Citation Nr: 1331118	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  09-02 261	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to a rating in excess of 80 percent for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from February 1943 to August 1947.  

This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in September 2012.  The Court, pursuant to the terms of a joint motion for remand, remanded the issue on appeal for additional development.  The appeal arose from an April 2005 rating decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA).  The Board remanded the case for additional development in April 2013.

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran failed to report for a scheduled VA examination in conjunction with his increased rating claim and good cause for his failure to report has not been shown.


CONCLUSION OF LAW

The claim for entitlement to a rating in excess of 80 percent for bilateral hearing loss is denied as a matter of law.  38 C.F.R. § 3.655 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in December 2004 and November 2008.

The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained.  The available record includes service medical records, VA treatment and examination reports, and the Veteran's statements in support of his claim.  There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. 

Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate.  38 C.F.R. § 3.655(b) applies to original or reopened claims or claims for increase, while 38 C.F.R. § 3.655(c) applies to running awards, when the issue is continuing entitlement.  More specifically, when a claimant fails to report for a scheduled medical examination, without good cause, a claim for an increase shall be denied without review of the evidence of record.  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member.  See 38 C.F.R. § 3.655 (2012).  

The Court has held that the burden was upon VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination.  Hyson v. Brown, 5 Vet. App. 262, 265 (1993); see also Connolly v. Derwinski, 1 Vet. App. 566 (1991).  The Court has held, however, that VA's "duty to assist is not always a one-way street."  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  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 relevant evidence.

In the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process.  Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)).  Notification for VA purposes is a written notice sent to the claimant's last address of record.  See 38 C.F.R. § 3.1(q) (2012).

In this case, the Court, in essence, found VA had failed in its duty to assist by not providing an adequate examination.  A December 2008 audiometric examination report it was noted showed the Veteran reported he could hear sounds, but could not distinguish words and that he stated his hearing loss dramatically impacted his occupational function because he had trouble conversing and listening in one-on-one situations.  The Court, in essence, found the examiner's opinion as to the impact on his occupational or daily living activities was inadequate.  

The Board remanded the increased rating issue on appeal for additional development in April 2013 with instructions including that a VA examination be provided for an adequate determination.  VA correspondence dated in May 2013 notified the Veteran of the consequences of a failure to report for a scheduled VA examination.  VA records show he was notified of the scheduled VA examination at his address of record and that he failed to report for a June 2013 examination.  A July 2013 supplemental statement of the case noted that the Veteran had failed to report for a scheduled VA examination.  The available record includes no explanation for the Veteran's failure to report.  The Veteran's representative provided a statement in support of the appeal in September 2013, but provided no information as to the reason for the Veteran's failure to report for his scheduled June 2013 VA examination.  

The Board has reviewed the record, including additional VA treatment records added to the Veteran's electronic record in May 2013, and finds that the evidence of record is insufficient to properly evaluate the Veteran's service-connected disability.  As the Veteran has provided no explanation for his failure to report for examination, the Board is satisfied that he received notice and failed to report to the scheduled VA examinations without good cause.  See 38 C.F.R. § 3.655.  Therefore, the increased rating claim on appeal must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

Entitlement to a rating in excess of 80 percent for bilateral hearing loss is denied.



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



Department of Veterans Affairs