Citation Nr: 1631064 Decision Date: 08/04/16 Archive Date: 08/11/16 DOCKET NO. 10-13 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a rating in excess of 10 percent for eczematous dermatitis, previously rated as a "skin condition." REPRESENTATION Appellant represented by: Alan A. Watt, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which increased the In June 2014, the Veteran testified before the Board. A copy of the transcript is associated with the file. In September 2014, the Board remanded this matter for further evidentiary development. The Board notes that the Veteran has perfected an appeal with respect to the issues of entitlement to service connection for sleep apnea, a foot injury, degenerative disc disease of the lumbar spine and degenerative disc disease of the cervical spine post fusion with scar. See July 2015 VA Form 9. However, in conjunction with that appeal, the Veteran has requested a videoconference hearing before a member of the Board. As that hearing has not yet been conducted, those issues are not ripe for adjudication by the Board and any action at this time would be premature. Finally, with respect to representation, the Veteran was previously represented by Disabled American Veterans; however, during the pendency of this appeal, the Veteran submitted a Power of Attorney appointing Alan A. Watt, Agent, as his representative. The Board recognizes the change in representation. FINDING OF FACT The Veteran failed to report for a scheduled VA examination in January 2015. He offered no good cause for his failure to report CONCLUSION OF LAW The claim for a rating in excess of 10 percent for eczematous dermatitis is denied as a matter of law. 38 C.F.R. § 3.655 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA regulations provide that when a claimant fails to report for a scheduled medical examination without good cause the claim for an increased rating shall be denied, without review of the evidence of record. See 38 C.F.R. § 3.655 (2015). The United States Court of Veterans Affairs (Court) held that the burden was upon VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Although, in dicta, the Court stated that in the normal course of events it was the burden of the veteran to keep the VA apprised of his whereabouts, and that if he did not do so there was no burden on the VA to turn up heaven and earth to find him before finding abandonment of a previously adjudicated benefit. Id. The Court has also held that the "duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In September 2014, this matter was remanded to afford the Veteran a VA examination by a dermatologist to assess the severity of his service-connected disability. An examination was conducted in December 2014; however, the examiner was not a dermatologist and, as such, the examiner explained that the Veteran should be afforded an examination with a dermatologist to assess the severity of his service-connected skin disability. Although the claims file does not contain an actual notice regarding the scheduling of his examination, that the Veteran had notice of the scheduled January 2015 VA examination is not in doubt. A January 2015 e-mail from the dermatologist who was to conduct the examination notes that the Veteran was contacted and that the Veteran refused to attend the scheduled VA examination. Thus, the Board finds that the Veteran had actual notice of the scheduled January 2015 VA examination. The only remaining question is whether the Veteran provided good cause for his failure to attend the scheduled VA examination. 38 C.F.R. § 3.655(a) notes that examples of good cause include, but are not limited to, illness or hospitalization of the Veteran or death of an immediate family member. A January 2015 Report of General Information notes that the Veteran stated that he had already attended two VA examinations and refused to attend another. The Board concludes that good cause has not been shown. The Veteran has not stated that he was unable to attend the January 2015 VA examination-in the vein of the examples provided by 38 C.F.R. § 3.655(a). Rather, the Veteran stated that he did not wish to attend any further VA examinations, despite the need for one to be conducted by a dermatologist. Accordingly, the Board is satisfied that his failure to report to the scheduled VA examination was without good cause. See 38 C.F.R. § 3.655. Therefore, the claim for an increased rating must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board finds that notwithstanding the notice and duty to assist provisions of the Veterans Claims Assistance Act of 2000, no undue prejudice to the Veteran is evident by a disposition by the Board herein, as the amended provisions of the Act specifically provide that VA is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance will aid in substantiating the claims. See 38 U.S.C.A. § 5103A(2) (West 2014); see also 38 C.F.R. §§ 3.159, 3.326 (2015). For the reasons set forth above, the Board finds that the Veteran's claim for an increased rating for eczematous dermatitis lacks legal merit under the law and therefore, there is no reasonable possibility that further assistance or development of the claim at the RO-level will result in a grant of any benefit sought. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis, 6 Vet. App. at 430 (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Thus, the Board finds that the claim for an increased rating for eczematous dermatitis must be denied. ORDER A rating in excess of 10 percent for eczematous dermatitis is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs