Citation Nr: 1324849 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 06-10 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a rating in excess of 10 percent for rheumatoid arthritis. ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1965 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2005 rating decision issued by the Pittsburgh, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the Veteran's claim for an increased rating for rheumatoid arthritis. This case was previously before the Board in February 2009, July 2010, and January 2013, at which time the case was remanded for further development. The case is again before the Board for appellate review. In December 2012, the Board sent a letter to the Veteran asking him to clarify his representative. The Veteran was advised that if he or his new representative did not respond within 30 days it would be assumed that the Veteran intends to represent himself. As a response was not received, it is assumed that the Veteran is representing himself. A review of the Virtual VA paperless claims processing system does not reveal additional documents pertinent to the present appeal. FINDING OF FACT The Veteran failed to report for a scheduled VA examination in February 2013 pertaining to his claim of entitlement to a rating in excess of 10 percent for rheumatoid arthritis, and he has not shown good cause for that failure to report. CONCLUSION OF LAW The claim of entitlement to a rating in excess of 10 percent for rheumatoid arthritis must be denied due to the Veteran's failure to report for a scheduled VA examination. 38 C.F.R. § 3.655(b) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and implemented in part at 38 C.F.R § 3.159 (2012), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The United States Court of Appeals for Veterans Claims has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). As the law is dispositive in the instant claim, further discussion regarding VA's duties pursuant to the VCAA is not required. Analysis The Veteran is claiming entitlement to a rating in excess of 10 percent for rheumatoid arthritis. He has stated that the pain and functional limitations of his bilateral knees has become worse and that he now has additional rheumatoid arthritis pain in his bilateral ankles, shoulders, and lower back. The Veteran was first granted service connection for rheumatoid arthritis in a March 1968 rating decision, with a rating of 40 percent. Since April 1977, the Veteran has been assigned a rating of 10 percent for rheumatoid arthritis, and this rating is considered to be a protected rating as it has been in effect for over 20 years. See 38 U.S.C.A. § 110 (West 2002); 38 C.F.R. § 3.951(b) (2012). In July 2004, the Veteran filed the current claim on appeal. In September 2004, the Veteran was afforded a VA examination for rheumatoid arthritis. Because the examiner failed to review the claims file or to adequately indicate which aspects of the Veteran's joint pain were due to rheumatoid arthritis and which aspects were related to non-service connected osteoarthritis or other diseases, the case was remanded to the RO via the Appeals Management Center (AMC) in February 2009 in order to afford the Veteran a new VA examination. Pursuant to the February 2009 remand directive, the AMC scheduled the requested VA examination for a date in March 2010, and available documentation indicates that the Veteran failed to appear on the examination date. Accordingly, without further evidence for adjudication purposes, the AMC continued the denial of the Veteran's claim for increased rating for rheumatoid arthritis, and notified the Veteran of this decision through a May 2010 supplemental statement of the case. Thereafter, later that month a report of telephone contact indicates the Veteran called a VA National Call Center to report that he had missed the scheduled examination due to a period of incarceration, and he was now available and willing to attend a new exam and requested rescheduling of his VA examination. In order to give one further opportunity to the Veteran to attend a VA medical examination, in July 2010 the Board again remanded the case for a new VA examination, and the Veteran was reminded to consistently update VA of his whereabouts and to attempt to coordinate as effectively as possible the scheduling of examinations on his behalf. The Veteran attended a VA examination in August 2010, and the examiner determined that the Veteran's bilateral shoulder, knee, and ankle pain were due, at least in part, to his service connected rheumatoid arthritis. The examiner, however, failed to provide the medical basis for the diagnosis of rheumatoid arthritis and did not provide any rheumatoid arthritis factor testing, sedimentation rate measurements, C-reactive protein testing, or antibody testing. In a follow-up December 2011 opinion, another VA examiner opined that recent rheumatoid arthritis factor testing was not available to either support or rule-out a current rheumatoid arthritis diagnosis. The examiner noted that the Veteran's July 2004 test results were negative for rheumatoid factor and that he is on no rheumatoid medications. He also noted that the Veteran had numerous medical co-morbidities which could contribute to joint and soft tissue pain, and that it was his opinion that rheumatoid arthritis was not present at that time. As it was not clear from the clinical evidence of record whether the Veteran currently suffered from rheumatoid arthritis and no laboratory testing had been conducted, the August 2010 and December 2011 opinions were inadequate to decide the claim at issue, and the case was again remanded in January 2013 to afford the Veteran an additional VA examination. The remand instructed the Veteran that under 38 C.F.R. § 3.655, a failure to report to a scheduled VA examination may result in the denial of a claim. In February 2013, the AMC sent the Veteran a letter requesting additional evidence on the claim. The letter also advised the Veteran that he would be scheduled for a VA examination and that failure to report for an examination, without good cause, would cause the claim to be rated "based on the evidence of record, or even denied." The AMC then requested that the Wilmington VA Medical Center (VAMC) schedule the Veteran for an examination for non-degenerative arthritis. The Wilmington VAMC reported that the Veteran failed to appear for his February 2013 examination and did not call to reschedule the examination. The AMC issued a supplemental statement of the case in May 2013 which informed the Veteran that failure to attend his scheduled VA examination had resulted in the continued denial of his claim for an increased rating for rheumatoid arthritis. The Veteran has not at any time since February 2013 contacted VA regarding his failure to appear for the scheduled examination or to request a new examination, and there is no evidence indicating that the Veteran's current address of record is not correct or that any necessary correspondence was sent to the incorrect address or returned as undeliverable. Regulations provide that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or re-examination, and a claimant, without good cause (i.e., the illness or hospitalization of the claimant and death of an immediate family member), fails to report for such examination or re-examination, action shall be taken in accordance with paragraphs (b) or (c) of 38 C.F.R. § 3.655 as appropriate. 38 C.F.R. § 3.655(a). When the missed examination is scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). Evidence of record shows that the Veteran did not report for a necessary VA examination. He has neither asserted nor demonstrated good cause for his failure to report for the scheduled VA examination, nor has he informed VA of a willingness to reschedule or attend such an examination. 38 C.F.R. § 3.655. The Board reminds the Veteran that the "duty to assist is not always a one-way street. If he wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, a physical examination which included laboratory testing for rheumatoid arthritis was essential to the adjudication of his claim. The Board concludes that the claim for an increased rating for rheumatoid arthritis must be denied as a matter of law because the Veteran failed to report for his VA examination in February 2013 without showing good cause for the failure to report. 38 C.F.R. § 3.655(b); see also Kyhn v. Shinseki, 23 Vet. App. 335, 342 (2010) (acknowledging that 38 C.F.R. § 3.655(b) compelled the Board to deny the appellant's claim to reopen for failure to report for his scheduled examination). (The Order follows on the next page.) ORDER Entitlement to a rating in excess of 10 percent for rheumatoid arthritis is denied. ____________________________________________ M. MAC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs