Citation Nr: 1327637 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 09-32 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals of a gunshot wound of the left shoulder, involving Muscle Groups III and IV. 2. Entitlement to a rating in excess of 20 percent for residuals of a gunshot wound of the left shoulder, involving Muscle Group II. 3. Entitlement to a rating in excess of 10 percent for residuals of a gunshot wound of the left shoulder, involving Muscle Group I. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1971 to May 1974. These matters are before Board of Veterans' Appeals (Board) on appeal from rating decisions of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). By rating decision dated November 2008, the RO denied the Veteran's claim for an increased rating for residuals of a gunshot wound of the left shoulder, involving Muscle Groups III and IV. In August 2011 the Board remanded the claim for additional development of the record. By decision in May 2013, the Board granted service connection for residuals of a gunshot wound to the left shoulder, involving Muscle Groups I and II. The Board also remanded the claim for an increased rating for the left shoulder disability, noting that previous VA examinations had not acknowledged injuries to all Muscle Groups. A May 2013 rating decision assigned a 20 percent evaluation for the injury to Muscle Group II and a 10 percent rating for the injury to Muscle Group I. FINDING OF FACT The Veteran failed to report for VA examinations scheduled in 2013 in connection with his claim for an increased rating for residuals of a gunshot wound to the left shoulder (and necessary to properly adjudicate the matter on appeal); good cause for his failure to appear has not been alleged, and is not shown. CONCLUSION OF LAW The Veteran's claim seeking increased ratings for residuals of gunshot wound to the left shoulder, involving Muscle Groups I, II, III and IV must be denied because he has failed (without good cause) to report for VA examinations scheduled to determine his entitlement to an increase. 38 C.F.R. §§ 3.326(a), 3.655 (2013); Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In addition, the Board points out that there are some claims to which VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). One such claim is where, as here, there is no dispute as to the facts, and the law is dispositive. Mason v. Principi, 16 Vet. App. 129. The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA does not affect matters on appeal when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board finds that such is the situation in the instant case. Factual background, legal criteria and analysis 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, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a) (2010). 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." (Italics added.) 38 C.F.R. § 3.655(b). In its May 2013 remand, the Board directed that the Veteran be afforded a VA examination to evaluate his service-connected left shoulder disability, to include consideration of all Muscle Groups involved. A July 2013 Report of Contact shows that a representative of the Appeals Management Center (AMC) contacted the Houston, Texas VA Medical Center (VAMC) and spoke with someone who related the Veteran had canceled his original VA examination because he had missed a van. The official at the VAMC added that the examination was rescheduled for July 8, 2013, but the Veteran failed to report for that appointment. The representative at the AMC informed the Veteran he would have to send documentation demonstrating good cause for why he had failed to report for the VA examination. The supplemental statement of the case (SSOC) issued in July 2013 includes the provisions of 38 C.F.R. § 3.655. The cover letter to the SSOC, dated July 16, 2013 advised the Veteran he had 30 days to respond. Later that month, the Veteran waived his right to have the VA wait at least 30 days before his appeal was certified to the Board, and also waived his right to submit additional evidence to the RO. It is not in disputed that he was aware of the VA examinations as well as the consequence of his failure to report for the examination. The record establishes the Veteran failed to report for two VA examinations scheduled in connection with his claim for increase. Although arguably there may have been adequate reason for his first failure to appear, no reason has been offered for the second. Under such circumstances, the claim must be denied based on his failure to appear. See 38 C.F.R. § 3.655. Notably, the Veteran has not expressed an intent to appear for an examination if one were to be rescheduled. The Court has noted that VA has not only the discretion, but the statutory duty, to schedule an examination "in order to determine . . . a . . . rating for any service-connected condition." Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2009). Moreover, the appellant "is expected to cooperate in the efforts to adjudicate his claim . . . ." The regulation governing in the circumstances presented , 38 C.F.R. § 3.655(b), is clear and unequivocal; it's working mandates ("shall") that the claim must be denied. Accordingly, the Board has no discretion in the matter; the law is dispositive. Sabonis, 6 Vet. App. 426. ORDER 1. The appeal seeking a rating in excess of 20 percent for residuals of a gunshot wound of the left shoulder, involving Muscle Groups III and IV is denied. 2. The appeal seeking a rating in excess of 20 percent for residuals of a gunshot wound to the left shoulder, involving Muscle Group II is denied. 3. The appeal seeking a rating in excess of 10 percent for residuals of a gunshot wound of the left shoulder, involving Muscle Group I, is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs