Citation Nr: 1804422 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 10-47 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from March 1956 to March 1959 and with approximately one year of unverified service prior to this date range. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran presented testimony before a Decision Review Officer (DRO) in April 2010. A transcript of this hearing is of record. This case initially came before the Board as an appeal as to whether new and material evidence had been received to reopen a claim of entitlement to service connection for a low back disorder. In July 2017, the Board remanded the claim for additional development, to include scheduling an examination for the Veteran's claim. The case is back before the Board for appellate consideration. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. LCM contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT The Veteran, without good cause, failed to report for a VA examination in November 2017, scheduled in conjunction with a reopened claim of entitlement to service connection for a low back disorder. CONCLUSION OF LAW The reopened claim for service connection for a low back disorder is denied due to the Veteran's failure to report for a scheduled VA examination. 38 U.S.C. §§1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.655(b) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION In the July 2017 decision, the Board reopened the issue of entitlement to service connection for a low back disorder and remanded the reopened claim for additional development, to include scheduling a VA examination to assess the etiology of the low back disorder. When entitlement to a benefit cannot be established 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 38 C.F.R. § 3.655(b) or (c) as appropriate. 38 C.F.R. §3.655(a). For reopened claims, when a claimant fails to report for an examination scheduled in conjunction with reopened claim for a benefit previously disallowed, the claim is denied. 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. 38 C.F.R. §3.655(a). A report was generated in July 2017 in order to ascertain the Veteran's current address. The address identified, in San Antonio, Texas, was used as the Veteran's current address for a notification letter that included the notice requirements for attending a VA examination. An examination request was subsequently sent to the VA Medical Center in San Antonio on August 2017. Attempts were then made to verify the Veteran's address that same month. An August 2017 Report of General Information documents confirmation of the current known address for the Veteran, identified above. The Veteran had not responded to email solicitations for treatment information. The Veteran's representative was also contacted, and the Report of General Information noted that the Veteran's address in the representative's records was an older obsolete address that was listed in the VA records. Additionally, phone calls were made to the Veteran's phone number of record. Thereafter, in October 2017, a second examination request was sent to the VA Medical Center in San Antonio. A letter dated in that month was sent to the Veteran's current address informing him that an examination had been requested for his claim. This letter also included the notice requirement for attending a VA examination. A November 2017 VA examination was scheduled, but the Veteran failed to appear for the examination. A November 2017 Report of General Information documents a VA employee attempting to contact the Veteran to determine why he failed to appear for the examination. The employee called the Veteran's phone number on file, but the VA employee established contact with an individual who indicated that the Veteran no longer could be reached at the number on file. Another address search was conducted in November 2017, showing the same address in Encino Village, San Antonio, Texas, as the Veteran's current address. In short, numerous attempts have been made to provide an examination for the Veteran's claim. The attempts have included verification and reverification of his current address and phone calls made to his phone number documented in VA records. Further, the numerous letters sent to the Veteran's address were not returned by the United States Postal Service as undeliverable. As such, there is no evidence of record to suggest that the address on file is not the Veteran's address. Neither the Veteran nor his representative has presented good cause for his failure to report for VA examinations scheduled in November 2017 or requested another examination. Additionally, it does not appear that the letters have been returned as undeliverable. With no clear evidence to the contrary, the Board concludes that the Veteran was properly notified of the scheduled November 2017 VA examination. Under these circumstances the Board notes that the duty to assist a claimant is not a one-way street, and in the instant case, the Veteran has failed to cooperate to the full extent in the development of his claim. See Wood v. Derwinski, 1 Vet. App. 406 (1991). When a Veteran fails to report for an examination related to a reopened claim for a benefit previously disallowed, the claim is to be denied. 38 C.F.R. § 3.655(b). As noted above, the Board previously remanded this case primarily for a VA examination to determine the etiology of the claimed low back disorder. As the Veteran failed to report for his scheduled VA examination in this reopened claim, the claim is denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to service connection for a low back disorder is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs