Citation Nr: 1758091 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 04-32 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a disability rating greater than 10 percent for left great toe fracture. 2. Entitlement to a disability rating greater than 30 percent for a lung disability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran had active military service from April 1978 to March 1981. This case is before the Board of Veterans' Appeals (Board) on appeal from April 2003 and September 2013 rating decisions by Department of Veterans Affairs (VA) Regional Offices (ROs). The April 2003 rating decision denied the Veteran's claim for a compensable rating for his service-connected left great toe fracture. In June 2007, August 2009, January 2010, and September 2011, the Board, in pertinent part, remanded this claim to the Agency of Original Jurisdiction (AOJ) for further development. In February 2012, the Veteran filed a claim for an increased rating for his lung disability. In May 2015, the Board remanded for further development the increased rating claims for the lung disability and the left great toe disability, and the Board inferred and remanded the matter of TDIU as part and parcel of such claims on appeal. In August 2017, the Board granted an increased rating of 10 percent prior to November 5, 2012 for the left great toe fracture, and remanded the matter of entitlement to a rating greater than 10 percent for the entire appeal period for this toe disability, and the Board remanded the issues regarding the lung disability and TDIU. The case is again before the Board for further appellate proceedings. The Board notes that the AOJ adjudicated the matter of entitlement to a temporary total disability rating for the lung disability based on hospitalization separately from the claim on appeal of entitlement to an increased rating for a lung disability. In the February 2014 rating decision and notice letter, the AOJ denied entitlement to a temporary total disability evaluation based on hospitalization. The Veteran and his representative were provided a copy of his appellate rights, and the Veteran did not submit a notice of disagreement against this determination. For instance, in the April 2014 notice of disagreement, the Veteran stated that he is disagreeing with the September 2013 rating decision, and he stated that he seeks a 70 percent rating for his lung disability. Accordingly, the matter of entitlement to a temporary total disability rating for the lung disability is not on appeal and is not before the Board. All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed and considered. FINDINGS OF FACT 1. In a May 2015 remand, the Board determined that VA examinations were necessary to decide the claims for increase for the lung disability and the left great toe disability, and the Board inferred and remanded the matter of TDIU as part and parcel of these claims for increase on appeal; then, in August 2017, the Board granted an increased rating of 10 percent prior to November 5, 2012 for the left great toe fracture, and remanded the matter of entitlement to a rating greater than 10 percent for the entire appeal period for this toe disability, as well remanding the matters of entitlement to an increased rating for the lung disability and TDIU, because the Board determined that the AOJ failed to substantially comply with the May 2015 remand directives. 2. The Veteran was subsequently scheduled for VA examinations per the May 2015 and August 2017 Board directives. 3. The Veteran had actual notice of his scheduled VA examinations regarding his claims for increase on appeal, and the Veteran stated that he would attend his examinations or call to reschedule; however, the record shows that the Veteran cancelled the appointment, with no reason given, and that he failed to appear for his scheduled VA examinations; and, to this date he has not rescheduled his VA examinations. CONCLUSIONS OF LAW 1. The claim of entitlement to a disability rating greater than 10 percent for the left great toe fracture must be denied as a matter of law due to the Veteran's failure to report for a scheduled VA examination. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R § 3.655 (2017). 2. The claim of entitlement to a disability rating greater than 30 percent for a lung disability must be denied as a matter of law due to the Veteran's failure to report for a scheduled VA examination. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R § 3.655 (2017). 3. The claim of entitlement to a TDIU, which is part and parcel of the claims for increase on appeal, must be denied as a matter of law due to the Veteran's failure to report for a scheduled VA examination. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R § 3.655 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under 38 C.F.R. § 3.655(a), "individuals for whom an examination has been scheduled are required to report for the examination." Turk v. Peake, 21 Vet. App. 565, 569 (2008). That regulatory provision provides, in pertinent part, that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with Paragraph (b) or (c) of that section, as appropriate. 38 C.F.R. § 3.655(a) (2017). When the examination was scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b) (2017). Here, the matters on appeal are claims for increased disability ratings for a lung disability and a toe disability, and the matter of TDIU is part and parcel of these claims for increase. The examinations were therefore scheduled in conjunction with claims for increase on appeal. In a May 2015 remand, the Board determined that VA examinations were necessary to decide the increased rating claims for the lung disability and the left great toe disability, and the Board inferred and remanded the matter of TDIU as part and parcel of these increased rating claims on appeal. In the May 2015 remand, the Board expressly stated that the Veteran is notified that the VA examinations are necessary to evaluate his claims, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim under 38 C.F.R. § 3.655. The Board also expressly stated that the Veteran is hereby informed that the duty to assist is not a one-way street, and that the Veteran has some responsibility to cooperate in the development of the facts pertinent to his claims. Thereafter, in August 2017, the case was returned to the Board. The Board found that the May 2015 remand directives to provide to the Veteran adequate notice of his VA examinations were not substantially complied with. The August 2017 remand notes that the May 2015 remand had noted that the Veteran is homeless and that sending mailed notice letters of his VA examinations ostensibly led to missed appointments. Because the AOJ did not attempt to call the Veteran to notify him as to his scheduled VA examinations, the Board in August 2017 remanded the case and, in pertinent part, directed the AOJ to schedule the Veteran for VA examinations to determine the severity of his lung and toe disabilities, to include the impact thereof on his ability to perform tasks in a work-like setting. The Board directed the AOJ to document all efforts to notify the Veteran of the scheduled examinations. In the August 2017 remand, the Board also expressly and in bold letters notified the Veteran that these scheduled examinations are necessary to evaluate his claims, and that the consequences of failure to report for a VA examination without good cause may include denial of his claims under 38 C.F.R. § 3.655. Here, the AOJ substantially complied with the Board's prior remand directives. In an August 7, 2017 Report of General Information, it is noted that the RO contacted the Veteran by phone and the Veteran verified his correct address and phone number. The Veteran was informed in this telephone call that his examinations are scheduled and that he should reschedule if he cannot attend his examinations. He was notified that if he does not show up for his examinations with good cause, then VA can rate his claims based on the evidence of record. The Veteran reported that he understands and that he will attend his examinations. The VA treatment note dated on August 7, 2017 notes that the Veteran did not keep his August 7, 2017 appointment, because he cancelled and that he has not rescheduled. In a letter to the Veteran dated August 8, 2017, the RO specificall wrote that "when a claimant, without good cause, fails to report for an examination or reexamination, the claim shall be rated based on the evidence of record, or even denied." It is noted in an August 10, 2017 Report of General Information that the RO attempted to contact the Veteran to check in regarding the status of his examinations. The RO left a message on the voicemail for the Veteran with the RO's contact information. To this date, there is no indication that the Veteran contacted the RO to reschedule, nor has any reason been provided as to why the Veteran cancelled and failed to appear for his VA examinations. The evidence above reflects that the Veteran had actual notice of his scheduled VA examinations, and that he had actual notice that if he did not appear for his scheduled examinations, he should reschedule (if he intends on appearing for a VA examination). He had actual notice that if he does not appear for a VA examination, his claims could be denied. The Veteran failed to appear for his examinations or reschedule his examinations for a date on which he would appear for his examination, and these examinations were in conjunction with the claims for increased compensation on appeal. The Veteran has not provided any statement indicating any intention to cooperate and appear in the future for another examination, and to this date the Veteran has not called to reschedule his examination. The Veteran has also provided no reason for why he did not appear for his scheduled VA examinations, and thus good cause for his failure to appear is not shown. For these reasons, under 38 C.F.R. § 3.655(b), the claims for increase for the toe disability and the lung disability, to include the matter of TDIU which is part and parcel of such claims for increase, must be denied as a matter of law because the Veteran failed to report for the scheduled examinations without good cause shown. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability rating greater than 10 percent for left great toe fracture is denied. Entitlement to a disability rating greater than 30 percent for a lung disability is denied. Entitlement to a TDIU is denied. ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs