Citation Nr: 1335141	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  08-02 257	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  What evaluation is warranted for left foot plantar fasciitis from September 14, 2005?

2.  What evaluation is warranted for hemorrhoids from September 14, 2005?


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

N. Holtz, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 2000 to July 2005.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA).  The case was certified to the Board by the Pittsburgh, Pennsylvania RO.

In August 2006, the Veteran testified before a Decision Review Officer at a RO hearing.  A transcript of that hearing is of record.  As noted in the prior remand, the Veteran was scheduled for a hearing in June 2009 at the VA Regional Office in Philadelphia, but he failed to appear for that hearing.  Good cause for that failure is not shown; the request is considered withdrawn.  38 C.F.R. § 20.704(d) (2013).

In November 2011, the Board remanded the appeal in order to obtain current treatment records, and to schedule examinations to determine the present severity of the service-connected disabilities.


FINDING OF FACT

The Veteran failed to report for a scheduled VA examination in February 2012 pertaining to his claims of entitlement to increased ratings for plantar fasciitis and hemorrhoids, and he has not shown good cause for that failure to report.


CONCLUSION OF LAW

The claims of entitlement to increased ratings for plantar fasciitis and hemorrhoids must be denied due to the Veteran's willful failure to report for a scheduled VA examination.  38 C.F.R. § 3.655 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and implemented in part at 38 C.F.R § 3.159 (2013), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

The United States Court of Appeals for Veterans Claims has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  As the law is dispositive in the instant claim, further discussion regarding VA's duties pursuant to the VCAA is not required.

Disability Ratings

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013).

As noted in the Introduction, the Board remanded these claims in November 2011, as there was insufficient evidence of the severity of the Veteran's disabilities since September 14, 2005.  The Board instructed, inter alia, that the RO was to schedule the appellant for an examination to address his plantar fasciitis and hemorrhoids, and to inform the Veteran of the consequences of missing an examination, per 38 C.F.R. § 3.655.  

The RO attempted on three occasions to schedule the Veteran for examinations.  The first examination was scheduled for the incorrect VA medical center, based on distance from the Veteran's home, and was therefore cancelled.  

In February 2012, the RO scheduled a new examination, and sent notice of that examination to what ultimately proved to be the Veteran's correct address (house number 316).  The appellant failed to appear for the scheduled examination.

Thereafter, confusion arose in the RO as to whether the notice of the prior examination had been sent to the Veteran's correct address.  The RO scheduled a new examination in May 2012, and sent notice of that examination to what ultimately proved to be an incorrect address (house number 312).  

In July 2012, the RO clarified its mistake, and correctly concluded that the Veteran's house number was 316, rather than 312.  As such, the RO determined, per an August 2012 note in the file, that they had correctly provided notice of the February 2012 examination to the Veteran, thereby complying with the Board's instructions to schedule an examination.  In fact, the Veteran's representative acknowledged in an October 2013 filing that the RO had mailed notice of the scheduled examination to the Veteran at his current address (and had made attempts to contact him by phone), but that the appellant had failed to appear at the scheduled examination.  

Regulations provide that 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 (e.g., the illness or hospitalization of the claimant and death of an immediate family member), fails to report for such examination or re-examination, action shall be taken in accordance with paragraphs (b) or (c) of 38 C.F.R. § 3.655 as appropriate.  38 C.F.R. § 3.655(a).  When the missed examination is scheduled in conjunction with a claim for an increased rating, the claim shall be denied.  38 C.F.R. § 3.655(b).  

The Board finds that the examination scheduled in February 2012 fully satisfied the directives of the November 2011 remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).  Although after the RO mailed notice of the examination to the Veteran, and after he failed to appear for that examination, there was subsequently confusion as to the compliance, it is evident that the confusion was limited to the RO; the fact that the RO subsequently mailed out notice of a new examination to an incorrect address did not prejudice the Veteran in any way, because he had already missed the examination for which he had been scheduled and correctly notified.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (holding that where the Board makes a determination, it must consider whether the Veteran has been prejudiced thereby).

The evidence of record thus demonstrates that the Veteran did not report for a necessary VA examination, an examination of which he had been appropriately notified.  He has neither asserted nor demonstrated good cause for his failure to report for the scheduled VA examination, nor has he asserted a willingness to reschedule or attend such an examination.  His claim must therefore be denied.  38 C.F.R. § 3.655(b).

The Veteran is advised that the "duty to assist is not always a one-way street.  If he wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential."  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Here, a physical examination was essential to the adjudication of his claim.  

Finally, the Board acknowledges that it is not clear whether VA has requested the Veteran to provide completed authorizations to permit VA to obtain any private treatment records relevant to his claim in a mailing sent to the correct address.  In this regard, an undelivered December 2011 mailing requested the authorizations, but there is no suggestion that such a request was included in the RO's February 2012 contact with the Veteran to inform him of his upcoming examination.  As the claims are being denied based on his failure to appear for the examination, however, remanding the matter to again seek such authorizations would unnecessarily delay the appeal without a benefit to the Veteran.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).


ORDER

Entitlement to a compensable evaluation for left foot plantar fasciitis from September 14, 2005, is denied.

Entitlement to a compensable evaluation for hemorrhoids from September 14, 2005, is denied.



____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs