Citation Nr: 1753724	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO.  10-27 650	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Entitlement to an increased rating for service-connected posttraumatic stress disorder (PTSD), currently rated 70 percent disabling.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. M. Ciardiello, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1966 to September 1968, including combat service in the Republic of Vietnam, and his decorations include the Combat Infantryman Badge.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2008 and November 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.  

The October 2008 rating decision denied an increased rating for the Veteran's PTSD, and his representative filed a request for an increased rating for that disability in June 2009.  The Board finds that the submission constitutes new and material evidence under 38 C.F.R. § 3.156(a) (2012) and thus kept the October 2008 rating decision from becoming final.  See 38 C.F.R. § 3.156(b) (2012); see also Buie v. Shinseki, 24 Vet. App. 242 (2010).

The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) in April 2013.

In April 2016, the Board remanded this matter for additional development.


FINDING OF FACT

Without good cause, the Veteran failed to report for a VA examination for his service-connected PTSD.


CONCLUSION OF LAW

Because of his failure, without good cause, to report for his scheduled September 2016 VA examination which was needed to decide his appeal, the Veteran's increased rating claim for service-connected PTSD must be denied as a matter of express VA regulation.  38 U.S.C. § 7104 (2012); 38 C.F.R. § 3.655 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran did not appear for the September 2016 VA examination for his service-connected PTSD and did not return the RO's calls regarding the missed examination.  The regulations provide that when a claimant, without showing good cause, fails to report for an examination scheduled in conjunction with a claim to reopen a service connection claim or a claim for an increased rating, the claim shall be denied.  See 38 C.F.R. § 3.655 (2017). 

Neither the Veteran nor his representative have indicated why the Veteran missed the September 2016 VA examination or argued that he had good cause for missing the examination, including in the June 2017 Appellate Brief.  Furthermore, the Veteran and his representative have not indicated that he missed the examination due to not receiving notice of it.  See Kyhn v. Shinseki, 24 Vet. App. 228, 238 (2011), vac'd on other grounds, 716 F.3d 572 (Fed. Cir. 2013).  Therefore, the Board does not find that there was good cause for the Veteran missing the September 2016 examination and the claim must therefore be denied, as this is a claim for an increased rating, and not an original claim.  See 38 C.F.R. §§ 3.326, 3.327, 3.655; Engelke v. Gober, 10 Vet. App. 396, 399 (1997).


ORDER

Entitlement to a rating in excess of 70 percent for PTSD is denied.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs