Citation Nr: 1758035	
Decision Date: 12/14/17    Archive Date: 12/28/17

DOCKET NO.  09-17 208	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to an initial compensable rating for a bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Marsh II, Associate Counsel







INTRODUCTION

The Veteran served on active duty from January 1974 to February 1978.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

In December 2010, the Veteran was notified of a scheduled video conference hearing before a Veterans Law Judge. The Veteran did not report for the January 2011 hearing and has not submitted any statements in regard to that failure to report. Thus, the request for a hearing is deemed to be withdrawn. 38 C.F.R. § 20.704(d) (2017).

In a September 2015 decision, the Board denied a compensable rating for a bilateral hearing loss disability. The Veteran appealed the September 2015 Board decision to the United States Court of Appeals for Veterans Claims. In April 2016, the Court granted a Joint Motion for Remand filed by representatives for both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion. In June 2016 and April 2017, the Board remanded the claim for further development.


FINDING OF FACT

The Veteran failed, without good cause, to report for a VA audiological examination in connection with his claim for a higher rating for a bilateral hearing loss disability.

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CONCLUSION OF LAW

The criteria for the assignment of a rating in excess of 0 percent for the service-connected bilateral hearing loss disability are not met. 38 C.F.R. § 3.655 (2017); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

II. Increased Rating

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 is 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) (2017). VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160(b) (2017). 

Examples of good cause for a failure to attend a VA examination can include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. 38 C.F.R. § 3.655(a) (2017).

The Veteran was scheduled for a VA audiology examination to take place in July 2016. The Agency of Original Jurisdiction indicated that the Veteran failed to report to the examination. The record indicates that the Veteran reported one day earlier than his scheduled examination, but was unable to be seen. The Veteran then failed to report the next day for his scheduled examination. However, the Veteran's accredited representative noted that neither the Virtual VA file nor VBMS file contained evidence indicating that notice of the time and place of the examination was sent to the Veteran's correct address. Accordingly, the case was remanded in April 2017 to schedule the Veteran for another examination.

The record indicates that the Veteran was contacted via telephone to confirm that the correct address was on file before the examination was scheduled. The Veteran confirmed that the address on file was correct. An examination was then scheduled for May 2017. The record indicates that the Veteran failed to report to the May 2017 examination. Neither the Veteran nor his representative offered good cause for the failure to report, or requested that the audiological examination be rescheduled.
The presumption of regularity, under which it is presumed that government officials have properly discharged their official duties, applies where, as here, the RO followed the regular process for scheduling an examination and notifying the Veteran of that examination and there is no indication that any notice was sent to an incorrect address. Khyn v. Shinseki, 23 Vet. App. 335, 338 (2010).

Moreover, "the 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). Here, the Veteran was given notice of the consequences of failing to report for his examination. An April 2017 letter from the RO informed the Veteran that failure to report to an examination, without good cause, could result in his claim being denied.

In this case, a VA examination was necessary to determine the then-current nature and severity of the Veteran's bilateral hearing loss. He was scheduled for such examination but 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). Rather, the claim falls into the other category of cases (for increase). 38 C.F.R. § 3.160(f). The claim must be denied pursuant to the operative regulation. 38 C.F.R. § 3.655(b); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

 An initial compensable rating for a bilateral hearing loss disability is denied.




____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs