Citation Nr: 1806269 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 11-33 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a disability rating in excess of 10 percent for residuals of an anterior cruciate ligament (ACL) deficiency in the left knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1985 to April 1988. This matter is before the Board of Veterans' Appeal (Board) on appeal of a May 2010 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2017, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The Veteran failed, without good cause, to report for his VA examination; this examination was necessary to evaluate his service connected ACL deficiency in his left knee. CONCLUSION OF LAW The claim for a disability rating in excess of 10 percent for ACL deficiency in the Veteran's left knee lacks legal merit due to the Veteran's failure to report for a necessary VA examination. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.655 (b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017). A standard March 2010 letter satisfied the duty to notify. The records reflect that the VA's duty to assist has been satisfied. The Veteran's service treatment and personnel records have been obtained, as well post-service VA treatment records. In this case, the Veteran's claim is being denied based on a failure to report for a required VA examination. Therefore, the claim is being denied as a matter of law. See Engelke v. Gober, 10 Vet. App. 396 (1997). As discussed below, the Veteran was provided with proper notice of the scheduled examination. No further duty to assist is required under the current circumstances. The Board is satisfied that the VA has complied with the duty to assist requirements. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). II. Legal Analysis and Conclusion Under 38 C.F.R. § 3.655(a), 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. Good cause can include, but is not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. 38 C.F.R. § 3.655(a). Pursuant to 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with a claim for increase or a reopened claim for a benefit which was previously disallowed, the claim shall be denied. The Board notes that the duty to assist a claimant is not a one-way street and the Veteran has failed to cooperate to the full extent in the development of his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A claimant is responsible for cooperating with VA in the development of his claim. 38 U.S.C. § 5107(a); Hurd v. West, 13 Vet. App. 449, 452 (2000). The Veteran's last VA examination in regards to this claim was in March 2010. A new VA examination was scheduled; however, the record reflects that in June 2016 a Supplemental Statement of the Case (SSOC) was issued denying the Veteran's claim based on his failure to respond to the VA Medical Center (VAMC) notification of his appointment date. Consequently, the Veteran's VA examination was cancelled. In April 2017, the Board remanded the case for a new VA examination. Pursuant to the remand directives, the record reflects that the AOJ directed the VAMC nearest to the Veteran to schedule an examination in connection with this claim. In a letter dated April 2017, the Veteran was notified that he would be contacted by the VAMC with the date, time, and place of the examination. Although a copy of the notice letter informing the Veteran of the date, time and location of his VA examination from the VAMC is not contained in the Veteran's paperless claims file, the Board notes that absence of copies of the VAMC examination scheduling letters in the claims file does not preclude application of the presumption that the Veteran received proper notice. See Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). The record reflects that in June 2017, there was an attempt to contact the Veteran regarding his failure to report for his VA examination with no response. In October 2017 the AOJ issued another SSOC again denying the claim due to the Veteran's failure to report for his VA examination, noting that as of the date of the SSOC there had still been no response from the Veteran. The SSOC also notified the Veteran of the rules and regulations underlying 38 C.F.R. § 3.655, to include that a failure to report for an examination scheduled in conjunction with a claim for an increased rating, shall result in the claim being denied. To date, neither the Veteran nor his representative has provided good cause for his failure to appear for the VA examination. As such, the Board concludes that no good cause is shown. Therefore, denial of entitlement to an increased rating for residuals of ACL deficiency in the left knee based on the application of 38 C.F.R. § 3.655 (b) is warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating in excess of 10 percent for ACL deficiency in the left knee is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs