Citation Nr: 1333894 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 11-25 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1941 to September 1945. This matter is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). The case was originally before the Board on appeal from an October 2007 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied a rating in excess of 50 percent for PTSD. The Board upheld the RO's October 2007 decision with regard to that issue in a January 2012 decision. The Veteran appealed that decision to the Court. In July 2012, the Court issued an order that vacated the January 2012 Board decision only with regard to the matter of the rating for PTSD, and remanded that matter for re-adjudication consistent with the instructions outlined in a June 2012 Joint Motion for Remand (Joint Motion) by the parties. In February 2013 and July 2013, the Board remanded the case for additional development. The Board notes that, for the issue of whether new and material evidence has been received to reopen a claim of service connection for headaches with head fracture, to include as secondary to service-connected shell fragment wound (SFW) scar of the right temporal region, the development requested by a January 2012 Board remand is still in the process of being completed, and thus this issue has not yet been returned to the Board for further appellate action. The Board notes that it has reviewed both the Veteran's physical claims file and Virtual VA to ensure that the complete record is considered. The issue of whether there was CUE in an August 1946 RO rating decision as to the rating assigned by that decision for the Veteran's SFW of the right forearm, muscle group VIII, with ulna fracture, is once again referred back to the Agency of Original Jurisdiction (AOJ) for appropriate action consistent with the Board's January 2012 remand instructions regarding that issue. Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran failed to report for a VA examination scheduled in August 2013 in connection with his claim for an increased rating for PTSD (and necessary to properly adjudicate the matter on appeal); good cause for his failure to appear has not been shown. CONCLUSION OF LAW The Veteran's claim seeking an increased rating for PTSD must be denied because he has failed (without good cause) to report for a VA examination 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 of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 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); Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); see also VAOPGCPREC 5-2004. The question before the Board is a legal one as there is no dispute as to the essential facts required to resolve the matter. Accordingly, the notice and duty to assist provisions of the VCAA are inapplicable, and no further development under the VCAA is required. Legal Criteria, Factual Background, 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). 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). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. In its July 2013 remand, the Board directed that the Veteran be afforded a VA examination to evaluate his PTSD. The Appeals Management Center (AMC) sent the Veteran a letter in July 2013 which notified him that he would be scheduled for this examination, and advised him of the consequences if he failed to report for such examination (pursuant to the provisions of 38 C.F.R. § 3.655). According to a Compensation and Pension Exam Inquiry from the VA Medical Center in Dallas, the Veteran was scheduled for a VA examination for his PTSD on August 21, 2013, and the Veteran failed to report for that examination. The Board notes that, according to VA treatment records in Virtual VA, the Veteran did attend his VA PTSD group therapy meetings on August 20, 2013 and August 27, 2013; these records contain no mention of the scheduled August 21, 2013 VA examination or any reasons for his failure to report for such. A supplemental statement of the case (SSOC) issued in September 2013 denied the claim for an increased rating for PTSD. The SSOC noted that the Veteran did not report for the scheduled VA examination; that the Veteran had not offered any "good cause" reason for not reporting for such examination; and that evidence expected from such examination, which might have been material to the outcome of the claim, could not be considered. The cover letter to the SSOC, dated on September 9, 2013, advised the Veteran that he had 30 days to respond. Later in September 2013, the Veteran (through his representative) 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 dispute that the Veteran was aware of the VA examination as well as the consequences of his failure to report for such examination. In a September 2013 appellant's brief, the Veteran's representative acknowledged that the Veteran failed to report for the scheduled examination in August 2013. The representative stated, "In our opinion the appellant may have legitimate mitigating circumstance for not reporting for this examination and therefore, should be given another chance." The Board finds that this argument does not constitute a "good cause" explanation for why the Veteran did not report for the scheduled examination. It does not identify a cause for failure to report, but merely reflects speculation on the representative's part that good cause might exist. The Veteran has had ample opportunity to allege/state a good cause for failure to appear, and has not come forward with any explanation. The record establishes that the Veteran failed to report for a VA examination scheduled in connection with his claim for increase. No "good cause" reason has been offered for his failure to appear for that examination. 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; its language 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 The appeal seeking a rating in excess of 50 percent for PTSD is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs