Citation Nr: 1323023	
Decision Date: 07/18/13    Archive Date: 07/24/13

DOCKET NO.  08-30 181A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to service connection for schizophrenia.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

J. Nichols, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1979 to September 1979, and from May 1980 to June 1980.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which determined that new and material evidence had not been received to reopen a previously denied claim of entitlement to service connection for schizophrenia.  

The Board notes that the Veteran requested and was scheduled for a Board videoconference hearing to be held in February 2011.  The Veteran failed to appear for the scheduled hearing and neither furnished an explanation for his failure to appear nor requested a postponement for another hearing.  The Veteran was advised in a December 2010 letter, pursuant to 38 C.F.R. § 20.702(d), when an appellant fails to appear for a scheduled hearing and has not requested a postponement, the case will then be processed as though the request for a hearing had been withdrawn.

By way of pertinent history, the RO denied service connection for schizophrenia in January 1984 as amended in April 1984.  The Veteran did not appeal and this decision became final.  In a December 2011 Board determination, the Board reopened the claim for service connection for schizophrenia, and remanded for further evidentiary development.  In December 2012, the Board again remanded this case for further development.

A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. 


FINDINGS OF FACT

1.  The Veteran was scheduled for a February 2013 VA examination.

2.  The Veteran failed to report for the February 2013 VA examination and has not shown good cause for doing so.



CONCLUSION OF LAW

The Veteran's claim is denied on the basis of his 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

VA's Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.

The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004).  The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The record reflects that the Veteran was provided with the notice required under the VCAA by a letter dated in July 2007, following his claim to reopen service connection for schizophrenia.

VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, to include obtaining available service, private treatment records, Social Security disability records, and lay statements.

The Board notes that in February 2013 the Veteran was scheduled for a VA examination in relation to his claim.  He was sent a duty to assist letter dated February 2013 informing him that the Appeals Management Center (AMC) will be scheduling him for an examination in connection with his claim.  The Veteran was also advised in this letter that if he wanted to reschedule the appointment, to provide notice as soon as possible.  More importantly, he was reminded that when a claimant, without good cause, failes to report for an examination or reexamination, the claim shall be rated based on the evidence of record, or even denied.  Examples of good cause were listed in the letter.

The Veteran failed to appear for his scheduled examination in February 2013 and the record contains no justifiable indication of the reason for the appellant's failure to appear for the VA examination.  Thus, good cause was not shown.  In fact, the AMC received a failure to report notice from San Diego VA medical center, which noted electronically that the Veteran refused an examination at the San Diego VA medical center location.  The Board finds that the Veteran was given an opportunity to present for a VA examination, and was given notice of the consequences in not attending the examination.  Thus, VA satisfied its duty to assist.

For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim.  No further assistance to the appellant with the development of evidence is required.  38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d).

Legal Criteria and Analysis

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.  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(b).

In this case, the claim on appeal is not the original claim for compensation as contemplated by the operative VA regulations.  To that end, in December 1983, the appellant filed his original claim on VA Form 21-526 for service connection for schizophrenia.  That original claim for compensation was denied in January 1984 and April 1984.  (See 21-6796 "J" Original Claim).  In May 2007, the Veteran filed another claim on VA Form 21-526 to reopen his previously denied claim.  The rating decision that followed in November 2007 is the decision from which this current appeal arose.

Thus, as the Veteran has filed a claim in May 2007 that is not an original compensation claim, i.e., an initial claim filed on the form prescribed by VA, the claim is not an original compensation claim and cannot be decided based on the evidence of record.  See 38 C.F.R. § 3.160(b).  Rather, it falls into the other category of cases of "a reopened claim for a benefit which was previously disallowed" which means that the claim must be denied as a matter of law. 

The record reflects that the Veteran was scheduled for a VA examination in relation to his claim in February 2013.  It is presumed that he was properly notified of the date and time of the VA examination after the February 2013 notification letter.  See Kyhn v. Shinseki, 24Vet. App. 228 (2011) (VA's established procedure for notifying claimants of VA examinations entitles it to the presumption of regularity that VA employees properly discharged their official duty to notify a veteran of a VA examination).  The record reflects that the appellant failed to report for the examination and failed to provide good cause for his failure to appear.  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 appellant has not provided any reason for his failure to appear for the examination.  San Diego medical center reported to the AMC that the Veteran refused to attend the examination at their location.  Such is not good cause for his failure to report.  

Under 38 C.F.R. § 3.655(b), when entitlement to a benefit cannot be established without VA examination, and a claimant, without good cause, fails to report for such examination; and the examination was in conjunction with a reopened claim for a benefit which was previously disallowed, the claim shall be denied.  Here, a VA examination was ordered pursuant to the December 2012 Board remand.  The appellant was scheduled for such an examination and did not appear.  In this case the criteria for a denial based on application of 38 C.F.R. § 3.655 have been met and the claim must be denied pursuant to the operative regulation.  38 C.F.R. § 3.655(b).  


ORDER

Service connection for schizophrenia is denied.



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



Department of Veterans Affairs