Citation Nr: 1322207	
Decision Date: 07/11/13    Archive Date: 07/18/13

DOCKET NO.  07-20 614A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Entitlement to service connection for a sinus disability.

2.  Entitlement to service connection for headaches.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel
INTRODUCTION

The Veteran served on active duty from May 1997 to May 2001 and from February 2003 to May 2004.

These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in October 2005 and January 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.

This appeal was previously before the Board in May 2011.  The Board remanded the claim so that the Veteran could be scheduled for VA examinations.  The Veteran failed to report to the examinations.  The case has now been returned to the Board.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

As noted in the May 2011 BVA remand, the issue of an increased rating for recurrent back strain, currently rated as noncompensable, has been raised by the record.  It has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is, again, referred to the AOJ for appropriate action.


FINDINGS OF FACT

1.  The Veteran was scheduled for February 2012 VA examinations.

2.  The Veteran failed to report for the examinations and has not shown good cause for doing so.




CONCLUSION OF LAW

1.  Service connection for sinusitis is denied on the basis of the Veteran's failure to report for a VA medical examination. 38 C.F.R. § 3.655(a), (b) (2012).

2.  Service connection for headaches is denied on the basis of the Veteran's failure to report for a VA medical examination. 38 C.F.R. § 3.655(a), (b) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) provides that 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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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).

In Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

The record reflects that the RO provided the Veteran with the notice required under VCAA by a letter dated in November 2005.

Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  In connection with the current appeal, available service treatment records, VA treatment records, and private treatment records have been obtained.

The Board further observes that these issues were remanded in May 2011 in order to afford the Veteran a VA examination to determine the etiology of his sinus and headache disabilities.  Thereafter, the Veteran was scheduled the requested examinations in February 2012.

While the Veteran was afforded opportunities to report for VA examinations which have been offered pursuant to VA's duty to assist, his failure to attend the examinations has been well-documented in the record and he has not provided any reason for his absence. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012).  As the Court of Appeals for Veterans Claims has held, "[t]he 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).  Given the RO's efforts in attempting to arrange for examinations, it would be unreasonable to place a burden upon VA to turn up heaven and earth in an attempt to secure further response from the claimant. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993).

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).  In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record, including testimony provided at an October 2006 DRO hearing.  The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified.  Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims.

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him 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).

Failure to Report for a VA Examination

Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  However, when the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b) (2012).  VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160 (2012).

In this case, the claims on appeal are not the original claim for compensation as contemplated by the operative VA regulations.  38 C.F.R. § 3.160(b) (2012).  Rather, the Veteran's original claim for compensation was received by VA in January 2001.  To that end, the Veteran filed a claim on VA Form 21-526 for service connection for joints, knees, ankles, shoulders, and bilateral hearing loss.  Those claims were denied in a May 2001 rating decision.  That rating decision specifically noted that the document was in response to the original disability claim.  (See heading JURISDICTION).  In July 2005, he submitted a claim for service connection for a sinus disorder and headaches, on a different form, a statement in support of claim (VA Form 21-4138).

In May 2011, the Board concluded that the December 2005 headache examination did not comply with the requirements for a traumatic brain injury (TBI) examination and that the presence of nasal polyps and a nasal obstruction during the May 2010 VA examination was evidence of a current disability that may be associated with service, but the evidence was insufficient to make a decision.  The Board remanded the claim to schedule the Veteran for VA examinations.  

In a letter dated on June 17, 2011, the RO informed the Veteran that it had scheduled him for an examination in connection with his appeal.  The letter also stated that if he was unable to keep the appointment or wanted it to be rescheduled, that he should contact the medical facility on the appointment notice. 

In July 2011, the Veteran left a phone message with the VA to cancel his examinations.  He provided no reason for the cancellations. 

In a December 2011 Report of General Information, a VA employee indicated that he phoned the Veteran to confirm his address and told the Veteran that he would be scheduled for a new examination.  The report indicated that the Veteran was noncommittal on attending an examination and stated that he had other things going on in his life.

In a letter dated on December 6, 2011, the RO informed the Veteran that it scheduled him for an examination.  The Veteran failed to report to the examination scheduled for February 7, 2012 and has failed to provide good cause for his absence (a claimant failing to report for a scheduled examination must show good cause for so doing. See 38 C.F.R. § 3.655; Engelke v. Gober, 10 Vet. App. 396, 399 (1997); Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992)).  In fact, the Veteran has not provided any reason for his failure to appear for the examination.

There is nothing in the claims file to suggest that the Veteran did not receive notification of the examination.  Moreover, he has not contended that he did not receive notification from VA.  Therefore, the Board concludes that the Veteran has not shown good cause for his failure to report for the examination. See 38 C.F.R. § 3.655.  A claimant is responsible for cooperating with VA in the development of his claim. 38 U.S.C.A. § 5107(a); Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000).

The Board finds that where the Veteran files a claim for entitlement to service connection, that is not the original compensation claim, i.e., an initial claim filed on the form prescribed by VA, the claim is not the original compensation claim and cannot be decided based on the evidence of record.  Rather, it falls into the category of cases, which must be denied as a matter of law.  We specifically note that section 3.655 refers to original compensation claim, not each new claim for service connection for a different disability.  The term compensation is a term of art.

For the foregoing reasons, the Board finds that he failed to appear for the scheduled examination without good cause, and that his claim is not the original compensation claim, and must therefore be denied as a matter of law pursuant to 38 C.F.R. § 3.655(b).


ORDER

Entitlement to service connection for sinusitis is denied.

Entitlement to service connection for headaches is denied.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs