Citation Nr: 1609435	
Decision Date: 03/09/16    Archive Date: 03/15/16

DOCKET NO.  11-34 369	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to nonservice-connected pension.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

R.M.K., Counsel







INTRODUCTION

The Veteran served on active duty from September 1974 to October 1977. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied the Veteran's entitlement to a nonservice-connected pension.   Jurisdiction over the case was subsequently transferred to the RO in Waco, Texas.

In accordance with his request, the Veteran was advised in January 2016 letters that his videoconference Board hearing before a Veterans Law Judge was scheduled for February 2016.  However, the Veteran failed to attend his scheduled hearing.  As the Board has received no request for a postponement or good cause for the Veteran's failure to report, his hearing request is deemed withdrawn.  38 C.F.R. § 20.704(d) (2015).

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.  These records were reviewed in connection with the decision below to ensure thorough analysis of the evidence of record.


FINDING OF FACT

The Veteran, without good cause or adequate reason, failed to report for a VA examinations scheduled in conjunction with this claim.


CONCLUSION OF LAW

The criteria for nonservice-connected pension benefits have not been met.  38 U.S.C.A. §§ 1503, 1506, 1521, 1522, 5107(b) (West 2014); 38 C.F.R. §§ 3.23, 3.252, 3.271, 3.272, 3.274, 3.277, 3.342, 3.655 (2015).
REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The facts herein are not in dispute and resolution of this claim on appeal is wholly dependent on interpretation of the applicable laws and regulations used in determining when a claimant fails to report for a VA examination.  Accordingly, VA's duties to notify and assist are inapplicable.  See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821   (2002); see also 38 C.F.R. §§ 3.159(b) (3) (ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d) (3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). 

Nonservice-connected Pension

Pursuant to 38 U.S.C.A. § 1521(a), improved (nonservice-connected) pension is a benefit payable by VA to a veteran of a period of war who is permanently and totally disabled from non-service-connected disability not the result of the veteran's willful misconduct.  Basic entitlement exists if, among other things, the veteran's income is not in excess of the applicable maximum allowable pension rate specified in 38 C.F.R. § 3.23, as changed periodically and reported in the Federal Register.  See 38 U.S.C.A. § 1521 (West 2014); 38 C.F.R. § 3.3(a) (3) (2015).  The maximum annual pension rate (MAPR) is periodically increased from year to year.  See 38 C.F.R. § 3.23(a).  The maximum rates for improved pension shall be reduced by the amount of the countable annual income of the veteran.  See 38 U.S.C.A. § 1521; 38 C.F.R. § 3.23(b). 

According to information in the electronic claims file, the Veteran was scheduled to appear at VA examinations in February 2007, December 2008, and April 2011, but the Veteran failed to report and the examinations were cancelled.  The Veteran and his representative have not provided any reason or good cause for his failure to report for the scheduled examinations. 

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.  The Veteran's claim for a nonservice-connected pension is not an original compensation claim, but an "other original claim."  Examples of "good cause" include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc.  See 38 C.F.R. § 3.655; see also Engelke v. Gober, 10 Vet. App. 396, 399 (1997); Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992). 

While there is no copy in the electronic claims file of the letters sent to the Veteran scheduling him for the February 2007 and December 2008 VA examinations, there is notice in March 2011 of an upcoming examination, and the United States Court of Appeals for Veterans Claims (the Court) has held that the presumption of regularity applies to the mailing of VA notice letters regarding scheduling examinations.  Kyhn v. Shinseki, 23 Vet. App. 335, 338 (2010).  The Court has held that because the regular practices of VA do not include maintaining a hard copy of a veteran's notice of his or her scheduled VA examination, the absence of any such copy from the claims file cannot be used as evidence to demonstrate that the notice was not mailed.  Id. at 339.  Therefore, the Court has held that VA is not required to maintain a hard copy of a veteran's notice letter regarding an examination.  Id.   

In Hyson v. Brown, 5 Vet. App. 262, 265 (1993), the Court pointed out that VA must show that a claimant lacked "adequate reason" (see 38 C.F.R. § 3.158(b)), or "good cause" (see 38 C.F.R. § 3.655), for failing to report for a scheduled examination.  In this case, as discussed above, neither the Veteran nor his representative has provided an "adequate reason" or "good cause" for his failure to report to be examined when VA so requested. 

As this claim is not an original claim for compensation, but a claim for nonservice-connected pension benefits, it must be denied based on the Veteran's failure to report for examination.  As the Veteran failed to report for the VA examinations scheduled in connection with his claim for nonservice-connected pension benefits without providing good cause or an adequate reason, his claim must be denied.  The use of the word "shall" under 38 C.F.R. § 3.655(b) leaves no discretion to the Board in this matter. 

In light of the above, the Board finds that nonservice-connected pension benefits are not warranted.  Where the law, and not the evidence, is dispositive, the claim should be denied due to the lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  Accordingly, the Veteran's claim for nonservice-connected pension is denied.  See 38 C.F.R. § 3.277(d); 3.655(b). 


ORDER

Entitlement to nonservice-connected pension is denied.


____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs