Citation Nr: 1341386 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 08-25 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to an increased rating for contraction headaches with recurrent myalgia of the cervical paravertebral muscles, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for right shoulder dislocation with degenerative changes, currently evaluated as 10 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from August 1962 to August 1966. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. In November 2011, the Board remanded the appeal to the RO to provide the Veteran with notice on the claim for a total disability rating based on individual unemployability (TDIU) and afford him examinations in connection with his claims for increased ratings, to include a TDIU. He was given notice in January 2012 and scheduled for examinations in March 2012. The record shows that he failed to report for his examinations. Thus, the Board finds that there has been substantial compliance with the remand. See Dyment v. West, 13 Vet. App. 141 (1999). FINDING OF FACT The Veteran failed to report for examinations scheduled in connection with his claims for increased ratings for his headache and right shoulder disabilities, to include a TDIU. CONCLUSION OF LAW The Veteran failed to report for examinations scheduled in connection with his claims for increased ratings for his headache and right shoulder disabilities, to include a TDIU, and his claims must therefore be denied. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.655(b) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded should be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the duty to notify requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, and general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). In this case, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran was notified in a July 2007 letter of the criteria for establishing an increased rating, the evidence required in that regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates. That letter addressed all notice elements and predated the initial adjudication by the RO in September 2007. In a January 2012 letter, he was notified of the criteria for establishing a TDIU, the evidence required in that regard, his and VA's respective duties for obtaining evidence, and how VA determines disability ratings and effective dates. The claim for a TDIU was thereafter adjudicated in an April 2012 supplemental statement of the case. VA also has a duty to assist the Veteran in the development of the claims. That duty includes assisting in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, and post-service reports of VA treatment and examination. The Veteran's statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional medical treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claims. Notably, the Board remanded this appeal to afford the Veteran examinations to assess the severity of his headache and right shoulder disabilities, and their impact on his ability to work. When a Veteran fails to report in connection with a necessary examination in connection with a claim for an increased rating without a showing of good cause, the claim is denied as a matter of law. 38 C.F.R. § 3.655(b) (2013). There are exceptions for good cause shown by the Veteran. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and the death of an immediate family member. 38 C.F.R. § 3.655(a) (2013). In this case, the Veteran failed to report for his scheduled examinations without any explanation or other indication of good cause shown. Absent a showing of good cause, the increased rating claims for headache and right shoulder disabilities, to include a TDIU, are denied as a matter of law. 38 C.F.R. § 3.655(b) (2013). Increased Ratings, to Include a TDIU Initially, the Board observes that the Veteran's claim for a TDIU is part of his claims for increased ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As noted earlier, the Board remanded the appeal in November 2011 to schedule the Veteran for examinations to determine the nature and severity of his headache and right shoulder disabilities, and the effect of those disabilities on his ability to obtain and maintain gainful employment. In the remand, the Board advised him that the Veteran's failure to report for any scheduled examination may result in the denial of his claims. In a February 2012 letter, the RO notified the Veteran that failure to report for a scheduled examination may result in the denial of his claims. In a later February 2012 letter, the Fargo VA Healthcare System notified the Veteran that he had been scheduled for 9:30 a.m. and 10:00 a.m. examinations on March 5 and March 28, 2012, respectively. The record indicates that the Veteran failed to report for the March 5th examination and was to be examined for his headache and right shoulder disabilities on March 28th. However, the record indicates that he also failed to report for those examinations. To date, he has not provided any explanation or other indication of good cause for his failure to report for the examinations. Absent a showing of good cause, the increased rating claims for headache and right shoulder disabilities, to include a TDIU, are denied as a matter of law. 38 C.F.R. § 3.655(b) (2013). The Board notes that the Veteran provided a new address on his August 2008 VA Form 9. That address was used by the Board in sending the remand and by the VA healthcare system in scheduling his examinations. On a January 2012 application for a TDIU, the Veteran added a "North" designation to the street name. As such, the Board notes that both the remand and notice of examinations may not have been properly addressed. However, they were not returned as undeliverable and there is no indication that the Veteran did not receive them otherwise. Moreover, the RO's February 2012 letter on the consequences of failing to report for an examination was sent to the complete address including the "North" designation. Further, the April 2012 supplemental statement of the case, which notified the Veteran that his appeal had been remanded by the Board and that he had failed to report for his scheduled examinations, was also sent to the complete address. Thus, the Board finds that the Veteran has been notified of the consequences of failing to report for a scheduled examination and of the date and time of the scheduled examinations. Consequently, the Board finds no alternative but to deny this appeal as a matter of law pursuant to 38 C.F.R. § 3.655(b), as a result of the Veteran's failure to report for examinations scheduled in conjunction with his claims for increased ratings for headache and right shoulder disabilities, to include a TDIU. Accordingly, as the disposition of this appeal is based on the law, and not the facts of the case, the claims must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER An increased rating for contraction headaches with recurrent myalgia of the cervical paravertebral muscles, currently evaluated as 10 percent disabling, is denied. An increased rating for right shoulder dislocation with degenerative changes, currently evaluated as 10 percent disabling, is denied. A total disability rating based on individual unemployability is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs