Citation Nr: 1325200	
Decision Date: 08/08/13    Archive Date: 08/13/13

DOCKET NO.  07-21 277	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to a disability rating in excess of 30 percent for service-connected residuals of a left eye injury, to include blindness, discomfort, and exotropia.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

A.M.Clark, Counsel


INTRODUCTION

The Veteran served on active duty from September 1957 to October 1961.

This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

Service connection was granted for a left eye disorder in a January 1962 rating decision.  A 30 percent rating was assigned and has been in effect ever since.  In May 2006, the Veteran submitted a claim for an increased rating.  His claim was denied in a November 2006 rating decision.  He disagreed and perfected an appeal.  In April 2009, March 2011, and September 2012, the Board remanded the claim for further evidentiary development.


FINDINGS OF FACT

1.  The Veteran was scheduled for a November 2012 VA examination.

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


CONCLUSION OF LAW

A disability rating in excess of 30 percent for service-connected residuals of a left eye injury, to include blindness, discomfort, and exotropia 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); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).








REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Assist and Notify

Before addressing the issue on appeal the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  The Veteran was notified via letter dated in June 2006.  

The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  The June 2006 letter additionally provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating and effective date. 

Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012).  

VA also has a duty to assist a veteran in the development of the claim.  That duty includes assisting a claimant in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

After a careful review of the file, the Board finds that all necessary development has been accomplished, and that appellate review may proceed without prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO obtained the Veteran's service treatment records and VA treatment records.  The Veteran also submitted personal statements in support of his appeal and private treatment records.  No other outstanding evidence has been identified that has not been obtained.

VA eye examinations were performed in October 2006, July 2008, June 2009, and April 2011.  In accordance with the most recent September 2012 BVA remand directives, the Veteran was scheduled for a VA examination to assess the current level of severity of his eye disability.  The Board noted the arguments made by the Veteran's representative that the June 2009 and April 2011 VA examinations were inadequate to rate his claim.  Moreover, it was noted that the VA examinations had not been performed by an ophthalmologist as required by the prior Board remands.   

The September 2012 BVA remand additionally noted that the VA examinations of record did not provide a sufficient description of the Veteran's left eye disability.  As part of the remand a VA examination was scheduled for the Veteran.  The Veteran was notified in a September 2012 letter, that failure to report to this examination without good cause could result in denial of his appeal.  The Veteran did not present for this examination and has not provided a reason for his failure to do so.  As will be discussed in more detail below, under applicable VA regulation the Veteran's claim for an increased rating must be denied.  See 38 C.F.R. § 3.655.

Because this appeal must be denied as a matter of law rather than 'on the merits,' any deficiency in VA's duty to assist the Veteran with regard to this claim is moot, as there is no reasonable possibility that any further assistance would aid the Veteran in substantiating his claim.  See 38 U.S.C.A. § 5103A(a)(2) (the Secretary is not required to provide assistance 'if no reasonable possibility exists that such assistance would aid in substantiating the claim'); see also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).

The Board finds there has been substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

II.  Increased Rating

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 (2012).

In this case, the claim on appeal is not the original claim for compensation as contemplated by the operative VA regulations.  Rather, it is a claim for an increased rating.

The record reflects that the Veteran was most recently scheduled for a VA examination in relation to his claim in November 2012.  The record reflects that he failed to report for the examination 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.

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).

Here, a VA examination was needed to determine the severity of the Veteran's eye disability and to assess any cosmetic defect such as, exotropia, discoloration, or pain.  The Veteran was scheduled for such an examination and did not appear.  The claim on appeal is not an original compensation claim and cannot be decided based on the evidence of record.  38 C.F.R. § 3.160(b).  The original claim for 'compensation' was the VA form 21-526 received in 1961.  (See rating decision dated in January 1962, noting that the jurisdiction was an original claim.)  Rather, it falls into the other category of cases of a claim for increase.  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) (2012).

Accordingly, the claim is denied.








(CONTINUED ON NEXT PAGE)
ORDER

A disability rating in excess of 30 percent for service-connected residuals of a left eye injury, to include blindness, discomfort, and exotropia is denied.



____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs