C.F.R. § 3.655 (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. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 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 to an initial unfavorable decision on a claim by RO. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The notice requirements of the VCAA apply to all elements of a service connection claim. These are: 1) Veterans 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). Here the evidence discloses the Veteran has received all required notice, and is not prejudiced by any technical deficiency along the way. See Conway v. Principi, 353 F. 3d 1369 (Fed. Cir. 2004). He has been sent appropriate VCAA letters throughout the course of the appeal, with one letter sent as recently as October 2012. The claim was most recently adjudicated in a February 2013 Supplemental Statement of the Case. Regarding the duty to assist, VA has also satisfied its obligation in terms of obtaining all potentially relevant evidence concerning the claims. VA medical records have been submitted and reviewed. The Veteran was given the opportunity to provide testimony at travel board hearings in August 2009 and again in June 2012. He did not report on either occasion. Further, he did not report for an authorized examination in May 2005 or for a VA rating examination in October 2012. He has not given any indication he will appear for any further examination. The entire evidence of record, including both the paper and virtual claims files, has been carefully considered and a decision will be made at this time. The record does not otherwise indicate any additional evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Board is satisfied that VA has complied with the duty to notify and assist requirements of the VCAA and its implementing regulations. For the forgoing reasons, it is not prejudicial to the Veteran for the Board to proceed to a final decision at this time. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist and notify him in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F. 3d 1384 (Fed. Cir. 2002); See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). As such, the issues of entitlement to service connection for a low back disability and for a right knee disability are ready for disposition at this time. Pertinent Law and Regulation Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: 1) a current disability; 2) inservice incurrence or aggravation of a disease or injury, and 3) a causal relationship, that is, a nexus, between the claimed inservice disease or injury and the current disability. Holton v. Shinseki, 557 F. 3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a) (2012). In addition, arthritis, if present, will be presumed to have been incurred in service if manifest to a degree of 10 percent or more within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309 (2012). A disability that is proximately due to or the result of his service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The 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.) Factual Background and Analysis The Board has thoroughly reviewed all the evidence in the paper and virtual claims folders. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F. 3d 1378, 1380 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to the Veteran). By Remand action dated in September 2012, the Veteran was requested to report for VA examinations in order to determine whether the claimed disabilities are related to service or are secondary to or have been aggravated by the Veteran's service-connected residuals of a fracture of the right distal fibula. The record documents that the Veteran did not report for VA examinations scheduled for him in October 2012. No explanation for the failure to report is of record. There is no indication in the record since that time that the Veteran has attempted to reschedule the requested VA examination, or any notation that he has contacted the RO to explain why he was not able to report for the examination. The Board notes that the Veteran also failed to report for an authorized examination with regard to the disabilities at issue in May 2005. In June 2005 he submitted an explanation and indicated that he did not receive information about the examination or he would otherwise have reported. He has given no explanation for his failure to report for the 2012 examination. 38 C.F.R. § 3.655 (b) clearly specifies 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 the mid 1990's. Service connection was established for residuals of a fracture of the right fibula at that time. That same rating decision resulted in a denial of service connection for other disabilities, to include a low back disorder. As such, the claim received in 2004 for the disabilities at issue 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 2004 falls squarely within the purview of an examination scheduled in conjunction with any other original claim. See 38 C.F.R. § 3.365 (b). The Board finds that the Veteran has provided no justifiable reason for his failure to appear for examination after June 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 claims 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 the use of the word "shall" in the regulation. "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 or 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 notes that in this situation, it is necessary to establish by competent medical evidence 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 in the case of the right knee disability or based on a claim for a benefit that was previously disallowed in the case of the back disability. As such, the claims are denied as a matter of law pursuant to 38 C.F.R. § 3.365 (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 a low back disability is denied. Service connection for a right knee disability is denied. ____________________________________________ CHRISTOPHER MURRAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs