Citation Nr: 1326447 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 12-27 460A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased rating in excess of 30 percent for chronic obstructive pulmonary disease (COPD). 2. Entitlement to a compensable (greater than 0 percent) rating for infectious hepatitis. REPRESENTATION Appellant represented by: Betty L.G. Jones, Agent ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from December 1969 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. A video hearing was scheduled before a member of the Board in August 2013. The Veteran failed to appear at the hearing; therefore the Veteran's hearing request is considered withdrawn. FINDINGS OF FACT 1. The Veteran was scheduled for VA examinations in May 2013 regarding both his COPD and hepatitis; the VA examinations were necessary to decide the issues of entitlement to an increased rating for his service-connected COPD and infectious hepatitis. 2. The Veteran failed to appear at the examinations, and he has not presented good cause for the failure to appear. CONCLUSIONS OF LAW 1. The claim for an increased rating in excess of 30 percent for COPD must be denied as a matter of law. 38 C.F.R. § 3.655 (2012). 2. The claim for a compensable rating for infectious hepatitis must be denied as a matter of law. 38 C.F.R. § 3.655 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking an increased rating for his COPD and a compensable rating for his infectious hepatitis. Because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is required. See Mason v. Principi, 16 Vet. App. 129 (2002). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran failed to appear at a November 2010 VA examination. In his October 2012 substantive appeal, the Veteran asserted that he did not receive his notice for an examination. He requested to be scheduled for an additional VA examination regarding his COPD and hepatitis. The examination was scheduled in May 2013. The Veteran again failed to appear at the VA examination. When entitlement to a benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(a), (b). The Board must determine "(1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the veteran lacked good cause to miss the scheduled examination." Turk v. Peake, 21 Vet. App. 565, 569 (2008). Here, the Board finds that a VA examination is required to adjudicate the Veteran's claims seeking increased ratings for his hepatitis and COPD. The Board finds that a thorough examination with findings set out in accordance with the criteria in the rating schedule is required to determine whether the Veteran's COPD and hepatitis have increased in degree of disability. Subsequent to his failure to appear, the Veteran has not submitted any correspondence and has failed to appear at his scheduled Board hearing. In short, the Veteran was scheduled for a VA examination, which was necessary to decide his claims for an increased rating for COPD and a compensable rating for hepatitis. He failed to appear at the examinations, and he has not presented good cause for the failure to appear. Accordingly, the claim must be denied. 38 C.F.R. § 3.655. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to an increased rating in excess of 30 percent for COPD is denied. Entitlement to a compensable rating for infectious hepatitis is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs