Citation Nr: 1340644 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 09-26 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement for an increased evaluation for dermatitis with scars, also claimed as eczema, currently rated as noncompensable. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1989 to July 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. This matter was previously remanded by the Board in November 2011. A review of Virtual VA reveals the October 2013 appellate brief. The rest of the documents are either duplicative of the evidence contained in the paper file or not pertinent to the appeal. A review of the Veterans Benefits Management System (VBMS) reveals no documents. FINDINGS OF FACT 1. The Veteran was scheduled for a February 2012 VA examination. 2. The Veteran failed to report for the February 2012 VA examination and has not shown good cause for doing so. CONCLUSION OF LAW An increased evaluation for dermatitis with scars, also claimed as eczema, currently rated as noncompensable, is denied on the basis of the Veteran's failure to report for a scheduled VA medical examination in connection with his claim. 38 C.F.R. § 3.655(a), (b) (2012); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to obtain the evidence needed. 38 U.S.C.A. §§ 5103(a) , 5103A; 38 C.F.R. § 3.159(b) ; see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Proper notice was sent to the Veteran by way of a September 2007 VCAA-compliant letter. Also, the law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Board notes that the Veteran was scheduled for a February 2012 VA examination in relation to his claim for an increased evaluation. This examination was scheduled pursuant to a previous Board remand. A letter to the Veteran dated November 2011 indicated to the Veteran that VA will schedule him for an examination in connection with his claim. Notice of the consequences for a failure to report was outlined in the letter. The Veteran then failed to appear for the scheduled examination and the record contains no justifiable indication, or good cause, of the reason for his failure to appear. The Board finds that the Veteran was given an opportunity to present for a VA examination and was presented with notice of the consequences of failing to appear. Therefore, VA satisfied its duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Under 38 C.F.R. § 3.655, 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) (2013). VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160(b) (2013). In this case, the claim on appeal is not the original claim for compensation as contemplated by the operative VA regulations. Rather, it is a claim for an increased rating that was filed in July 2007. The record reflects that in November 2011, VA scheduled the Veteran for an examination for February 2012. The record reflects that he failed to report for the February 2012 VA examination and has failed to provide good cause for his absence. The RO extended the Veteran a courtesy by contacting him in July 2012 by telephone to ask if the Veteran wanted to be rescheduled for a VA examination, but it was noted that no one answered. The record shows that the Veteran did not follow up. A claimant failing to report for a scheduled examination must show good cause for so doing. See 38 C.F.R. § 3.655; Engelke v. Gober, 10 Vet. App. 396, 399 (1997); Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992). In fact, the Veteran has not provided any reason for his failure to appear for the examination. The Court of Appeals for Veterans Claims has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "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 the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). See also Olson v. Principi, 3 Vet. App. 480, 483 (1992). In sum, a VA examination was necessary to determine the current nature and severity of the Veteran's skin disability. He was scheduled for such an examination and did not appear. The claim on appeal is not an original compensation claim and cannot be decided based on the evidence of record. 38 C.F.R. § 3.160(b). The original claim for compensation was the VA Form 21-526 received in August 1998. Rather, the Veteran's claim falls into the other category of cases of a claim for increase. In this case, the criteria for a denial based on application of 38 C.F.R. § 3.655 have been met and the claim must be denied pursuant to the operative regulation. 38 C.F.R. § 3.655(b) (2013); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the claim must be denied as a matter of law. ORDER An increased evaluation for dermatitis with scars, also claimed as eczema, currently rated as noncompensable is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs