Citation Nr: 1321015 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 09-33 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a rating in excess of 10 percent for service-connected right foot fracture residuals of 2nd and 3rd metatarsal bones with exostosis of the 2nd metatarsal ATTORNEY FOR THE BOARD Hancock, Charles INTRODUCTION The Veteran served on active duty from December 1982 to October 1989. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The claim is now under the jurisdiction of the RO located in New Orleans, Louisiana. This case was previously before the Board in July 2012 and February 2013, at which time it was remanded for further development of the evidence. In pertinent part, the February 2013 remand was to afford the Veteran an additional VA examination. The examination was scheduled and the Veteran was notified at his address of record. The Veteran did not report for the scheduled examination nor has he offered good cause for his absence. Therefore, the Board finds that there has been substantial compliance with the remand instructions and no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran did not report for a VA examination which was necessary to evaluate his service-connected right foot fracture residuals, and no good cause has been shown. CONCLUSION OF LAW The claim of entitlement to a rating in excess of 10 percent for right foot fracture residuals of 2nd and 3rd metatarsal bones with exostosis of the 2nd metatarsal is denied based on the Veteran's failure to report for a necessary and scheduled VA examination. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.655(b) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties To Notify And Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The RO provided pre-adjudication notice by letter in April 2008. The notice included the type of evidence needed to substantiate the claim for a higher rating, namely, evidence to show that the disability was worse and the effect the disability had on employment. The Veteran was notified that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf. The notice included the general provisions for the effective date of a claim and the degree of disability assignable. As for the content and the timing of the notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); cf. Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies the notice requirement); cf. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication notice); and cf. Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim); and cf. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (claim-specific notice, namely, a worsening or increase in severity of the disability and the effect that worsening has on employment). The Board concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records, and VA medical records are in the file. The claimant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). As will be discussed below, in compliance with the Board's February 2013 remand, VA scheduled the Veteran for an examination and he did not report. The Board is satisfied that the RO has complied with the Board's February 2013 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall. The February 2013 remand directed the RO to schedule the Veteran for an appropriate VA examination to assess the current severity of his service-connected right foot fracture residuals of 2nd and 3rd metatarsal bones with exostosis of the 2nd metatarsal. As discussed, he did not report for the examination which was scheduled pursuant to the Board's February 2013 instructions. This examination was to take place on March 21, 2013. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal and the Board may proceed to consider the merits of the claim. Analysis Pursuant to the Board's February 2013 remand, VA Compensation and Pension staff, located in Shreveport, Louisiana attempted, by means of a letter dated March 8, 2013, to substantiate the Veteran's increased rating claim for right foot fracture residuals of 2nd and 3rd metatarsal bones with exostosis of the 2nd metatarsal by scheduling him for a VA examination. The letter also informed the Veteran that "[f]ailure to keep this appointment may result in suspension of your VA check or automatic denial of your claim." The Board's February 2013 remand also included the following language: 3. The Veteran is hereby notified that it is his responsibility to report for a scheduled VA examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. The scheduling letter, mailed to the Veteran's proper address of record, informed the Veteran that the examination was to be conducted at the VA Medical Center (VAMC) in Shreveport, Louisiana on March 21, 2013, at 11am. The Veteran did not report for this examination, and has failed to provide good cause for his failure to report. In fact, he has offered no explanation for not attending the examination that was scheduled. When the veteran, without good cause, fails to report for an examination scheduled in conjunction with a claim for increase and entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination, the claim shall be denied. 38 C.F.R. § 3.655(b). The Veteran was specifically notified what "good cause" was as part of a supplemental statement of the case (SSOC) mailed to him in January 2013. Examples of good cause were noted to include, but not be limited to, illness or hospitalization, death of a family member, etc. The Board also observes that as part of the Board's February 2013 remand development efforts were to be undertaken to obtain a VA podiatry consult report. Review of Virtual VA shows that the Veteran - as he did concerning the scheduled March 21, 2013, VA examination -- failed to report for a podiatry consult appointment, scheduled to occur on January 7, 2013. As the United States Court of Appeals for Veterans Claims determined in Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), the duty to assist is not always a one-way street and if a Veteran desires help with his claim he must cooperate with VA's efforts to assist him. Here, the Veteran did not report for the scheduled March 2013 VA examination essential to the development of his increased rating claim and did not set forth good cause for such failure. The March 8, 2013, examination scheduling notice letter was mailed to the Veteran's address of record; it was not returned as being undeliverable. The Veteran has made no attempt to explain to VA why he did not report for the scheduled VA examination relevant to the claim. Therefore, the claim for an increased rating in excess of 10 percent for his service-connected right foot fracture residuals of 2nd and 3rd metatarsal bones with exostosis of the 2nd metatarsal must be denied. 38 C.F.R. § 3.655(b) (2012). ORDER Entitlement to a disability rating in excess of 10 percent for right foot fracture residuals of 2nd and 3rd metatarsal bones with exostosis of the 2nd metatarsal is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs